[Federal Register: August 6, 2004 (Volume 69, Number 151)]
[Proposed Rules]               
[Page 47834-47862]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ07

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Colorado Butterfly Plant

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Colorado butterfly plant (Gaura 
neomexicana ssp. coloradensis) pursuant to the Endangered Species Act 
of 1973, as amended (Act). In total, approximately 8,486 acres (ac) 
(3,434 hectares (ha)) along approximately 113.1 stream miles (mi) 
(182.2 kilometers (km)) fall within the boundaries of the proposed 
critical habitat designation. The proposed critical habitat is located 
in Laramie and Platte Counties in Wyoming; Kimball County in Nebraska; 
and Weld County in Colorado.

DATES: We will accept comments from all interested parties until 
October 5, 2004. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by September 20, 

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Field 

[[Page 47835]]

U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Airport 
Parkway, Cheyenne, Wyoming 82001.
    2. You may hand-deliver written comments to our Office, at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to 
fw6_cobutterflyplant@fws.gov. Please see the Public Comments Solicited 

section below for file format and other information about electronic 
    4. You may fax your comments to 307/772-2358.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Wyoming Field Office, 4000 Airport Parkway, Cheyenne, 
Wyoming, telephone 307/772-2374.

FOR FURTHER INFORMATION CONTACT: Brian Kelly, Field Supervisor, Wyoming 
Field Office, 4000 Airport Parkway, Cheyenne, Wyoming (telephone 307/
772-2374; facsimile 307/772-2358).


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of Gaura 
neomexicana ssp. coloradensis habitat, and what habitat is essential to 
the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to 
fw6_cobutterflyplant@fws.gov in ASCII file format and avoid the use of 

special characters or any form of encryption. Please also include 
``Attn: Gaura neomexicana ssp. coloradensis'' in your e-mail subject 
header and your name and return address in the body of your message. If 
you do not receive a confirmation from the system that we have received 
your Internet message, contact us directly by calling our Cheyenne 
Ecological Services Field Office at phone number 307/772-2374. Please 
note that the Internet address fw6_cobutterflyplant@fws.gov will be 
closed out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 

Designation of Critical Habitat Provides Little Additional Protection 
to Listed Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the United States under the jurisdiction 
of the Service have designated critical habitat. We address the habitat 
needs of all listed species through conservation mechanisms such as 
listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent to sue relative to critical habitat, and to comply 
with the growing number of adverse court orders. As a result, listing 
petition responses, the Service's own proposals to list critically 

[[Page 47836]]

species, and final listing determinations on existing proposals are all 
significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.


    We discuss only those topics directly relevant to the designation 
of critical habitat in this proposed rule. For more information on 
Gaura neomexicana ssp. coloradensis, refer to the final listing rule 
published in the Federal Register on October 18, 2000 (65 FR 62302).
    Gaura neomexicana ssp. coloradensis is a perennial herb that lives 
vegetatively for several years before bearing fruit once and then 
dying. Gaura neomexicana ssp. coloradensis occurs on subirrigated, 
alluvial (stream deposited) soils on level or slightly sloping 
floodplains and drainage bottoms at elevations of 1,524-1,951 meters 
(5,000-6,400 ft). Colonies are often found in low depressions or along 
bends in wide, active, meandering stream channels a short distance 
upslope of the actual channel. The plant requires early- to mid-
succession riparian (river bank) habitat. Gaura neomexicana ssp. 
coloradensis is an early successional plant (although probably not a 
pioneer) adapted to use stream channel sites that are periodically 
disturbed. Historically, flooding was probably the main cause of 
disturbances in the plant's habitat, although wildfire and grazing by 
native herbivores also may have been important.
    Little is known about the historical distribution of Gaura 
neomexicana ssp. coloradensis. Prior to 1984, no extensive 
documentation of the plant's range had been conducted. In 1979, the 
total known population size was estimated in the low hundreds (Dorn 
1979). Intensive range-wide surveys from 1984 to 1986 resulted in the 
discovery or confirmation of more than 20 populations in Wyoming, 
Colorado, and Nebraska, containing approximately 20,000 flowering 
individuals (Marriott 1987). Additional surveys since 1992 have 
resulted in the discovery of additional populations in Wyoming and 
Colorado (Fertig 1994; Floyd 1995b).
    Gaura neomexicana ssp. coloradensis is distributed throughout its 
occupied range into patchy groups of subpopulations, some of which are 
isolated with little or no possibility of interbreeding with other 
local populations. The spatial structuring of this subspecies is 
commonly referred to as a metapopulation. Local populations exist on a 
patch of suitable habitat, and although each has its own, relatively 
independent population dynamics, the long-term persistence and 
stability of the metapopulation arise from a balance of population 
extinctions and colonization to unoccupied patches through dispersal 
events (Hanski 1989, Olivieri et al. 1990, Hastings and Harrison 1994).
    Balancing local population extinction with new colonization events 
is problematic for Gaura neomexicana ssp. coloradensis since naturally 
occurring disturbance associated with creation of suitable habitat for 
colonization, such as seasonal floods, has been largely curtailed by 
water development and flood control. Consequently, what once may have 
been a dynamic, but stable, metapopulation, may now be characterized by 
a series of local populations with a very low probability of colonizing 
new patches, and little opportunity to replace populations that go 
extinct. Biological characteristics that may serve to reduce these 
negative consequences at least in the short-term for G. n. ssp. 
coloradensis include seed banks, delay of stage transition from rosette 
to flowering adults under poor habitat conditions, and self-
compatibility. However, the regional persistence of a metapopulation 
has been shown to be possible only when the rate of colonization 
exceeds the local rate of extinction (Lande 2002). Consequently, the 
removal of opportunities for future colonization events poses a 
significant threat to long-term metapopulation persistence and species 
viability. This highlights the importance of maintaining viability of 
as many local populations as possible through conservation.
    Most of what is known about Gaura neomexicana ssp. coloradensis and 
its conservation is based on surveys and research conducted on 
populations located on the WAFB in Cheyenne, Wyoming, from 1984 to 
2003. Floyd and Ranker (1998) studied three G. n. ssp. coloradensis 
subpopulations at WAFB, Crow Creek, Diamond Creek, and Unnamed 
Drainage, from 1992 to 1994. The purpose of their study was to examine 
population growth, demographic variability, demographic stage 
transition dynamics and the probability of population extinction. 
Results suggested that each of the three subpopulations was not stable 
but exhibited significant demographic variability both spatially and 
temporally, and population growth values were not useful parameters to 
describe long-term population dynamics (Floyd and Ranker 1998).
    Annual census of flowering plants at WAFB began in 1986, and 
continued from 1988 to 2003, within subpopulations located at Crow 
Creek, Diamond Creek, and Unnamed Drainage. Census summaries provided 
by Heidel (2004a) based on these data show that subpopulations within 
these three drainages are characterized by dramatic fluctuations in 
    Most populations of Gaura neomexicana ssp. coloradensis for which 
census or demographic data have been collected exhibit substantial 
demographic uncertainty. Some of the observed temporal variation in 
subpopulations at WAFB has been correlated with unpredictable 
environmental factors such as temperature and precipitation (Floyd and 
Ranker 1998; Laursen and Heidel 2003; and Heidel 2004a), and spatial 
variation may be attributable, in part, to fine-scale microhabitat 
differences in light availability or competition with other herbaceous 
vegetation or noxious weeds (Munk et al. 2002; Laursen and Heidel 2003; 
and Heidel 2004b). Similar factors may be correlated with some of the 
observed demographic variability in less-well-studied populations 
throughout the subspecies' range. However, even for the well-studied 
subpopulations at WAFB, no clear cause-and-effect relationships have 
been found to explain the observed fluctuations in population numbers, 
and studies have not accounted for the majority of the observed 
demographic uncertainty. Demographic uncertainty, or stochasticity, is 
variability in survival and reproduction of individuals due, at

[[Page 47837]]

least in part, to chance or random events (Frankel et al. 1995); 
although some chance events may actually be deterministic factors that 
are currently not understood (Shaffer 1987).
    Some researchers suggest that demographic uncertainty becomes an 
important hazard only for small populations (in the range of tens to 
hundreds of individuals). While there is no managerial solution for 
threats due to stochastic factors, the magnitude of effect of these 
threats decreases as population size increases (Shaffer 1987; Frankel 
et al. 1995; Lande 2002). Maintaining the maximum number of individuals 
within each population, and maintaining the maximum number of 
populations within the Gaura neomexicana ssp. coloradensis 
metapopulation as a whole, may be the only means with which to maintain 
long-term species persistence.
    Of the known populations of Gaura neomexicana ssp. coloradensis, 
the vast majority occur on private lands managed primarily for 
agriculture and livestock. Haying and mowing at certain times of the 
year, water development, land conversion for cultivation, competition 
with exotic plants, non-selective use of herbicides, and loss of 
habitat to urban development are the main threats to these populations 
(Mountain West Environmental Services 1985, Marriott 1987, Fertig 
    Because of the small, isolated nature of populations and few 
numbers present in many of them, the subspecies is much more 
susceptible to random events such as fires, insect or disease 
outbreaks, or other unpredictable events that could easily eliminate 
local populations.

Previous Federal Actions

    On October 18, 2000, Gaura neomexicana ssp. coloradensis was 
designated as threatened throughout its entire range under the Act (65 
FR 62302). On October 4, 2000, the Center for Biological Diversity and 
the Biodiversity Legal Foundation filed a complaint in the Federal 
District Court for the District of Colorado concerning our failure to 
designate critical habitat for the Colorado butterfly plant (Center for 
Biological Diversity, et al. v. Norton, et al. (Civ. Action No. 00-D-
1980)). On March 19, 2001, the Court approved a settlement agreement 
requiring us to submit a final critical habitat designation for the 
Colorado butterfly plant to the Federal Register on or before December 
31, 2004. For more information on previous Federal actions concerning 
G. n. ssp. coloradensis, refer to the final listing rule (65 FR 62302).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat.
    To be included in a critical habitat designation, the habitat must 
first be ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life-cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. As discussed below, such areas also 
may be excluded from critical habitat pursuant to section 4(b)(2).
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards under the Act, published in the 
Federal Register on July 1, 1994 (59 FR 34271), provides criteria, 
establishes procedures, and provides guidance to ensure that decisions 
made by the Service represent the best scientific and commercial data 
available. It requires Service biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to Gaura neomexicana ssp. coloradensis. 
Areas outside the critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1), and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 take prohibition, as 
determined on the basis of the best available information at the time 
of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.


    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12), we used the best scientific and commercial data available in 
determining areas that contain the physical and biological features 
that are essential to the conservation of Gaura neomexicana ssp. 
coloradensis. This information included data from our files that we 
used for listing the species; geologic maps, recent biological surveys 
and reports; information funded by the Air Force and other interested 
parties, and discussions with botanists.
    The long-term probability of the conservation of Gaura neomexicana 
ssp. coloradensis is dependent upon the protection of existing 
populations, and the maintenance of ecologic functions within these 
sites, including connectivity within and between populations within 
close geographic proximity to facilitate pollen flow and population 
expansion. G. n. ssp. coloradensis is fragmented and patchy in nature 
and occurs as a metapopulation. The areas we are

[[Page 47838]]

proposing to designate as critical habitat provide some or all of the 
habitat components essential for the conservation of G. n. ssp. 

Criteria Used To Identify Critical Habitat

    As previously stated in the Background section of the final listing 
rule (65 FR 62302, October 18, 2000), ``Thus, of 26 previously known 
populations, 9 may be extirpated; 3 are probably small, but have not 
been surveyed since 1992; 4 are still extant, but declining; and 10 are 
stable or increasing.'' In our delineation of the critical habitat 
units, we selected areas to provide for the conservation of Gaura 
neomexicana ssp. coloradensis at the eight sites where all previously 
known subpopulations are known to occur. Much of what is known about 
the specific physical and biological requirements of G. n. ssp. 
coloradensis is described in the Primary Constituent Elements section 
of this proposed rule.
    Our approach to delineating critical habitat units was applied in 
the following manner:
    (1) We obtained records of Gaura neomexicana ssp. coloradensis 
distribution compiled by the Wyoming Natural Diversity Database 
(Wyoming Natural Diversity Database 2004) and from the Colorado Natural 
Heritage Program (Colorado Natural Heritage Program 1995, 2004). 
Database records were received in the form of shape files formatted for 
use in ArcView (Environmental Systems Research, Inc. (ESRI)), a 
computer GIS program. We created polygons by overlaying current and 
historic plant locations from shape files on digital topographic maps. 
In other words, we focused on designating units representative of the 
known current and historical locations of the plant throughout the 
geographic range of the subspecies.
    (2) We then evaluated plant locations in relation to potentially 
suitable habitat within drainages on the topographic maps. We followed 
rough boundaries of suitable habitat from which we could identify 
potential critical habitat, and then further refined these boundaries 
using corresponding Service National Wetland Inventory maps. A more 
refined boundary was then created digitally using a second GIS program, 
ArcMap (ESRI). This boundary was then evaluated in relation to primary 
constituent elements and adjacent areas containing suitable hydrologic 
regimes, soils, and vegetation communities. We avoided land areas 
identified as not suitable for G. n. ssp. coloradensis, i.e., those 
areas that do not contain primary constituent elements. Such areas were 
excluded from the refined boundary to the extent that we could identify 
these areas on the map.
    In order to determine the outward extent of the proposed critical 
habitat, botanists were consulted who had previously conducted field 
surveys of Gaura neomexicana ssp. coloradensis and who had a good 
working knowledge of habitat requirements for the species. Based on the 
information from botanists, we are using the outward extent of the 
proposed critical habitat as 300 feet (91 meters) from the center of 
the stream within a given stream segment.
    (3) We eliminated areas that did not contain the appropriate 
vegetation or associated native plant species, as well as features such 
as cultivated agriculture fields, housing developments, and other areas 
that are unlikely to contribute to the conservation of Colorado 
butterfly plant. We used geographic features (ridge lines, valleys, 
streams, etc.) or manmade features (roads or obvious land use) that 
created an obvious boundary for a unit as unit area boundaries.
    (4) Critical habitat designations were then described for 
landowners and the public. We mapped using legal descriptions including 
township, range, and sections associated with the Public Land Survey 
System so that private landowners and the public could see the 
proximity of the designation with where they reside.
    The Service is working with, and will continue to work with, the 
Wyoming Stockgrowers Association, the Wyoming Association of 
Conservation Districts, the Wyoming Department of Agriculture, the 
Natural Resources Conservation Service in Wyoming and Nebraska, and the 
City of Fort Collins in Colorado, to develop conservation agreements 
with willing landowners to provide for the conservation of Gaura 
neomexicana ssp. coloradensis. These agreements will include specific 
on-the-ground actions to alleviate specific threats including--allowing 
the Service access to private land to conduct annual monitoring of G. 
n. ssp. coloradensis populations to evaluate success of management 
actions under the agreement; establishing an adaptive management 
approach to evaluate success of management actions under the agreement; 
and facilitating the collection of data needed for future recovery of 
the species. Through cooperation and communication between landowners 
and the Service, such agreements will provide for the conservation 
needs of G. n. ssp. coloradensis above and beyond what would be 
achievable through the designation of critical habitat on private lands 
while meeting the needs of individual landowners. Working cooperatively 
with private landowners to protect habitat for G. n. ssp. coloradensis 
through conservation agreements is the Service's preferred approach to 
protecting the species on private lands. The Service will pursue such 
agreements to the fullest extent practicable prior to finalizing 
critical habitat. If, prior to finalizing the designation of critical 
habitat, the Service determines that the benefits of excluding an area 
subject to one of these agreements outweigh the benefits of including 
it, the Service will exclude such from the designation. Currently, one 
such agreement is in place.
    The Service will work with landowners to gain access to private 
lands to survey for plant populations. Most of these populations have 
not been surveyed since 1998, earlier in some cases, and some may now 
be extirpated. The Service is in the process of conducting surveys that 
will continue through August of 2004. We will further refine the 
designation based on new information.
    We propose to designate critical habitat on lands that we have 
determined are essential to the conservation of Gaura neomexicana ssp. 
coloradensis. These areas have the primary constituent elements 
described. While the species was known historically from several 
additional locations in northern Colorado and southeastern Wyoming, 
these populations are believed to be extirpated (Fertig 1994) and are 
not included in the proposed designation.
    Much of the survey data on which this proposed designation is based 
represents the number of flowering individuals during one point in 
time. Because of the annual fluctuation in population size for this 
species (ranging from 200 percent), and because the number of flowering 
individuals each year depends upon local environmental factors that 
vary substantially year to year (e.g., precipitation), it is likely 
that other individual plants and subpopulations exist but were not 
identified during previous surveys. This is particularly true for those 
areas, which contain the primary constituent elements for the species, 
that occur between subpopulations. Not only are these areas essential 
to achieving the long-term conservation goal of protecting the maximum 
number of populations possible, but they are essential in maintaining 
gene flow between populations via pollen flow to maintain, and 
potentially increase, local population genetic variation.

[[Page 47839]]

    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of Gaura neomexicana ssp. coloradensis 
in all areas where it is known to occur, except WAFB (see discussion 
below on the WAFB's Integrated Natural Resources Management Plan 
(INRMP)). All units are essential because G. n. ssp. coloradensis 
populations exhibit significant demographic uncertainty, contain very 
low genetic variation, and have very little opportunity to colonize new 
geographic areas with which to balance local extinction events. We 
believe the proposed designation is of sufficient size to maintain 
ecological processes and to minimize secondary impacts resulting from 
human activities and land management practices occurring in adjacent 
areas. We mapped the units with a degree of precision commensurate with 
the available information, the size of the unit, and time allotted to 
complete this proposal. We anticipate that the boundaries of the units 
may be refined based on additional information received during the 
comment period and after surveys are completed in August of this year.
    Although we are not proposing sites other than where populations 
are known to occur, we do not mean to imply that habitat outside the 
designation is unimportant or may not be required for recovery of the 
species. Areas that support newly discovered populations in the future, 
but are outside the critical habitat designation, will continue to be 
subject to the applicable prohibitions of section 9 of the Act and the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard. In addition, for such populations discovered on private 
lands, the Service will consider entering into conservation agreements 
with the landowners similar to the ones contemplated for currently 
known populations.
    We often exclude non-Federal public lands and private lands that 
are covered by an existing operative Habitat Conservation Plan (HCP) 
and executed Implementation Agreement (IA) under section 10(a)(1)(B) of 
the Act from designated critical habitat because the benefits of 
exclusion outweigh the benefits of inclusion as discussed in section 
4(b)(2) of the Act. There are no HCPs in place for Gaura neomexicana 
ssp. coloradensis at this time. Department of Defense lands with an 
approved INRMP also are excluded from critical habitat. We have 
approved the INRMP for WAFB, which addresses conservation needs of G. 
n. ssp. coloradensis. Consequently, we did not consider habitat 
supporting populations located on WAFB for proposed designation as 
critical habitat.
    Designating critical habitat is one mechanism for providing habitat 
protection for Gaura neomexicana ssp. coloradensis populations. 
However, the benefits of protecting extant populations through 
conservation agreements, by partnering with private landowners on whose 
property populations occur, may well outweigh the benefits of 
designating critical habitat for this species. Greater protection 
results from conservation agreements because these agreements address 
the specific types of actions (e.g., indiscriminate application of 
herbicides; overgrazing; timing of hay cutting) undertaken by private 
landowners that may adversely impact G. n. ssp. coloradensis or its 
habitat and that would not involve a Federal nexus subject to 
consultation under section 7(a)(2) of the Act. A review of the complete 
consultation history of G. n. ssp. coloradensis has revealed that none 
of the actions undertaken on private lands resulting in these threats 
to the species have ever required consultation under the Act.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements) that 
are essential to the conservation of the species, and that may require 
special management considerations and protection. These include, but 
are not limited to--space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The primary constituent elements for Gaura neomexicana ssp. 
coloradensis include those habitat components essential for the 
biological needs of rosette growth and development, flower production, 
pollination, seed set and fruit production, and genetic exchange. G. n. 
ssp. coloradensis typically lives and reproduces on subirrigated, 
stream-deposited soils on level or slightly sloping floodplains and 
drainage bottoms at elevations of 5,000 to 6,400 feet (1,524 to 1,951 
meters). Most colonies are found in low depressions or along bends in 
wide, active, meandering stream channels a short distance upslope of 
the active channel, and may occur at the base of alluvial ridges at the 
interface between riparian meadows and drier grasslands (Fertig 2001). 
Average annual precipitation within its range is 13 to 16 in (33 to 41 
cm) primarily in the form of rainfall (Fertig 2000). Soils in G. n. 
ssp. coloradensis habitat are derived from conglomerates, sandstones, 
and tufaceous mudstones and siltstones (i.e., derived from spongy, 
porous limestone formed by the precipitation of calcite from the water 
of streams and springs) of the Tertiary White River, Arikaree, and 
Ogallala formations (Fertig 2000).
    Ecological processes that create and maintain Gaura neomexicana 
ssp. coloradensis habitat are important primary constituent elements. 
Essential habitat components to G. n. ssp. coloradensis occur in areas 
where past and present hydrological and geological processes have 
created streams, floodplains, and conditions supporting favorable plant 
communities. Historically, G. n. ssp. coloradensis habitat has been 
maintained along streams by natural flooding cycles that periodically 
scour riparian vegetation, rework stream channels and floodplains, and 
redistribute sediments to create vegetation patterns favorable to G. n. 
ssp. coloradensis. G. n. ssp. coloradensis commonly occurs in 
communities including Agrostis stolonifera (redtop) and Poa pratensis 
(Kentucky bluegrass) on wetter sites, or Glycyrrhiza lepidota (wild 
licorice), Cirsium flodmanii (Flodman's thistle), Grindelia squarrosa 
(curlytop gumweed), and Equisetum laevigatum (smooth scouring rush) on 
drier sites (Fertig 1994). Both of these habitat types are usually 
intermediate in moisture between wet, streamside communities dominated 
by Carex spp. (sedges), Juncus spp. (rushes), and Typha spp. 
(cattails), and dry upland shortgrass prairie. Where hydrological flows 
are controlled to preclude a natural pattern of habitat development, 
and other forms of disturbance are curtailed or eliminated, a less 
favorable mature successional stage of vegetation will develop, 
resulting in the loss of many of these plant associates.
    Hydrological processes, and their importance in maintaining the 
moisture regime of habitat preferred by Gaura neomexicana ssp. 
coloradensis, also have an important direct effect on seed germination 
and seedling recruitment. Analysis by Heidel (2004a) demonstrated a 
significant positive correlation between census number and net growing 
season precipitation 2 years

[[Page 47840]]

prior to census. Important direct effects of moisture on G. n. ssp. 
coloradensis establishment and recruitment also have been demonstrated 
by the appearance of high numbers of new vegetative plants within 27 
days after a 100-year flood event at WAFB on August 1, 1985 (Rocky 
Mountain Heritage Task Force 1987 cited in Heidel 2004a).
    The long-term availability of favorable Gaura neomexicana ssp. 
coloradensis habitat also depends on impacts of drought, fires, 
windstorms, herbivory, and other natural events. G. n. ssp. 
coloradensis requires open, early- to mid-succession riparian habitat 
experiencing periodic disturbance. Periodic disturbance is necessary to 
control competing vegetation, and to create open, bare ground for 
seedling establishment (Fertig 2001). Salix exigua (coyote willow) and 
Cirsium arvense (Canada thistle) may become locally dominant in G. n. 
ssp. coloradensis habitat that is not periodically flooded or otherwise 
disturbed, resulting in decline of the species. Research has 
demonstrated negative impacts on G. n. ssp. coloradensis populations 
from competition with locally abundant noxious weeds, forbs, and 
grasses (Munk et al. 2002, Heidel 2004b).
    Based on our knowledge to date, the primary constituent elements 
for Gaura neomexicana ssp. coloradensis consist of, but are not limited 
    (1) Subirrigated, alluvial soils on level or low-gradient 
floodplains and drainage bottoms at elevations of 5,000 to 6,400 feet 
(1,524 to 1,951 meters).
    (2) A mesic moisture regime, intermediate in moisture between wet, 
streamside communities dominated by sedges, rushes, and cattails, and 
dry upland shortgrass prairie.
    (3) Early- to mid-succession riparian (streambank or riverbank) 
plant communities that are open and without dense or overgrown 
vegetation (including hayed fields, grazed pasture, other agricultural 
lands that are not plowed or disced regularly, areas that have been 
restored after past aggregate extraction, areas supporting recreation 
trails, and urban/wildland interfaces).
    (4) Hydrological and geological conditions that serve to create and 
maintain stream channels, floodplains, floodplain benches, and wet 
meadows that support patterns of plant communities associated with G. 
n. ssp. coloradensis.
    Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, parking lots, other paved 
areas, lawns, other urban and suburban landscaped areas, regularly 
plowed or disced agricultural areas, and other features not containing 
any of the primary constituent elements are not considered critical 

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. For Gaura neomexicana ssp. 
coloradensis special management considerations include maintaining 
surface or subsurface water flows that provide the essential 
hydrological regime that supports the species; appropriate constraints 
on application of herbicides used to control noxious weeds; preventing 
habitat degradation caused by plant community succession; and 
preventing harmful habitat fragmentation from residential and urban 
development that detrimentally affects plant-pollinator interactions, 
leads to a decline in species reproduction, and increases 
susceptibility to non-native plant species. While excessive grazing can 
lead to changes in essential habitat conditions (e.g., increases in 
soil temperature resulting in loss of moisture, decreases in plant 
cover, and increases in non-native species), managing for appropriate 
levels of grazing provides an important management tool with which to 
maintain open habitat needed by the species.

Proposed Critical Habitat Designation

    We are proposing eight units as critical habitat for Gaura 
neomexicana ssp. coloradensis. The critical habitat areas described 
below constitute our best assessment at this time of the areas 
essential for the conservation of G. n. ssp. coloradensis that may 
require special management. The eight proposed units are: (1) Tepee 
Ring Creek in Wyoming; (2) Bear Creek East in Wyoming; (3) Bear Creek 
West in Wyoming; (4) Little Bear Creek/Horse Creek in Wyoming; (5) 
Lodgepole Creek West in Wyoming; (6) Lodgepole Creek East in Wyoming 
and Nebraska; (7) Borie in Wyoming; and (8) Meadow Springs Ranch in 
    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 1.

  TABLE 1.--Critical Habitat Units Proposed for Gaura neomexicana ssp.
    Critical habitat unit       Acres     Hectares      Stream miles
1. Tepee Ring Creek.........        107         43  1.5 (2.4 km)
2. Bear Creek East..........        801        324  11.2 (18 km)
3. Bear Creek West..........        500        202  7.3 (11.8 km)
4. Little Bear Creek/Horse        2,480      1,004  36.1 (58.1 km)
5. Lodgepole Creek West.....      1,067        432  15.0 (24.2 km)
6. Lodgepole Creek East.....      1,683        681  24.8 (40 km)
7. Borie....................      1,141        462  17.2 (27.7 km)
8. Meadow Springs Ranch.....        707        286  N/A
    Total...................      8,486      3,434  113.1 (182 km)

    We present brief descriptions of all units, and reasons why they 
are essential for the conservation of Gaura neomexicana ssp. 
coloradensis, below.

Unit 1: Tepee Ring Creek

    Unit 1 consists of 107 ac (43 ha) along 1.5 stream mi (2.4 km) of 
Tepee Ring Creek in Platte County, Wyoming, and is under private 
ownership. One subpopulation of Gaura neomexicana ssp. coloradensis has 
been found along Tepee Ring Creek in the lower SE corner of T21N R68W 
Section 2. Habitat occupied by G. n. ssp. coloradensis is moist meadow 
along the stream. Habitat along this stream reach throughout this unit 
is primarily identified as PEMA (palustrine emergent temporarily 
flooded) wetland intermixed with PEMC (palustrine emergent seasonally 
flooded) wetland, according to National Wetlands Inventory terminology 
(U.S. Fish and Wildlife Service 1993). Habitat containing primary 
constituent elements extends throughout this entire reach, and it is 
likely that G. n. ssp.

[[Page 47841]]

coloradensis occurs in Section 1 downstream of the subpopulation in 
Section 2. This unit is essential to the conservation of the species 
because it represents the northernmost extent of the subspecies' known 
range of occurrence, separated by approximately 25 mi (40.3 km) from 
the closest population, and likely contains unique genetic variability 
not found in other populations.

Unit 2: Bear Creek East

    Unit 2 consists of 801 ac (324 ha) along 11.2 stream mi (18 km) of 
the South Fork of the Bear Creek and the Bear Creek in Laramie County, 
Wyoming. Colonies of Gaura neomexicana ssp. coloradensis have been 
found throughout the South Fork Bear Creek from T19N67W Section 25, 
extending northeast approximately 13 mi (21 km) to the far eastern edge 
of T19N66W Section 11. This unit is primarily under private ownership 
but includes some Wyoming State lands. Three main habitat types occur 
in this unit--(1) hay field adjacent to streams; (2) upper stream banks 
with snowberry; and (3) willow thickets (WNDD 2004). Much of the 
habitat in this unit is mowed for hay. Habitat within this stream reach 
is primarily identified as PEMC intermixed with PEMA. The primary 
constituent elements extend throughout this entire reach in which 
several subpopulations of G. n. ssp. coloradensis have been found. 
While there are no known locations for G. n. ssp. coloradensis within 
Section 36, it is likely that subpopulations occur there because it is 
adjacent to, and just upstream of, Section 25 to the north, where a 
subpopulation occurs very close to the section border. Proposed 
critical habitat on the northern and eastern end of the unit was 
extended to include T19N R66W Section 12 because: (a) suitable habitat 
with primary constituent elements continues throughout Section 12; (b) 
there is a subpopulation of plants at the eastern end of Section 11 
very close to Section 12 from which colonization is likely to have 
occurred; and (c) Section 12 is downstream of several other populations 
serving as likely seed sources. This unit has historically supported a 
number of G. n. ssp. coloradensis populations in a variety of habitat 
types, and is located at the furthest point downstream within the Bear 
Creek drainage. Disconnected from other population gene pools, 
subpopulations within this unit likely contain genotypes unique to this 
drainage. This unit is essential to the overall objective of 
maintaining the maximum number of populations possible for future 
species conservation.

Unit 3: Bear Creek West

    Unit 3 consists of three stream reaches encompassing a total of 500 
ac (202 ha) along 7.3 stream mi (11.8 km) within the Bear Creek 
drainage in Laramie County, Wyoming. This unit is primarily under 
private ownership, but includes some Wyoming State lands.
    Reach 1: Habitat within this reach is semi-moist meadows on flat 
benches and streambanks along an intermittent stream. Plants are most 
abundant in areas with low thistle density and heavily browsed willow, 
and are absent from adjacent, ungrazed areas with dense willow thickets 
(WNDD 2004). Subpopulations of Gaura neomexicana ssp. coloradensis have 
been found throughout this reach in T18N R68W Sections 8 and 9. Habitat 
is primarily PEMC containing primary constituent elements and extends 
through Sections 8, 9, and 4 to the northwest. Proposed critical 
habitat on the northern and eastern end of the unit was extended to 
include Section 4 because: (a) Suitable habitat with primary 
constituent elements continues throughout Section 4; (b) there is a 
subpopulation of plants at the northern end of Section 9 very close to 
Section 4; and (c) Section 4 is downstream of 8 and 9 and it is likely 
that these upstream subpopulations have already dispersed seeds into 
Section 4. This reach is an important location that has always 
supported a large population with good reproduction, and this site has 
remained in very good condition with few impacts compared with other 
occupied sites.
    Reach 2: Habitat within this reach consists of hummocky banks of 
loamy clay soil and gravelly, sloping terraces in semi-moist, closely 
grazed Poa pratensis (Kentucky bluegrass) / Elymus spp. (wild rye) 
streamside meadow at the edge of dense Carex aquatilis (Nebraska sedge) 
/ Juncus balticus (Baltic rush) community (WNDD 2004). It is likely 
that grazing maintains open habitat for Gaura neomexicana ssp. 
coloradensis (WNDD 2004). Subpopulations of G. n. ssp. coloradensis 
have been found throughout this reach in T18N R68W Sections 16 and 17. 
Habitat is primarily PEMC containing primary constituent elements and 
extends through both sections. Nimmo Reservoir in Section 15, adjacent 
to Section 16, is likely a barrier to seed dispersal downstream. 
Therefore, proposed critical habitat was not extended further. This 
location represents the uppermost elevation within the species' known 
range of occurrence. Historically it has supported a large population 
located in habitat with few threats to its good condition.
    Reach 3: Habitat within this reach consists of three types: (1) 
Seasonally wet Juncus balticus / Agrostis stolonifera (redtop) / Poa 
pratensis community on subirrigated gravelly-sandy soil in low 
depressions a distance from the current stream channel; (2) streambank 
terraces of dark-brown loamy clay in dense Helianthus nuttallii 
(Nuttall's sunflower) / Solidago canadensis (Canada goldenrod ) / 
Phleum pratense (timothy) grass community; and (3) grassy terrace 
dominated by Agrostis stolonifera, Poa pratensis, Elymus smithii (wild 
rye), and Melilotus albus (white sweetclover) on brown clay-loam (WNDD 
2004). Populations are small and inside fenced areas where bulls are 
kept, but much more common in surrounding upland sites where grazing is 
moderate and willow and thistle are not well established; the plants 
are less abundant where growth of snowberry is thick (WNDD 2004). The 
population within this reach has been growing in years leading up to 
the last survey date and is located in habitat in good condition.
    One subpopulation of Gaura neomexicana ssp. coloradensis has been 
found on the eastern edge of T18N R68W Section 21. Habitat is primarily 
PEMA containing primary constituent elements and extends from the 
middle of Section 21 through the adjacent Section 22 to the east. There 
is a natural break in habitat approximately in the center of Section 21 
at which point the PEMA habitat changes to scrub-shrub and continues 
upstream (to the southwest) through the remainder of Section 21. We did 
not propose critical habitat beyond this natural break. Proposed 
critical habitat includes Section 22 to the east because: (a) Suitable 
habitat with primary constituent elements continues throughout Section 
22; (b) the subpopulation of plants in Section 21 is very close to the 
border of Section 22; and (c) Section 22 is downstream of 21 and it is 
likely that this upstream subpopulation has dispersed seeds into 
Section 22.

Unit 4: Little Bear Creek/Horse Creek

    Unit 4 consists of two stream reaches encompassing a total of 2,480 
ac (1,004 ha) along 36.1 stream mi (58.1 km) within the Little Bear 
Creek and Horse Creek drainages in Laramie County, Wyoming. This unit 
is primarily under private ownership, but includes some Wyoming State 
    Reach 1: Habitat for Gaura neomexicana ssp. coloradensis within

[[Page 47842]]

this reach occurs in four main types: (1) Moist hay meadows; (2) wild 
licorice thickets in sandy, dry stream channels; (3) depressions in 
alluvial meadows away from the main stream channel; and (4) moist 
meadows and streambanks on alluvium derived from the Ogallala 
Formation. Plants appear to be more abundant in hay meadow sites than 
other habitat types (WNDD 2004). Subpopulations of G. n. ssp. 
coloradensis have been found throughout Little Bear Creek from the 
southwest end of Unit 4 in T18N R68W Section 36, extending northeast 
approximately 12 stream mi (19 km) to the southwestern corner of T18N 
R67W Section 23. It is likely that subpopulations occur within Section 
35, the section adjacent to, and just upstream of, Section 36 on Little 
Bear Creek, where a subpopulation resides very close to the section 
border. Subpopulations also have been found along the Paulson Branch of 
Little Bear Creek from T17N R68W Section 2 on the southwest end of Unit 
4, extending northwest approximately 5 stream mi (8 km) to Section 31 
where it merges with Little Bear Creek. Habitat throughout Little Bear 
Creek and the Paulson Branch stream reaches is primarily identified as 
PEMC intermixed with PEMA, containing primary constituent elements 
throughout. Proposed critical habitat on the northern and eastern end 
of the unit was extended to include all of Section 23 because suitable 
habitat with primary constituent elements continues throughout this 
section and it is likely that the subpopulation in the southwestern 
corner of this section has dispersed seeds into the remainder of this 
section. This reach has supported a large number of subpopulations with 
a moderate to large number of plants over the years. Because this reach 
is reproductively isolated from any others, it likely harbors genotypes 
unique to the species that could be important to future species 
    Reach 2: Subpopulations occur in several habitat types: (a) Open 
meadow on the edge of a marshy, spring-fed pond; (b) subirrigated 
meadows and hay fields in a broad alluvial valley among clumps of Poa 
pratensis, Equisetum spp. (horsetail), and Carex spp. (sedges); and (c) 
Solidago spp. (goldenrod ) / Glycyrrhiza lepidota (wild licorice ) / 
Schizachyrium scoparium (little bluestem) community near the creek; and 
(d) on the edges of willow thickets and semi-moist meadows, extending 
into a right-of-way. The species is absent from wet sites dominated by 
Glyceria spp. (mannagrass) and Carex rostrata (beaked sedge) and from 
stream banks where vegetation is overgrown by willow, thistle, 
sunflower and goldenrod from succession. Land within this reach is used 
extensively for hay production. Subpopulations located downstream of 
Brunyansky Draw are large and occupy habitat in good condition where 
threats are low (WNDD 2004).
    Subpopulations of Gaura neomexicana ssp. coloradensis have been 
found along Horse Creek from T17N R67W Section 7 on the west end of 
this reach, for approximately 4 mi (6 km) to the east into Section 3. 
There is an approximate 3-mi (5-km) stretch encompassing Sections 2, 1, 
and 6, in which plants have not been found; however, continuing 
downstream to the east subpopulations have been found in the following 
3 mi (5 km) in T17N R66W Sections 5, 4, and 3, as well as in Section 10 
adjacent (to the south) to Section 3. Habitat throughout the majority 
of the reach is PEMC and PEMA, intermixed with scrub-shrub through 
Sections 2, 1, and 6. It is likely that subpopulations occur within 
Sections 2, 1, and 6 since there are several subpopulations both 
upstream and downstream of these sections, and habitat with primary 
constituent elements also is present; therefore, these sections were 
included in the critical habitat proposal. Including these sections 
also is important to maintain connection (i.e., gene flow in terms of 
pollen dispersal) between subpopulations upstream and downstream.
    Proposed critical habitat was not extended beyond the center of 
Section 10 on the east end of the reach because primary constituent 
elements are no longer present because of changes in habitat. 
Subpopulations have been found in Section 16 along a tributary to Horse 
Creek. It is likely that other subpopulations of Gaura neomexicana ssp. 
coloradensis also occur downstream of Section 16 closer to its point of 
merging with Horse Creek, since habitat and primary constituent 
elements are present throughout this tributary. Horse Creek is 
important to the species because it harbors several subpopulations 
throughout many miles of habitat, contributing considerably to the 
objective of maximizing the number of individuals and populations for 
species conservation.

Unit 5: Lodgepole Creek West

    Unit 5 consists of 1,067 ac (432 ha) along 15 stream mi (24.2 km) 
of Lodgepole Creek in Laramie County, Wyoming. This unit is primarily 
under private ownership, but includes some Wyoming State lands. 
Occupied habitat within this unit includes moist meadows, streambanks, 
and hayfields and pastures along the creek, primarily areas where the 
land slopes gently down to the creek, creating flat, alluvial deposits 
below the surrounding hills (WNDD 2004). Some sites are becoming choked 
with willows and other vegetation. Ungrazed habitat west of Interstate 
25 is being invaded by Salix exigua (sandbar willow) and other forbs. 
Subpopulations of Gaura neomexicana ssp. coloradensis have been found 
along Lodgepole Creek from T16N 68W Section 24 on the western edge of 
this unit, extending 12 stream mi (19 km) east to T15N R66W Section 3. 
Habitat throughout this stream reach is primarily identified as PEMC 
intermixed with PEMA, containing primary constituent elements 
throughout its entirety. Therefore, it is likely that the plant also 
occurs in Sections 27 and 28 which occur in the middle of the reach, 
adjacent to sections upstream and downstream in which subpopulations 
have been found, and in Section 2 on the eastern end just downstream of 
a subpopulation in the adjacent Section 3. This unit has supported a 
large number of small, and a few large, subpopulations over the years 
in a variety of habitat types and land management practices. The number 
of subpopulations within the variety of habitat may represent a number 
of locally selected genotypes existing under unique conditions, 
providing an important contribution to the long-term conservation of 
the species.

Unit 6: Lodgepole Creek East

    Unit 6 consists of two stream reaches encompassing a total of 1,683 
ac (681 ha) along 24.8 stream mi (40 km) of Lodgepole Creek in Laramie 
County, Wyoming, and in Kimball County, Nebraska. This unit is 
primarily under private ownership with some Wyoming State lands.
    Reach 1: Habitat occupied by subpopulations within this reach is 
sandy and silty loam alluvium along the creek in mowed and grazed hay 
fields and horse pastures. The area is managed for livestock grazing 
and hay production, mowed late in the season and used for winter 
pasture. The largest subpopulation was found on a heavily grazed 
meadow. Although little impact from exotic plant species was found in 
1997, spraying herbicides for weed control is likely the greatest 
threat to habitat at this site (WNDD 2004).
    Subpopulations of Gaura neomexicana ssp. coloradensis have been 
found along Lodgepole Creek from Thompson Reservoir Number 2 in T14N

[[Page 47843]]

R62W Section 4 on the eastern edge of this unit, extending 
approximately 13 mi (21 km) west to T15N R64W Section 27 on the reach's 
western edge. Habitat throughout this stream reach is primarily 
identified as PEMC with sparse amounts of PEMA, containing primary 
constituent elements throughout its entirety. The only section in which 
subpopulations have not been located is T15N 63W Section 28, 
approximately in the middle of the reach. Because this section contains 
primary constituent elements and populations occur both upstream and 
downstream, it is likely that the plant also occurs here. A natural 
break in habitat type occurs within the westernmost Section 27, beyond 
which primary constituent elements are no longer found and 
subpopulations have not been located, providing a logical western 
boundary for proposed critical habitat designation. On the eastern 
boundary of this reach, subpopulations have been found 0.5 mi (0.8 km) 
upstream of Thompson Reservoir Number 2, and, because this portion of 
the reach also contains primary constituent elements, plants likely 
occur throughout this portion of Section 4 as well. Subpopulations have 
not been found downstream of the reservoir, which provides a natural 
eastern boundary for the proposed critical habitat. This reach supports 
some of the largest populations surveyed, on some of the best habitat 
with the fewest impacts.
    Reach 2: Habitat within this reach is described as hay meadows with 
silty loam alluvium along the creek (WNDD 2004). The site is mowed for 
hay, sprayed for Canada thistle, and used for winter grazing. 
Subpopulations of Gaura neomexicana ssp. coloradensis have been found 
along Lodgepole Creek from T14N R58W Section 8 in western Nebraska, 
extending west approximately 4.4 mi (7.1 km) to T14N 60W Section 10 in 
Wyoming. One subpopulation was found along Spring Creek approximately 
0.75 mi (1.2 km) upstream of its confluence with Lodgepole Creek in 
Section 10. Habitat throughout the entire reach is primarily identified 
as PEMA intermixed with PEMC, containing primary constituent elements 
throughout. It is likely that the plant occurs throughout Section 8 in 
Nebraska, just downstream of subpopulations found within the western 
portion of this section. Similar to Reach 1, this reach supports some 
of the larger populations located on some of the best habitat.

Unit 7: Borie

    Unit 7 consists of three stream reaches encompassing a total of 
1,141 ac (462 ha) along 17.2 stream mi (27.7 km) along Diamond Creek, 
Spring Creek, and Lone Tree Creek in Laramie County, Wyoming. This unit 
is primarily under private ownership, with some Wyoming State lands and 
lands owned by the city of Cheyenne, Wyoming.
    Reach 1: Habitat within this reach is described as silty loam 
alluvium along Diamond Creek and a small reservoir in a residential 
greenbelt, hayfields, and pastures (WNDD 2004). This site is in close 
proximity to a number of roads, a dam, and a housing subdivision, and 
is subject to livestock grazing. This population is confluent with 
another population downstream along Diamond Creek on WAFB. Hay fields 
are intensively plowed and fertilized, and herbicide has been used in 
the greenbelt to help control a serious thistle problem. Some plant 
mortality has been observed due to herbicide spraying. Subpopulations 
of Gaura neomexicana ssp. coloradensis have been found along Diamond 
Creek from the eastern boundary of this reach within T14N R67W Section 
33, adjacent to WAFB, approximately 3.5 mi (5.6 km) southwest to T13N 
R67W Section 6. Subpopulations also have been found along smaller, 
unnamed tributaries to Diamond Creek from the eastern edge of T14N 67W 
Section 32 approximately 2 mi (3 km) upstream within several small 
tributaries in Section 31 and T13N R67W Section 6. Habitat throughout 
this entire reach is PEMC intermixed with PEMA, containing primary 
constituent elements throughout. Section boundaries on the western edge 
of this reach provide easily identifiable boundaries, as does WAFB on 
the eastern edge. This reach supports a large number of plants within 
several subpopulations, likely harboring considerable genetic variation 
contributing to the long-term conservation of this species.
    Reach 2: Habitat within this reach is described as the edge of a 
field mowed for hay (WNDD 2004). One subpopulation of Gaura neomexicana 
ssp. coloradensis has been found along Spring Creek within T13N R67W 
Section 18 along the border with Section 17 to the east. Habitat 
throughout both sections is PEMC intermixed with PEMA, containing 
primary constituent elements throughout. Therefore, it is likely that 
plants occur within habitat containing primary constituent elements 
upstream of the known subpopulation within Section 18, as well 
downstream of the known subpopulation and extend eastward into Section 
17. This is the only population within this stream reach, and may 
harbor locally adapted genotypes important to the long-term 
conservation of the species.
    Reach 3: The habitat within this reach is described as marginal 
within a meadow that is grazed, and includes an area by a road crossing 
that is sprayed for weed control (WNDD 2004). Subpopulations of Gaura 
neomexicana ssp. coloradensis have been found along Lone Tree Creek, 
from the northwest corner of T13N R67W Section 31, to 5 km (3 mi) 
upstream to T13N R68W Section 26. Habitat within this reach is PEMC, 
containing primary constituent elements throughout. Section lines 
provide a readily identifiable boundary for proposed critical habitat 
on the western edge of this reach. Habitat containing primary 
constituent elements along Lone Tree Creek extends downstream to the 
confluence with Goose Creek within Section 31, and it is likely that 
plants occupy this reach or may do so in the future. The confluence 
with Goose Creek provides a readily identifiable boundary for proposed 
critical habitat on the eastern edge of this reach. Little is known 
about this subpopulation that was last surveyed over two decades ago. 
However, it is the only population within this creek drainage and 
occurs at the southernmost point of the plant's distribution within 
Wyoming. It is likely that genetic exchange has not occurred with other 
populations, and, therefore, that this population harbors some unique, 
locally adapted genotypes that may be important to the species' 

Unit 8: Meadow Springs Ranch (Colorado)

    Unit 8 consists of 707 ac (286 ha) within a wet meadow supported by 
groundwater within the Meadow Springs Ranch in Weld County, Colorado, 
under ownership of the City of Fort Collins, Colorado. Part of the 
ranch is used for sewage sludge treatment, and part is used for 
livestock grazing by a lease holder. Colonies of plants have been found 
throughout the grazed, subirrigated wetland meadow. Several small 
groups of Gaura neomexicana ssp. coloradensis have been found on Meadow 
Springs Ranch (T11N R67W Section 19), approximately 0.5 mi (0.8 km) 
south of Exit 293 on the east frontage road off of Interstate 
25. This population occurs approximately 8 mi (13 km) from the 
southernmost population within Wyoming. This geographically and 
reproductively isolated population represents the only known naturally-

[[Page 47844]]

occurring population in Colorado. Therefore, this population represents 
a unique group of subpopulations at the periphery of the species' 
range, and this area is considered essential to the conservation of the 

Land Ownership

    The vast majority, approximately 90 percent, of proposed critical 
habitat is in private ownership. The private lands are primarily used 
for grazing and agriculture. Additionally there are small scattered 
tracts of State, county and city lands.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, in a March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434), the court found our definition 
of adverse modification to be invalid. In response to this decision, we 
are reviewing the regulatory definition of adverse modification in 
relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not destroy or 
adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect Gaura neomexicana ssp. 
coloradensis or its critical habitat will require section 7 
consultation. Activities on private or State lands requiring a permit 
from a Federal agency, such as a permit from the Army Corps under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), also will continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to Gaura neomexicana ssp. coloradensis. We note that such 
activities also may jeopardize the continued existence of the species.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by any Federal agency;
    (3) Road construction and maintenance, right-of-way designation, 
and regulation funded or permitted by the Federal Highway 
    (4) Voluntary conservation measures by private landowners funded by 
the Natural Resources Conservation Service;
    (5) Licensing of construction of communication sites by the Federal 
Communications Commission;
    (6) Funding of activities by the U.S. Environmental Protection 
Agency, Department of Energy, Federal Emergency Management Agency, 
Federal Highway Administration, or any other Federal agency;
    (7) Permitting of natural gas pipeline rights-of-way by the Federal 
Energy Regulatory Commission; and,
    (8) Management and research activities undertaken on the WAFB by 
the U.S. Department of Defense.

[[Page 47845]]

    We consider all critical habitat units to be occupied by the 
species based on the most recent survey data collected for populations 
of Gaura neomexicana ssp. coloradensis. To ensure that their actions do 
not jeopardize the continued existence of the species, Federal agencies 
already consult with us on activities in areas currently occupied by 
the species or if the species may be affected by the action.
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 
4(b)(2) of the Endangered Species Act
    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential for the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that do not require special management 
also are not, by definition, critical habitat. To determine whether an 
area requires special management, we first determine if the essential 
features located there generally require special management to address 
applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and actions will be implemented (i.e., those 
responsible for implementing the plan are capable of accomplishing the 
objectives, and have an implementation schedule or adequate funding for 
implementing the management plan); and (3) the plan provides assurances 
that the conservation strategies and measures will be effective (i.e., 
it identifies biological goals, has provisions for reporting progress, 
and is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Section 318 of fiscal year 2004 National Defense Authorization Act 
(Pub. L. 108-136) amended section 4 of the Act. This provision 
prohibits us from designating as critical habitat any lands or other 
geographical areas owned or controlled by the Department of Defense, or 
designated for its use, that are subject to an INRMP prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if we determine in 
writing that such plan provides a benefit to the species for which 
critical habitat is proposed for designation.
    As described above, we identified habitat essential for the 
conservation of Gaura neomexicana ssp. coloradensis in Laramie and 
Platte Counties in Wyoming; Kimball County in Nebraska; and Weld County 
in Colorado. We have examined the INRMP for the WAFB to determine 
coverage for G. n. ssp. coloradensis. The INRMP identifies management 
issues related to conservation and enhancement of G. n. ssp. 
coloradensis and identifies goals and objectives that involve the 
protection of populations and habitat for this species. Some objectives 
for achieving those goals include: continue to participate in, and 
encourage development of, Cooperative Agreements and Memorandum of 
Understanding activities with Federal, State, and local government and 
support agencies; promote and support the scientific study and 
investigation of federally listed species management, conservation, and 
recovery; restrict public access in existing and potential habitat 
areas; and increase public education of Federally listed species 
through management actions, the WAFB Watchable Wildlife Program, and a 
Prairie Ecosystem Education Center (WAFB 2001). Based on the beneficial 
measures for G. n. ssp. coloradensis contained in the INRMP for WAFB, 
we have not included this area in the proposed designation of critical 
habitat for Gaura neomexicana ssp. coloradensis pursuant section 
4(a)(3) of the Act. We will continue to work cooperatively with the 
Department of the Air Force to assist the WAFB in implementing and 
refining the programmatic recommendations contained in this plan that 
provide benefits to Gaura neomexicana ssp. coloradensis. The non-
inclusion of WAFB demonstrates the important contributions that 
approved INRMPs have to the conservation of the species. As with HCP 
exclusions, a related benefit of excluding Department of Defense lands 
with approved INRMPs is to encourage continued development of 
partnerships with other stakeholders, including States, local 
governments, conservation organizations, and private landowners to 
develop adequate management plans that conserve and protect Gaura 
neomexicana ssp. coloradensis habitat. We found the INRMP provides 
benefits for Gaura neomexicana ssp. coloradensis.
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated and revised on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use both the provisions 
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those 
specific areas that are proposed for designation as critical habitat 
and those areas that are subsequently designated in a final rule. Lands 
we have found do not meet the definition of critical habitat under 
section 3(5)(A) or that we have excluded pursuant to section 4(b)(2) 
include those covered by the following types of plans if they provide 
assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative HCPs that cover the 
species, (2) draft HCPs that cover the species and have undergone 
public review and comment (i.e., pending HCPs), (3) Tribal conservation 
plans that cover the species, (4) State conservation plans that cover 
the species, and (5) National Wildlife Refuge System Comprehensive 
Conservation Plans. Currently, no legally operative or draft HCPs, 
Tribal conservation plans, State conservation plans, or National 
Wildlife Refuge System Comprehensive Conservation Plans cover Gaura 
neomexicana ssp. coloradensis.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for Gaura neomexicana ssp. coloradensis is being prepared. We will 
announce the availability of the draft economic analysis as soon as it 
is completed, at which time we will seek public review and comment. At 
that time, copies of the draft economic analysis will be available for 
downloading from the Internet at http://mountainprairie.fws.gov/species/plants/cobutterfly/index.htm
, or by contacting

[[Page 47846]]

the Wyoming Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington DC 20240. You may 
e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

    This document has not been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. The OMB makes 
the final determination of significance under Executive Order 12866. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation.
    The availability of the draft economic analysis will be announced 
in the Federal Register and in local newspapers so that it is available 
for public review and comments.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the Act 
and Executive Order 12866. This draft economic analysis will provide 
the required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, the Service will publish a notice of 
availability of the draft economic analysis of the proposed designation 
and reopen the public comment period for the proposed designation for 
an additional 30 days. The Service will include with the notice of 
availability, as appropriate, an initial regulatory flexibility 
analysis or a certification that the rule will not have a significant 
economic impact on a substantial number of small entities accompanied 
by the factual basis for that determination. The Service has concluded 
that deferring the RFA finding until completion of the draft economic 
analysis is necessary to meet the purposes and requirements of the RFA. 
Deferring the RFA finding in this manner will ensure that the Service 
makes a sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (13211) on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for Gaura neomexicana ssp. coloradensis is 
not a significant regulatory action under Executive Order 12866, and it 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 

[[Page 47847]]

under which $500,000,000 or more is provided annually to State, local, 
and tribal governments under entitlement authority,'' if the provision 
would ``increase the stringency of conditions of assistance'' or 
``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. A Small Government Agency Plan is not 
required. State, city and county lands comprise less than 10 percent of 
the total proposed designation; the other 90 percent is in private 
ownership. Small governments will not be affected at all unless they 
proposed an action requiring Federal funds, permits or other 
authorization. Any such activity will require that the involved Federal 
agency ensure that the action is not likely to adversely modify or 
destroy designated critical habitat. However, as discussed above, 
Federal agencies are currently required to ensure that such activity is 
not likely to jeopardize the species, and no further regulatory impacts 
from this proposed designation of critical habitat are anticipated. We 
will, however, further evaluate this issue as we conduct our economic 
analysis and revise this assessment if appropriate.


    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of critical habitat affects only Federal 
agency actions. The rule will not increase or decrease the current 
restrictions on private property concerning take of Gaura neomexicana 
ssp. coloradensis. Because there is no prohibition of take for this 
species, and the fact that critical habitat provides no incremental 
restrictions, we do not anticipate that property values will be 
affected by the proposed critical habitat designation. While real 
estate market values may temporarily decline following designation, due 
to the perception that critical habitat designation may impose 
additional regulatory burdens on land use, we expect any such impacts 
to be short term. Additionally, critical habitat designation does not 
preclude development of HCPs. Owners of areas that are included in the 
designated critical habitat will continue to have opportunity to use 
their property in ways consistent with the survival of G. n. ssp. 


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI policy, we requested information from, 
and coordinated development of, this proposed critical habitat 
designation with appropriate State resource agencies in Wyoming, 
Colorado, and Nebraska. The designation of critical habitat in areas 
currently occupied by Gaura neomexicana ssp. coloradensis imposes no 
additional restrictions to those currently in place and, therefore, has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While making this definition and identification does not alter where 
and what federally sponsored activities may occur, it may assist these 
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of Gaura neomexicana ssp. coloradensis.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. 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

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 116 S. Ct. 698 (1996). However, when the range 
of the species includes States within the Tenth Circuit, such as that 
of Gaura neomexicana ssp. coloradensis, pursuant to the Tenth Circuit 
ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a 
NEPA analysis for critical habitat designation and notify the public of 
the availability of the draft environmental assessment for this 
proposal when it is finished.

Government-to-Government Relationship With Tribes

    In accordance with the President Clinton's memorandum of April 29,

[[Page 47848]]

1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally-recognized 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of Gaura 
neomexicana ssp. coloradensis. Consequently, we have not proposed the 
designation of critical habitat on Tribal lands and have not undertaken 
consultation with any federally-recognized Tribes.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Wyoming Field Office 
(see ADDRESSES section).


    The primary author of this package is Tyler Abbott (see ADDRESSES 

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:


    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. In Sec.  17.12(h), revise the entry for Gaura neomexicana ssp. 
coloradensis under ``FLOWERING PLANTS'' to read as follows:

Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
         Flowering Plants

                                                                      * * * * * * *
Gaura neomexicana ssp.             Colorado butterfly    U.S.A. (WY, NE, CO)  Onagraceae-Evening   T                       704     17.96(a)           NA
 coloradensis.                      plant.                                     Primrose.

                                                                      * * * * * * *

    3. In Sec.  17.96(a), amend paragraph (a) by adding an entry for 
Gaura neomexicana ssp. coloradensis in alphabetical order under Family 
Onagraceae to read as follows:

Sec.  17.96  Critical habitat--plants.

    (a) * * *
    Family Onagraceae: Gaura neomexicana ssp. coloradensis (Colorado 
butterfly plant)
    (1) Critical habitat units are depicted for Laramie County, 
Wyoming; Kimball County, Nebraska; and Weld County, Colorado, on the 
maps below.
    (2) The primary constituent elements of critical habitat for Gaura 
neomexicana ssp. coloradensis are the habitat components that provide:
    (i) Subirrigated, alluvial soils on level or low-gradient 
floodplains and drainage bottoms at elevations of 5,000 to 6,400 feet 
(1,524 to 1,951 meters).
    (ii) A mesic moisture regime, intermediate in moisture between wet, 
streamside communities dominated by sedges, rushes, and cattails, and 
dry upland shortgrass prairie.
    (iii) Early- to mid-succession riparian (streambank or riverbank) 
plant communities that are open and without dense or overgrown 
vegetation (including hayed fields, grazed pasture, other agricultural 
lands that are not plowed or disced regularly, areas that have been 
restored after past aggregate extraction, areas supporting recreation 
trails, and urban/wildland interfaces).
    (iv) Hydrological and geological conditions that serve to create 
and maintain stream channels, floodplains, floodplain benches, and wet 
meadows that support patterns of plant communities associated with G. 
n. ssp. coloradensis.
    (3) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, roads, parking 
lots, other paved areas, lawns, other urban and suburban landscaped 
areas, regularly plowed or disced agricultural areas.
    (4) The critical habitat is based on U.S. Geological Survey 
7.5 quadrangle maps (Borie, Bristol Ridge, Bristol Ridge NE, 
Burns, Bushnell, Carr West, Cheyenne North, C S Ranch, Double L Ranch, 
Durham, Farthing Ranch, Hillsdale, Hirsig Ranch, Indian Hill, J H D 
Ranch, Lewis Ranch, Moffett Ranch, Nimmo Ranch, Pine Bluffs, P O Ranch, 
Round Top Lake) and corresponding U.S. Fish and Wildlife Service 
National Wetlands Inventory maps. Critical habitat includes areas 
occupied by Gaura neomexicana ssp. coloradensis based upon the most 
current maps of surveyed subpopulations. Critical habitat also includes 
adjacent areas, upstream and downstream, containing suitable hydrologic 
regimes, soils, and vegetation communities to allow for seed dispersal 
between populations and maintenance of the seed bank. To ease 
identification of the critical habitat, the boundaries follow section 
lines and major geographical features where feasible. The outward 
extent of critical habitat is 300 feet (91 meters) from the center line 
of the stream edge (as defined by the ordinary high-water mark). This 
amount of land will support the full range of primary constituent 
elements essential for persistence of G. n. ssp. coloradensis 
populations and should adequately protect the plant and its habitats 
from secondary impacts of nearby disturbance.
    (5) Note: Index Map follows:

[[Page 47849]]


[[Page 47850]]

    (6) Unit 1: Tepee Ring Creek, Platte County, Wyoming.
    (i) This unit consists of 1.5 mi (2.4 km) of Tepee Ring Creek 
bounded by the western edge of Sec. 2, T21N R68W, extending downstream 
including S2 S2 of Sec. 2; downstream to SW4SW4 Sec. 1, bounded by the 
southern line of Sec. 1.
    (ii) Note: Map 1 (Unit 1) follows:

[[Page 47851]]

    (7) Unit 2: Bear Creek East, Laramie County, Wyoming.
    (i) This unit consists of 11 mi (18 km) of the South Fork of the 
Bear Creek. Includes: T19N R67W, NW4 NW4 of Sec. 36; W2 SW4 Sec. 25; 
NW4 Sec. 25; NE4 Sec. 25; downstream into T19N R66W, S2 SW4 Sec. 19; N2 
SE4 Sec. 19; NW4 Sec. 20; SE4 SW4 Sec. 17; SE4 Sec. 17; S2 NW4 Sec. 16; 
N2 NE4 Sec. 16; SE4SE4SE4 Sec. 9; SW4 Sec. 10; S2 NE4 Sec. 10; SW4NE4 
Sec. 11; NE4SW4; N2 SE4 Sec. 11; N2 S2 Sec. 12.
    (ii) Note: Map 2 (Unit 2) follows:

[[Page 47852]]

    (8) Unit 3: Bear Creek West, Laramie County, Wyoming.
    (i) Reach 1 consists of 2.9 stream mi (4.7 km) of an unnamed south 
tributary of North Bear Creek in the valley between North Bear Creek 
and the North Fork of the South Fork Bear Creek. Includes: T18N R68W, 
N2 SW4 Sec. 8; downstream to NW4NW4SE4 Sec. 8; SE4NE4 Sec. 8; NW4NW4 
Sec. 9; SE4SW4 Sec. 4; S2 SE4 Sec. 4.
    (ii) Reach 2 consists of 2.6 stream mi (4.2 km) of the North Fork 
of the South Fork Bear Creek, upstream of Nimmo Reservoir No. 9. 
Includes: T18N R68W, SE4SW4 Sec. 17; downstream to N2SW4SE4 Sec. 17; 
NW4SE4SE4 Sec. 17; S2 NE4SE4 Sec. 17; NW4SW4 Sec. 16; SE4NW4 Sec. 16; 
S2 NE4 Sec. 16.
    (iii) Reach 3 consists of 1.7 stream mi (2.8 km) of the South Fork 
Bear Creek. Includes: T18N R68W, N2 N2 SE4 Sec. 21; downstream to S2 
NW4 Sec. 22; NW4SW4NE4 Sec. 22; SE4NW4NE4 Sec. 22; W2 NE4NE4 Sec. 22.
    (iv) Note: Map 3 (Unit 3) follows:

[[Page 47853]]


[[Page 47854]]

    (9) Unit 4: Little Bear Creek/ Horse Creek, Laramie County, 
    (i) Reach 1 consists of 15.6 stream mi (25.1 km) of Little Bear 
Creek, which includes approximately 5 stream mi (8 km) of the Paulson 
Branch tributary. Little Bear Creek includes: T18N R68W, NW4NW4SW4 Sec. 
35; downstream to N2 Sec. 35; N2 Sec. 36. T18N R67W, N2 Sec. 31; 
downstream to N2 SW4 Sec. 32; NE4 Sec. 32; NW4NW4NW4 Sec. 33; S2 Sec. 
28; NW4SW4 Sec. 27; S2 SE4NW4 Sec. 27; NE4 Sec. 27; SW4 Sec. 28; 
SE4SE4NW4 Sec. 28; NE4 Sec. 28. Paulson Branch includes--T18N R68W, N2 
SW4 Sec. 2; downstream to S2 NE4 Sec. 2; N2 Sec. 1; T18N 67W, NW4NW4 
Sec. 6; SE4SW4 Sec. 31; SE4 Sec. 31.
    (ii) Reach 2 consists of 36.1 stream mi (58.1 km) of Horse Creek, 
including approximately 2.5 stream mi (4.0 km) of an unnamed tributary 
entering from the south just downstream of Brunyansky Draw; and 
approximately 1.0 mi (1.6 km) of an unnamed tributary entering on the 
far eastern end just east of, and parallel to, Indian Hill Road. 
Includes--T17N R67W, S2 SW4 Sec. 7; downstream to SE4 Sec. 7; NW4SW4 
Sec. 8; S2 N2 Sec. 8; S2 N2 Sec. 9; NW4 Sec. 10; N2 NE4 Sec. 10; S2 S2 
SE4 Sec. 3; N2 N2 NW4 Sec. 11; S2 Sec. 2; NW4SW4 Sec. 1; S2 N2 Sec. 1; 
T17N R66W, S2 NW4 Sec. 6; downstream to N2 SE4 Sec. 6; NW4SW4 Sec. 5; 
SE4NW4 Sec. 5; SW4NE4 Sec. 5; N2 SE4 Sec. 5; N2 S2 Sec. 4; S2 NE4 Sec. 
4; NW4SW4 Sec. 3; S2 N2 Sec. 3; N2 SE4 Sec. 3; W2 SW4 Sec. 2; NE4 Sec. 
    (iii) Note: Map 4 (Unit 4) follows:

[[Page 47855]]


[[Page 47856]]

    (10) Unit 5: Lodgepole Creek West, Laramie County, Wyoming.
    (i) This unit consists of approximately 15 stream mi (24 km) west 
along Lodgepole Creek from State highway 85. Includes: T16N R68W, N2 
Sec. 24; downstream to T16N R67W, S2 N2 Sec. 19; S2 N2 Sec. 20; N2 S2 
Sec. 20; N2 SW4 Sec. 21; W2 SE4 Sec. 21; N2 NE4 Sec. 28; W2 NW4 Sec. 
27; N2 S2 Sec. 27; SW4NE4 Sec. 27; S2 Sec. 26; S2 SW4 Sec. 25; N2 NE4 
Sec. 36; T16N R66W, N2 Sec. 31; downstream to SW4NW4 Sec. 32; SW4 Sec. 
32; S2 SE4 Sec. 32; SW4SW4 Sec. 33; SE4SE4 Sec. 33; S2 SW4 Sec. 34; 
T15N R66W, N2 N2 Sec. 4; downstream to NE4NW4 Sec. 3; N2 NE4 Sec. 3; 
NW4 Sec. 2; SE4 Sec. 2.
    (ii) Note: Map 5 (Unit 5) follows:

[[Page 47857]]


[[Page 47858]]

    (11) Unit 6: Lodgepole Creek East, Laramie County, Wyoming and 
Kimball County, Nebraska.
    (i) Reach 1 consists of 16.9 mi (27.2 km) of Lodgepole Creek from 
approximately 3 mi (5 km) northwest of the town of Hillsdale on the 
west end of the reach, downstream to Thomas Reservoir No. 2, 
approximately 2.5 mi (4.0 km) northeast of the town of Burns. Includes: 
T15N R64W, NE4SW4 Sec. 27; downstream to N2 N2 SE4 Sec. 27; S2 S2 NE4 
Sec. 27; N2 S2 Sec. 26; S2 S2 N2 Sec. 26; S2 N2 Sec. 25; NW4SW4 Sec. 
25; N2 N2 SE4 Sec. 25; T15N R63W, S2 N2 Sec. 30; downstream to 
NE4NE4SE4 Sec. 30; N2 SW4 Sec. 29; SE4SE4NW4 Sec. 29; S2 NE4 Sec. 29; 
S2 Sec. 28; S2 S2 Sec. 27; N2 N2 Sec. 34; N2 N2 Sec. 35; S2 SE4SE4 Sec. 
26; S2 S2 Sec. 25; T15N R62W, SW4SW4 Sec. 30; downstream to N2 Sec. 31; 
SW4 Sec. 32; T14N R62W, NE4NE4NW4 Sec. 5; downstream to N2 NE4 Sec. 5; 
NW4 Sec. 4; SW4SW4NE4 Sec. 4; S2 Sec. 4.
    (ii) Reach 2 consists of 1.4 mi (2.3 km) of Lodgepole Creek in 
Wyoming from north of the town of Pine Bluffs extending downstream 
approximately 5.5 stream mi (8.9 km) beyond the Wyoming State line into 
Kimball County, Nebraska. This reach also includes approximately 1.0 
stream mi (1.6 km) of Spring Creek in Wyoming, west of the point of 
merging with Lodgepole Creek. In Wyoming, includes: T14N R60W, N2 NW4 
Sec. 10; downstream to NW4NE4 Sec. 10; S2 S2 SE4 Sec. 3; SW4SW4 Sec. 2; 
NE4NW4 Sec. 11.
    (iii) In Nebraska, includes: T14N R59W, N2 N2 SE4 Sec. 11; 
downstream to S2 S2 NE4 Sec. 11; S2 S2 NW4 Sec. 12; S2 Sec. 12. T14N 
R58W, S2 Sec. 7; downstream to S2 Sec. 8.
    (iv) Note: Map 6 (Unit 6) follows:

[[Page 47859]]


[[Page 47860]]

    (12) Unit 7: Borie, Laramie County, Wyoming.
    (i) Reach 1 consists of 9.4 stream mi (15.1 km) along Diamond Creek 
west of F.E. Warren Air Force Base and other smaller tributaries 
merging from the north. Includes: T14N R67W, N2 Sec. 33; upstream to 
NW4SW4 Sec. 33; S2 NE4 Sec. 32; E2 SE4 Sec. 32; SW4 Sec. 32; S2 Sec. 
31; T13N R67W, N2 Sec. 5; upstream to NW4NW4SW4 Sec. 5; S2 Sec. 6.
    (ii) Reach 2 consists of 2.5 stream mi (4.0 km) of Spring Creek. 
Includes: T13N R67W, N2 S2 Sec. 18; downstream to N2 S2 Sec. 17; SW4NW4 
Sec. 17.
    (iii) Reach 3 consists of 4.4 stream mi (7.1 km) of Lone Tree 
Creek, and approximately 1.0 mi (1.6 km) of an unnamed tributary to the 
north of Lone Tree Creek. Includes: T13N R68W, N2 NE4 Sec. 26; 
downstream to NE4NE4NW4 Sec. 26; N2 Sec. 25; SE4 Sec. 25; T13N R67W, 
NW4 Sec. 31; downstream to NE4SW4 Sec. 31.
    (iv) Note: Map 7 (Unit 7) follows:

[[Page 47861]]


[[Page 47862]]

    (13) Unit 8: Meadow Springs Ranch, Weld County, Colorado.
    (i) This unit consists of 707 ac (286 ha) within the Meadow Springs 
Ranch, Weld County, Colorado. Includes: T11N R68W, E2SE4 Sec. 24; 
NW4NW4 Sec 25; T11N R67W, SW4 Sec. 19; S2 SE4 Sec. 19; N2 Sec. 30; SE4 
Sec. 30; NE4SW4 Sec. 30; W2 NW4 Sec. 29; SW4 Sec. 29; SW4SE4 Sec. 29.
    (ii) Note: Map 8 (Unit 8) follows:
* * * * *

    Dated: July 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-17576 Filed 8-5-04; 8:45 am]