[Federal Register: December 15, 2010 (Volume 75, Number 240)]
[Rules and Regulations]
[Page 78429-78483]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de10-15]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
for the Preble's Meadow Jumping Mouse in Colorado; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2009-0013; MO 92210-0-0009]
RIN 1018-AW45
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Preble's Meadow Jumping Mouse in Colorado
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
revised critical habitat for the Preble's meadow jumping mouse (Zapus
hudsonius preblei) (PMJM) in Colorado, where it is listed as threatened
in a Significant Portion of the Range (SPR) under the Endangered
Species Act of 1973, as amended (Act). In total, approximately 411
miles (mi) (662 kilometers (km)) of rivers and streams and 34,935 acres
(ac) (14,138 hectares (ha)) fall within the boundaries of revised
critical habitat in Boulder, Broomfield, Douglas, El Paso, Jefferson,
Larimer, and Teller Counties.
DATES: This rule becomes effective on January 14, 2011.
ADDRESSES: This final rule, the economic analysis, the environmental
assessment, comments and materials received, and supporting
documentation we used in preparing this final rule, are available for
viewing on the Internet at http://www.regulations.gov (see Docket No.
FWS-R6-ES-2009-0013) and also by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Colorado Ecological
Services Office, 134 Union Boulevard, Suite 670, Lakewood, CO 80225;
telephone 303-236-4773; facsimile 303-236-4005.
FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S.
Fish and Wildlife Service, Colorado Ecological Services Office (see
ADDRESSES). If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics relevant to the
designation of revised critical habitat in this final rule. For
additional information on the biology of this subspecies, see our
October 8, 2009, proposed rule to revise the designation of critical
habitat for the PMJM (74 FR 52066); our July 10, 2008, final rule to
amend the listing for the PMJM to specify over what portion of its
range the subspecies is threatened (73 FR 39789); and our May 13, 1998,
final rule to list the PMJM as threatened (63 FR 26517).
Previous Federal Actions
On August 22, 2003, the City of Greeley filed a complaint in the
U.S. District Court for the District of Colorado challenging our June
23, 2003, designation of critical habitat for the PMJM (68 FR 37275)
(City of Greeley, Colorado v. United States Fish and Wildlife Service
et al., Case No. 03-CV-01607-AP). On December 9, 2003, the Mountain
States Legal Foundation filed a complaint in the U.S. District Court
for the District of Wyoming challenging our 1998 listing of the PMJM
and designation of critical habitat for the PMJM (Mountain States Legal
Foundation v. Gale E. Norton et al., Case No. 03-cv-250-J). That
complaint was later expanded to include our July 10, 2008, final rule
to amend the listing for the PMJM to specify over what portion of its
range the subspecies is threatened (73 FR 39789) and transferred to the
U.S. District Court for the District of Colorado (Mountain States Legal
Foundation v. Ken Salazar et al., Case No. 1:08-cv-2775-JLK). These
lawsuits challenged the validity of the information and reasoning we
used to designate critical habitat for the PMJM.
On July 20, 2007, we announced that we would review our June 23,
2003, designation of critical habitat for the PMJM (68 FR 37275) after
questions were raised about the integrity of scientific information we
used and whether the decision we made was consistent with the
appropriate legal standards (Service 2007a). Based on our review of the
previous critical habitat designation, we determined that it was
necessary to revise critical habitat. This rule incorporates those
revisions that we found appropriate.
On July 10, 2008, we amended the listing for the PMJM to specify
over what portion of its range the subspecies is threatened (73 FR
39789), and determined that the listing of the PMJM is limited to the
SPR in Colorado. Upon that determination, all critical habitat
designated in 2003 within the State of Wyoming was removed from the
regulations at 50 CFR 17.95 for this species.
On April 16, 2009, we reached a settlement agreement with the City
of Greeley in which we agreed to reconsider our critical habitat
designation for the PMJM. The settlement stipulated that we submit to
the Federal Register a proposed rule for revised critical habitat by
September 30, 2009, and a final rule for revised critical habitat by
September 30, 2010 (U.S. District Court, District of Colorado 2009a).
On June 16, 2009, an order was issued granting Mountain States Legal
Foundation a motion to dismiss their claims on the 1998 listing and
2008 final determination without prejudice, and stayed their challenge
to the 2003 critical habitat designation pursuant to the City of
Greeley settlement (U.S. District Court, District of Colorado 2009b).
On October 8, 2009, we published a proposed rule in the Federal
Register to revise the designation of critical habitat for the PMJM (74
FR 52066), and accepted public comments for 60 days (from October 8 to
December 7, 2009). On May 27, 2010, we opened a second comment period
of 30 days (from May 27 to June 28, 2010) and requested comments on our
draft economic analysis (DEA) (Industrial Economics 2010a), draft
environmental assessment, amended Required Determinations section of
the proposed rule, and any other part of our proposed revised critical
habitat designation (75 FR 29700). On August 9, 2010, an agreement with
the City of Greeley extended the date for submission of the final rule
for revised critical habitat to the Federal Register to December 1,
2010 (U.S. District Court, District of Colorado 2010).
For additional information about previous Federal actions
concerning the PMJM, see our July 10, 2008, rule for the PMJM to
specify over what portion of its range the subspecies is threatened (73
FR 39789).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of revised critical habitat for the PMJM during the two
comment periods. The first comment period, associated with the
publication of the proposed rule to revise the designation of critical
habitat for the PMJM (74 FR 52066) opened on October 8, 2009, and
closed on December 7, 2009. We opened a second comment period on our
DEA, draft environmental assessment, amended Required Determinations
section of the proposed rule, and any other part of our proposed
revised critical habitat designation (75 FR 29700) on May 27, 2010, and
closed it on June 28, 2010. We also contacted peer reviewers;
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties, and invited
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them to comment on the proposed rule and supporting documents.
We received 45 comments in response to the proposed rule. Comments
were received from 2 peer reviewers, 1 Federal agency, 1 State agency,
and 8 local governmental entities, 7 non-government organizations, and
18 private individuals (including 14 via similar post cards). Thirty-
seven comments were received during the October 8 to December 7, 2009,
comment period. Eight comments were received during the May 27 to June
28, 2010, comment period, all but one from entities that had commented
previously. We received no requests for public hearings. All
substantive comments have been either incorporated into the final
determination or are addressed below.
Peer Review
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we solicited expert opinions from three
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles. We received
responses from two of the peer reviewers that we contacted. The peer
reviewers generally agreed that we relied on the best scientific
information available, accurately described the species and its habitat
requirements, and concurred that our critical habitat proposal was well
supported. The peer reviewers provided additional suggestions to
improve the final critical habitat rule. Recommended editorial
revisions and clarifications have been incorporated into the final rule
as appropriate. We respond to all substantive comments below.
Comments From Peer Reviewers
(1) Comment: One peer reviewer commented that upstream and adjacent
habitat, beyond designated critical habitat, requires management to
decrease potential for catastrophic wildfire and flooding, and to
maintain appropriate stream flow and channel integrity.
Our Response: We agree. Federal agencies are directed, under
section 7(a)(1) of the Act (16 U.S.C. 1531 et seq.), to utilize their
authorities to carry out programs for the conservation of endangered
and threatened species. Proactive management on U.S. Forest Service
(USFS) and other Federal lands upstream or outward from designated
critical habitat should consider implications to the PMJM and its
critical habitat. In addition, section 7(a)(2) of the Act requires
every Federal agency to insure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
designated critical habitat. The activity does not have to take place
within PMJM habitat or critical habitat to be subject to section 7
consultation. In considering the effects of a proposed action, the
Federal agency looks at both the direct and indirect effects of an
action on the species or critical habitat. Indirect effects are caused
by the proposed action, are later in time, and are reasonably certain
to occur. If, for example, management activities on Federal land, or a
Federal permit or Federal funding for an activity upstream of critical
habitat, may result in increased runoff, sedimentation, or channel
alteration within critical habitat, those effects must be considered by
the Federal agency. Outside of Federal lands and when no Federal nexus
is present, cooperative conservation efforts with State and local
government, and private property owners are the most effective means of
addressing appropriate land management.
(2) Comment: One peer reviewer commented that we should have
emphasized the relationship of ``subshrub cover'' (low-growing woody
shrubs or perennial plants with a woody base) and plant species
richness with the presence of PMJM.
Our Response: We agree that these concepts are important to PMJM
habitat. Low shrub cover and species richness are correlated with
occupancy of riparian corridors by the PMJM. These relationships may be
significant and are described in Clippinger (2002, p. 73). The primary
constituent elements (PCEs) of critical habitat for the PMJM are
described more broadly and include riparian corridors, in part,
``containing dense, riparian vegetation consisting of grasses, forbs,
or shrubs, or any combination thereof.'' We believe that this final
rule appropriately captures the importance of the low, diverse
vegetative cover essential to the conservation of PMJM.
(3) Comment: One peer reviewer maintained that our explanation of
why Buffalo Creek and Wigwam Creek (Jefferson County) were not included
as proposed critical habitat should be better supported.
Our Response: Areas along both Buffalo Creek and Wigwam Creek have
been subject to catastrophic fires. These events caused subsequent
flooding and increased sedimentation of these streams. Trapping efforts
targeting PMJM have not been conducted in these areas since the fires;
however, it is unlikely that severely burned areas are currently
occupied by the PMJM. The areas remain degraded and for at least the
near future will not support the PCEs necessary for the conservation of
the PMJM in the appropriate quantity and spatial arrangement to support
inclusion as critical habitat. Given the extent of critical habitat
proposed elsewhere in this subdrainage, we conclude that it is not
necessary or appropriate to designate critical habitat in these
degraded stream reaches.
(4) Comment: One peer reviewer suggested that our failure to
propose critical habitat on the Big Thompson River, North Fork of the
Big Thompson River, and Little Thompson River was based more on issues
of land ownership than on science.
Our Response: All three of these rivers are within the Big Thompson
River subdrainage (subdrainages equate to U.S. Geological Survey 8-
digit hydrological unit boundaries and are hereafter referred to as
HUCs). Within this HUC we are designating Buckhorn Creek (Unit 3) and
Cedar Creek (Unit 4) as critical habitat, but we identified no other
areas that merited designation. Public lands, especially undeveloped
Federal lands and other public lands currently devoted to conservation,
are more likely to support viable PMJM populations, both currently and
in the future. We made our determinations after examining both quality
of existing habitat and land ownership, and prioritized designation of
Federal lands within this HUC.
Public Comments
Biological Concerns and Methodology
(5) Comment: One commenter stated that proposed critical habitat
should be expanded to reflect understanding of genetic diversity within
the PMJM.
Our Response: Our designation of revised critical habitat
incorporates current knowledge of genetic diversity in the PMJM.
Genetic analysis has revealed significant differences between PMJM
populations in northern and southern portions of the range (King et al.
2006, pp. 4337-4338). The Preble's Meadow Jumping Mouse Recovery Team
(Jackson 2009, pers. comm.) concluded that recovery populations
outlined in the Working Draft of a Recovery Plan (PMJM Recovery Team
2003), and included in the Preliminary Draft Recovery Plan (Draft Plan)
(Service 2003a), were spread north and south to provide adequate
representation of the genetic differences in northern and
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southern portions of the range examined in King et al. (2006). This
same approximate distribution in populations north and south is
reflected in this revised critical habitat designation.
(6) Comment: One commenter urged the Service to consider the value
of expanding proposed critical habitat to provide habitat linkage for
PMJM populations north and south of Denver, and among other drainages
where critical habitat was proposed.
Our Response: Potential connectivity of critical habitat was
considered consistent with our conservation strategy and that proposed
in the Draft Plan. In most cases, revised critical habitat units exceed
minimum reach lengths for large, medium, and small populations proposed
in the Draft Plan. All designated critical habitat units and subunits
exceed 3 mi (5 km) in stream length, the minimum length of stream the
Draft Plan prescribes for a small recovery population. In some cases,
we chose not to link stream reaches through the designation of marginal
habitat, or not to substantially extend critical habitat to encompass a
larger PMJM population, where multiple smaller recovery populations are
consistent with our conservation strategy.
(7) Comment: One commenter requested that, before designating
revised critical habitat, the Service should consult with scientists
regarding how climate change may affect PMJM movement, habitat needs,
and habitat connectivity. For example, it was suggested that we should
consider potential effects of changes in precipitation and earlier
spring runoff.
Our Response: Variability in existing climate models suggests
uncertainty as to future climate change and potential effects in
Colorado, where the PMJM is listed. We have considered the potential
impact of future climate change on the PMJM, and we believe that our
revised designation adequately addresses likely climate change
scenarios by designating critical habitat areas throughout the north-
south range of the PMJM in Colorado that vary in elevation and in
stream size (see Climate Change, below). In the Big Thompson River and
Upper South Platte River drainages, we are designating critical habitat
units in excess of those recovery populations called for in the Draft
Plan to provide resilience, should climate change reduce the value of
lower elevation habitats currently occupied by the PMJM. These units,
the Cache La Poudre Unit (Unit 2) and the Upper South Platte Unit (Unit
11), are centered on Federal lands and include reaches extending to the
highest elevation the PMJM is currently known to occupy in Colorado.
If, in the future, a clearer picture of the effects of climate change
on the PMJM is developed, further revision of critical habitat may be
appropriate (see also Climate Change, below).
(8) Comment: One commenter stated that both sites where trapping
has documented PMJM presence since 2003, and sites of earlier captures,
should be included in designated critical habitat.
Our Response: Not all areas where the PMJM is known to occur in
Colorado are being designated as revised critical habitat. See our
response to comment 44. We incorporated the best scientific and
commercial information available into this final rule, including
information regarding all locations where PMJM have been trapped since
our 2003 final rule. These more recent capture locations did not
significantly expand the known distribution of the PMJM in Colorado.
However, we did consider each new capture location and its potential
significance prior to our proposing revised critical habitat for the
PMJM.
(9) Comment: One commenter stated that the Draft Plan for the PMJM,
which was cited as a basis for the Service's conservation strategy and
certain decisions regarding proposed designation of revised critical
habitat, is 6 years old and does not include current data.
Our Response: The 2003 Draft Plan (Service 2003a) provides a
conservation strategy for the PMJM. It was developed primarily by the
PMJM Recovery Team and refined through comments and additional
information we received. Information on range, occupancy, populations,
and habitat characteristics were used in developing the Draft Plan.
Recent review by the current PMJM Recovery Team has verified that
concepts and strategies incorporated into the Draft Plan remain
appropriate (Jackson 2010, pers. comm.). However, we also incorporated
new data, as appropriate, in developing our proposal and this final
rule, including trapping results, genetic and morphometric confirmation
of species identification, and changes to habitat.
(10) Comment: One commenter pointed out that the Service has not
proposed critical habitat to address all recovery populations called
for in the Draft Plan, including HUCs where the PMJM is known to occur.
Our Response: While the conservation strategy underlying our
proposed revision of critical habitat was informed by the Draft Plan
and the ongoing recovery planning process, areas we are designating as
revised critical habitat in this rule will not be identical to areas
ultimately designated as recovery populations. The Draft Plan
designated location of certain recovery populations in HUCs where PMJM
are known to be present. However, in some HUCs within the likely range
of the PMJM, there is little or no available information on the
existence of PMJM populations or the extent of occupied habitat. In
these cases, the Draft Plan only applied standard criteria to achieve
recovery of the species. For example, the Draft Plan required, at
minimum, three small recovery populations or one medium recovery
population in several HUCs, but only if the HUC was found to be
occupied by the PMJM. Since we have determined that the conservation of
the PMJM can be achieved by designating critical habitat in areas that
are known to support the species, rather than in areas with no
confirmed occupancy by the species, we are designating no critical
habitat in HUCs where occupancy has not been confirmed. In other cases,
such as the Kiowa HUC in Elbert County, trapping efforts have been
limited to sites of human development, and, while there is confirmed
occurrence of the PMJM, it is not sufficient to inform us of
distribution or abundance within the HUC. We exercised our professional
judgment and determined that those limited areas of confirmed
occurrence of the PMJM in and near human development are not essential
to the conservation of the PMJM. We are not designating such sites as
critical habitat.
(11) Comment: One commenter stated that areas of critical habitat
should be designated in excess of recovery goals suggested in the Draft
Plan.
Our Response: In two HUCs, we are designating critical habitat
units beyond those recovery populations that the Draft Plan specifies.
We are designating critical habitat capable of supporting a large PMJM
population independent of, and in addition to, the large recovery
populations proposed in the Draft Plan along the Cache la Poudre River
(Unit 2) in the Cache La Poudre River HUC and designated reaches of the
Upper South Platte River and its tributaries (Unit 10) in excess of
recovery goals for the Upper South Platte River HUC. In other HUCs, we
did not identify or designate additional areas that met the definition
of critical habitat in excess of recovery goals stated in the Draft
Plan.
(12) Comment: Multiple commenters stated that the outward extent of
proposed critical habitat did not accurately reflect limits of PMJM
habitat. One commenter stated that distance outward from riparian
vegetation is a much better predictor of PMJM habitat than is our use
of distance
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from the stream edge, based on stream order (a classification of
streams by relative size). Another commenter stated that floodplain
plus 100 meters should be used as the outward boundary of critical
habitat on reaches where floodplain mapping is available.
Our Response: We believe that the outward extent of critical
habitat we are designating includes all PCEs required by the PMJM and
effectively protects habitat essential to the conservation of the PMJM.
We agree that site-specific assessment of habitat components, including
extent of riparian vegetation, is a more precise method of designating
critical habitat (see our response to comment 14 below). However, site-
specific mapping of PMJM habitat in Colorado is not generally
available. Land use and recent site history complicate efforts to
accurately assess and map riparian habitat limits. Floodplain mapping
is not available for most foothill streams designated as PMJM critical
habitat. Where limits of the designated 100-year floodplain have been
mapped, floodplain limits are often revised, especially in the Colorado
Front Range development corridor, where filling of the floodplain may
occur and flood levels are altered by development. We used the best
available scientific and commercial information with respect to
determining the outward extent of PMJM critical habitat.
(13) Comment: One commenter suggested that the Service should
provide detail on the development of the average floodplain widths used
to designate outward limits of critical habitat for streams of
different order and stated that the calculation needs to be based on a
sufficient sample of sites across PMJM range to be meaningful.
Our Response: The estimates of average floodplain width based on
stream order that we use in this designation of critical habitat were
previously developed in conjunction with our June 23, 2003, designation
of critical habitat for the PMJM (68 FR 37275). We believe that a
sufficient number of representative streams were examined to provide an
appropriate estimation of average floodplain width as related to stream
order.
(14) Comment: One commenter stated that the Riparian Conservation
Zone (RCZ) mapping, developed as part of the approved Douglas County
Habitat Conservation Plan (HCP), corresponds better to appropriate
outward limits of critical habitat than do the boundaries that the
Service proposed for revised critical habitat, and that critical
habitat boundaries should align with county-wide HCP boundaries for
consistency and to avoid confusion.
Our Response: We agree that it is preferable that critical habitat
boundaries match HCP boundaries where HCP boundaries accurately reflect
limits of habitat essential to the conservation of the PMJM. RCZ
boundaries in the Douglas County HCP were developed based on
conservation strategies for the PMJM provided in the Draft Plan. After
consideration, we are designating the outward boundaries of revised
critical habitat on non-Federal lands in Douglas County to correspond
to the boundaries developed for RCZ (see the Delineation of Critical
Habitat Boundaries section).
Procedural and Legal Issues
(15) Comment: Two commenters stated that the Service cannot propose
a critical habitat revision prior to analysis of alternatives under the
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), a
draft economic analysis (DEA), and a Regulatory Flexibility Act (5
U.S.C. 601 et seq.) analysis. They stated that the environmental and
economic impacts of the proposed action must be considered prior to the
proposal.
Our Response: By Service policy, we draft and circulate the NEPA,
DEA, and Regulatory Flexibility Act analyses between the proposed and
final critical habitat designation. Comments on the entire proposal,
including the draft environmental assessment, DEA, and Regulatory
Flexibility Act analysis, were accepted for 30 days following the May
27, 2010, publication making available these documents (75 FR 29700).
The information provided in these documents and comments regarding them
were fully considered prior to this final rule, in accordance with
applicable regulations and statutes.
(16) Comment: Two commenters stated that the Service
inappropriately proposed critical habitat in areas where the PMJM was
not known to exist at the time of listing.
Our Response: Section 3(5)(A) of the Act defines critical habitat,
in part, as those specific areas within the geographic area occupied by
the species at the time of listing, and specific areas outside the
geographic area occupied by the species at the time of listing upon
determination that such areas are essential for the conservation of the
species. Our designation constitutes our best assessment of areas
determined to be within the geographical area occupied at the time of
listing that contain the physical and biological features essential to
the conservation of the PMJM that may require special management, and
those additional areas not occupied at the time of listing, but that
have been determined to be essential to the conservation of the PMJM.
Management and protection of all the areas is necessary to achieve the
conservation of PMJM. Therefore, we are also designating areas that
were not known to be occupied at the time of listing, but which were
subsequently identified as being occupied, and which we have determined
to be essential to the conservation of the PMJM in our Preliminary
Draft Recovery Plan (Service 2003a). We have based our critical habitat
designation on the best currently available scientific information.
(17) Comment: One commenter stated that only areas ``indispensible
and absolutely necessary'' to the PMJM should be designated as critical
habitat and that the Service should include only the ``minimum amount
of habitat needed to avoid short-term jeopardy'' (citing Middle Rio
Grande Conservancy District v. Babbitt). Based on this reasoning, they
asserted that we could not tie critical habitat to the Draft Plan,
which addresses long-term recovery.
Our Response: Within the range of the listed species, critical
habitat is defined to include areas occupied at the time of listing on
which are found those physical or biological features essential to the
conservation of the species, and which may require special management
considerations or protection, and those additional areas not occupied
at the time of listing but that have been determined to be essential to
the conservation of the species. Conservation is defined in the Act as
the use of all methods and procedures which are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Limiting designation of
critical habitat to avoiding ``short-term jeopardy'' would not meet the
Act's intent that critical habitat provide for the conservation (e.g.,
recovery) of the species.
(18) Comment: One commenter expressed the concern that details of
all existing HCPs involving the PMJM were not readily available for
public review and that all HCPs should be available on the Service's
``ECOS'' Web site and the Service's Mountain-Prairie Region Web site.
Our Response: Most HCPs that address the PMJM have been available
to the public on our ECOS Web site. When we were made aware that
certain HCPs were not posted, we provided the commenter the requested
materials as expeditiously as possible.
[[Page 78434]]
(19) Comment: One commenter stated that Geographic Information
System (GIS) data depicting proposed critical habitat boundaries should
have been made available for public review.
Our Response: We provided GIS depictions of proposed critical
habitat when requested. Additionally, we believe that the legal
description of stream reaches and outward distances from streams that
we provided in our proposal to revise the designation of critical
habitat were adequate to identify the areas proposed.
(20) Comment: One commenter recommended that we incorporate a
provision in our critical habitat designation that would exclude from
critical habitat areas covered by future HCPs, when completed.
Our Response: The basis for exclusions from critical habitat under
section 4(b)(2) of the Act is explained in ``Exclusions'' below. We
cannot make a determination now to exclude areas covered by HCPs that
may be developed sometime in the future, because we have no way to
evaluate the effectiveness, and determine whether the benefits of
exclusion outweigh the benefits of inclusion, of plans that do not yet
exist and have not been implemented. If, in the future, we determine
that changes in designated critical habitat for the PMJM are
appropriate, we have the option to revise critical habitat.
(21) Comment: One commenter asked us to confirm that the existing
special 4(d) rule, which exempts take of PMJM under section 9 of the
Act for specified activities, including ditch maintenance and any
continued use of perfected water rights, is not affected by the
designation of critical habitat.
Our Response: The 4(d) rule for the PMJM (see 50 CFR 17.40 (l))
provides certain exemptions from the take prohibitions found in section
9 of the Act. Take prohibitions under section 9 are not affected by the
designation of critical habitat. The primary regulatory effects of a
critical habitat designation under the Act are triggered through the
provisions of section 7 of the Act, which applies only to activities
conducted, authorized, or funded by a Federal agency. In limited cases,
an activity that is excluded from take provisions under the 4(d) rule
may require a Federal permit or involve Federal funding. In these
cases, while take would be exempted under the 4(d) rule, section 7
consultation would still occur to ensure that Federal actions would not
jeopardize the PMJM or result in destruction or adverse modification of
its critical habitat.
(22) Comment: One commenter stated that under the Act, the Service
must re-consult on any projects within newly designated critical
habitat that previously underwent section 7 consultation.
Our Response: For Federal actions, the lead Federal agency
determines whether their action may affect designated PMJM critical
habitat. This applies to projects previously consulted on under section
7 where the Federal agency has retained discretionary involvement or
control over the action. Federal agencies may sometimes need to request
reinitiation of consultation on actions for which formal consultation
has been completed (see 50 CFR 402.16).
Comments on Specific Units
(23) Comment: One commenter requested us to connect critical
habitat Units 1 (North Fork of the Cache la Poudre River) and 2 (Cache
la Poudre River) in Larimer County.
Our Response: The Milton Seaman Reservoir at the downstream extent
of Unit 1 is a barrier to PMJM movement and effectively prevents
linking of the two units. We do not believe that it is biologically
necessary or possible to link these two units. See also our response to
Comment 6.
(24) Comment: One commenter called for us to exclude the area
proposed as critical habitat in Unit 1 (North Fork of the Cache la
Poudre River) on the mainstem of the North Fork of the Cache la Poudre
River upstream of the Milton Seaman Reservoir and within the footprint
of the proposed reservoir expansion.
Our Response: We have not excluded this reach from designated
critical habitat. This area includes Federal and State property that
would potentially be inundated by the City of Greeley's proposed
expansion of the Milton Seaman Reservoir. Expansion under the currently
proposed plan would inundate about 3 mi (5 km) of the river. In 2002,
the City of Greeley contended that the reach in question supported only
patches of willow shrub, had little habitat for the PMJM, and did not
meet the definition of critical habitat (Kolanz 2003). In our on June
23, 2003, designation of critical habitat (68 FR 37275), we concluded
the area in question supported those physical or biological features
essential to the conservation of the species, and may require special
management considerations or protection. We stated that, within the
reach in question, some habitat components appeared discontinuous, and
PMJM habitat was, at that time, of lower quality than habitat upstream
of this reach, due to heavy grazing. However, we concluded that the
area in question did include the requisite PCEs to support the PMJM,
and its designation as critical habitat was essential for the
conservation of the large PMJM population along the North Fork of the
Cache la Poudre River. The Service chose not to exclude this reach from
critical habitat in 2003. This prompted the legal actions by the City
of Greeley addressed in ``Previous Federal Actions'' above.
The City of Greeley, in a letter dated May 20, 2009, outlined its
concerns regarding designation of critical habitat in this area, and
requested exclusion of the area from revised critical habitat under
section 4(b)(2) of the Act (Kolanz 2009a). The City of Greeley also
submitted a report by ERO Resources Corporation (ERO) assessing the
area to be inundated by the proposed reservoir expansion (ERO 2008).
ERO concluded that of the approximately 165 ac (66.8 ha) of designated
critical habitat that would be inundated, only about 26 acres were of
moderate to high quality for the PMJM. Non-habitat and low-quality
habitat were attributed to the dominant upland vegetation and steep
slopes, while the moderate- to high-quality habitat was associated with
the narrow riparian corridor (ERO 2008, pp. 11-12). In our October 8,
2009, proposal to revise the designation of critical habitat for the
PMJM (74 FR 52066), we again determined that the area met the
definition of critical habitat, that it included physical and
biological features that are essential to the conservation of the
species and that may require special management considerations or
protection. Three other letters from the City of Greeley followed, two
within public comment periods for the proposed revised critical
habitat, expanding on the City of Greeley's concerns (Kolanz, 2009b,
2009c, 2010).
Consistent with previously stated concerns over habitat quality,
the City of Greeley contended that the area in question is not
essential to the conservation of the PMJM. The City of Greeley pointed
out that it was not mapped as PMJM habitat in our proposal to establish
special regulations for the conservation of the PMJM (December 3, 1998,
63 FR 66777), and was not shown to be ``occupied'' by PMJM in a recent
Colorado Division of Wildlife (CDOW) database. The reach in question is
part of the USFS Greyrock Grazing Allotment, which extends from Milton
Seaman Reservoir, approximately 3 mi (5 km) upstream, and includes
lands owned primarily by the USFS (about 2 mi (3 km) of the stream), as
well as State lands, City of Greeley lands, and private lands (USFS
[[Page 78435]]
2008). The USFS 2008 Biological Assessment for management of the
Greyrock Grazing Allotment explains the history of the site and past
habitat limitations (USFS 2008). Heavy livestock grazing for many
decades drastically reduced riparian shrubs and trees. In the last 7
years, riparian habitat quality has significantly improved in the
reach. Following removal of grazing along the North Fork of the Cache
la Poudre River, a notable increase in willow growth and a tall, dense
herbaceous component of the plant community was observed in the
riparian zone in 2007. With no further livestock grazing in the reach
through 2010, a lush riparian community has developed that provides
PCEs essential to the support of the PMJM, in quantity and spatial
arrangement that suggests riparian habitat is now of high quality.
Upland habitat in the reach has been slower to recover following heavy
grazing, and weed control efforts are needed. While the PMJM had been
documented upstream in this drainage, the reach above Milton Seaman
Reservoir had not been trapped to establish whether the PMJM was
present until 2010, when a limited trapping effort by the USFS captured
a jumping mouse within the proposed reservoir expansion area (USFS
2010). The CDOW database will be updated accordingly. Restoration of
habitat in this reach has advanced to the point where grazing will
again take place on the allotment. Carefully managed grazing will
maintain or improve PMJM habitat in this allotment into the future. The
USFS has informally consulted with the Service over management of this
allotment and we have concluded that carefully managed grazing will
maintain or improve PMJM habitat on the allotment into the future.
The City of Greeley also stated that designation of critical
habitat in this area would create significant financial burden on the
City. Our DEA (section 5.3) assigns a low incremental cost ($20,000 to
$38,000) to the designation of critical habitat for the Halligan
Reservoir and Milton Seaman Reservoir projects. However, additional
costs could be incurred should designation of critical habitat affect
regulatory approval of the proposed project, and cause the City of
Greeley to pursue a more costly alternative. Because of their
speculative nature, these costs were not included in the DEA (see our
response to Comment 56), but we discuss them in the FEA and here. Under
section 7 of the Act, the Service will evaluate whether any proposed
alternative for Milton Seaman Reservoir expansion under permit review
by the U.S. Army Corps of Engineers (Corps) will jeopardize the PMJM or
result in destruction or adverse modification of its designated
critical habitat. Under the City of Greeley's worst case scenario, our
designation of critical habitat and subsequent consultation regarding
the reservoir project could result in a finding of ``destruction or
adverse modification of critical habitat'' by the Service, or could
result in the Corps denying a permit under the Clean Water Act (33
U.S.C. 1251 et seq.), based on the proposed project not being the
``least damaging practicable alternative.'' To be attributable to our
designation of critical habitat, an outcome and any resultant costs
would have to differ from the results of regulatory review of the same
project with no critical habitat designation. For example, the outcome
would have to differ from the result of Service consultation in the
absence of critical habitat that results in a jeopardy determination,
or in the absence of critical habitat, the Corps denying a permit based
on the presence of the PMJM, combined with an array of other
considerations. The question of whether regulatory review under
scenarios with or without critical habitat would produce different
results contributes to the speculative nature of costs attributable to
critical habitat designation. Factors relevant to possible future
Service and Corps regulatory determinations follow.
Substantial planning has taken place between the City of Greeley,
the Service, The Nature Conservancy, and other entities, to address
potential impacts to the PMJM and its habitat from the planned
reservoir expansion. The City of Greeley has expressed an interest in
implementing conservation measures to offset impact of the proposed
project to the PMJM prior to project construction. Conservation
measures have been identified that could serve to offset project
impacts to the PMJM, should the planned project move forward. These
conservation measures are targeted at PMJM populations and supporting
ecological processes in critical habitat Unit 1, which includes the
reservoir expansion area. Further development of conservation measures
and their incorporation into plans for proposed reservoir expansion
could help maintain the value of this critical habitat unit to the
recovery of the PMJM and reduce or eliminate the possibility of a
jeopardy or adverse modification determination by the Service.
Our designation of critical habitat for the PMJM should be
considered by the Corps as indicative of the high natural resource
value of the lands designated. A decision that the area does not meet
the definition of critical habitat would imply a lesser resource value.
However, if the Service were to exclude the reach in question from
critical habitat for reasons of relevant non-biological factors
(economic, social, etc.), it would not change our determination that
the area meets the definition of critical habitat, nor would it change
the inherent resource value of the reach or its contribution to the
conservation and recovery of the PMJM. Therefore, from a resource
perspective, the Corps' assessment of the value of this reach and its
role in their consideration of issuing a permit to the City of Greeley
may not differ between the cases of critical habitat designation and
exclusion from designation based on non-biological factors.
Any future Milton Seaman Reservoir expansion may differ from the
project currently proposed. The City of Greeley is an active
participant in the Halligan-Seaman Water Management Project. To
efficiently manage their supplies, the cities of Fort Collins and
Greeley have proposed the Halligan-Seaman Water Management Project as a
regional water storage and management project on the North Fork of the
Cache la Poudre River. Both cities and their partners are working
together to increase water storage capacity for their communities
through coordinated enlargements of Halligan and Milton Seaman
reservoirs. The participants are using an innovative Shared Vision
Planning process, which brings together stakeholders in a collaborative
planning and model building exercise. The Service is supportive of this
process, has participated as resources allow, and anticipates that its
results will inform the Halligan-Seaman Water Management Project. The
eventual proposal for Milton Seaman Reservoir expansion may vary from
the proposal currently envisioned, to facilitate coordinated management
of these reservoirs.
Onsite alternatives to the project currently proposed by the City
of Greeley may result from the Halligan-Seaman Water Management
Project. Such alternatives could reduce the probability of a Service
determination of adverse modification of critical habitat, or Corps
permit denial based on presence of critical habitat. Any such
alternatives could, however, also result in less water storage or
storage at a higher cost.
The most costly possible result of our designation of critical
habitat would be a case where the City of Greeley would have to abandon
expansion plans for the Milton Seaman Reservoir, and develop
[[Page 78436]]
storage options at one or more alternate sites. Assuming a current
estimated cost of $116 million for the proposed project (Kolanz 2010,
p. 4) and the Corps' estimated costs of alternate storage cited in the
DEA (up to 8 times the cost of storage through Milton Seaman Reservoir
expansion), additional cost due to designation of critical habitat
could range to $812 million. The Corps' estimates relate to comparative
costs incurred by other Front Range Colorado water projects (Peter,
pers. comm. 2010).
Under the scenarios above, the additional cost to the City of
Greeley associated with critical habitat designation upstream of the
Milton Seaman Reservoir could range from $20,000 to as high as $812
million. We have considered both the potential costs due to designation
of critical habitat, and the relative likelihood of their occurrence,
when evaluating the City of Greeley's request for exclusion.
The reach of river above the Milton Seaman Reservoir is part of
critical habitat Unit 1, established to be consistent with a large
recovery population along the North Fork of the Cache La Poudre River
and its tributaries, as designated in the Draft Plan. The entire reach
of the North Fork between the Halligan Reservoir to the north and
Milton Seaman Reservoir to the south is within this unit. The two
reservoirs create barriers to PMJM movement along the river, and the
population of PMJM between the reservoirs and on adjoining tributaries
is thought to be relatively isolated from populations elsewhere. The
City of Greeley contends that loss of up to 3 mi (5 km) of the
approximately 88 mi (140 km) in this critical habitat unit will have
little relative impact on the unit's ability to conserve and recover
the PMJM. We do not know the extent of habitat needed to support a
large recovery population as described in the Draft Plan. At a minimum,
a total of 50 mi (80 km) of connected streams and tributaries is
suggested for a large PMJM population in the Draft Plan. But the Draft
Plan bases size of PMJM recovery populations on the numbers of PMJM
present, not the extent of habitat. Until such time as population
estimates for the area are developed, we will not know whether 50 mi
(80 km), or even 88 mi (140 km), of streams will be sufficient. In this
context, loss of 3 of the 88 mi (5 of the 140 km) may significantly
impact the ability of the critical habitat unit to support a large
population and meet the recovery goal outlined in the Draft Plan.
The City of Greeley suggested that an exclusion would support
ongoing Federal and local cooperation in the development of water
resources in the drainage. Water use and storage issues continue to
generate close scrutiny in Colorado. The Milton Seaman Reservoir
expansion, Halligan Reservoir expansion, and other proposed projects
have both their proponents and critics. While an exclusion could lead
to the continuation and strengthening of partnerships between the City
of Greeley, certain other public and private entities, and the Service,
it would likely alienate others. Despite our decision not to exclude
the area above Milton Seaman Reservoir from critical habitat
designation, we anticipate a continued working relationship with the
City of Greeley to address both their needs and those of the PMJM.
If approved, the proposed reservoir expansion would occur well in
the future. The required review under NEPA and the permit issuance by
the Corps under the section 404 of the Clean Water Act, necessary for
reconstruction of the reservoir's dam, are likely to take years.
Because of this, considerable uncertainty exists regarding when and in
what form an expansion of Milton Seaman Reservoir might occur. Given
the uncertainties regarding timing, design, and future conservation
commitments associated with reservoir expansion, exclusion of the area,
even if it should be determined to be appropriate someday in the
future, is premature.
Exclusion of this reach from critical habitat would do little to
relieve the costs of regulatory review and associated permitting
(delays, administrative costs, consulting costs, and cost of developing
additional conservation measures) for the City of Greeley. The area of
the proposed expansion includes Federal land owned by the USFS. All
alternatives impacting this land will involve USFS approval. In
addition, any dam replacement or reconstruction would require a permit
from the Corps under the Clean Water Act. Even without critical
habitat, section 7 review appears unavoidable. Exclusion from critical
habitat would not alleviate the need for section 7 consultation, or
appreciably increase the administrative costs involved.
Designation of critical habitat (the identification of lands that
are necessary for the conservation of the species) is beneficial in the
recovery planning for a species. In this case, the Draft Plan has
helped inform critical habitat designation by designating a large
recovery population in this area. This final rule may, in turn,
contribute to the development of a final recovery plan for the North
Fork of the Cache La Poudre River.
We have determined that this portion of the North Fork of the Cache
la Poudre River contains the physical and biological features essential
to the conservation of the PMJM in accordance with 4(a)(3) of the Act.
We conclude that it is inappropriate to exclude this reach from
critical habitat under section 4(b)(2) of the Act.
(25) Comment: Two commenters pointed out that critical habitat
proposed along Spring Brook and South Boulder Creek in Unit 5 (South
Boulder Creek), Boulder County, is discontinuous as mapped.
Our Response: PMJM have been found on both Spring Brook and South
Boulder Creek. Spring Brook has been diverted into a canal; therefore,
it does not follow its historical course directly into South Boulder
Creek. The limits of critical habitat we are designating for the two
reaches are separated by approximately 100 ft (30 m) through a rural
residential upland area which may not contain the physical and
biological features essential for the conservation of PMJM, as defined.
However, we do not believe that this discontinuity significantly
affects the species' ability to move between these portions of this
critical habitat unit.
(26) Comment: The City of Boulder requested that we coordinate with
the City to ``fine tune'' the boundaries of Unit 5 (South Boulder
Creek) to expedite regulatory review of future projects with a Federal
nexus.
Our Response: As in other units, based on the scale of our mapping,
there may be some areas within the general boundaries of designated
critical habitat in Unit 5 that do not support PCEs required by the
PMJM. For example, specific areas that support existing buildings,
roads, and parking lots are not considered critical habitat. These
areas are excluded by text in this rule. We will continue to be
available to work with the City of Boulder to determine boundaries of
areas that do not meet the definition of critical habitat.
(27) Comment: The U.S. Department of Energy (DOE) commented that it
controls much of the ``Rocky Flats Site,'' described by the Service as
the Rocky Flats National Wildlife Refuge (NWR) (Unit 6), in Jefferson
and Broomfield Counties, and noted that proposed critical habitat would
include portions of DOE's Central Operable Unit (COU) of 1,300 ac (530
ha), where a former facility processed and manufactured nuclear
weapons. Many DOE operational maintenance and monitoring activities
continue to take place within the COU under closure and cleanup
agreements. The DOE urged the Service to exclude the COU from
[[Page 78437]]
designation of critical habitat within this unit because designation
could adversely impact actions required under these agreements.
Our Response: We have modified this final rule to more accurately
reflect DOE presence on the Rocky Flats Site. The Rocky Flats Site
(Unit 6) is managed by the Service (Rocky Flats NWR) and DOE (the
Central Operating Unit and certain other lands). Buildings and other
structures at the site have been decommissioned and demolished, and the
disturbed areas have been restored, or are undergoing restoration.
Clean-up and closure of the COU was completed in 2005. Many operational
maintenance and monitoring activities continue to take place in the
COU, to maintain the CERCLA (the Comprehensive Environmental Response,
Compensation, and Liability Act, also known as Superfund, 42 U.S.C.
9601 et seq.) and RCRA (Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq.) remedies implemented in accordance with the Rocky
Flats Management Agreement.
The final Rocky Flats NWR Comprehensive Conservation Plan (CCP) was
announced in the Federal Register on April 18, 2005 (70 FR 20164). The
CCP outlines the management direction and strategies for NWR
operations, habitat restoration, and visitor services, for a period of
15 years. The CCP provides a vision for the NWR; guidance for
management decisions; and the goals, objectives, and strategies to
achieve the NWR's vision and purpose. One objective of the CCP is to
protect, maintain, and improve approximately 1,000 ac (400 ha) of PMJM
habitat on the NWR. A programmatic section 7 consultation with DOE for
their cleanup and maintenance activities was completed in 2004 (Service
2004c). This consultation addressed removal of manmade structures in
and adjacent to PMJM habitat, and ongoing operations in the COU in
support of the CERCLA/RCRA remedy.
We invited information and comments on potential exclusion of the
Rocky Flats Site in part because of the previous exclusion of the site
from critical habitat in our June 23, 2003, final rule (68 FR 37275).
That exclusion appeared at odds with the recent interpretation of
critical habitat designation on Federal lands. Federal agencies have an
affirmative conservation mandate under section 7(a)(1) of the Act to
contribute to the conservation of listed species. On the Rocky Flats
Site, as with other Federal lands, we anticipate that effective land
management strategies can and will be employed by Federal agencies to
conserve PMJM populations. We have determined that lands on the Rocky
Flats Site are essential to the conservation of the species.
Designation of critical habitat on the Rocky Flats Site highlights the
importance of the area to the PMJM, while encouraging the NWR and DOE
to provide a consistent and effective approach to conserve the PMJM.
These lands require special management considerations or protection, as
evidenced by and incorporated in management plans and the programmatic
consultation referenced above. Potential effects to habitat on the site
that may be addressed under programs, practices, and activities within
the authority and jurisdiction of Federal land management agencies
include, but are not limited to, weed management, wildland fire
management, recreation, construction and maintenance of roads and
trails, and operational maintenance and monitoring activities within
the COU. For the above reasons, we conclude that the entire Rocky Flats
site, including the COU, contains the physical and biological features
essential to the conservation of the PMJM and merits designation as
critical habitat.
(28) Comment: One commenter requested that the easternmost portion
of the Rocky Flats Site (Unit 6) in Jefferson and Broomfield Counties,
the site of proposed roadway expansion along Indiana Street, be
excluded from critical habitat, because it is planned for development.
They cited the Rocky Flats National Wildlife Refuge Act of 2001, and
Rocky Flats National Wildlife Refuge Comprehensive Conservation Plan
and Environmental Impact Statement (CCP/EIS) as addressing the roadway
expansion and anticipating its future construction in spite of
potential PMJM presence. Two other commenters urged that the specific
area in question be included in designated critical habitat.
Our Response: The areas in question contain the physical and
biological features essential to conservation of the PMJM and have not
been excluded from critical habitat. Should project plans for the road
expansion go forward, the Service has concluded that subsequent
environmental review, including compliance with the Act, will be
required of any future project proponent to address any impacts to the
PMJM, its habitat, and designated critical habitat. The Service has
made no conclusions as to how any transfer of Federal land or roadway
expansion would affect the PMJM. The Service only found that transfer
of a corridor up to 300-ft (92-m) wide would not adversely affect
management of the NWR (Service 2004, p. 191).
(29) Comment: Denver Water requested exclusion of their properties
covered under the Denver Water HCP, provided maps of their properties,
and pointed out apparent Service mapping errors.
Our Response: The eight properties in question include a total of
approximately 250 ac (113 ha) in 4 critical habitat units (Units 5, 7,
9, and 10). We have excluded these properties from critical habitat
designation under section 4(b)(2) of the Act (see the Exclusions
section below), and corrected maps and acreages as appropriate.
(30) Comment: Douglas County requested exclusion of non-Federal
lands within Douglas County based on their 2006 HCP.
Our Response: We have not excluded the non-Federal lands in Douglas
County. On May 11, 2006, we issued a section 10 incidental take permit
that covers the PMJM for the Douglas County HCP (Service 2006a). The
Douglas County HCP addresses only specified activities conducted by
Douglas County and the towns of Castle Rock and Parker, within Douglas
County, Colorado, on private and other non-Federal lands within the
RCZ, as mapped by Douglas County. Impacts to the RCZ associated with
the covered activities are mitigated by the permanent protection of
portions of the RCZ and the restoration of habitat from temporary
impacts. Stream segments totaling 15 mi (24 km) in length and 1,132 ac
(458 ha) of the RCZ have been permanently protected as part of the
Douglas County HCP. Management plans exist or are in development for
these protected properties (Dougherty 2009). The majority of proposed
critical habitat in Units 8 and 9, and a small amount of non-Federal
property in Unit 10 are within the boundaries of the Douglas County
HCP.
While the Douglas County HCP includes the extensive mapped RCZ that
encompasses areas believed to support the PMJM, the plan does not
provide a means by which habitat within these zones will be effectively
managed into the future. Only about 5 percent of the lands within the
RCZ are set aside for conservation under the plan. The vast majority of
lands in the RCZ receive no specific protection under the HCP.
Potential impacts to physical and biological features essential to the
PMJM from entities other than Douglas County and the cities of Parker
and Castle Rock, including those by private landowners, are not
addressed in the plan.
[[Page 78438]]
(31) Comment: One commenter proposed that we link the two subunits
proposed in Unit 8 (Cherry Creek), Douglas County.
Our Response: The Draft Plan calls for a medium recovery population
in Lower South Platte--Cherry Creek HUC. Each of the two subunits
appears large enough to support a medium recovery population. We
determined that linking them was not appropriate, after considering the
variable quality of intervening habitat on private lands and
determining that a much larger critical habitat unit with more reaches
in low-quality habitat would not provide additional benefit to the
PMJM.
(32) Comment: One commenter stated that we should limit the
downstream extent of designated critical habitat along Plum Creek in
Unit 9 (West Plum Creek), Douglas County, to the point of maximum
reservoir storage under the U.S. Army Corps of Engineers' (Corps')
Chatfield Reservoir Reauthorization Project preferred alternative
(maximum storage at 5,444 feet (ft) (1,660 meters (m)) in elevation).
Our Response: The reach in question is federally owned, has been
documented to support the PMJM, and has PCEs of appropriate quantity
and spatial arrangement to qualify as critical habitat. We have
determined that Plum Creek downstream to Chatfield Reservoir contains
the physical and biological features essential to the conservation of
the PMJM, and we have identified no basis to exclude this area from
critical habitat under section 4(b)(2) of the Act. Substantial planning
has taken place to address potential impacts to the PMJM should the
reservoir expansion proceed, in part because proposed expansion of
reservoir storage capacity would impact existing critical habitat on
the Upper South Platte River (Unit 10). While designation of critical
habitat along Plum Creek will provide additional regulatory protection
to PMJM habitat in the area, the project sponsors are developing
alternatives to address impacts to designated critical habitat on Plum
Creek should the planned project move forward.
(33) Comment: One commenter stated that we should exclude the
Penley Ranch property along Indian Creek, Unit 9 (West Plum Creek) from
critical habitat, on the basis that trapping conducted in 2007 did not
document the PMJM on the property and the Service agreed at the time
the PMJM was ``not likely to be present'' on the site. The commenter
further stated that if the property was not excluded, we should develop
more appropriate (less extensive) site-specific boundaries of critical
habitat on the site.
Our Response: While the PMJM was not captured during the 2007
trapping effort, habitat on the site appeared to support the physical
and biological features essential to the conservation of the PMJM. We
concurred in 2007 that the PMJM was not likely present and that a
proposed rural residential development on the property would not be
likely to adversely affect the PMJM. We stated that our concurrence was
valid only for one year. The residential development proposed did not
take place. Captures of the PMJM have occurred in areas of comparable
or lower quality habitat downstream on Indian Creek. PCEs are present
along this reach of Indian Creek. While no further trapping efforts
have taken place, we believe that the PMJM likely uses the reach, at a
minimum as a movement corridor, and may occupy portions of the
property. We therefore conclude that this reach of Indian Creek is
occupied and merits designation as critical habitat. Indian Creek on
the Penley Ranch is within the RCZ established under the Douglas County
HCP. Outward extent of critical habitat on the property is being
designated consistent with the boundaries of the Douglas County RCZ
(see the Delineation of Critical Habitat Boundaries section below). See
also related comment 61 and our response.
(34) Comment: One commenter stated that the upstream extent of
critical habitat along Bear Creek in Unit 9 (West Plum Creek) should
terminate at the Lake Waconda Dam, as the lake and Perry Park Golf
Course create a barrier to PMJM movement, and any PMJM population
upstream from the golf course is isolated.
Our Response: After we considered the extent to which the dam,
lake, adjacent golf course, and associated development form a barrier
to PMJM movement up and down stream, and assessed the quantity and
spatial arrangement of PCEs on the reach upstream of the lake, we
elected to limit the upstream extent of designated critical habitat
along Bear Creek to the base of the Lake Waconda Dam (see the Summary
of Changes from the Proposed Rule section below). Based on review of
aerial photographs, we determined that the area upstream of the dam
does not contain the physical and biological features essential to the
conservation of the PMJM in the necessary spatial arrangement and
distribution.
(35) Comment: One commenter suggested that we designate critical
habitat to link all four proposed subunits of Unit 10 (Upper South
Platte River), Jefferson and Douglas Counties, and also designate their
tributaries as critical habitat.
Our Response: The Service has determined that connecting these
subunits to form one very large critical habitat unit is not necessary.
Land ownership and land uses vary along the South Platte River and its
tributaries. While areas designated as critical habitat largely consist
of National Forest System lands, many of the intervening reaches do
not. Quality of PMJM habitat is not consistent. Reaches of lesser
quality that are not being designated as critical habitat generally
correspond to those that are not federally owned. In addition, the
large West Plum Creek Unit (Unit 9), which corresponds to a large
recovery population required in the Draft Plan, is also being
designated in the same HUC. Tributaries have been examined, and we are
designating only those that we determined meet the definition of
critical habitat based on occurrence of physical and biological
features essential to the conservation of the PMJM and proximity to
known PMJM occurrence. (See also our response to comment 6.)
(36) Comment: One commenter requested that we exclude critical
habitat in Teller County because no PMJM have been documented there.
Our Response: The PMJM has been documented on Trout Creek, Unit 10
(South Platte River), at or very near the Douglas County-Teller County
line (Service 2010). Based on contiguous habitat along Trout Creek in
Teller County, we are designating critical habitat upstream to 7,600 ft
(2,300 m) in elevation. We believe that this elevation provides a
reasonable estimate of the upstream extent of habitat likely to be
occupied by the PMJM in this reach.
(37) Comment: Two commenters requested exclusion of Unit 11
(Monument Creek), El Paso County, from critical habitat based on
potential economic impacts and because protections for the PMJM are
already in place as a result of the 1998 listing and local limits on
development.
Our Response: Our DEA addressed the extent of economic impacts
likely to occur in this unit as the result of critical habitat
designation. The updated final economic analysis (FEA) (Industrial
Economics 2010b) concludes that $10.4 million to $17.7 million in
incremental impacts due to designation of critical habitat may occur in
Unit 11 over the next 20 years, resulting almost entirely from
increased costs associated with section 7 consultation on residential
and commercial development. However, the FEA (Chapter 3) explains why
these estimates may be higher than what will likely occur. Based on the
results of the
[[Page 78439]]
FEA, we have not excluded any areas from designation of critical
habitat based on economic impacts (see the Required Determinations
section). Current protections afforded the PMJM by its threatened
status under the Act and by local regulations have not protected the
PMJM and its habitat from the cumulative impacts of development.
Degradation of creeks and riparian vegetation in this unit from recent
development and associated stormwater runoff presents an ongoing issue.
This degradation and projected future development in the area indicate
that the unit requires special management consideration and protection.
(38) Comment: One commenter urged us not to exclude El Paso County
from critical habitat based on any countywide HCP not finalized.
Our Response: We have not excluded El Paso County from critical
habitat. The county has been developing a countywide HCP for the PMJM
in coordination with the Service for several years. A countywide plan
would likely cover most or all of the area in critical habitat Unit 11
(Monument Creek). When we proposed revised critical habitat, we
anticipated that we would receive a draft HCP prior to final revised
critical habitat designation. To date, we have not received a draft of
an HCP for our review, nor do we have any assurance as to if, when, or
in what form, any countywide HCP will be submitted, or whether an
incidental take permit for the PMJM under section 10 would be issued.
Since any potential El Paso County plan remains in its formative
stages, we have no basis to address possible benefits of exclusion.
Other Comments
(39) Comment: One commenter noted that we had no basis to revise
the 2003 rule that designated critical habitat for the PMJM.
Our Response: We stand by our determination that revising critical
habitat for PMJM is appropriate. Based on our review of the June 23,
2003, final rule to designate critical habitat for the PMJM (68 FR
37275), we determined that it is necessary to revise critical habitat.
Our review found that we excluded three counties from critical habitat
based on countywide HCPs under development. The 2003 rule stated, ``If
pending HCPs are not completed, we will determine whether areas
designated in this final rule need further refinement'' (68 FR 37290).
Seven years later, only one of the three counties excluded from
critical habitat has completed an HCP, and coverage under the Douglas
County HCP is limited to actions by three local governments. Therefore,
the basis upon which these exclusions were made, that countywide HCPs
would be completed in the near future, was faulty, and revision is
appropriate.
(40) Comment: Two commenters pointed out that our 2003 rule
downplayed the value of critical habitat designation. One commenter
stated critical habitat designation is unhelpful, duplicative, and
unnecessary, and that it provides little additional value given that
areas proposed are believed to be occupied and currently subject to
section 7 review under the Act. Based on this, they contended that the
value of including additional critical habitat through our revision was
negligible.
Our Response: Designation of critical habitat is mandated by the
Act. The purpose of critical habitat designation is to contribute to
the conservation of endangered and threatened species and the
ecosystems upon which they depend. It alerts Federal agencies and the
public to areas essential for the conservation of the species and
provides the species added regulatory protection under section 7 of the
Act when Federal actions occur. (See Benefits of Designating Critical
Habitat, below.)
(41) Comment: We received comments that critical habitat provides
little additional protection for the PMJM over various layers of
existing protections, including local land use regulations, and that
this negates the need for critical habitat designation.
Our Response: Protections under the Act, including those afforded
by designation of critical habitat, for the listed SPR of the PMJM in
Colorado are necessary in part because local regulations and
conservation efforts have proven insufficient to conserve the species.
Our July 10, 2008, final rule that refined the listing of the PMJM (73
FR 39789) specifies over what portion of its range the subspecies is
threatened.
(42) Comment: One commenter stated that designation of critical
habitat should be limited to Federal lands.
Our Response: As defined, critical habitat is not limited by land
ownership, but rather based on areas essential to the conservation of
the species and in need of special management or protection. Federally
owned lands are more likely to contribute to conservation of the PMJM
than private lands that are not subject to the Act's affirmative
conservation mandate of 7(a)(1), which imposes on Federal agencies a
duty to conserve listed species. Therefore, we prioritized the
inclusion of Federal lands when deciding what quantity and distribution
of lands containing the physical and biological features essential to
the conservation of the PMJM are necessary. However, even with this
prioritization, the amount of Federal lands alone is insufficient to
provide for the conservation of the PMJM, as these lands are limited in
geographic location, size, and habitat quality within Colorado. We are
designating both Federal lands and non-Federal land as critical habitat
where they meet the definition of critical habitat.
(43) Comment: One commenter urged us not to exempt HCPs from
critical habitat, based on the contentions that their purpose differs
from that of critical habitat and that HCPs are less protective. The
commenter suggested that the Service should conduct a detailed analysis
of past protection of the PMJM afforded by HCPs, as opposed to that
afforded by critical habitat designation, including the degree of
habitat loss and take of the PMJM. The commenter added that exclusions
based on HCPs would fragment habitat corridors otherwise designated as
critical habitat.
Our Response: Critical habitat and HCPs differ in their purpose,
but both have a similar role in conservation of the species. In
general, critical habitat designation affords an added layer of
regulatory protection with regard to Federal actions, while an HCP
provides a mechanism to permit take caused by non-Federal entities. We
exclude areas covered by HCPs from critical habitat when the benefits
of exclusion are greater than the benefits of inclusion. As part of
this determination, we analyzed whether the HCP in place affords equal
or greater conservation of the species than critical habitat
designation would afford. These HCPs were developed to address the
conservation needs of the PMJM and maintain its habitat. Issuance of
associated section 10 permits by the Service required section 7
consultations. Exclusion of these HCPs is not expected to affect
movement corridors, because the HCPs were developed in coordination
with the Service and address the conservation requirements of the PMJM.
(44) Comment: One commenter believed that, at a minimum, all
habitat occupied by PMJM should be designated as critical habitat, and
called on us to provide a rationale for any occupied areas not
designated.
Our Response: The Act does not require that we designate critical
habitat on all lands occupied by the species. We used the best
scientific and commercial data available in our determination of this
final designation of revised critical habitat. In addition, we
considered peer review comments, public comments, and any additional
information we
[[Page 78440]]
received. We determined a subset of all known occupied areas that
contain PCEs is sufficient to provide for the conservation of the PMJM.
This conclusion is based on the recommendations in the Draft Plan that
a mix of small, medium, and large populations can conserve the species.
We are designating all areas that we found to be essential.
(45) Comment: One commenter stated that the Service must consider
whether habitat outside that occupied by the listed entity is justified
for designation as critical habitat and stated the opinion that
occupied habitat in Wyoming must be considered for inclusion.
Our Response: In accordance with section 3(5)(C) of the Act, not
all areas that can be occupied by a species will be designated critical
habitat. We designate as critical habitat areas outside the
geographical area presently occupied by a listed species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species. Given the extent and distribution of
known PMJM populations, we believe that protection within certain areas
currently occupied will be sufficient to conserve the PMJM in Colorado,
where the PMJM is listed under the Act.
(46) Comment: One commenter suggested that we should conduct
research to prove that the PMJM can live in all 418 mi of stream
proposed as critical habitat.
Our Response: We base our designation of critical habitat on the
best scientific and commercial information available. The best
information available to us indicates that the units we are designating
as critical habitat are occupied. In addition, all PCEs upon which the
PMJM depends are present within each unit of critical habitat. At any
given site within a unit, one or more PCEs must be present for the site
to qualify as critical habitat. For example, it may be determined that
a reach qualifies as critical habitat based only on its ability to
provide connectivity between more extensive habitat upstream and
downstream. Determination of the limits of critical habitat at a
specific site based on absence of any PCEs will be made by the Service
on a site-by-site basis where needed.
(47) Comment: One commenter noted the potential impact of critical
habitat designation to grazing on Federal lands, which the commenter
stated has been shown to be compatible with maintenance of PMJM
populations.
Our Response: The impact of the designation of critical habitat on
Federal lands includes consultation under section 7 of the Act to
determine if Federal actions would result in adverse modification of
critical habitat. Where grazing is compatible with the maintenance and
recovery of PMJM populations, we would determine that adverse
modification would not be likely. Agriculture, including grazing, can
be managed in many different ways, some of which may be beneficial to
PMJM habitat, others harmful. Some PMJM habitat on Federal lands is
currently grazed in a manner that appears to maintain good habitat for
the PMJM. However, there may be areas managed in a manner that is not
conducive to the development or maintenance of PMJM habitat. As
defined, critical habitat is essential to conserve the species and may
require special management considerations or protection. The areas
designated as critical habitat have been determined to be essential to
the conservation of the PMJM. During consultation required under
section 7 of the Act, grazing practices on these areas would receive
increased scrutiny by Federal land managing agencies and the Service.
In those areas where current management results in maintenance of good
PMJM habitat, there is a need to continue such practices, so future
management considerations or protections may be required. In other
instances, protections of designated critical habitat would help ensure
that livestock management practices potentially harmful to the
conservation of PMJM are not conducted without required consultation.
(48) Comment: One commenter stated that based on any future change
to our definition of ``adverse modification,'' third parties may mount
legal challenges to Service consultations under section 7 of the Act
and HCPs that address critical habitat.
Our Response: Section 7(a)(2) 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. Decisions by the Fifth and Ninth Circuits Court of Appeals
have invalidated our definition of destruction or adverse modification
(50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S.
Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)),
and we do not rely on this regulatory definition when we analyze
whether an action is likely to destroy or adversely modify critical
habitat. In response to these decisions, we are reviewing the
regulatory definition of adverse modification in relation to
conservation. We cannot speculate about future change to the definition
of adverse modification, how it may impact conservation of the PMJM, or
litigation that could follow. Threat of future lawsuits should not
influence our designation of appropriate critical habitat.
Comments on Economic Analysis and Environmental Assessment
(49) Comment: One commenter stated that providing only a
``revision'' of our 2003 economic analysis and environmental
assessment, alluded to in our revised critical habitat proposal, is
insufficient and circumvents NEPA.
Our Response: The DEA and NEPA analysis that we conducted for the
2009 proposed rule updated our 2003 analysis. Our FEA and final
environmental assessment differ substantially from documents produced
in support of our 2003 designation of critical habitat. As all address
designation of critical habitat for the PMJM, there are similarities.
(50) Comment: One commenter indicated that the DEA underestimated
the actual costs of critical habitat designation by applying an
incremental approach to identify only those impacts attributable solely
to the proposed rule. Because the SPR in Colorado, where the PMJM is
listed, lies within the U.S. Tenth Circuit Court of Appeals, its ruling
in New Mexico Cattle Growers Association v. United States Fish and
Wildlife Service, 248 F.3d 1277 (10th Cir. 2001) should be followed. In
this case, the court instructed the Service to conduct a full analysis
of the economic impacts of proposed critical habitat, regardless of
whether those impacts are attributable co-extensively to other causes.
Our Response: The economic analysis estimates the total cost of
species conservation activities, without subtracting the impact of pre-
existing baseline regulations (i.e., the cost estimates are fully co-
extensive). In addition, the economic analysis breaks the costs down
into the baseline costs of all conservation activities resulting from
the listing of PMJM under the Act, and the incremental costs of
designation of critical habitat, which are above and additional to the
baseline costs. We considered both the coextensive as well as the
incremental costs when performing the 4(b)(2) exclusion analysis. In
2001, the U.S. 10th Circuit Court of Appeals instructed the Service to
conduct a full analysis of all of the economic impacts of proposed
critical habitat designation, regardless of whether those impacts are
attributable co-extensively to other causes (New
[[Page 78441]]
Mexico Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001)).
The economic analysis for the PMJM complies with direction from the
U.S. 10th Circuit Court of Appeals.
In developing this final rule, we considered our February 12, 2008,
Draft Critical Habitat Exclusions Guidance. This guidance was developed
by the Service in response to critical habitat case law, which
documents the Courts' interpretations of the requirements of the Act.
This rule is also consistent with the October 3, 2008, opinion from the
Solicitor titled, ``The Secretary's Authority to Exclude Areas from a
Critical Habitat Designation under Section 4(b)(2) of the Endangered
Species Act.''
In this rule, the Service declines to exercise its discretion to
exclude any areas based on co-extensive or incremental impacts in this
rule. Two courts have found the Secretary's decision not to exclude is
completely within the Service's discretion and is not reviewable by a
court (Home Builders Association of Northern California v. U.S. Fish &
Wildlife Serv., 2006 U.S. Dist. Lexis 80255, *66 (E.D. Cal. 2006),
reconsideration granted in part on other grounds, 2007 U.S. Dist. Lexis
5208 (Jan. 24, 2007); Cape Hatteras Access Preservation Alliance v.
DOI, 2010 U.S. Dist. Lexis 84515 (D.D.C. Aug. 17, 2010).
(51) Comment: One commenter stated that the Service has not
adequately quantified and analyzed the myriad potential economic
benefits of critical habitat designation.
Our Response: The purpose of critical habitat is to support the
conservation of the PMJM. Quantification and monetization of species'
conservation benefits requires information on the incremental change in
the probability of PMJM conservation that is expected to result from
the designation. No studies exist that provide such information for
this species. Even if this information existed, the published valuation
literature does not support the monetization of incremental changes in
conservation probability for this species. Therefore, the primary
benefits of this rule cannot be quantified or monetized based on the
best, readily available scientific and economic information. Depending
on the project modifications ultimately implemented as a result of the
regulation, other ancillary benefits that are not the stated objective
of critical habitat may also be achieved. Chapter 9 of the DEA
describes the categories of potential benefits, including improvements
in the value of adjacent or proximate properties, improvements in water
quality, aesthetic benefits, increased recreational opportunities,
increased regional expenditures and employment resulting from increased
visitation to the region, and educational benefits. Because these
categories of benefits are not the primary intention of the rule, and
quantification and monetization of these benefits would require
significant effort and provide limited value to the Service's decision-
making process, we provide only a qualitative discussion of these
potential benefits.
(52) Comment: One commenter stated that the DEA underestimates the
potential impacts in Unit 11 (Monument Creek), El Paso County, by
excluding from analysis the following types of parcels not likely to
require a section 7 consultation: (1) Those parcels under county or
government ownership; (2) those parcels occupied by existing buildings;
and (3) those parcels under 100 ac (40 ha) in area. Further, the
commenter stated that this assumption is inconsistent with other
conclusions reached by the DEA, where: (1) The costs to small
governmental jurisdictions are analyzed and estimated in the initial
regulatory flexibility analysis (IRFA), (2) cost impacts to parcels
occupied by existing buildings as a result of building maintenance
activities are considered, and (3) parcels under 100 ac (40 ha) have
undergone section 7 consultations for PMJM.
Our Response: In section 3.6 of the DEA, the Service acknowledges
that those parcels removed from further consideration could eventually
be developed in such a way that would require a Federal permit or
funding, resulting in a section 7 consultation and mitigation. However,
the DEA focuses on estimating the potential economic impacts to new
residential and commercial development on readily developable, private,
and large open parcels of land. As evidenced by the Service's
consultation history for the PMJM, such parcels are more likely to have
a Federal nexus and undergo a section 7 consultation. As a result,
parcels under government ownership were removed from further
consideration. In Chapter 4 and Appendix A, the DEA estimates the
impacts to governmental entities, including those that are small, and
that are associated with other activities, namely road/bridge, utility,
and bank stabilization construction and maintenance. These activities
do not necessarily occur on parcels of land owned by the government.
With respect to maintenance activities at existing buildings, the
Service's consultation history does not suggest such activity requires
consultation for the PMJM. However, the Service recognizes that large
parcels with existing buildings could eventually be redeveloped (e.g.,
large ranch parcels), and therefore these parcels were analyzed in
Chapter 3 of the FEA. Finally, parcels under 100 ac (40 ha) in size
were removed from further consideration in the analysis, because the
smallest residential development project that required a formal section
7 consultation since 2003 was 173 units on a 107-ac parcel (Struthers
Ranch). The Service's consultation record demonstrates that projects
under 100 ac (40 ha) typically undergo informal section 7 consultations
and technical assistance with the Service. In section 3.3.2, the DEA
estimates the costs for these types of consultations.
(53) Comment: One commenter indicated that the DEA underestimates
the true economic impact of the proposed rule on the residential sector
by not considering the impacts to the local, State, and national
economy.
Our Response: In section 3.5, the DEA estimates the regional
economic impacts that may result from a potential reduction in
residential home construction in Douglas and El Paso Counties due to
the critical habitat designation. These regional impacts include
estimates of the indirect (changes in output industries that supply
goods and services to those directly affected), induced effects
(changes in household consumption resulting from a change in
employment), and job loss. To assess the potential impact of the
proposed rule on the national economy, the FEA considers estimating the
social welfare losses that result from changes in the price and
quantity of available housing. However, such an analysis could not be
conducted due to insufficient information to reliably model the markets
for housing in areas affected by critical habitat. We assume these
costs are in addition to the compliance costs incurred by developers or
existing landowners or both.
(54) Comment: One commenter indicated that the DEA does not include
consultation costs for 15 road, bridge, utility, and bank stabilization
projects that may not be covered by the existing Douglas County HCP. If
these projects occur outside of the RCZ established by the HCP, the
commenter indicated that they would incur these costs in full
(estimated $60,000 to $150,000), rather than just the incremental costs
estimated in the DEA.
Our Response: As described in section 4 of the DEA, the projected
number of road, bridge, utility, and bank stabilization projects
potentially
[[Page 78442]]
impacted by the designation of critical habitat is based on estimates
provided by the Colorado Department of Transportation and the
consultation history provided by the Corps. Using this information, the
DEA projects between approximately 21 and 24 formal consultations
associated with these activities in Douglas County over the next 20
years. Because there was no available information that indicated
specifically whether these projects would occur inside or outside the
RCZ, the analysis calculates and applies unit-specific, area-based
factors to estimate the probability that projects would occur outside
the RCZ and within critical habitat, and would therefore require
consultation as a result of the designation (see pages 2-15 through 2-
17 of the DEA). For Douglas County, these factors are between 6 and 16
percent. Using this methodology, we estimate in the DEA that the total
incremental consultation cost (undiscounted) for the 21 to 24 projects
ranges between $119,000 and $135,000.
(55) Comment: Douglas County commented that the DEA does not
account for the costs to purchase additional mitigation lands in
Douglas County to support their HCP. Mitigation beyond that already
established by the Douglas County HCP may be required for activities
that occur in critical habitat. These costs could be significantly
higher because the mitigation land already banked under the HCP would
be exhausted more rapidly, the banked mitigation lands are unevenly
distributed across critical habitat units, and land must be purchased
in large blocks to acquire a relatively small percentage of PMJM
habitat.
Our Response: As described in section 4.2.3 of the DEA, the
estimated cost of mitigation ranges from $3,580 to $35,800 per ac. The
Service believes this tenfold range in unit costs is likely sufficient
to cover the costs of additional mitigation land purchases that may
result from designation of critical habitat in Douglas County. Since we
have adopted the RCZ developed for the Douglas County HCP as the
outward extent of critical habitat, additional mitigation required for
projects covered by the HCP is not likely to increase greatly in
extent. Measures to offset impacts to critical habitat may be
restricted to the same unit where impacts occur. Exhibit 3-13 of the
DEA provides an assessment of the quantity of land available for
mitigation within each unit.
(56) Comment: One commenter indicated that the DEA does not
estimate a cost associated with the regulatory uncertainty created by
the critical habitat label for the City of Greeley's proposed expansion
at the Milton Seaman Reservoir.
Our Response: Because of data limitations, as well as factors other
than the designation of critical habitat (such as political, financial,
and general environmental impacts) that will influence the outcome of
the proposed expansion project at the Milton Seaman Reservoir, the
costs associated with regulatory uncertainty attributable to the
presence of the PMJM or its designated critical habitat are difficult
to quantify. As described in section 5.3.3 of the DEA, a representative
of the Corps suggested that the cost to the City of Greeley to pursue
an offsite alternative to the preferred Milton Seaman Reservoir project
may be as much as three to eight times higher than that of the
expansion project that is currently contemplated. This range of
increased costs was provided by the Corps, based on their rough
estimate of the costs to develop water supply (on a per ac-ft basis) in
the study area. It was not intended to be used to quantify the cost
impacts of regulation uncertainty due to critical habitat designation,
but rather to qualitatively characterize the relative costs of water
supply development alternatives. However, we address this issue further
in our FEA, and our discussion of the proposed Milton Seaman Reservoir
in comment 24, above.
(57) Comment: One commenter indicated that the DEA did not
calculate the economic impact to the proposed Penley Reservoir (Unit 9)
in Douglas County.
Our Response: The economic analysis focuses on an estimate of
impacts to economic activities that are reasonably foreseeable. The DEA
did not consider potential impacts to the Penley Reservoir because the
project is in the very early stages of planning. Due to insufficient
information about this project, and considerable uncertainty as to
whether it will be constructed within the next 20 years, the FEA does
not quantify the potential impacts to this project, but does
acknowledge it as potentially affected by the designation.
(58) Comment: One commenter indicated that the DEA does not take
into account the full range of activities required as part of the
CERCLA and RCRA remedy for the DOE's COU on the Rocky Flats Site (Unit
6), Jefferson and Broomfield counties, and the costs to revise or
develop a new programmatic biological assessment and an accompanying
biological opinion.
Our Response: The FEA includes an extended list of the ongoing
maintenance and monitoring activities required as part of the CERCLA/
RCRA remedy for the COU. Costs to the DOE to initiate one new
programmatic consultation with the Service to cover all of these
recurring remedial activities within critical habitat are estimated in
section 7.2.1.
(59) Comment: One commenter indicated that the DEA should recognize
that the management and operations of the COU and Rocky Flats NWR areas
on the Rocky Flats Site are conducted by two different Federal agencies
with different and distinct regulatory requirements and objectives.
Our Response: In our FEA, we have revised section 7 to clarify and
distinguish the respective management and operation of the two areas by
the DOE Office of Legacy Management and the Service.
(60) Comment: Some commenters questioned the adequacy of the draft
environmental assessment. Commenters either suggested that analysis of
a wider range of alternatives was required or suggested detailed
analysis of a specific alternative. Suggested alternatives included
designation as critical habitat on all habitat occupied by the PMJM,
designation of critical habitat consistent with all recovery
populations called for in the Draft Plan, and designation of lesser
amounts of critical habitat than proposed in our action alternative.
Our Response: Designation as critical habitat of all habitat
occupied by the PMJM, and designation of critical habitat consistent
with recovery populations called for in the Draft Plan, were
alternatives considered but not fully evaluated in the draft
environmental assessment. In the first case, based on the Draft Plan,
our professional judgment, and the best science available, we
determined that only a subset of all occupied habitat was required for
conservation of the PMJM. As explained in our July 10, 2008, rule to
specify over what portion of its range the PMJM is threatened (73 FR
39789), listing under the Act is largely based on widespread threats to
PMJM's habitat from current and future human development. Current
populations and distribution of PMJM are more than sufficient to
maintain the species if threats are successfully addressed. Protecting
all existing PMJM populations and their supporting habitat from
development into the future is not required to conserve the species. In
the second case, recovery populations specified in the Draft Plan do
not necessarily equate to specific areas that meet the definition of
critical habitat. For example, many proposed recovery populations were
identified by HUC,
[[Page 78443]]
but not tied to a specific location. Recovery populations were also
assigned to HUCs where the PMJM has not yet been verified as present.
Insufficient information on PMJM presence and distribution is available
to support designation of critical habitat in all HUCs addressed in the
Draft Plan. See also our response to comments 10 and 11.
(61) Comment: One commenter believed that the proposed action
merits an environmental impact statement (EIS).
Our Response: An EIS is required only in instances where a major
Federal action is expected to have a significant impact on the human
environment. Based on our draft environmental assessment, DEA, and the
comments we received from the public, we prepared a final environmental
assessment and determined that revised critical habitat for the PMJM
does not constitute a major Federal action expected to have a
significant impact on the human environment. That determination is
documented in our Finding of No Significant Impact (FONSI). The final
environmental assessment, FEA, and FONSI provide our rationale for our
determination that this revised critical habitat designation will not
have a significant impact on the human environment.
(62) Comment: One commenter urged us to address an alternative
consistent with the use of the Douglas County RCZ boundaries as the
outward extent of designated critical habitat in our environmental
assessment.
Our Response: Our final environmental assessment addresses the RCZ
boundaries as part of the preferred alternative. RCZ boundaries
encompass slightly less area but more accurately define appropriate
limits of critical habitat. The effects of using RCZ boundaries on
three critical habitat units where such boundaries occur differ
negligibly from effects of the action alternative in our draft
environmental assessment.
(63) Comment: One commenter stated that under the NEPA cumulative
impacts analysis, the Service should include effects from past
permitted take of the PMJM.
Our Response: Under NEPA, cumulative impacts are impacts to the
environment that result from the incremental effects of the action in
question when added to past, present, and reasonably foreseeable future
actions. Designation of revised critical habitat does not result in
take of the PMJM, so evaluation of past, present, and future take is
not required in our environmental assessment. Section 7 consultations
involving the PMJM and its critical habitat will evaluate past impact
and future take during the consultation process.
Summary of Changes From the Proposed Rule
Our final designation of revised critical habitat for the PMJM
results in a decrease of 7 mi (11 km) of rivers and streams and a
decrease of 4,207 ac (1,702 ha) of land area from what we proposed in
our October 8, 2009, proposed rule to revise the designation of
critical habitat (74 FR 52066). The following changes account for the
difference.
(1) The areas designated as critical habitat in Units 1, 5, 7, 9,
10, and 11 have changed from those areas proposed. We excluded portions
of these units from the final designation of critical habitat, because
we believe that the benefits of excluding these specific areas from the
designation outweigh the benefits of including these areas. We have
also concluded that the exclusion of these areas from the final
designation of critical habitat will not result in the extinction of
the PMJM. These exclusions are discussed in detail in the Exclusions
section below.
(2) In Unit 9 in Douglas County, we have reduced the extent of
designated critical habitat from that proposed on Bear Creek, a
tributary to West Plum Creek. The upstream terminus of designated
critical habitat is located at the base of the Waconda Lake Dam,
because Waconda Lake and surrounding development present a barrier to
PMJM movement along Bear Creek.
(3) We have determined that it is appropriate to use boundaries of
the RCZ mapped by Douglas County for their HCP as the outward boundary
of revised critical habitat in portions of Units 8, 9, and 10. See the
Delineation of Critical Habitat Boundaries section below for a
discussion of this change.
(4) Area totals within various units have been recalculated. Area
totals described in the proposed rule for various units included slight
inaccuracies, which resulted from the GIS methodology that counted
overlapping stream segments twice. Therefore, the area within some
units has decreased.
(5) We agreed to modify the outward boundaries of proposed critical
habitat within Douglas County's mapped RCZ boundaries (see the
Delineation of Critical Habitat Boundaries section), as the RCZ
represents a site-specific mapping of PMJM habitat boundaries.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management, such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot otherwise be
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing activities that are likely to result in the destruction
or adverse modification of critical habitat. Section 7(a)(2) of the Act
requires consultation on Federal actions that may affect critical
habitat. The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply, but even in the event of a destruction
or adverse modification finding, the Federal action agency's and the
applicant's obligation is not to restore or recover the species, but to
implement reasonable and prudent
[[Page 78444]]
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time of listing
must contain physical and biological features that are essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas supporting the
essential physical or biological features that provide essential life
cycle needs of the species; that is, areas on which are found the
physical or biological features laid out in the appropriate quantity
and spatial arrangement for the conservation of the species. Under the
Act and regulations at 50 CFR 424.12, we can designate critical habitat
in areas outside the geographical area occupied by the species at the
time it is listed only when we determine those areas are essential for
the conservation of the species and that designation limited to those
areas occupied at the time of listing would be inadequate to ensure the
conservation of the species. When the best available scientific data do
not demonstrate that the conservation needs of the species require such
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but that was not
occupied at the time of listing may, however, be essential to the
conservation of the species and may be included in the critical habitat
designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. Substantive comments we receive
in response to proposed critical habitat designations are also
considered.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that critical habitat is
designated at a particular point in time; with changes in the future,
we may find that the designation no longer includes all of the habitat
areas necessary for the recovery of the species to respond to these
changes. For these reasons, a critical habitat designation does not
signal habitat outside the designated area is unimportant or may not be
required for recovery of the species.
Areas that support occurrences, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we and other Federal agencies implement under section 7(a)(1)
of the Act. They are also subject to the regulatory protections
afforded by the section 7(a)(2) jeopardy standard, as determined on the
basis of the best available scientific information at the time of the
agency action. Federally funded or permitted 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, HCPs, or other species conservation planning
efforts if new information available to these planning efforts calls
for a different outcome.
Climate Change
According to the Intergovernmental Panel on Climate Change (IPCC),
``Warming of the climate system in recent decades is unequivocal, as is
now evident from observations of increases in global average air and
ocean temperatures, widespread melting of snow and ice, and rising
global sea level'' (IPCC 2007, p. 1). Climate change will be a
particular challenge for biodiversity because the interaction of
additional stressors associated with climate change and current
stressors may push species beyond their ability to survive (Lovejoy and
Hannah 2005, pp. 325-326). The synergistic implications of climate
change and habitat fragmentation are the most threatening aspect of
climate change for biodiversity (Hannah et al. 2005, p. 4).
For the southwestern region of the United States, which includes
Colorado, warming is occurring more rapidly than elsewhere in the
country (Karl et al. 2009, p. 129). In Colorado, Statewide temperatures
have increased 2 [deg]F (3.6 [deg]C) over the past 30 years, but high
variability in annual precipitation precludes the detection of long-
term trends (Ray et al. 2008, p. 5).
While there is uncertainty about the exact nature and severity of
climate change-related impacts anticipated within the Colorado range of
the PMJM, a trend of climate change in the mountains of western North
America is expected to decrease snowpack, hasten spring runoff, and
reduce summer flows (IPCC 2007, p. 11). This could impact the PMJM
habitat in a variety of direct and indirect ways. With increases in
temperature, species' ranges are likely to move higher in elevation and
northward (Karl et al. 2009, p. 132). Changes could cause a greater
PMJM dependence on higher elevation, cooler, and potentially moister
areas for survival in Colorado. The highest elevation at which the PMJM
has been documented in Colorado is approximately 7,600 ft (2,317 m)
(Service 2010). The preponderance of lands near to or higher than this
elevation in the Colorado Front Range are in Federal ownership and are
likely subject to fewer threats from human development than non-Federal
lands. These Federal lands may serve as an important refuge should PMJM
populations shift higher into the mountains.
Changes in stream flow intensity and timing may affect riparian
habitats on which the PMJM depends. For example, earlier runoff could
impact the smaller high-elevation streams within the upper reaches of
drainages, which are maintained primarily by melted snow. Reduced or no
flow during summer and fall could make these streams less hospitable to
the PMJM and limit their seasonal use. Changes in timing and amount of
runoff may also influence human diversion, storage, and conveyance of
water (Ray et al. 2008, p. 41), which in turn could impact riparian
habitats required by the PMJM.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12(b), in determining which areas occupied at
the time of listing to designate as critical habitat, we consider
[[Page 78445]]
the physical and biological features that are essential to the
conservation of the species and that may require special management
considerations or protection. These features are the primary
constituent elements (PCEs), laid out in the appropriate quantity and
spatial arrangement for conservation of the species. In general,
physical and biological factors include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the PCEs required for the PMJM from its biological needs.
The areas included in this revised critical habitat designation for the
species contain the essential features to fulfill the species life-
history requirements. The PCEs and the resulting physical and
biological features essential to the conservation of the PMJM are
derived from studies of this species' habitat, ecology, and life
history as described in our proposed rule to revise the designation of
critical habitat for the PMJM, published in the Federal Register
October 8, 2009 (74 FR 52066).
All units designated as critical habitat for the PMJM are currently
believed to be occupied, are within the geographical area occupied by
the species at the time of listing, and contain sufficient PCEs to
support one or more life-history functions. Individual stream reaches
within each unit contain at least one of the PCEs, and are either
believed to be occupied by the PMJM, or provide crucial opportunities
for connectivity to facilitate dispersal and genetic exchange within
the unit.
Based on our current knowledge of the life history, biology, and
ecology of the PMJM, and the requirements of the habitat to sustain the
essential life-history functions of the species, we have determined
that the PCEs specific to the PMJM are:
(1) Riparian corridors:
(A) Formed and maintained by normal, dynamic, geomorphological, and
hydrological processes that create and maintain river and stream
channels, floodplains, and floodplain benches and that promote patterns
of vegetation favorable to the PMJM;
(B) Containing dense, riparian vegetation consisting of grasses,
forbs, or shrubs, or any combination thereof, in areas along rivers and
streams that normally provide open water through the PMJM's active
season; and
(C) Including specific movement corridors that provide connectivity
between and within populations. This may include river and stream
reaches with minimal vegetative cover or that are armored for erosion
control; travel ways beneath bridges, through culverts, along canals
and ditches; and other areas that have experienced substantial human
alteration or disturbance.
(2) Additional adjacent floodplain and upland habitat with limited
human disturbance (including hayed fields, grazed pasture, other
agricultural lands that are not plowed or disked regularly, areas that
have been restored after past aggregate extraction, areas supporting
recreational trails, and urban-wildland interfaces).
Existing human-created features and structures within the
boundaries of the mapped units, such as buildings, roads, parking lots,
other paved areas, manicured lawns, other urban and suburban landscaped
areas, regularly plowed or disked agricultural areas, and other
features not containing any of the PCEs that support the PMJM, are not
considered critical habitat.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the occupied
areas contain the physical and biological features that are essential
to the conservation of the species, and whether these features may
require special management considerations or protection. Special
management considerations or protection means any methods or procedures
useful in protecting physical and biological features of the
environment for the conservation of listed species. The areas we are
designating as revised critical habitat will require some level of
management to address the current and future threats to the physical
and biological features essential to the conservation of the PMJM, and
to ensure the recovery of the species. In all units, special management
considerations or protection of the essential features may be required
to provide for the sustained function of the riparian corridors on
which the PMJM depends.
The PMJM is closely associated with riparian ecosystems that are
relatively narrow and represent a small percentage of the landscape.
Our July 10, 2008, final rule for the PMJM to specify over what portion
of its range the subspecies is threatened (73 FR 39789) concluded that
the decline in the extent and quality of PMJM habitat is the main
factor that threatens the subspecies. Special management considerations
and protection may be required to address the threats of habitat
alteration, degradation, loss, and fragmentation that results from
urban development, flood control, water development, agriculture, and
other human land uses that adversely impact PMJM populations. Habitat
destruction may affect the PMJM directly or by destroying nest sites,
food resources, and hibernation sites; by disrupting behavior; or by
forming a barrier to movement.
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
and commercial data available to designate critical habitat. We are
designating critical habitat in specific areas that include river and
stream reaches, and their adjacent floodplains and uplands, that are
within the known geographic and elevational range of the PMJM in the
SPR in Colorado where it is listed and that contain the features
essential to the conservation of the PMJM. All areas included in
critical habitat contain at least one of the PCEs, and are currently
occupied by the PMJM or provide crucial opportunities for connectivity
to facilitate dispersal and genetic exchange.
Our critical habitat designation identifies the appropriate
quantity and spatial arrangement of the requisite PCEs that we have
determined to be essential to the conservation of the subspecies. We
determined that there are more areas currently occupied by the PMJM
than are necessary to conserve the subspecies within the SPR in
Colorado. We base this on the known occurrence and distribution of the
PMJM (Service 2010) and upon the conservation strategy in the Draft
Plan, which indicates that when specified criteria are met for a subset
of existing populations throughout the range of the PMJM, the
subspecies can be delisted (Service 2003a, p. 19). To recover the PMJM
to the point where it can be delisted, the Draft Plan identifies the
need for a specified number, size, and distribution of wild, self-
sustaining PMJM populations. On the basis of the above described
criteria, we have chosen a subset of the areas occupied by the PMJM
within the SPR in Colorado that have the physical and biological
features essential to the PMJM for inclusion in critical habitat.
[[Page 78446]]
We only consider including unoccupied areas within critical habitat
designations if they are essential to the conservation of the species,
and we determine that we cannot conserve the species by only including
occupied areas in the critical habitat. Because we have determined that
the conservation of the PMJM can be achieved through the designation of
currently occupied lands, we find that no unoccupied areas are
essential at this time. The subspecies was listed primarily due to the
threat of impending development to the existing remaining habitat for
the species within the Front Range of Colorado. We have determined that
recovery of the subspecies can be achieved by protecting a subset of
the currently occupied habitat from the threat of development.
Recolonization of former parts of the range, while beneficial to the
subspecies, is not currently believed to be necessary to conserve the
PMJM in the long term.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack PCEs for the PMJM. The scale of the maps we prepared under
the parameters for publication within the Code of Federal Regulations
may not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule have been excluded by text in the rule and are not
designated as critical habitat. Therefore, a Federal action involving
these lands will not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the PCEs in the adjacent critical
habitat.
Available Information
Our June 23, 2003, final rule designating critical habitat for the
PMJM (68 FR 37275) cited the March 11, 2003, Working Draft of a
Recovery Plan for the PMJM, and the concepts described within (PMJM
Recovery Team 2003), as a source of the best scientific and commercial
data available on the PMJM. For designating revised critical habitat,
we relied heavily on the information, concepts, and conservation
recommendations contained in the Working Draft and the slightly
modified Draft Plan (Service 2003a), as well as the current efforts of
the recently formed Recovery Team. We used these as a starting point
for identifying those areas for inclusion in critical habitat that
contain the requisite PCEs in the appropriate quantity and spatial
arrangement that are essential for the conservation of the PMJM. The
Draft Plan is based on the work of scientists and stakeholders who met
regularly over a period of more than 3 years. The plan was developed by
incorporating principles of conservation biology and all available
knowledge regarding the PMJM. Recovery Team meetings were open to the
public, and drafts of the plan were discussed in public meetings held
in Colorado and Wyoming. We forwarded a draft of the Draft Plan to
species experts for review, and their comments (Armstrong 2003, pers.
comm.; Hafner 2003, pers. comm.) were considered prior to the Draft
Plan being made available on the Service Web site.
We also have incorporated all new information received since 2003,
including:
Data in reports submitted by researchers holding recovery
permits under section 10(a)(1)(A) of the Act;
Research published in peer-reviewed articles and presented
in academic theses, agency reports, and unpublished data; and
Various Geographic Information System (GIS) data layers
and cover type information, including land ownership information,
topographic information, locations of the PMJM obtained from radio-
collars, and locations of the PMJM confirmed to the species level via
deoxyribonucleic acid (DNA) analysis, morphological analysis, and other
verified records.
We also received information from Federal, State, and local
governmental agencies, and from academia and private organizations that
have collected scientific data on the PMJM.
The Draft Plan identifies specific criteria for reaching recovery
and the delisting of the PMJM. An important change since our 2003
designation of critical habitat was the 2008 final rule limiting the
listing of the PMJM to the SPR in Colorado. The Draft Plan identified
areas as necessary for recovery throughout the range of the PMJM,
including areas in Wyoming where the PMJM was listed at the time.
Identified areas within the SPR in Colorado were based on the best
available information and continue to reflect our best judgment of what
we believe to be necessary for recovery. While elements of the Draft
Plan may change prior to finalization of a recovery plan, our review of
the Draft Plan and the ongoing Recovery Team review leads us to
conclude that the concepts described within it continue to represent
the best scientific and commercial data available regarding steps
needed for the recovery of the PMJM.
The Draft Plan provides a review of conservation biology theory
regarding population viability (Service 2003a, p. 21). To recover the
PMJM to the point where it can be delisted, the Draft Plan identifies
the need for a specified number, size, and distribution of wild, self-
sustaining PMJM populations across the known range of the PMJM. It
defines large populations as maintaining 2,500 mice, and usually
including at least 50 mi (80 km) of rivers and streams. It defines
medium populations as maintaining 500 mice, and usually including at
least 10 mi (16 km) of rivers and streams. The average number of PMJM
per stream mile was derived from site-specific studies and used to
approximate minimum occupied stream miles required to support recovery
populations of appropriate size (Service 2003a, p. 21).
The distribution of these recovery populations is intended both to
reduce the risk of multiple PMJM populations being negatively affected
by natural or manmade events at any one time, and to preserve the
existing genetic variation within the PMJM. The Draft Plan states,
``species well-distributed across their historical range are less
susceptible to extinction and more likely to reach recovery than
species confined to a small portion of their range.'' The document also
states that ``spreading the recovery populations across hydrologic
units throughout the range of the subspecies also preserves the
greatest amount of the remaining genetic variation, and may provide
some genetic security to the range-wide population'' (Service 2003a, p.
20). The Draft Plan emphasizes the value of retaining disjunct or
peripheral populations that may be important to recovery (Lomolino and
Channell 1995, p. 481) and may have diverged genetically from more
central populations due to isolation, genetic drift, and adaptation to
local environments (Lesica and Allendorf 1995, pp. 754-755).
While the Draft Plan addresses the entire range of the PMJM, the
SPR in Colorado where the PMJM remains listed includes multiple
subdrainages that are addressed individually in the Draft Plan (Figure
1). Within Colorado, the Draft Plan identifies recovery criteria for
the two major river drainages where the PMJM occurs (the South Platte
River drainage and the Arkansas River drainage), and for each
subdrainage judged likely to support the PMJM. In some cases, the Draft
Plan identifies recovery criteria for subdrainages where limited
trapping has not confirmed the presence of the PMJM. Boundaries of
drainages and subdrainages have been mapped by the
[[Page 78447]]
USGS. For the Draft Plan, 8-digit hydrologic unit boundaries were
selected to define subdrainages. A total of 13 HUCs in the SPR of PMJM
in Colorado are identified in the Plan as occupied or potentially
occupied by the PMJM. Ten are identified in the South Platte River
drainage and three in the Arkansas River drainage.
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One issue raised by the Recovery Team was whether the conservation
strategy that specified the number, size, and distribution of PMJM
recovery populations in Colorado remained valid despite the 2008
removal of the Wyoming portion of PMJM's range from listing. In
Colorado, the strategy has been to establish at least three large
populations and three medium populations spread over six subdrainages.
Recovery of the PMJM would require these populations to be protected
from threats. Additionally, the Plan suggests establishing at least
three small populations or one medium population in seven other
subdrainages, if the PMJM is present. Another issue
[[Page 78448]]
raised was whether the strategy required modification based on DNA
testing that revealed that the PMJM in northern and southern areas of
the subspecies' range (Wyoming and Larimer County in Colorado vs.
Douglas and El Paso Counties in Colorado) exhibited significant genetic
differences (King et al. 2006, pp. 4337-4338). The Recovery Team
concluded (Jackson 2009, pers. comm.) that the 2003 conservation
strategy adequately addresses recovery across the PMJM's range in
Colorado, and would maintain the genetic diversity reported by King et
al. (2006).
Biological Factors
Presence of the PMJM was determined based largely on the results of
trapping surveys, the vast majority of which were conducted in the 12
years since listing the PMJM under the Act. Consistent with our July
10, 2008, final rule to amend the listing for the PMJM (73 FR 39789),
subdrainages judged to be occupied by the PMJM in Colorado include
those that: (1) Have recently been documented to support jumping mice
identified by genetic or morphological examination as the PMJM; or (2)
have recently been documented to support jumping mice not identified to
the species level, but occurring at elevations below 6,700 ft (2,050
m), where western jumping mice have infrequently been documented. In
our July 17, 2002, proposal (67 FR 47154) and our June 23, 2003,
designation of critical habitat (68 FR 37275), we summarized trapping
results and means of positive identification for each unit. See our
2003 rule designating critical habitat and our 2008 final rule to amend
the listing for the PMJM for more information on our determinations
regarding presence of the PMJM in various subdrainages.
Boundaries of some critical habitat units extend beyond capture
locations to include those reaches that we believe to be occupied by
the PMJM, based on the best scientific data available regarding capture
sites, the known mobility of the PMJM, and the quality and continuity
of habitat components along stream reaches. Where appropriate, we
include details on the known status of the PMJM within specific
subdrainages in the ``Revised Critical Habitat Designation'' section of
this rule.
Despite numerous surveys, the PMJM has not been found in the Denver
metropolitan area since well before its 1998 listing, and is believed
to be extirpated from much of the Front Range urban corridor as a
result of extensive urban development. The area does not support the
spatial arrangement and quantity of requisite PCEs to support PMJM
populations, and, as a consequence, we have determined that this area
does not contain the features essential to the conservation of the
species.
Additional Factors Considered
Based on the Draft Plan, we believe that we can achieve
conservation of the PMJM with only a subset of areas currently occupied
or containing essential features. To identify the specific subset of
areas for inclusion in critical habitat, we considered several
qualitative criteria in addition to the presence of the PCEs. These
criteria were used to judge the current status, conservation needs, and
probable persistence of the essential features of PMJM populations in
specific areas, and included: (1) The quality, continuity, and extent
of habitat components present; (2) the presence of lands devoted to
conservation (either public lands such as parks, wildlife management
areas, and dedicated open space, or private lands under conservation
easements); and (3) the landscape context of the site, including the
overall degree of current human disturbance and presence, and
likelihood of future development based on local planning and zoning.
Where specific areas met the definition of critical habitat under
section 3 of the Act (within the geographical area occupied by the
species and containing features essential to the conservation of the
species which may require special management considerations or
protection) and other criteria were comparable, we evaluated land
ownership as a selection criterion for inclusion in critical habitat.
Consistent with the Draft Plan (Service 2003, p. 52), we first selected
Federal lands where effective land management strategies can be
employed by Federal agencies to conserve PMJM populations. Federal
agencies already have an affirmative conservation mandate under the Act
to contribute to the conservation of listed species. Therefore, we
determined that federally owned lands are more likely to meet the
requirements for recovery of the species than private lands that are
not subject to the Act's affirmative conservation mandate. However, we
cannot depend solely on federally owned lands for critical habitat, as
these lands are limited in geographic location, size, and habitat
quality within the SPR in Colorado where the PMJM is listed. In
addition to the federally owned lands, we included some non-Federal
public lands, including lands owned by the State of Colorado or by
local governments, and some privately owned lands.
This revised designation of critical habitat in Colorado consists
of 11 units, 6 of which are designed to support three large and three
medium PMJM recovery populations, corresponding to those designated in
the Draft Plan. While the Draft Plan designates the approximate
location of these large and medium recovery populations, it does not
delineate specific boundaries.
In addition, the Draft Plan establishes a goal of three small
recovery populations (including at least 3 mi (5 km) of rivers or
streams) or one medium recovery population in seven other HUCs within
the PMJM's range in Colorado. The Draft Plan does not identify the
locations of recovery populations within these remaining seven HUCs. It
also provides an exception to the above goal; no recovery populations
are required in those HUCs that, when adequately surveyed, are found to
have no PMJM populations. In some HUCs, presence of the PMJM has not
been confirmed and the quality, continuity, and extent of physical and
biological features essential to the PMJM appear lacking. In others,
insufficient surveys have been conducted to establish distribution of
PMJM populations or to determine where recovery populations should be
located. Due to insufficient information, we are unable to designate
critical habitat units corresponding to Draft Plan requirements in all
of these remaining seven HUCs.
The Draft Plan anticipates that, in the future, the locations of
these remaining recovery populations will be designated and specific
boundaries of all recovery populations (large, medium, and small) will
be delineated by State and local governments, and other interested
parties, working in coordination with the Service. In contrast to the
Draft Plan, this revised designation of critical habitat required
delineation of specific boundaries for all critical habitat areas in
order to meet the requirements of the Act and our implementing
regulations. As a result, any future recovery plan developed for the
PMJM may designate recovery populations or delineate their boundaries
in a manner inconsistent with the critical habitat units we are
designating. This may occur if future information changes our
understanding of the occurrence and distribution of PMJM populations.
In some HUCs identified in the Draft Plan, little is known
regarding the status of the PMJM. For example, PMJM has not been
confirmed to occur in the Crow Creek, Lone Tree, and Bijou HUCs within
the South Platte River drainage
[[Page 78449]]
in Colorado or in the Big Sandy HUC in the Arkansas River drainage. If
the PMJM is not present, designation of recovery populations in these
HUCs may not be necessary, and these HUCs may be deleted from any
future recovery plan. We do not believe that these areas contain
features that are essential to the conservation of the species, so we
are not designating critical habitat within these four HUCs.
The conservation strategy employed in the Draft Plan emphasizes the
importance of protecting additional PMJM populations beyond those
designated as recovery populations, to provide insurance for the PMJM
in the event that designated recovery populations cannot be effectively
managed or protected as envisioned or in the event that populations are
decimated by rare but uncontrollable events, such as catastrophic fires
or flooding. The Plan recommends directing recovery efforts toward
public lands, rather than private lands, where possible, and calls upon
all Federal agencies to protect and manage for the PMJM wherever it
occurs on Federal lands. However, Federal lands alone cannot fully
provide for the conservation of the species. Therefore, we included
non-Federal lands when we found those lands contained the PCEs in the
appropriate quantity and spatial arrangement to provide the physical
and biological features essential to the conservation of the species.
We believe that the designation of areas of critical habitat
outside of those areas identified for recovery populations, on both
non-Federal and additional Federal lands, is essential for the
conservation of the PMJM. Should unforeseen events cause the continued
decline of PMJM populations throughout the SPR in Colorado, PMJM
populations and the PCEs on which they depend are more likely to
persist and remain viable on Federal lands, where consistent and
effective land management strategies can be more easily employed. These
additional PMJM populations on Federal lands could serve as substitute
recovery populations should designated recovery populations decline or
fail to meet recovery goals. In addition, some PMJM populations on
Federal lands have been the subject of ongoing research that could
prove vital to the conservation of the PMJM. Therefore, in addition to
designating critical habitat for sites consistent with those listed in
the Draft Plan, we reviewed other sites of PMJM occurrence, especially
Federal lands, and are designating certain additional units as critical
habitat that include the requisite PCEs and are known to support the
PMJM.
Based on this conservation strategy, we are designating critical
habitat preferentially on certain Federal lands that support required
PCEs in the appropriate spatial arrangement and quantity and are
occupied by the PMJM, where Federal property extends along stream
reaches at least 3 mi (5 km). This length corresponds to the minimum
size of small recovery populations as defined by the Draft Plan. These
areas of critical habitat may include intervening non-Federal lands,
that in some cases support all PCEs needed by the PMJM or, if
fragmented by human development, contain at least one of the PCEs and
are at least likely to provide connectivity between areas of PMJM
habitat on adjacent Federal lands.
Delineation of Critical Habitat Boundaries
We are designating revised critical habitat for the PMJM based on
the interpretation of multiple sources used during our June 23, 2003,
designation of critical habitat (68 FR 37275); new information
developed in the preparation of our October 8, 2009, proposed rule (74
FR 52066); and information we received in response to our request for
public comments on our October 8, 2009, proposed rule (74 FR 52066) and
our May 27, 2010, publication (75 FR 29700). For this rule, we used
GIS-based mapping using ESRI ArcGIS software incorporating USGS
National Hydrography Dataset streams along with stream order (by
Strahler code), Colorado Department of Transportation roads, U.S.
Census Bureau cities, USGS topographic maps, 2005 Farm Service Agency,
National Agricultural Inventory Program 1m color imagery, and the COMaP
dataset (Theobald et al. 2008). We divided lands we are designating as
critical habitat into specific mapping units, i.e., critical habitat
units, often corresponding to individual HUCs. For the purposes of this
rule, these units are described primarily by latitude and longitude,
and by Public Land Survey, Township, Section, and Range, to mark the
upstream and the downstream extent of critical habitat along rivers and
streams.
As in 2003, we were faced with making a decision concerning the
outward extent of critical habitat into uplands. Studies suggest that
the PMJM uses uplands at least as far out as 328 ft (100 m) beyond the
100-year floodplain (Shenk and Sivert 1999a, p. 11; Ryon 1999, p. 12;
Schorr 2001, p. 14; Shenk 2004; Service 2003a, p. 26). Apparent
hibernacula (wintering chambers) have been documented outward to 335 ft
(102 m) of a perennial stream bed or intermittent tributary (Ruggles et
al. 2003, p. 19). We have typically described potential PMJM habitat as
extending outward 300 ft (90 m) from the 100-year floodplain of rivers
and streams (Service 2004a, p. 5). The Draft Plan (Service 2003a, p.
26) defines PMJM habitat as the 100-year floodplain plus 328 ft (100 m)
outward on both sides, but allows for alternative delineations that
provide for all the needs of the PMJM and include the alluvial
floodplain, transition slopes, and appropriate upland habitat.
To allow normal behavior and to ensure that the PMJM and the PCEs
on which it depends are protected, we believe that the outward extent
of critical habitat should at least approximate the outward distances
described above in relation to the 100-year floodplain. Unfortunately,
floodplains have not been mapped for many streams within the PMJM's
range. Where floodplain mapping is available, we have found that it may
include local inaccuracies. While alternative delineation of critical
habitat based on geomorphology and existing vegetation could accurately
portray the presence and extent of required habitat components, we lack
an explicit data layer that could support such a delineation of
critical habitat.
In 2003, we also considered determining the outward extent of
critical habitat based on a distance outward from features such as the
stream edge, associated wetlands, or riparian areas. We judged wetlands
an inconsistent indicator of habitat extent and found no consistent
source of riparian mapping available across the SPR of Colorado where
the PMJM is listed. We also considered using an outward extent of
critical habitat established by a vertical distance above the elevation
of the river or stream to approximate the floodplain and adjacent
uplands likely to be used by the PMJM. This proved unacceptable over
the diverse topography that surrounds stream reaches occupied by the
PMJM.
For this revised designation, we generally maintain consistency
with our 2003 designation of critical habitat in delineating the upland
extent of critical habitat boundaries as a set distance outward from
the river or stream edge (as defined by the ordinary high water mark)
varying with the size (order) of a river or stream. We compared known
floodplain widths to stream order over a series of sites and
approximated average floodplain width for various orders of streams. To
that average we added 328 ft (100 m) outward on each
[[Page 78450]]
side. For example, this analysis determined the average floodplain for
streams of order 1 and 2 (the smallest streams) is approximately 33 ft
(10 m). Based on this calculation, for streams of order 1 and 2, we are
designating critical habitat as 361 ft (110 m) outward from the stream
edge; for streams of order 3 and 4, we are designating critical habitat
as 394 ft (120 m) outward from the stream edge; and for stream orders 5
and above (the largest streams and rivers), we are designating critical
habitat as 459 ft (140 m) outward from the stream edge. In each case we
are approximating average floodplain width plus 328 ft (100 m). While
critical habitat will not extend outward to all areas used by
individual mice over time, we believe that these corridors of critical
habitat ranging from 722 ft (220 m) to 918 ft (280 m) in width (plus
the river or stream width) will support the full range of PCEs
essential for conservation of PMJM populations in these reaches, and
should help protect the PMJM and its habitat from secondary impacts of
nearby disturbance.
Following both our July 17, 2002, proposal of critical habitat (67
FR 47154), and our October 8, 2009, proposal to revise critical habitat
(74 FR 52066), we received comments regarding the appropriate outward
limits of critical habitat and means of establishing them. Most
comments suggested one of two alternative methods: (1) Site-specific
mapping of critical habitat for each reach; or (2) one outward limit
for all rivers and streams. We determined that the first alternative
was not feasible with the resources available to us, and that the
second alternative less accurately reflected limits of habitat than the
methodology employed above.
An exception is our delineation of the outward boundary of
designated critical habitat in those portions of Units 8, 9, and 10,
where a Riparian Conservation Zone has been mapped in conjunction with
development of the Douglas County HCP and delineates the limits of PMJM
habitat. The RCZ depicts known or potential PMJM habitat over 283
stream mi (456 km) and over 18,000 ac (7,000 ha) in Douglas County.
Mapping of the RCZ relied on geomorphology and existing vegetation to
assess presence and extent of required habitat components (i.e., those
physical and biological features essential for the conservation of the
PMJM). It followed the alternative habitat delineation suggested in the
Draft Plan (Service 2003a), and provides for the needs of the PMJM by
including the alluvial floodplain, transition slopes, and appropriate
upland habitat along stream reaches. When we approved the Douglas
County HCP, we reviewed the methodology and concluded that the RCZ
reflected the best information available for establishing the limits of
PMJM habitat.
Beyond the conclusion that the RCZ boundary provides a more
accurate depiction of the appropriate boundary of critical habitat than
what we proposed, we also considered the potential confusion that
designation of critical habitat that differs from the established RCZ
boundary might cause. The RCZ has been widely publicized in Douglas
County and is used as a guide to help avoid impacts to PMJM and its
habitat. Establishing critical habitat through standard setbacks from
streams would have created a confusing pattern of dual lines that
depict PMJM habitat limits. For these reasons we are designating the
outward boundary of critical habitat on non-Federal lands in Units 8,
9, and 10 to correspond to the boundaries set by the RCZ, where the RCZ
is present. In some instances this increases the width of critical
habitat designated; in others it decreases the width. Overall, it
results in a decrease in critical habitat than that which would
otherwise have been designated, but it more accurately reflects on-site
habitat conditions. On Federal properties designated as revised
critical habitat in Douglas County, and on a very few non-Federal
properties not included in the RCZ, outward boundaries of critical
habitat units include standard distances from streams based on stream
order.
Revised Critical Habitat Designation
We are designating 11 units that total approximately 411 mi (662
km) of rivers and streams and 34,935 ac (14,138 ha) of lands in
Colorado, including land under Federal, State, local government, and
private ownership. No lands designated as critical habitat are under
tribal ownership. The areas we describe below constitute our best
assessment at this time of areas that meet the definition of critical
habitat for the PMJM. The units are those areas that are most likely to
substantially contribute to conservation of the PMJM, will contribute
to the long-term survival and recovery of the species, and require
special management considerations or protection. These units, in many
cases, correspond to the same geographic area of the units in Colorado
delineated in the 2003 designation. However, there are multiple
revisions and unit additions. This designation of revised critical
habitat replaces the former critical habitat designation for the PMJM
in 50 CFR 17.95(a).
Table 1 shows each unit, approximate area, and land ownership.
Estimates reflect the total river or stream length and area of lands
within critical habitat unit boundaries. Limited areas within these
boundaries may not include any of the requisite PCEs. Any such
developed areas or other areas not supporting any of the requisite PCEs
are excluded by text of this rule, and the total area we are
designating may, therefore, be less than what is indicated in Table 1.
BILLING CODE 4310-55-P
[[Page 78451]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.001
BILLING CODE 4310-55-C
Lands that we are designating as revised critical habitat are
divided into 11 critical habitat units that contain all of the PCEs
necessary to meet the essential biological needs of the PMJM throughout
the SPR in Colorado, where PMJM is listed.
[[Page 78452]]
We present a brief description of each unit, and reasons why it
meets the definition of critical habitat for the PMJM, below. The units
are generally based on geographically distinct river drainages and
subdrainages (HUCs). These units have been subject to, or are
threatened by, varying degrees of degradation from human use and
development. For these reasons, the essential features within each of
the specific areas we are designating as critical habitat may require
special management considerations or protection. Management may include
measures in addition to those that may already be in place to preserve
such areas to avoid, reduce, or offset human-induced and natural
impacts, and to restore such areas following unavoidable adverse
impacts, including fire and flooding.
South Platte River Drainage--North of Denver
Unit 1: North Fork of the Cache la Poudre River, Larimer County
Unit 1 encompasses approximately 8,365 ac (3,385 ha) on 87 mi (140
km) of streams within the North Fork of the Cache la Poudre River HUC.
We are designating critical habitat along the lower portions of the
North Fork of the Cache la Poudre River and its tributaries, to provide
for the large recovery population specified in the Draft Plan. The unit
includes the North Fork of the Cache la Poudre River from the Milton
Seaman Reservoir upstream to the Halligan Reservoir. Major tributaries
within the unit include Stonewall Creek, Rabbit Creek (including its
North Fork, Middle Fork, and South Fork), and Lone Pine Creek. The
Eagle's Nest Open Space area, proposed as critical habitat within Unit
1, has been excluded from this critical habitat designation (see the
Exclusions section below). Much of the unit is covered by the 2006
Livermore Area HCP (Service 2006b). The HCP covers certain incidental
take of the PMJM related to ongoing agriculture and compatible
activities, and conservation and stewardship activities in the
Livermore area. However, the HCP does not address take resulting from
most development.
The unit includes both public and private lands. It includes
portions of the Arapaho-Roosevelt National Forest, as well as Lone Pine
State Wildlife Area. In the Cache la Poudre HUC, stream reaches that
contain requisite PCEs are widespread. The area remains largely rural
and agricultural with habitat components likely to support relatively
high densities of the PMJM.
Pressure for residential development is increasing within the area.
Management of livestock grazing in the unit is often, but not in all
cases, compatible with maintenance of quality PMJM habitat. Proposed
reservoir projects and associated water management may impact portions
of this unit but may also present conservation opportunities. Based on
these and other threats, special management considerations and
protection are needed. This unit is essential to the conservation of
the PMJM because it contains habitat essential to a population of the
PMJM that supports the conservation principles of redundancy and
resiliency throughout the SPR in Colorado where the PMJM is listed.
Unit 2: Cache la Poudre River, Larimer County
Unit 2 encompasses approximately 4,929 ac (1,995 ha) on 51 mi (82
km) of streams within the Cache la Poudre River watershed. This unit is
within the Cache la Poudre HUC and south of Unit 1. It includes the
Cache la Poudre River from Poudre Park upstream to the 7,600 ft (2,317
m) elevation below Rustic. Major tributaries within the unit include
Hewlett Gulch, Young Gulch, Skin Gulch, Poverty Gulch, Elkhorn Creek,
Pendergrass Creek, and Bennett Creek. The unit is primarily composed of
Federal lands of the Arapaho-Roosevelt National Forest, including
portions of the Cache la Poudre Wilderness, but includes limited non-
Federal lands as well. The unit supports the appropriate spatial
arrangement of the requisite PCEs to ensure the conservation of the
PMJM. Since this unit is located in the same Cache la Poudre HUC as
Unit 1, it is unlikely to serve as an initial recovery population.
However, it encompasses a significant area of habitat likely to support
a sizeable population of the PMJM. Due to Federal ownership,
residential or commercial development pressure is minimal; however, the
area is subject to substantial recreational use (rafting, kayaking,
fishing) in the Cache la Poudre River corridor. Non-Federal lands
include existing development that may limit the habitat components
present. Such reaches may serve the PMJM mostly as connectors between
areas that contain all of the necessary PCEs. Maintenance of
connectivity for PMJM movement through such areas is important. Based
on these and other threats, special management considerations and
protection are needed. This unit is essential to the conservation of
the PMJM because it contains habitat essential to a population of the
subspecies that supports the conservation principles of redundancy and
resiliency throughout the SPR in Colorado where the PMJM is listed.
Unit 3: Buckhorn Creek, Larimer County
Unit 3 encompasses approximately 3,912 ac (1,583 ha) on 45 mi (73
km) of streams within the Buckhorn Creek watershed. It includes
Buckhorn Creek from just west of Masonville, upstream to the 7,600-ft
(2,317-m) elevation. Major tributaries within the unit include Little
Bear Gulch, Bear Gulch, Stringtown Gulch, Fish Creek, and Stove Prairie
Creek. The unit is located in the Big Thompson HUC, and we are
designating it as critical habitat to address the medium recovery
population called for this area in the Draft Plan (Service 2003a). The
unit includes both public lands, mostly on portions of the Arapaho-
Roosevelt National Forest, and private lands. Requisite PCEs are
present. Pressure for expanded rural development exists on non-Federal
lands within the unit while recreational use is centered on public
lands. Based on these and other development pressures, special
management considerations and protection are needed. This unit is
essential to the conservation of the PMJM because it contains habitat
essential to a population of the subspecies that supports the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed.
Unit 4: Cedar Creek, Larimer County
Unit 4 encompasses approximately 641 ac (259 ha) on 8 mi (12 km) of
streams within the Cedar Creek watershed, including Dry Creek and Jug
Gulch. Cedar Creek is a tributary of the Big Thompson River and enters
the Big Thompson River at Cedar Cove. The unit is centered on Federal
lands of the Arapaho-Roosevelt National Forest, but includes some
stream reaches on non-Federal lands. This unit is located in the Big
Thompson HUC and, while unlikely to serve as an initial recovery
population, it supports a population on mostly Federal lands of the
upper Big Thompson River. Requisite PCEs are present, but the unit is
isolated, at least in terms of riparian connection, from the PMJM
population on nearby Buckhorn Creek drainage (Unit 3) to the north.
This site is upstream of The Narrows of the Big Thompson Canyon, a
barrier to PMJM movement, while the confluence of the Big Thompson
River and Buckhorn Creek is downstream from The Narrows. However, the
close proximity of the headwaters of Jug Gulch within this unit to the
headwaters
[[Page 78453]]
of Bear Gulch within the Buckhorn Creek critical habitat unit suggests
that some PMJM may pass between the two populations and thus between
the two significant watersheds within this HUC. Non-Federal lands
within this unit support existing development and will likely
experience continued residential development pressure. Therefore,
special management considerations and protection are needed. This unit
is essential to the conservation of the PMJM because it contains
habitat essential to a population of the subspecies that supports the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed.
Unit 5: South Boulder Creek, Boulder County
Unit 5 encompasses approximately 798 ac (323 ha) on 8 mi (12 km) of
streams within the South Boulder Creek watershed. It includes South
Boulder Creek from Baseline Road upstream to Eldorado Springs, and
includes the Spring Brook tributary. Denver Water lands proposed as
critical habitat within Unit 5 have been excluded from this critical
habitat designation (see the Exclusions section). The unit includes
both public and private lands. It includes substantial lands owned by
the City of Boulder Open Space and Mountain Parks.
This unit is located in the St. Vrain HUC, and we are designating
it as critical habitat to address the medium recovery population
designated for this area in the Draft Plan (Service 2003a). Requisite
PCEs are present, and portions of the area have been the subject of
PMJM research funded by the City of Boulder. At some sites high
densities of the PMJM have been documented (Meaney et al. 2003, pp.
616-617). A wide floodplain, complex ditch system, and the irrigation
of pastures make habitat within the lower portions of this unit unique.
Pressure for expanded development is occurring on the limited private,
undeveloped land within the unit. Recreational use of the City of
Boulder lands is considerable and could adversely impact the PMJM if
not properly managed. Based on these and other threats, special
management considerations and protection are needed. This unit is
essential to the conservation of the PMJM because it contains habitat
essential to a population of the subspecies that supports the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed.
Unit 6: Rocky Flats Site, Jefferson, Boulder, and Broomfield Counties
Unit 6 encompasses approximately 1,108 ac (448 ha) on 12 mi (20 km)
of streams, and includes the Rock Creek Subunit, Woman Creek Subunit,
and Walnut Creek Subunit. Greater than 99 percent of Unit 6 is within
the Rocky Flats Site and consists of Federal lands managed by the
Service and DOE. The Rocky Flats Site was a nuclear industrial facility
for the DOE between 1951 and the end of the Cold War. Later it became
the DOE Environmental Technology Site. Much of the Rocky Flats Site
became the Rocky Flats NWR in 2005, but DOE maintains control over the
Central Operable Unit (1,300 ac, 530 ha) and other lands near the
western boundary of the site.
The Rock Creek Subunit is located in the St. Vrain HUC, and the
Woman Creek and Walnut Creek subunits are in the Middle South Platte-
Cherry Creek HUC. Since the unit includes portions of two HUCs, both of
which support designated critical habitat corresponding with recovery
populations designated elsewhere in the Draft Plan, this unit is
unlikely to serve as an initial recovery population. However, this unit
is unique and important because it is limited almost entirely to
Federal lands of the Rocky Flats Site, and populations on the site have
been the subject of the longest span of research of any PMJM
populations.
This unit is essential to the conservation of the PMJM because
requisite PCEs are present and the site supports small streams largely
unimpacted by human development. This unit is essential to the
conservation of the PMJM because it contains habitat essential to a
population of the subspecies that supports the conservation principles
of redundancy and resiliency throughout the SPR in Colorado where the
PMJM is listed. In addition, the site presents an opportunity to study
small populations and their viability over time. However, the small
populations present and their apparent isolation suggest that the PMJM
population on the unit may be vulnerable. Continuation of existing
management and adapting future management to support conservation of
the PMJM on site is necessary on both NWR and DOE lands.
Unit 7: Ralston Creek, Jefferson County
Unit 7 encompasses approximately 773 ac (313 ha) on 9 mi (14 km) of
streams within the Ralston Creek watershed. It includes Ralston Creek
from Ralston Reservoir upstream to the 7,600-ft (2,317-m) elevation.
Denver Water lands proposed as critical habitat within Unit 7 have been
excluded from this critical habitat designation (see the Exclusions
section). The unit includes both public and private lands including
lands in Golden Gate Canyon State Park and White Ranch County Park.
This unit is located in the Clear Creek HUC, and we are designating
it as critical habitat to partially address the criteria of three small
recovery populations or one medium recovery population called for in
this area in the Draft Plan (Service 2003a). The segment of Ralston
Creek that passes through the Cotter Corporation's existing
Schwartzwalder Mine serves as a connector between areas that support
all requisite PCEs required by the PMJM located upstream and
downstream. Protection and management considerations are required for
both the mine area and public lands within the unit. This unit is
essential to the conservation of the PMJM because it contains habitat
essential to a population of the subspecies that supports the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed.
South Platte River Drainage--South of Denver
Unit 8: Cherry Creek, Douglas County
Unit 8 encompasses approximately 2,536 ac (1,026 ha) on 30 mi (48
km) of streams within the Cherry Creek watershed. Unit 8 includes two
subunits. The first, the Lake Gulch Subunit, includes Cherry Creek from
the downstream boundary of the Castlewood Canyon State Recreation Area,
upstream to its confluence with Lake Gulch. Tributaries within the
subunit include Lake Gulch and Upper Lake Gulch. It includes portions
of the Castlewood Canyon State Recreation Area, as well as portions of
Douglas County's Green Mountain Ranch property. The second, the
Antelope Creek Subunit, includes Antelope Creek from its confluence
with West Cherry Creek upstream and a tributary, Haskel Creek. The
outward boundaries of critical habitat in this subunit have been
modified from those proposed to conform to boundaries of the Douglas
County RCZ on non-Federal lands where the RCZ has been mapped (see the
Delineation of Critical Habitat Boundaries section above). The two
subunits include both public and private lands. These subunits are
located in the Middle South Platte-Cherry Creek HUC and address the
medium recovery population designated
[[Page 78454]]
for this area in the Draft Plan (Service 2003a). PCEs essential to the
conservation of the PMJM in the upper reaches of the Cherry Creek basin
appear widespread, and there are multiple options as to where we could
designate critical habitat for a medium recovery population. This unit
is also essential to the conservation of the PMJM because it provides
critical habitat to support populations of the subspecies to meet the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed. Some development pressure is
occurring from expanding rural development on private lands within
these areas. Management considerations are required for development
within this unit, as well as for grazing and recreational activities.
Unit 9: West Plum Creek, Douglas County
Unit 9 encompasses approximately 5,518 ac (2,233 ha) on 90 mi (145
km) of streams within the Plum Creek watershed. It includes Plum Creek
from Chatfield Reservoir upstream to the confluence with West Plum
Creek then continues upstream on West Plum Creek to its headwaters.
Major tributaries within the unit include Indian Creek, Jarre Creek,
Garber Creek (including North, Middle, and South Garber Creek), Jackson
Creek, Spring Creek, Dry Gulch, Bear Creek, Starr Canyon, Gove Creek,
and Metz Canyon. We have reduced the extent of final critical habitat
on Bear Creek from that proposed, ending it at the base of the Waconda
Lake Dam (see the Summary of Changes from the Proposed Rule section
above). Denver Water lands proposed as critical habitat within Unit 9
have been excluded from this critical habitat designation (see the
Exclusions section below). The outward boundaries of critical habitat
in this unit have been modified from those proposed to conform to
boundaries of the Douglas County RCZ on non-Federal lands where the RCZ
has been mapped (see the Delineation of Critical Habitat Boundaries
section above).
The unit encompasses both public and private lands. It includes
portions of the Pike-San Isabel National Forest, as well as Chatfield
State Recreation Area (Corps property), and Colorado Division of
Wildlife's Woodhouse Ranch property. This unit is located in the Upper
South Platte HUC, and it addresses the large recovery population
designated for this area in the Draft Plan (Service 2003a). Aside from
a portion of lower Plum Creek, the unit remains rather rural, requisite
PCEs are present, and it includes habitat components likely to support
relatively high densities of the PMJM. Pressure for expanded suburban
and rural development is occurring within the area. On some private and
public lands, management considerations are required for livestock
grazing. This unit is essential to the conservation of the PMJM because
it contains habitat essential to a population of the subspecies that
supports the conservation principles of redundancy and resiliency
throughout the SPR in Colorado where the PMJM is listed.
Unit 10: Upper South Platte River, Douglas, Jefferson, and Teller
Counties
Unit 10 encompasses approximately 3,060 ac (1,238 ha) on 34 mi (54
km) of streams within the South Platte River watershed. It includes
four subunits. The Chatfield Subunit includes a section of the South
Platte River upstream of Chatfield Reservoir within Chatfield State
Recreation Area (Corps property). The Bear Creek Subunit includes Bear
Creek and West Bear Creek, tributaries to the South Platte River. The
South Platte Subunit includes a segment of the South Platte River
upstream from Nighthawk, including the tributaries Gunbarrel Creek and
Sugar Creek. This subunit is centered on Federal lands of the Pike-San
Isabel National Forest but includes some intervening non-Federal lands.
The Trout Creek Subunit includes portions of Trout Creek, a tributary
to Horse Creek, and also portions of Eagle Creek, Long Hollow, Fern
Creek, Illinois Gulch, and Missouri Gulch. This subunit is centered on
Federal lands of the Pike-San Isabel National Forest but includes some
intervening non-Federal lands along Trout Creek. Denver Water lands
proposed as critical habitat within Unit 10 have been excluded from
this critical habitat designation (see the Exclusions section below).
The outward boundaries of critical habitat in this unit have been
modified from those proposed to conform to boundaries of the Douglas
County RCZ on non-Federal lands in Douglas County where the RCZ has
been mapped (see the Delineation of Critical Habitat Boundaries section
above).
This unit is located in the same Upper South Platte HUC as West
Plum Creek, where the Draft Plan designated a large recovery population
and, therefore, is unlikely to serve as an initial recovery population.
The unit encompasses four areas of primarily Federal land spread
through the drainage, three within the Pike-San Isabel National Forest
boundary. While requisite PCEs are present, habitat components present
and the likely density of PMJM populations vary. The Trout Creek
Subunit appears to have high quality PMJM habitat and may provide a
continued opportunity to research relationships between the PMJM and
the western jumping mouse (Z. princeps), both of which have been
verified from the same trapping effort on Trout Creek. The four subunit
areas should ensure that populations of the PMJM sufficient for its
conservation are maintained in the portion of this HUC upstream of
Chatfield Reservoir on the South Platte River and its tributaries. This
unit is essential to the conservation of the PMJM because it contains
habitat essential to populations of the subspecies that supports the
conservation principles of redundancy and resiliency throughout the SPR
in Colorado where the PMJM is listed. Due to Federal ownership,
residential or commercial development pressure is minimal; however, the
area is subject to substantial recreational use. Proposed reservoir
projects may impact portions of this unit. Based on these and other
development pressures, special management considerations and protection
are needed.
Arkansas River Drainage
Unit 11: Monument Creek, El Paso County
Unit 11 is located in the Arkansas River drainage. It encompasses
approximately 3,295 ac (1,333 ha) on 38 mi (61 km) of streams within
the Monument Creek watershed. It includes Monument Creek from the
confluence of Cottonwood Creek upstream to the southern boundary of the
U.S. Air Force (USAF) Academy (Academy) and from the northern boundary
of the Academy upstream to the dam at Monument Lake. Major tributaries
within the unit include Kettle Creek, Black Squirrel Creek, Monument
Branch, Middle Tributary, Smith Creek, Jackson Creek, Beaver Creek,
Teachout Creek, and Dirty Woman Creek. The unit is primarily on private
lands. It includes a small portion of the Pike-San Isabel National
Forest. Lands within the Struthers Ranch, Dahle Property, and Lefever
Property HCPs, which were proposed as critical habitat within this
unit, have been excluded from this critical habitat designation (see
Exclusions, below).
This unit is located in the Fountain Creek HUC, and we are
designating it as critical habitat to address part of the large
recovery population designated for this area in the Draft Plan (Service
2003a). The area is unique in that it represents the only known PMJM
population of significant size within the Arkansas River drainage and
the southernmost known occurrence of the PMJM. The Draft Plan (Service
2003a)
[[Page 78455]]
specifies a large recovery population along Monument Creek and its
tributaries including lands within the Academy. While the Academy lands
support the requisite PCEs, support a significant PMJM population, and
are essential to maintenance of this proposed recovery population, we
determined that the Academy lands merit exemption under section 4(a)(3)
of the Act because an integrated natural resources management plan is
in place that addresses conservation of the PMJM.
Requisite PCEs are present throughout this unit, but development
pressure is extremely high on some private lands within the unit.
Development has resulted in changes in base flows and increased
stormwater runoff, and has adversely impacted stream channels and
associated riparian systems (Mihlbachler 2007). Comprehensive
management measures to address habitat degradation are needed.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) 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. Decisions
by the Fifth and Ninth Circuits Court of Appeals have invalidated our
definition of destruction or adverse modification (50 CFR 402.02) (see
Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d
1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service
et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this
regulatory definition when we analyze whether an action is likely to
destroy or adversely modify critical habitat. Under the statutory
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain those physical and biological features that relate to the
ability of the area to periodically support the subspecies) to serve
its intended conservation role for the subspecies.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the 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. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
An exception to the concurrence process referred to in (1) above
occurs in consultations that involve National Fire Plan projects, known
as Section 7 Counterpart Regulations for National Fire Plan Projects.
In 2004, the USFS and the Bureau of Land Management (BLM) reached
agreements with us to streamline a portion of the section 7
consultation process (BLM 2004, pp. 1-8; USFS 2004, pp. 1-8). Under
these regulations Alternative Consultation Agreements allow the USFS
and the BLM the opportunity to make ``not likely to adversely affect''
determinations for projects that implement the National Fire Plan, and
do not need to submit these projects for concurrence. Such projects
include prescribed fire, mechanical fuels treatments (thinning and
removal of fuels to prescribed objectives), emergency stabilization,
burned area rehabilitation, road maintenance and operation activities,
ecosystem restoration, and culvert replacement actions. The USFS and
the BLM must ensure staffs are properly trained, and both agencies must
submit monitoring reports to us to determine if the procedures are
being implemented properly and that effects on endangered species and
their habitats are being properly evaluated.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define reasonable and prudent alternatives at 50 CFR
402.02 as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the PMJM or its designated
critical habitat require section 7 consultation under the Act.
Activities on State, Tribal, local, or private lands requiring a
Federal permit (such as a permit from the Corps under section 404 of
the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under
section 10 of the Act) or involving some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency) are subject
to the section 7 consultation process. Federal actions not affecting
listed species or critical habitat, and actions on State, tribal,
local, or private lands that are not federally funded, authorized, or
permitted, do not require section 7 consultations.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the PMJM. Federal actions that may affect areas outside
of critical habitat, such as development, agricultural activities, and
road construction, are still subject to review under section 7 of the
Act if they may affect the PMJM, because Federal agencies must consider
both effects to the species and effects to critical habitat
independently. The prohibitions of section 9 of the Act applicable to
the PMJM under 50 CFR 17.31 also continue to apply both inside and
outside of designated critical habitat.
[[Page 78456]]
Application of the Jeopardy and Adverse Modification Standards
Jeopardy Standard
Currently, the Service applies an analytical framework for PMJM
jeopardy analyses that relies heavily on the importance of known
populations to the species' survival and recovery. The analysis
required by section 7(a)(2) of the Act is focused not only on these
populations but also on the habitat conditions necessary to support
them.
The jeopardy analysis usually expresses the survival and recovery
needs of the PMJM in a qualitative fashion without making distinctions
between what is necessary for survival and what is necessary for
recovery. Generally, the jeopardy analysis focuses on the rangewide
status of the SPR where the PMJM is threatened, the factors responsible
for that condition, and what is necessary for this species to survive
and recover. An emphasis is also placed on characterizing the condition
of the PMJM in the area affected by the proposed Federal action and the
role of affected populations in the survival and recovery of the PMJM.
That context is then used to determine the significance of adverse and
beneficial effects of the proposed Federal action and any cumulative
effects for purposes of making the jeopardy determination.
Adverse Modification Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or retain those PCEs that relate to
the ability of the area to periodically support the species. Activities
that may destroy or adversely modify critical habitat are those that
alter the PCEs to an extent that appreciably reduces the conservation
value of critical habitat for the PMJM. As discussed above, the role of
critical habitat is to support the life-history needs of the species
and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may adversely affect critical habitat and, therefore,
should result in consultation for the PMJM include, but are not limited
to, the following:
(1) Any activity that results in development or alteration of the
landscape within a unit, including: land clearing; activities
associated with construction for urban and industrial development,
roads, bridges, pipelines, or bank stabilization; agricultural
activities such as plowing, disking, haying, or intensive grazing; off-
road vehicle activity; and mining or drilling of wells.
(2) Any activity that results in changes in the hydrology of the
unit, including: construction, operation, and maintenance of levees,
dams, berms, and channels; activities associated with flow control,
such as releases, diversions, and related operations; irrigation;
sediment, sand, or gravel removal; and other activities resulting in
the draining or inundation of a unit.
(3) Any sale, exchange, or lease of Federal land that is likely to
result in the habitat in a unit being destroyed or appreciably
degraded.
(4) Any activity that detrimentally alters natural processes in a
unit, including changes to inputs of water, sediment and nutrients, or
any activity that significantly and detrimentally alters water quantity
in the unit.
(5) Any activity that could lead to the introduction, expansion, or
increased density of an exotic plant or animal species that is
detrimental to the PMJM and to its habitat.
Note that the scale of these activities would be a crucial factor
in determining whether, in any instance, they would directly or
indirectly alter critical habitat to the extent that the value of the
critical habitat for the survival and recovery of the PMJM would be
appreciably diminished.
We consider all of the units we are designating as critical habitat
to contain features essential to the conservation of the PMJM and which
require special management. All of the units are within the geographic
range of the species and the SPR in Colorado where it is listed, and
they are believed to be currently occupied. To ensure that their
actions do not jeopardize the continued existence of the PMJM, Federal
agencies already consult with us on activities in areas currently
occupied by the PMJM, or in unoccupied areas if the species may be
affected by the action. Federal actions not affecting listed species or
critical habitat and actions on non-Federal lands that are not
federally funded or permitted do not require section 7 consultation.
Exemptions--Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate 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 integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with federally listed species. We analyzed
INRMPs developed by military installations that are located within the
SPR in Colorado where the PMJM is listed and that contain those
features essential to the species' conservation to determine if they
are exempt under the authority of section 4(a)(3)(B) of the Act.
U.S. Air Force Academy
The Academy, in El Paso County, is the lone Department of Defense
property that supports a population of the PMJM in habitat that we
determined contains physical and biological features that are essential
to the conservation of the
[[Page 78457]]
species. The Academy completed an INRMP in 1998, and updated it in 2008
(USAF 1998, 2008). The Academy's INRMP describes habitats found at the
Academy, including habitats used by the PMJM (USAF 1998, 2008). It
addresses management concerns, provides goals and objectives regarding
the PMJM, and describes management actions designed to accomplish those
objectives. The INRMP also requires monitoring, evaluation of the
plan's effectiveness, and modification of management actions when
appropriate.
The Academy also developed a Conservation Agreement with the
Service and an accompanying ``Conservation and Management Plan for the
Preble's Meadow Jumping Mouse at the U.S. Air Force Academy'' in 1999
(USAF 1999). The Conservation agreement was extended for 5 years in
2009. The plan provides guidance for USAF management decisions. In
addition, the Service completed a programmatic section 7 consultation
in 2000, addressing certain activities at the Academy that may affect
the PMJM (Service 2000), and concurred with 2008 changes to the INRMP.
We have reviewed these measures and have concluded the INRMP
addresses the four criteria identified above. As a result, we did not
propose Academy lands as critical habitat and have not included Academy
lands in this final designation. Based on the above considerations, and
in accordance with section 4(a)(3)(B)(i) of the Act, we have determined
that the Academy lands are subject to the Academy's INRMP, and that
conservation efforts identified in the INRMP will provide a benefit to
PMJM occurring in habitats within or adjacent to these facilities.
Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3) of the Act. As a result, we
are not including a total of approximately 3,300 ac (1,300 ha) of
habitat in this Department of Defense installation in this final
critical habitat designation.
Exclusions--Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat 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. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If, based on this analysis, the Secretary makes this
determination, then he can exercise his discretion to exclude the area
only if such exclusion would not result in the extinction of the
species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits under section 7 of the Act that area
would receive from the protection from adverse modification or
destruction as a result of actions with a Federal nexus, the
educational benefits of mapping essential habitat for recovery of the
listed species, and any benefits that may result from a designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation that a critical habitat designation would
provide.
In the case of PMJM, the benefits of critical habitat include
public awareness of PMJM presence and the importance of habitat
protection, and in cases where a Federal nexus exists, increased
habitat protection for PMJM due to the protection from adverse
modification or destruction of critical habitat.
In evaluating the existence of a conservation plan when considering
the benefits of exclusion, we consider a variety of factors, including
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical and biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After evaluating the benefits of inclusion and the benefits of
exclusion, the two sides are carefully weighed to determine whether the
benefits of exclusion outweigh those of inclusion. If they do, we then
determine whether exclusion of the particular area would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, that area will not be excluded from
the designation.
Based on the information provided by entities seeking exclusion, as
well as additional public comments we received, we evaluated whether
certain lands in the proposed critical habitat were appropriate for
exclusion from this final designation. We considered the areas
discussed below for exclusion under section 4(b)(2) of the Act, and
present our detailed analysis below. For those areas in which the
Secretary has exercised his discretion to exclude, we believe that:
(1) Their value for conservation will be preserved for the
foreseeable future by existing protective actions, or
(2) The benefits of excluding the particular area outweigh the
benefits of their inclusion, based on the ``other relevant factor''
provisions of section 4(b)(2) of the Act.
Exclusions Based on Economic Analysis
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a DEA, based on the October 8,
2009, proposed rule (74 FR 52066), which we made available for public
review on May 27, 2010 (75 FR 29700). We opened a comment period on the
DEA for 30 days, until June 28, 2010. Following the close of the
comment period, an FEA of the potential economic effects of the
designation was developed, taking into consideration these comments and
any new information.
The intent of the FEA is to identify and analyze the potential
economic impacts associated with the final revised critical habitat
designation for the PMJM in the SPR in Colorado where it is listed
under the Act. The FEA quantifies the economic impacts of all potential
conservation efforts for the PMJM, which are the co-extensive costs.
The majority of these costs will likely be
[[Page 78458]]
incurred regardless of whether or not we designate revised critical
habitat. The economic impact of the revised critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations),
but not including critical habitat designated in 2003. Therefore, the
baseline represents the costs incurred regardless of whether critical
habitat is designated. The ``with critical habitat'' scenario describes
the incremental impacts associated specifically with the proposed
designation of revised critical habitat for the species. The
incremental conservation efforts and associated impacts are those not
expected to occur absent the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat above and beyond the
baseline costs; these are the costs we considered in the final
designation of revised critical habitat. The analysis looked
retrospectively at baseline impacts incurred since the species was
listed, and forecasted both baseline and incremental impacts likely to
occur with the final revised critical habitat designation.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development, public projects, and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since May 13, 1998, when the PMJM was listed
under the Act (63 FR 26517), and considers those costs that may occur
in the 20 years following the designation of critical habitat, which
was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 20-year timeframe. The
FEA quantifies economic impacts from PMJM conservation efforts
associated with the following categories of activity: residential and
commercial development; roads/bridges, utilities, and bank
stabilization projects; water supply development; USFS land management;
Rocky Flats Site land management; and gravel mining.
Based on the FEA, co-extensive costs (the economic impacts of all
potential conservation efforts for the PMJM) are expected to be from
$89 million to $202 million, assuming a 7 percent discount rate, over
the next 20 years. Potential incremental impacts associated with the
revised critical habitat designation are estimated to be $28.2 million
to $63.4 million (approximately $2.66 million to $5.98 million on an
annualized basis), assuming a 7 percent discount rate, over the next 20
years. These incremental impacts generally consist of those incremental
administrative costs of conducting section 7 consultations with the
Service, and additional costs of project modifications undertaken to
avoid adverse modification of critical habitat and avoid or minimize
adverse impacts to critical habitat. In the high-end scenario,
potential impacts to residential and commercial development represent
92 percent of the co-extensive costs and 96 percent of the incremental
impacts, assuming a 7 percent discount rate. The largest contributor to
incremental costs is residential and commercial development in Unit 9
(West Plum Creek), Unit 10 (Upper South Platte), and Unit 11 (Monument
Creek). The following table provides estimates of co-extensive impacts
and those attributable to designation of critical habitat, by activity,
over the next 20 years. Table 2 (below) gives a comparison and summary
of both the total (co-extensive) costs estimated for all PMJM
conservation activities, and the incremental costs resulting from the
revised designation of critical habitat for the PMJM, projected over 20
years, at a 7 percent discount rate.
Table 2--Estimated Post-Designation, Co-extensive, and Incremental Impacts Over 20 Years, by Activity (Present
Value, 2009 Dollars), Showing High and Low Estimates, Assuming a 7 Percent Discount Rate.
----------------------------------------------------------------------------------------------------------------
Co-extensive
Activity high Co-extensive low Incremental high Incremental low
----------------------------------------------------------------------------------------------------------------
Residential and Commercial Development.. $186,000,000 $82,000,000 $61,100,000 $26,900,000
Road/Bridge, Utility, and Bank 2,910,000 1,500,000 946,000 497,000
Stabilization..........................
Water Supply Development................ 11,500,000 3,890,000 937,000 323,000
USFS Lands Management................... 977,000 977,000 357,000 357,000
Rocky Flats Site........................ 149,000 149,000 70,800 70,800
-----------------------------------------------------------------------
Total............................... 201,536,000 88,516,000 63,410,800 28,147,800
----------------------------------------------------------------------------------------------------------------
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary has determined not to exert his discretion to exclude any
areas from this designation of critical habitat for the PMJM based on
economic impacts. A copy of the FEA with supporting documents may be
obtained by contacting the Colorado Ecological Services Office (see
ADDRESSES) or by downloading from the Internet at http://
www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where the
designation of critical habitat might present an impact to national
security. In preparing this final rule, we have determined that the
lands within the revised designation of critical habitat for the PMJM
are not owned or managed by the DOD, and, therefore, we anticipate no
impact to national security. The Secretary has determined not to exert
his discretion to exclude any areas from this final designation based
on impacts on national security.
[[Page 78459]]
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether landowners
have developed any HCPs or other resource management plans for the
areas proposed for designation, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any Tribal issues, and
consider the government-to-government relationship of the United States
with Tribal entities. We also consider any social impacts that might
occur because of the designation.
Our NEPA analysis may also disclose impacts we may consider in our
analysis under section 4(b)(2) of the Act. In order to consider
environmental impacts of the designation of critical habitat, we
prepared a draft environmental assessment, based on the October 8,
2009, proposed rule (74 FR 52066), and made it available for public
review on May 27, 2010, (75 FR 29700). We opened a comment period on
the draft environmental assessment for 30 days, until June 28, 2010.
Following the close of the comment period, a final environmental
assessment of the potential environmental effects of the designation
was developed, taking into consideration comments and any new
information. A copy of the final environmental assessment and Finding
of No Significant Impact (FONSI) may be obtained by contacting the
Colorado Ecological Services Office (see ADDRESSES), or by downloading
from the Internet at http://www.regulations.gov.
In order to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we determine that the benefits of
exclusion outweigh the benefits of inclusion, then we can exclude the
area only if such exclusion would not result in the extinction of the
species.
Benefits of Designating Critical Habitat
Regulatory Benefits
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on actions that may affect
critical habitat and must avoid destroying or adversely modifying
critical habitat. Prior to our designation of critical habitat, Federal
agencies consult with us on actions that may affect a listed species
and must refrain from undertaking actions that are likely to jeopardize
the continued existence of the species. Thus, the analysis of effects
to critical habitat is a separate and different analysis from that of
the effects to the species. The difference in outcomes of these two
analyses represents the regulatory benefit of critical habitat. For
some species, and in some locations, the outcome of these analyses will
be similar, because effects on habitat will often result in effects on
the species. However, the regulatory standard is different: the
jeopardy analysis looks at the action's impact on survival and recovery
of the species, while the adverse modification analysis looks at the
action's effects on the designated habitat's contribution to the
species' conservation. This will, in many instances, lead to different
results and different regulatory requirements.
Once an agency determines that consultation under section 7 of the
Act is necessary, the process may conclude informally when we concur in
writing that the proposed Federal action is not likely to adversely
affect critical habitat. However, if we determine through informal
consultation that adverse impacts are likely to occur, then we would
initiate formal consultation, which would conclude when we issue a
biological opinion on whether the proposed Federal action is likely to
result in destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to PCEs, but it would not contain any mandatory reasonable and prudent
measures or terms and conditions. We suggest reasonable and prudent
alternatives to the proposed Federal action only when our biological
opinion results in an adverse modification conclusion.
In providing the framework for the consultation process, the
previous section applies to all the following discussions of benefits
of inclusion or exclusion of critical habitat.
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species which may require special management considerations or
protection. In identifying those lands, the Service must consider the
recovery needs of the species, such that the habitat that is
identified, if managed, could provide for the survival and recovery of
the species. Furthermore, once critical habitat has been designated,
Federal agencies must consult with the Service under section 7(a)(2) of
the Act to ensure that their actions will not adversely modify
designated critical habitat or jeopardize the continued existence of
the species. As noted in the Ninth Circuit's Gifford Pinchot decision,
the Court ruled that the jeopardy and adverse modification standards
are distinct, and that adverse modification evaluations require
consideration of impacts to the recovery of species. Thus, through the
section 7(a)(2) consultation process, critical habitat designations
provide recovery benefits to species by ensuring that Federal actions
will not destroy or adversely modify designated critical habitat.
The identification of lands that are necessary for the conservation
of the species can assist in the recovery planning for a species, and
therefore is beneficial. In this case the Draft Plan has helped inform
critical habitat designation, and this final rule may, in turn,
contribute to development of a final recovery plan. The process of
proposing and finalizing a critical habitat rule provides the Service
with the opportunity to determine lands essential for conservation as
well as identify the physical and biological features essential for
conservation on those lands. The designation process includes peer
review and public comment on the identified features and lands. This
process is valuable to land owners and managers in developing
conservation management plans for identified lands, as well as any
other occupied habitat or suitable habitat that may not have been
included in the Service's determination of essential habitat.
However, the designation of critical habitat does not require that
any management or recovery actions take place on the lands included in
the designation. Even in cases where consultation has been initiated
under section 7(a)(2) of the Act, the end result of consultation is to
avoid jeopardy to the species and adverse modification of its critical
habitat, but not specifically to manage remaining lands or institute
recovery actions on remaining lands. Conversely, management plans
institute intentional, proactive actions over the lands they encompass
to remove or reduce known threats to a species or its habitat and,
therefore, implement recovery actions. We believe that the
[[Page 78460]]
conservation of a species and its habitat that could be achieved
through the designation of critical habitat, in some cases, is less
than the conservation that could be achieved through the implementation
of a management plan that includes species-specific provisions and
considers enhancement or recovery of listed species as the management
standard over the same lands. Consequently, implementation of any HCP
or management plan that considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Educational Benefits
A benefit of including lands in critical habitat is that
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for the PMJM. Because the critical habitat process includes a public
comment period, opportunities for public hearings, and announcements
through local venues, including radio and other news sources, the
designation of critical habitat provides numerous occasions for public
education and involvement. Through these outreach opportunities, land
owners, State agencies, and local governments can become more aware of
the plight of listed species and conservation actions needed to aid in
species recovery. Through the critical habitat process, State agencies
and local governments may become aware of areas that could be conserved
under State laws, local ordinances, or specific management plans.
Benefits of Exclusion
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
When we evaluate the existence of a conservation plan to consider
the benefits of exclusion, we consider a variety of factors, including
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical and biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After evaluating the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to determine whether the
benefits of exclusion outweigh those of inclusion. If we determine that
they do, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat would result
in extinction, we will not exclude it from the designation.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without cooperation of non-Federal landowners. More than 60 percent of
the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002,
p. 720). Stein et al. (1995, p. 400) found that only about 12 percent
of listed species were found almost exclusively on Federal lands (90 to
100 percent of their known occurrences restricted to Federal lands) and
that 50 percent of federally listed species are not known to occur on
Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James
2002, p. 271). Building partnerships and promoting voluntary
cooperation of landowners are essential to understanding the status of
species on non-Federal lands, and are necessary to implement recovery
actions such as reintroducing listed species, habitat restoration, and
habitat protection.
Many non-Federal landowners derive satisfaction from contributing
to endangered species recovery. We promote these private-sector efforts
through the Department of the Interior's Cooperative Conservation
philosophy. Conservation agreements with non-Federal landowners (safe
harbor agreements, other conservation agreements, easements, and State
and local regulations) enhance species conservation by extending
species protections beyond those available through section 7
consultations. We encourage non-Federal landowners to enter into
conservation agreements, based on a view that we can achieve greater
species conservation on non-Federal land through such partnerships than
we can through regulatory methods (December 2, 1996; 61 FR 63854).
As discussed above, consultation under section 7(a)(2) of the Act,
and the duty to avoid jeopardy to a listed species and adverse
modification of designated critical habitat, is only triggered where
Federal agency action is involved. In the absence of Federal agency
action, the primary regulatory restriction applicable to non-Federal
landowners is the prohibition against take of listed animal species
under section 9 of the Act. In order to take listed animal species
where no independent Federal action is involved that would trigger
section 7 consultation, a private landowner must obtain an incidental
take permit under section 10 of the Act.
However, many private landowners are wary of possible consequences
of encouraging endangered species to their property. Mounting evidence
suggests that some regulatory actions by the Federal government, while
well-intentioned and required by law, can (under certain circumstances)
have unintended negative consequences for the conservation of species
on private lands (Wilcove et al. 1996, pp. 5-6; Bean 2002, pp. 2-3;
Conner and Mathews 2002, pp. 1-2; James 2002, pp. 270-271; Koch 2002,
pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many landowners fear a
decline in their property value due to real or perceived restrictions
on land-use options where endangered or threatened species are found.
Consequently, harboring endangered species is viewed by many landowners
as a liability. This holds true for PMJM presence on private lands in
Colorado. This perception results in anti-conservation incentives
because maintaining habitats that harbor endangered species represents
a risk to future economic opportunities (Main et al. 1999, pp. 1264-
1265; Brook et al. 2003, pp. 1644-1648). We attempt to ease these
concerns through communication and outreach with landowners; however,
we recognize that these efforts are not always successful.
The purpose of designating critical habitat is to contribute to the
conservation of endangered and threatened species and the ecosystems
upon which they depend. The outcome
[[Page 78461]]
of the designation, triggering regulatory requirements for actions
funded, authorized, or carried out by Federal agencies under section
7(a)(2) of the Act, can sometimes be counterproductive to its intended
purpose on non-Federal lands. In cases where conservation actions are
currently employed but anxiety regarding the potential impacts of
critical habitat designation exists, we may find that excluding non-
Federal lands from critical habitat designation results in improved
partnerships and conservation efforts.
Benefits of Excluding Lands With Habitat Conservation Plans
The benefits of excluding lands with approved HCPs from critical
habitat designation, such as HCPs that cover the PMJM, include
relieving landowners, communities, and counties of any additional
regulatory burden that might be imposed as a result of the critical
habitat designation. Many HCPs take years to develop, and upon
completion, are consistent with the recovery objectives for listed
species that are covered within the plan area. Many HCPs also provide
conservation benefits to unlisted sensitive species.
A related benefit of excluding lands covered by approved HCPs from
critical habitat designation is the unhindered, continued ability it
gives us to seek new partnerships with future plan participants,
including States, counties, local jurisdictions, conservation
organizations, and private landowners, which together can implement
conservation actions that we would be unable to accomplish otherwise.
The HCPs often cover a wide range of species, including listed plant
species and species that are not State or federally listed and would
otherwise receive little protection from development. By excluding
these lands, we preserve our current partnerships and encourage
additional conservation actions in the future.
We also note that permit issuance in association with HCP
applications requires consultation under section 7(a)(2) of the Act,
which would include the review of the effects of all HCP-covered
activities that might adversely impact the species under a jeopardy
standard, including possibly significant habitat modification (see
definition of ``harm'' at 50 CFR 17.3), even without the critical
habitat designation. In addition, all other Federal actions that may
affect the listed species would still require consultation under
section 7(a)(2) of the Act, and we would review these actions for
possibly significant habitat modification in accordance with the
definition of harm referenced above.
Habitat Conservation Plans Evaluated for Exclusion
The information provided in the previous section applies to the
following analysis of exclusions under section (4)(b)(2) of the Act.
Portions of the revised critical habitat units and their subunits
warrant exclusion from the designation of revised critical habitat
under section 4(b)(2) of the Act based on the partnerships, management,
and protection afforded under these approved and legally operative
HCPs.
We consider a current plan (HCPs as well as other types) to provide
adequate management or protection for PMJM and its habitat if it meets
the following criteria:
(1) The plan is complete and provides the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future and be effective, based on past practices, written
guidance, or regulations; and
(3) The plan provides adaptive management and conservation
strategies and measures consistent with currently accepted principles
of conservation biology.
Section 10(a)(1)(B) of the Act authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and
threatened species. This permit allows a non-Federal landowner to
proceed with an activity that is legal in all other respects, but that
results in the incidental taking of a listed species (i.e., take that
is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The Act specifies that an application for
an incidental take permit must be accompanied by a habitat conservation
plan (HCP), and specifies the content of such a plan. The purpose of
conservation agreements is to describe and ensure that the effects of
the permitted action on covered species are adequately minimized and
mitigated, and that the action does not appreciably reduce the survival
and recovery of the species. In our assessment of conservation
agreements associated with this final rulemaking, the analysis required
for these types of exclusions involves careful consideration of the
benefits of designation versus the benefits of exclusion. The benefits
of designation typically arise from additional section 7 protections,
as well as enhanced public awareness once specific areas are identified
as critical habitat. The benefits of exclusion generally relate to
relieving regulatory burdens on existing conservation partners,
maintaining good working relationships with them, and encouraging the
development of new partnerships.
We have weighed the benefits of excluding lands in the following
HCPs from critical habitat against the benefits of inclusion. We
determined that the benefits of excluding the lands covered by the
Denver Water HCP, Struthers Ranch HCP, Eagle's Nest Open Space HCP, the
Lefever Property HCP, and the Dahle Property HCP from designation as
PMJM critical habitat outweigh the benefits of including these areas
and that these exclusions would not result in extinction of the PMJM.
Thus, as allowed by section 4(b)(2) of the Act, we have excluded them
from the critical habitat designation.
Denver Water Habitat Conservation Plan
On May 1, 2003, we issued a section 10 incidental take permit to
Denver Water for the Denver Water HCP (Service 2003b). This permit
covers the PMJM. Denver Water owns various properties (including
easements), facilities, and infrastructure within the SPR in Colorado
where the PMJM is listed. The Denver Water HCP covers the water
facilities and infrastructure owned and operated by Denver Water,
including: The Foothills, Marston, and Moffat treatment plants; 17 pump
stations; 29 treated water storage reservoirs; and 2,464 mi (3,968 km)
of pipe. The permit area includes approximately 6,000 ac (2,700 ha) of
occupied and potential PMJM habitat on Denver Water properties in
Boulder, Jefferson, and Douglas Counties. Denver Water properties
covered by the HCP include portions of Units 5, 7, 9, and 10 proposed
as revised critical habitat.
The HCP promotes implementation of applicable best management
practices to benefit the PMJM that avoid, minimize, and eliminate
impacts to occupied and potential PMJM habitat. Where unavoidable
impacts occur, Denver Water conducts mitigation as required in the HCP.
Denver Water is authorized to take up to 25 ac (10 ha) of occupied and
potential habitat through impacts from the covered activities at any
one time with a maximum of 75 ac (30 ha) total disturbed over the 30-
year term of the HCP.
This HCP provides long-term assurances that Denver Water's covered
activities are permitted and in compliance with the Act and provides
the Service with a tool to minimize and
[[Page 78462]]
mitigate take on occupied and potential habitat. To accomplish these
goals, the plan requires the following special management and
protection:
(a) Before conducting a covered activity (principally operations
and maintenance activities) on occupied and potential habitat, Denver
Water will determine whether avoidance and minimization efforts are
applicable, practicable, and can be used to avoid, reduce, or eliminate
take. Generally, the use of best management practices will be the most
practicable avoidance or minimization tool. Appendix 5 of the HCP lists
best management practices that may be applicable to Denver Water's
routine operation and maintenance activities and projects. In some
cases, the use of best management practices will avoid take. In other
situations, best management practices will minimize take. Where take
still results, mitigation will be used to offset the impacts.
(b) As required by section 10 regulations (50 CFR 17.22), the HCP
requires Denver Water to perform compliance monitoring and
effectiveness monitoring to determine whether the terms and conditions
of the HCP are being met. Monitoring activities include: Document pre-
and post-impact site conditions; determine the extent of take of
occupied and potential habitat; determine the success of PMJM habitat
revegetation efforts; report on additional Denver Water actions,
including initiation of mitigation, discussion of best management
practices utilized, if any, and other management decisions that address
implementation of the HCP; hold an annual meeting between Denver Water
and the Service; and prepare an annual monitoring report.
(c) Adaptive management will be employed to gain new data, or
research new information regarding the biology of the PMJM. The use of
adaptive management in areas of questionable PMJM habitat suitability,
PMJM use, or PMJM presence will likely increase the potential for
success within the HCP and increase the potential for new and useful
information on PMJM biology to be acquired.
(d) The HCP will result in the protection of over 6,000 ac (2,400
ha) of potential and occupied habitat. Denver Water must limit
temporary impacts to 25 ac (10 ha) of occupied and potential habitat at
any one time. Temporary impacts will not exceed 75 ac (30 ha) over the
term of the HCP. Denver Water will also track all impacts, restore
disturbed vegetation, and track all successful restorations to ensure
the above limits are not exceeded.
(e) To offset foreseeable permanent impacts to 1 ac (0.4 ha) of
habitat, Denver Water will create 0.25 ac (0.10 ha) of riparian shrub,
create 2.25 ac (0.91 ha) of upland occupied and potential habitat, and
revegetate a number of trails and dirt roads. Should permanent impacts
exceed the 1.0 ac (0.4 ha) (this HCP covers a maximum of 10 ac (4 ha)
of permanent impacts), Denver Water will mitigate this through: A
conservation easement at a ratio of 8:1; by enhancements at a ratio of
2:1; or a combination of preservation at 6:1 and enhancements at 1:1.
(f) Other mitigation includes: Weed management; education,
training, and the distribution of information to Denver Water employees
to promote avoidance, minimization, or best management practices as
applicable and practicable; restoration of habitat linkage corridors;
population monitoring and research; and provision of trapping data to
the Service.
Denver Water provides annual reports to the Service of activities
conducted under the HCP. These reports document that conservation and
management have been effective and consistent with provisions of the
HCP. We believe that the Denver Water HCP is protective of the PMJM, is
likely to be effective into the future, and is consistent with our
regulatory objectives for protection of PMJM.
Section 4(b)(2) Weighing Analysis
Denver Water controls a large complex of treatment plants, pump
stations, pipelines, and reservoirs, some including habitat occupied by
the PMJM. Through their HCP, Denver Water agreed to follow best
management practices to benefit the PMJM on 6,000 ac (2,700 ha) of
potential PMJM habitat, whether the PMJM is present or not. The
principal benefit of any designated critical habitat is that Federal
activities that may affect critical habitat require consultation under
section 7 of the Act. There is little benefit to designating critical
habitat on Denver Water properties because: (a) Denver Water has an HCP
in place covering the same properties proposed for designation; (b)
Denver Water is a private landowner conducting primarily private (non-
Federal) actions in these areas; (c) less than 240 ac (100 ha) of the
Denver Water HCP overlaps with areas proposed as critical habitat (the
HCP covers a much larger area than would have been covered on Denver
Water lands by the proposed critical habitat); (d) educational benefits
from designation of critical habitat on areas within the Denver Water
HCP (through mapping of essential habitat) would be minimal, as the
areas in question are owned or leased by Denver Water, and Denver Water
is well aware of the value to the PMJM of those areas proposed as
critical habitat; (e) designation of critical habitat on private
property may discourage private landowners from participating in an
HCP; and (f) beyond regulatory benefits of critical habitat
designation, we know of no additional protections (such as additional
Federal or State laws or regulations) that would be triggered by
critical habitat designation.
The benefits of exclusion on Denver water properties, however, are
that: (a) Denver Water's HCP will provide greater assurances and
conservation benefits to the PMJM than critical habitat designation,
because the HCP will assure the long-term protection (totaling 30
years, after which it may be extended) and management of the species
and its habitat, with funding, through the standards in the HCP; (b)
exclusion of properties within Denver Water's HCP reduces the
requirements for additional regulatory review and associated permitting
costs (delays, administrative costs, consulting costs, and costs of
developing additional conservation measures); (c) exclusion of critical
habitat will allow more flexibility to a municipal water supplier with
private lands and privately owned facilities to operate as needed in
order to meet its mission of supplying water to its customers; and (d)
Denver Water's HCP provides an integrated and comprehensive approach to
species conservation, rather than the piecemeal approach of multiple
section 7 consultations that only address activities with a Federal
nexus.
Development and implementation of this HCP has promoted a
conservation partnership between Denver Water and the Service and
benefitted the PMJM. Exclusion of areas within the HCP from proposed
critical habitat would preserve this current partnership and encourage
future cooperation on projects and programs effecting the PMJM, other
listed species, and a broad array of fish and wildlife resources.
After evaluating the benefits of exclusion and the benefits of
inclusion, we have determined that the benefits of exclusion outweigh
those of inclusion.
Exclusion Will Not Result in Extinction of the Species
The HCP covers only small portions of four proposed critical
habitat units that total over 10,000 ac (4,000 ha). The HCP allows, at
maximum, 10 ac (4 ha) of permanent impacts through the 30-year life of
the permit. Both permanent and temporary impacts will be mitigated
[[Page 78463]]
as discussed above. We conclude that exclusion will not result in
extinction of the PMJM, nor will it preclude conservation or recovery
of the species.
Struthers Ranch Habitat Conservation Plan
On December 12, 2003, we issued a section 10 incidental take permit
covering the PMJM for the Struthers Ranch residential development along
Black Forest Creek, El Paso County, consistent with the Struthers Ranch
HCP (Service 2003c). The site supported approximately 49 ac (20 ha) of
PMJM habitat. Parts of the Struthers Ranch property are within Unit 11
of the area proposed as revised critical habitat. Flooding has heavily
impacted the middle and upper portions of Black Forest Creek. A 1999
flood event inundated the middle fork and deposited a large amount of
sand and silt downstream. The HCP was designed to minimize the
possibility of future severe flooding events, substantially improve
remaining PMJM habitat, and minimize adverse effects resulting from
developed areas nearby. Under the HCP, approximately 35.5 ac (14.4 ha)
of undeveloped land along Black Forest Creek was withdrawn from cattle
grazing, was returned to a more natural condition, and is maintained as
a preserve with conservation measures to restore and enhance vegetation
for wildlife. An adaptive management strategy was addressed in the HCP.
Monitoring has documented the successful restoration of the property in
accordance with provisions of the HCP. Lands preserved as PMJM habitat
are deed-restricted and managed for the PMJM. The deed restriction
prohibits any activities that would adversely impact PMJM habitat.
Conservation and management has been effective and consistent with
provisions of the HCP. We conclude that the HCP is protective of the
PMJM, is likely to be effective into the future, and is consistent with
our regulatory objectives.
Section 4(b)(2) Weighing Analysis
Through their HCP, Struther's Ranch agreed to follow best
management practices to benefit the PMJM on 35.5 ac (14.4 ha) of PMJM
habitat. The principal benefit of any designated critical habitat is
that Federal activities that may affect the habitat require
consultation under section 7 of the Act. There is little benefit to
designating critical habitat on Struther's Ranch property because: (a)
An HCP is in place covering the same area proposed for designation; (b)
Struther's Ranch is private land with primarily private (non-Federal)
actions in this area; (c) the area covered by the HCP encompasses only
a small fraction of a unit (i.e., most of the designation in this unit
will remain intact); (d) educational benefits from designation of
critical habitat on areas within the Struther's Ranch HCP (through
mapping of essential habitat) would be minimal, as the owners of the
area in question are well aware of the value to the PMJM of the area
proposed as critical habitat; (e) designation of critical habitat on
private property may discourage private landowners from participating
in an HCP; and (f) beyond regulatory benefits of critical habitat
designation, we know of no additional protections (such as additional
Federal or State laws or regulations) that would be triggered by
critical habitat designation.
The benefits of exclusion of the Struther's Ranch HCP land are: (a)
The Struther's Ranch HCP will provide greater assurances and
conservation benefits to the PMJM than critical habitat designation,
because the HCP assures the area is deed restricted and managed for the
PMJM; and (b) The Struther's Ranch HCP provides an integrated and
comprehensive approach to species conservation on site rather than the
piecemeal approaches of section 7 consultation that only addresses
activities with a Federal nexus.
After evaluating the benefits of exclusion and the benefits of
inclusion, we have determined that the benefits of exclusion outweigh
those of inclusion.
Exclusion Will Not Result in Extinction of the Species
Habitat impacts allowed under this HCP have already occurred. We
conclude that exclusion will not result in extinction of the PMJM, nor
will it preclude conservation or recovery of the species.
Eagle's Nest Open Space Habitat Conservation Plan
On August 5, 2004, we issued Larimer County a section 10 incidental
take permit covering the PMJM consistent with the county's HCP for
their Eagle's Nest Open Space (ENOS) property, located in the Laramie
Foothills region of Larimer County (Service 2004b). The ENOS is
partially within Unit 1 of the area that was proposed as revised
critical habitat. The ENOS encompasses 755 ac (306 ha) of rolling
foothills and steep slopes and includes 1.0 mi (1.6 km) of the North
Fork of the Cache la Poudre River. There are approximately 261 ac (106
ha) of PMJM habitat on the ENOS, the vast majority of which is managed
for PMJM conservation under the HCP. Less than 3 ac (1 ha) can be
permanently affected under the ENOS HCP for a natural-surface hiking
and equestrian trail, and cattle access to the river. Agreed-upon
habitat improvement for the PMJM included fencing off of riparian areas
to control cattle grazing, shrub planting, limiting management
activities during the PMJM active season, and control of public access
and allowed activities. This area is protected as open space by the
Larimer County Open Lands program. The protection and enhancement of
wildlife habitat is one of the primary goals on ENOS. The area is used
for educational programs by the county, demonstrating PMJM and riparian
habitat management. Mitigation is paid for through the county's Help
Preserve Open Space Sales Tax revenues guaranteed through 2018. Success
criteria, monitoring, and a process to address unforeseeable events are
addressed in the HCP. Monitoring reports submitted from 2004 through
2008 documented the success of mitigation efforts.
Section 4(b)(2) Weighing Analysis
Through their HCP, Larimer County agreed to follow best management
practices to benefit the PMJM through protection and management of 261
ac (106 ha) of PMJM habitat. The principal benefit of any designated
critical habitat is that Federal activities that may affect the habitat
require consultation under section 7 of the Act. There is little
benefit to designating critical habitat on ENOS property because: (a)
An HCP is in place covering the same area proposed for designation; (b)
ENOS is owned by Larimer County with primarily private (non-Federal)
actions in this area; (c) the area covered by the HCP encompasses only
a small fraction of Unit 1; (d) educational benefits from designation
of critical habitat on areas within the ENOS HCP (through mapping of
essential habitat) would be minimal, as Larimer County is aware of the
value to the PMJM of the area proposed as critical habitat and is using
it to educate the public about PMJM and its habitat; (e) designation of
critical habitat on non-Federal property may discourage local
government from participating in an HCP; and (f) beyond regulatory
benefits of critical habitat designation, we know of no additional
protections (such as additional Federal or State laws or regulations)
that would be triggered by critical habitat designation.
The benefits of exclusion of the ENOS HCP land, however, are that:
(a) The ENOS HCP will provide greater assurances and conservation
benefits to the PMJM than critical habitat designation because the HCP
will assure the area is managed for the PMJM; (b)
[[Page 78464]]
The ENOS HCP provides an integrated and comprehensive approach to
species conservation rather than the piecemeal approach of section 7
consultations that only addresses activities with a Federal nexus; and
(c) development and implementation of this HCP has promoted a
conservation partnership between Larimer County and the Service, and
has benefitted the PMJM. Exclusion of areas within the HCP from
proposed critical habitat would preserve this current partnership and
encourage future cooperation on projects and programs effecting the
PMJM, other listed species, and a broad array of fish and wildlife
resources.
After evaluating the benefits of exclusion and the benefits of
inclusion, we have determined that the benefits of exclusion outweigh
those of inclusion.
Exclusion Will Not Result in Extinction of the Species
Impacts to habitat (3 ac (1 ha)) allowed by the ENOS HCP have
already occurred. Remaining PMJM habitat is managed as described above.
We conclude that exclusion will not result in extinction of the PMJM,
nor will it preclude conservation or recovery of the species.
Other Habitat Conservation Plan Lands
On November 19, 2002, we approved an HCP, and we issued a section
10 incidental take permit covering the PMJM for a single family
residence on the Lefever Property along Black Squirrel Creek in Black
Forest, El Paso County (Service 2002b). The Lefever Property is within
Unit 11 of the area proposed as revised critical habitat. Under the
HCP, 0.56 ac (0.25 ha) of PMJM habitat was permitted to be disturbed,
and 4.52 ac (1.83 ha) of the property was placed in a conservation
easement and deeded to El Paso County, to be managed as foraging
habitat for the PMJM according to specific requirements laid out in the
HCP. The following activities are expressly prohibited by the property
easement: Construction or reconstruction of any building or other
structure or improvement on portions of the property; any division or
subdivision of the title to the property; commercial timber harvesting;
mining or extraction of soil, sand, gravel, rock, oil, natural gas,
fuel, or any other mineral substance; paving or otherwise covering with
concrete, asphalt, or any other paving material; and the dumping or
uncontained accumulation of any trash, refuse, or debris on the
property. As further compensation for the impacted habitat, 0.89 ac
(0.36 ha) of the 4.52 ac (1.83 ha) were planted with 100 shrubs to
enhance PMJM habitat. Three years of monitoring demonstrated success of
the planting effort. The permit expires November 19, 2012, but the
conservation easement and requirements of the HCP call for the property
to be managed consistent with the needs of the PMJM in perpetuity.
On July 23, 2002, we approved a low-effect HCP, and we issued a
section 10 incidental take permit covering the PMJM for a single family
residence on the Dahle Property, Thunderbird Estates, near Monument
Creek in Colorado Springs, El Paso County (Service 2002c). The Dahle
Property is within Unit 11 of the area proposed as revised critical
habitat. Under the HCP, 0.15 ac (0.060 ha) of upland PMJM habitat was
permitted to be disturbed for the construction of a single-family
residence and 0.5 ac (0.2 ha) of the property was preserved in a native
and unmowed condition and enhanced through weed control and Salix
(willow) planting. Required monitoring has documented success of these
measures. The take permit expired July 29, 2007; however, preservation
of PMJM habitat continues in perpetuity.
Section 4(b)(2) Weighing Analysis
The Lefever Property and Dahle Property HCPs address single
residences on small properties. The applicants expended significant
resources to develop these HCPs. Relieving these landowners of any real
or perceived regulatory burden that might accompany designation of
critical habitat supports partnerships between the private property
owners and the Service. The principal benefit of any designated
critical habitat is that Federal activities that may affect the habitat
require consultation under section 7 of the Act. There is little
benefit to designating critical habitat on properties covered by these
two HCPs because: (a) The HCPs cover the same area proposed for
designation; (b) it is unlikely that future Federal actions will occur
on these small private areas; (c) the areas covered by the HCPs
encompass a small fraction of Unit 11; (d) educational benefits from
designation of critical habitat on areas within the HCPs (through
mapping of essential habitat) would be minimal, as the two single
landowners are aware of the value to the PMJM of the area proposed as
critical habitat; (e) designation of critical habitat on non-Federal
property may discourage private entities from participating in an HCP;
and (f) beyond regulatory benefits of critical habitat designation, we
know of no additional protections (such as additional Federal or State
laws or regulations) that would be triggered by critical habitat
designation.
The benefits of exclusion of land in these two HCPs, however, are
that: (a) The HCPs will provide greater assurances and conservation
benefits to the PMJM than critical habitat designation because the HCPs
assure the areas are managed to preserve habitat for the PMJM; and (b)
development and implementation of these HCPs has promoted a
conservation partnership between private landowners and the Service,
and has benefitted the PMJM. Exclusion of areas within the HCPs from
proposed critical habitat may serve as an example to private landowners
and encourage future cooperation on projects and programs effecting the
PMJM, other listed species, and other fish and wildlife resources.
After evaluating the benefits of exclusion and the benefits of
inclusion, we have determined that the benefits of exclusion outweigh
those of inclusion.
Exclusion Will Not Result in Extinction of the Species
The Lefever Property and Dahle Property HCP permits allowed 0.71 ac
(0.31 ha) of permanent habitat impacts, which have already occurred.
Offsets and mitigation included additional lands that have been set
aside for the PMJM, with habitat improvement and conservation easement,
as described above. We conclude that exclusion of the lands in these
HCPs will not result in extinction of the PMJM, nor will it preclude
conservation or recovery of the species.
Summary of Habitat Conservation Plan Lands Excluded
Based on our evaluation of special management considerations and
protection provided by the Denver Water HCP, the Struthers Ranch HCP,
the Eagle's Nest Open Space HCP, the Lefever Property HCP, and the
Dahle Property HCP, and in light of the definition of critical habitat
in section 3(5)(A) of the Act, we have considered, but are not,
designating these areas as revised critical habitat. We believe that
these HCPs meet the criteria used by the Service to determine whether a
plan provides adequate special management or protection to a listed
species. The conservation strategies and measures are likely to be
effective, because they were developed based on the best scientific
data available and they required monitoring and reporting to ensure
compliance and success. The lands excluded total 6,315.73 ac (2,328.34
ha), in portions of Units 1, 5, 7, 9, 10, and 11.
[[Page 78465]]
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant. OMB bases its determination upon the following
four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
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 (5 U.S.C. 801 et seq.), whenever an agency must
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
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. As part of our DEA for the proposed
designation, we provided our initial regulatory flexibility analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we received, we have revised the FEA and finalized our
regulatory flexibility analysis (FRFA), as part of our final
rulemaking. In this final rule, we are certifying that the critical
habitat designation for the PMJM will not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under the
rule, as well as the types of project modifications that may result. In
general, the term ``significant economic impact'' is meant to apply to
a typical small business firm's business operations.
To determine if the final designation of revised critical habitat
for the PMJM would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities (e.g., housing development, grazing, oil
and gas production, timber harvesting). In order to determine whether
it is appropriate for our agency to certify that this rule will not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually.
However, the SBREFA does not explicitly define substantial number or
significant economic impact. Consequently, to assess whether a
substantial number of small entities is affected by this revised
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement. Critical habitat designation
will not affect activities that do not have any Federal involvement;
designation of critical habitat affects activities conducted, funded,
permitted, or authorized by Federal agencies.
Under the Act, designation of critical habitat only affects
activities carried out, funded, or permitted by Federal agencies.
Following this revised critical habitat designation, Federal agencies
must consult with us under section 7 of the Act if their activities may
affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat will be
incorporated into the existing consultation process.
Some kinds of activities are unlikely to have any Federal
involvement and so will not result in any additional effects under the
Act. However, there are some State laws that limit activities in
designated critical habitat even where there is no Federal nexus. If
there is a Federal nexus, Federal agencies will be required to consult
with us under section 7 of the Act on activities they fund, permit, or
carry out that may affect critical habitat. If we conclude, in a
biological opinion, that a proposed action is likely to destroy or
adversely modify critical habitat, we can offer ``reasonable and
prudent alternatives.'' Reasonable and prudent alternatives are
alternative actions that can be implemented in a manner consistent with
the scope of the Federal agency's legal authority and jurisdiction,
that are economically and technologically feasible, and that would
avoid destroying or adversely modifying critical habitat.
Within the revised critical habitat designation, the types of
actions or authorized activities that we have identified as potential
concerns and that may be subject to consultation under section 7 if
there is a Federal nexus are: Residential and commercial development;
roads/bridges, utilities, and bank stabilization projects; water supply
development; USFS land management practices; Rocky Flats Site
management practices; and gravel mining. As discussed in Appendix A of
the FEA, of the activities addressed in the analysis, only residential
and commercial development, and construction and maintenance of roads/
bridges, utilities, and bank stabilization projects, are expected to
experience incremental, administrative consultation costs that may be
borne by small businesses.
Any existing and planned projects, land uses, and activities that
could affect the revised critical habitat but have no Federal
involvement would not require section 7 consultation with the Service,
so they are not restricted by the requirements of the Act. Federal
agencies may need to reinitiate a previous consultation if
discretionary involvement or control over the Federal
[[Page 78466]]
action has been retained or is authorized by law and the activities may
affect critical habitat.
In the FEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the designation of critical habitat for the PMJM. Please refer to
our FEA of the revised critical habitat designation for a more detailed
discussion of potential economic impacts; we will summarize key points
of the analysis below.
The FEA, and its associated FRFA, estimate that total potential
incremental economic impacts in areas designated as revised critical
habitat over the next 20 years will be $2.66 million to $5.98 million
annually, assuming a 7-percent discount rate. Approximately 96 percent
of the incremental impacts attributed to the designation of critical
habitat are expected to be related to section 7 consultations with
Federal agencies for residential and commercial development. Expected
impacts to residential and commercial development include added costs
primarily due to administrative consultations and required
modifications to development project scope or design, including
mitigation (or setting aside conservation lands), habitat restoration
and enhancement, and project delays. Small entities represent 97
percent of all entities in the residential and commercial development
industry that may be affected. Incremental costs also are expected
related to road/bridge, utility, and bank stabilization construction
and maintenance activities throughout the revised critical habitat.
Small entities represent 90 percent of all entities in the road/bridge,
utility, and bank stabilization construction and maintenance industries
that may be affected. The Small Business Size Standard for the industry
sectors that could potentially be affected by the revised critical
habitat designation are as follows:
New Housing Operative Builders--$33.5 million in annual
receipts.
Land Subdivision--$7 million in annual receipts.
Natural Gas Distribution--500 employees.
Water Supply and Irrigation Systems--$7 million annual
receipts.
Pipeline Transportation of Natural Gas--$7 million annual
receipts.
In addition, government entities in the area may be affected. Of
these, approximately 70 percent are small government jurisdictions
(i.e., cities, counties, towns, townships, villages, school districts,
or special districts with a population of less than 50,000).
Of principal interest is residential and commercial development,
and associated land subdivision, as an estimated 96 percent of
potential incremental impacts may affect that industry sector. The
small businesses in this industry sector may bear a total of $26.2 to
$60.3 million (at a 7-percent discount rate) in incremental impacts
related to section 7 consultations over the next 20 years (through
2029). However, when expressed as a percentage of a small developer's
annual sales revenue, assuming that one small developer is required for
each of the development projects, these monetary incremental impacts
are likely to be small. The incremental impact due to revised critical
habitat designation is estimated to range from $171,000 to $393,000 per
project. An average of eight projects is anticipated to occur in
critical habitat per year. For new home builders, estimated annual
sales in 2007 per developer in Colorado were $6.51 million. Therefore,
in years where a developer has a project in critical habitat, the
estimated incremental impact represents 2.6 to 6.0 percent of that
developer's annual sales in this industry. However, we expect these
costs to be incurred over a period of more than one year, as most
developments will take longer than one year to complete (i.e., if a
project takes 2 or more years to complete, the impact as a proportion
of revenue in any one year will be substantially less).
For land subdividers, the FEA assumes that annual sales per
establishment are limited to the small business threshold of $7 million
annually. The estimated annual incremental impact therefore represents
2.4 to 4.6 percent of a subdivider's annual sales. As discussed above,
the incremental impact associated with each project is expected to be
incurred over a period of more than one year. Thus, this analysis
overstates the actual annual impact on a small entity.
There are additional factors that may cause this analysis to
overstate the actual impact on small residential and commercial
developers, and on land subdividers. First, it is likely that a portion
of the impact will be realized by landowners in the form of higher
housing prices. The proportion of the total impact borne by landowners
is unknown. We believe the analysis gives a high estimate of possible
development and that it is likely the actual amount of development will
be less. As described in Chapter 3 of the FEA, the analysis likely
overstates the amount of development activity and, therefore, the total
incremental impact associated with residential and commercial
development. Lastly, anecdotal evidence and existing county building
restrictions suggest that fewer properties within revised critical
habitat are being developed than are quantified by the FEA. This will
likely further reduce the annual incremental impact borne per small
entity.
For road/bridge, utility, and bank stabilization construction and
maintenance, the FEA estimates that incremental impacts will range from
$322,000 to $748,000 over 20 years, or $30,400 to $76,000 annually.
Given an estimated average of four projects impacting critical habitat
and requiring section 7 consultation each year, and assuming one small
entity (municipality, wastewater district, etc.) conducts each
activity, the impact to each small government entity involved would be
$7,600 to $17,700.
In summary, we have considered whether this revised designation
will result in a significant economic impact on a substantial number of
small entities. Given the analysis above, the expected annual impacts
to small businesses in the affected industries are significantly less
than the annual revenues that could be garnered by a single small
operator in those industries, and as such, impacts are low relative to
potential revenues. Based on the above reasoning and currently
available information, we conclude that this rule will not have a
significant economic impact on a substantial number of small business
entities. Therefore, we are certifying that the revised designation of
critical habitat for the PMJM will not have a significant economic
impact on a substantial number of small entities.
Energy Supply, Distribution, and Use--Executive Order 13211
On May 18, 2001, the President issued E.O. 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use) on regulations that significantly affect energy
supply, distribution, and use. E.O. 13211 requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. The
Office of Management and Budget's guidance for implementing this
Executive Order outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to no regulatory action. The
only criterion that may be relevant to this analysis is increases in
the cost of energy distribution in excess of one percent. As described
in the FEA, constructing and maintaining electrical and natural gas
distribution and transmission systems is a type of utility project
potentially occurring in the
[[Page 78467]]
revised critical habitat. The FEA concludes that incremental impacts
may be incurred; however, they are unlikely to reach the threshold of
one percent. Therefore, designation of revised critical habitat is not
expected to lead to any adverse outcomes (such as a reduction in
electricity production or an increase in the cost of energy production
or distribution), and a Statement of Energy Effects is not 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.), we make the following findings:
(1) 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, or 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. First, it excludes ``a condition of federal
assistance.'' Second, it excludes ``a duty arising from participation
in a voluntary Federal program,'' unless the regulation ``relates to a
then-existing Federal program 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; Aid to Families with Dependent
Children 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 that receive
Federal funding, assistance, or permits, or that 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.
(2) As discussed in the FEA of the designation of revised critical
habitat for the PMJM, we do not believe that the rule will
significantly or uniquely affect small governments because it will not
produce a Federal mandate of $100 million or greater in any year; that
is, it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act. The FEA concludes that incremental impacts may
occur due to project modifications that may need to be made for
development activities; however, these are not expected to affect small
governments to the extent described above. Consequently, we do not
believe that this final revised critical habitat designation will
significantly or uniquely affect small government entities. As such, a
Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the PMJM in a takings implications assessment. Critical
habitat designation does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. The takings implications assessment concludes that this
designation of critical habitat for the PMJM does not pose significant
takings implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132, this rule does not have significant
Federalism effects. A Federalism assessment is not required. In keeping
with Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, our revised
critical habitat designation with appropriate State resource agencies
in Colorado. We received no comments from the State of Colorado or
State resource agencies in Colorado. The designation of critical
habitat in areas currently occupied by the PMJM may impose nominal
additional regulatory restrictions to those currently in place and,
therefore, may have little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments, in that the areas that contain the physical and
biological features essential to the conservation of the species are
more clearly defined, and the PCEs of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), this rule
meets the applicable standards set forth in sections 3(a) and 3(b)(2)
of the Order. We are designating critical habitat in accordance with
the provisions of the Act. This final rule uses standard property
descriptions and identifies the physical and biological features
essential to the conservation of the subspecies within the designated
areas to assist the public in understanding the habitat needs of the
PMJM.
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 of 1995 (44
U.S.C. 3501 et seq.). 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.
[[Page 78468]]
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We completed a NEPA analysis for this revised critical habitat
designation. We notified the public of availability of the draft
environmental assessment for the proposed rule on May 27, 2010 (75 FR
29700. The final environmental assessment, as well as the Finding of No
Significant Impact, is available upon request from the Field
Supervisor, Colorado Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT section) or on our Web site at http://mountain-
prairie.fws.gov/species/mammals/preble/
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, the Department of the Interior's
manual at 512 DM 2, and Secretarial Order 3206, we readily acknowledge
our responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We determined that there are no Tribal
lands in Colorado occupied at the time of listing that contain the
features essential for the conservation of the PMJM, and no unoccupied
Tribal lands that are essential for the conservation of the PMJM.
Therefore, we are not designating critical habitat for the PMJM on
Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available online at http://mountain-prairie.fws.gov/species/mammals/
preble, or upon request from the Field Supervisor, Colorado Ecological
Services Office (see ADDRESSES).
Authors
The primary authors of this package are the staff members of the
Colorado Ecological Services Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, for the reasons we have stated in the preamble, we amend
part 17, subchapter B of chapter I, title 50 of the Code of Federal
Regulations as set forth below:
PART 17--[AMENDED]
0
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.
0
2. In Sec. 17.95(a), revise the entry for ``Preble's Meadow Jumping
Mouse (Zapus hudsonius preblei)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Preble's Meadow Jumping Mouse (Zapus hudsonius preblei)
(1) Critical habitat units are depicted for Boulder, Broomfield,
Douglas, El Paso, Jefferson, Larimer, and Teller Counties in Colorado
on the maps below.
(2) The primary constituent elements of critical habitat for the
Preble's meadow jumping mouse are:
(i) Riparian corridors:
(A) Formed and maintained by normal, dynamic, geomorphological, and
hydrological processes that create and maintain river and stream
channels, floodplains, and floodplain benches and that promote patterns
of vegetation favorable to the Preble's meadow jumping mouse;
(B) Containing dense, riparian vegetation consisting of grasses,
forbs, or shrubs, or any combination thereof, in areas along rivers and
streams that normally provide open water through the Preble's meadow
jumping mouse's active season; and
(C) Including specific movement corridors that provide connectivity
between and within populations. This may include river and stream
reaches with minimal vegetative cover or that are armored for erosion
control; travel ways beneath bridges, through culverts, along canals
and ditches; and other areas that have experienced substantial human
alteration or disturbance.
(ii) Additional adjacent floodplain and upland habitat with limited
human disturbance (including hayed fields, grazed pasture, other
agricultural lands that are not plowed or disked regularly, areas that
have been restored after past aggregate extraction, areas supporting
recreational trails, and urban-wildland interfaces).
(3) Critical habitat does not include buildings, roads, parking
lots, other paved areas, lawns, other urban and suburban landscaped
areas, regularly plowed or disked agricultural areas, and the land on
which they are located existing within the legal boundaries on the
effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 15N coordinates.
(5) Note: Index map of critical habitat for the Preble's meadow
jumping mouse follows:
BILLING CODE 4310-55-P
[[Page 78469]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.002
[[Page 78470]]
(6) Unit 1: North Fork Cache la Poudre River, Larimer County, Colorado.
(i) This unit consists of 87.2 mi (140.4 km) of streams and rivers.
North Fork Cache la Poudre River from Seaman Reservoir (40 43 7N 105 14
32W, T.9N., R.70W., Sec. 28) upstream to Halligan Reservoir spillway
(40 52 44N 105 20 15W, T.11N., R.71W., Sec. 34) excluding 1.06 mi (1.71
km) of the North Fork Cache la Poudre River within the Eagles Nest Open
Space (from 40 45 44N 105 13 50W, T. 9N, R.70W., Sec. 9 to 40 46 17N
105 13 59W, T. 9N, R.70W., Sec. 4). Includes Lone Pine Creek from its
confluence North Fork Cache la Poudre River (40 47 54N 105 15 30W,
T.10N., R.70W., Sec. 32) upstream and continuing upstream into North
Lone Pine Creek to 7,600 ft (2,317 m) elevation (40 49 58N 105 34 09W,
T.10N., R.73W., Sec. 15). Includes Columbine Canyon from its confluence
with North Lone Pine Creek (40 49 47N 105 33 31W, T.10N., R.73W., Sec.
15) upstream to 7,600 ft (2,317 m) elevation (40 49 32N 105 33 58W,
T.10N., R.73W., Sec. 15). Also includes Stonewall Creek from its
confluence with North Fork Cache la Poudre River (40 48 19N 105 15 21W,
T.10N., R.70W., Sec. 29) upstream to (40 53 26N 105 15 40W, T.11N.,
R.70W., Sec. 29). Includes Tenmile Creek from its confluence with
Stonewall Creek (40 51 49N 105 15 32W, T.10N., R.70W., Sec. 5) upstream
to Red Mountain Road (40 53 00N 105 16 09W, T.11N., R.70W., Sec. 31).
Also includes Rabbit Creek from its confluence with North Fork Cache la
Poudre River (40 48 30N 105 16 07W, T.10N., R.70W., Sec. 30) upstream
to the confluence with North and Middle Forks of Rabbit Creek (40 49
34N 105 20 49W, T.10N., R 71W., Sec. 21). Also includes South Fork
Rabbit Creek from its confluence with Rabbit Creek (40 48 39N 105 19
45W, T.10N., R.71W., Sec. 27) upstream to (40 49 39N 105 24 40W,
T.10N., R.72W., north boundary Sec. 24). Includes an unnamed tributary
from its confluence with South Fork Rabbit Creek (40 47 28N 105 20 47W,
T.10N., R.71W., Sec. 33) upstream to (40 47 28N 105 23 12W, T.10N.,
R.71W., Sec. 31). Which in turn has an unnamed tributary from their
confluence at (40 47 17N 105 21 48W, T.10N., R.71W., east boundary Sec.
32) upstream to (40 46 55N 105 22 16W, T.9N., R.71W., Sec. 5). Also
includes Middle Fork Rabbit Creek from its confluence with Rabbit Creek
(40 49 34N 105 20 49W, T.10N., R 71W., Sec. 21) upstream to 7,600 ft
(2,317 m) elevation (40 49 46N 105 26 59W, T.10N., R.72W., Sec. 15).
This includes an unnamed tributary from its confluence with Middle Fork
Rabbit Creek (40 49 56N 105 25 51W, T.10N., R.72W., Sec. 14) upstream
to 7,600 ft (2,317 m) elevation (40 48 48N 105 26 29W, T.10N., R.72W.,
Sec. 23). This unit includes North Fork Rabbit Creek from its
confluence with Rabbit Creek (40 49 34N 105 20 49W, T.10N., R.71W.,
Sec. 21) upstream to 7,600 ft (2,317 m) elevation (40 49 38N 105 29
19W, T.10N., R.72W., Sec. 17). Includes an unnamed tributary from its
confluence with North Fork Rabbit Creek (40 50 45N 105 27 44W, T.10N.,
R.72W., Sec. 9) upstream to 7,600 ft (2,317 m) elevation (40 50 57N 105
28 46W, T.10N., R.72W., Sec. 9).
(ii) Note: Map of Unit 1 follows:
[[Page 78471]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.003
(7) Unit 2: Cache la Poudre River, Larimer County, Colorado.
(i) This unit consists of 50.8 mi (81.7 km) of streams and rivers.
Cache la Poudre River from Poudre Park (40 41 16N 10 18 2W, T.8N.,
R.71W., Sec. 2) upstream to (40 42 02N 105 34 04W, T.9N., R.73W., west
boundary Sec. 34). Includes Hewlett Gulch from its confluence with
Cache la Poudre River (40 41 16N 105 18 24W, T.8N., R.71W., Sec. 2)
upstream to the boundary of Arapahoe-Roosevelt National Forest (40 43
29N 105 18 51W, T.9N., R.71W., Sec. 23). Also includes Young Gulch from
its confluence with Cache la Poudre River (40 41 25N 105 20 57W, T.8N.,
R.71W., Sec. 4) upstream to (40 39 14N 105 20 13W, T.8N., R.71W., south
boundary Sec. 15). Also includes an unnamed tributary from its
confluence with Cache la Poudre River at Stove Prairie Landing (40 40
58N 105 23 23W, T.8N., R.71W., Sec. 6) upstream to (40 39 31N 105 22
34W, T.8N., R.71W., Sec. 17). Includes Skin Gulch from its confluence
with the aforementioned unnamed tributary at (40 40 33N 105 23 16W,
T.8N., R.71W., Sec. 7) upstream to (40 39 40N 105 24 16W, T.8N.,
R.72W., Sec. 13). Unit 2 also includes Poverty Gulch from its
confluence with Cache la Poudre River (40 40 28N 105 25 44W, T.8N.,
R.72W., Sec. 11) upstream to 7,600 ft (2,317 m) elevation (40 39 01N
105 26 40W, T.8N., R.72W., Sec. 22). Also includes Elkhorn
[[Page 78472]]
Creek from its confluence with Cache la Poudre River (40 41 50N 105 26
24W, T.9N., R.72W., Sec. 34) upstream to (40 44 03N 105 27 34W, T.9N.,
R.72W., Sec. 21). Also includes South Fork Cache la Poudre River from
its confluence with Cache la Poudre River (40 41 11N 105 26 50W, T.8N.,
R.72W., Sec. 3) upstream to 7,600 ft (2,317 m) elevation (40 38 48N 105
29 22W, T.8N., R.72W., Sec. 20). Includes Pendergrass Creek from its
confluence with South Fork Cache la Poudre River (40 39 56N 105 27 30W,
T.8N., R.72W., Sec. 15) upstream to 7,600 ft (2,317 m) elevation (40 38
34N 105 27 28W, T.8N., R.72W., Sec. 22). Also included in the unit is
Bennett Creek from its confluence with Cache la Poudre River (40 40 26N
105 28 41W, T.8N., R.72W., Sec. 9) upstream to 7,600 ft (2,317 m)
elevation (40 39 19N 105 31 29W, T.8N., R.73W., Sec. 13).
(ii) Note: Map of Unit 2 follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR15DE10.004
[[Page 78473]]
(8) Unit 3: Buckhorn Creek, Larimer County, Colorado.
(i) This unit consists of 45.5 mi (73.2 km) of streams. Buckhorn
Creek from (40 30 20N 105 13 39W, T.6N., R.70W., east boundary Sec. 9)
upstream to 7,600 ft (2,317 m) elevation (40 34 17N 105 25 31W, T.7N.,
R.72W., Sec. 14). Includes Little Bear Gulch from its confluence with
Buckhorn Creek (40 31 17N 105 15 33W, T.6N., R.70W., Sec. 5) upstream
to (40 30 43N 105 16 35W, T.6N., R.70W., Sec. 6). Also includes Bear
Gulch from its confluence with Buckhorn Creek (40 31 16N 105 15 52W,
T.6N., R.70W., Sec. 5) upstream to 7,600 ft (2,317 m) elevation (40 29
45N 105 20 4W, T.6N., R.71W., Sec. 10). Also includes Stringtown Gulch
from its confluence with Buckhorn Creek (40 32 21N 105 16 42W, T.7N.,
R.70W., Sec. 30) upstream to 7,600 ft (2,317 m) elevation (40 30 30N
105 20 50W, T.6N., R.71W., Sec. 4). Also includes Fish Creek from its
confluence with Buckhorn Creek (40 32 48N 105 18 20W, T.7N., R.70W.,
Sec. 30) upstream to 7,600 ft (2,317 m) elevation (40 30 56N 105 21
20W, T.6N., R.71W., Sec. 4). Includes North Fork Fish Creek from its
confluence with Fish Creek (40 32 48N 105 18 20W, T.7N., R.71W., west
boundary Sec. 25) upstream and following the first unnamed tributary
northwest to (40 33 34N 105 19 45W, T.7N., R.71W., Sec. 22). Also
includes Stove Prairie Creek from its confluence with Buckhorn Creek
(40 34 16N 105 19 48W, T.7N., R.71W., Sec. 15) upstream to the dirt
road crossing at (40 35 22N 105 20 17W, T.7N., R.71W., Sec. 10). Also
includes Sheep Creek from its confluence with Buckhorn Creek (40 34 15N
105 20 53W, T.7N., R.71W., Sec. 16) upstream to 7,600 ft (2,317 m)
elevation (40 33 08N 105 21 47W, T.7N., R.71W., Sec. 20). Also includes
Twin Cabin Gulch from its confluence with Buckhorn Creek (40 34 38N 105
23 13W, T.7N., R.71W., Sec. 18) upstream to 7,600 ft (2,317 m)
elevation (40 35 45N 105 23 36W, T.7N., R.71W., Sec. 6).
(ii) Note: Map of Units 3 and 4 follows:
[[Page 78474]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.005
(9) Unit 4: Cedar Creek, Larimer County, Colorado.
(i) This unit consists of 7.5 mi (12.1 km) of streams. Cedar Creek
from the boundary of Federal land (40 26 46N 105 16 17W, T.6N., R.70W.,
Sec. 31) upstream to the boundary of Federal land (40 28 15N 105 18
11W, T.6N., R.71W., Sec. 24). Includes Dry Creek from its confluence
with Cedar Creek (40 27 07N 105 16 16W, T.6N., R.70W., Sec. 30)
upstream to the boundary of Federal land (40 28 52N 105 16 21W, T.6N.,
R.70W., Sec. 18). Also includes Jug Gulch from its confluence with
Cedar Creek (40 28 15N 105 17 41W, T.6N., R.71W., Sec. 24) upstream to
the boundary of Federal land (40 29 07N 105 18 28W, T.6N., R.71W., Sec.
14).
(ii) Note: Map of Unit 4 appears at paragraph (8)(ii) of this
entry.
(10) Unit 5: South Boulder Creek, Boulder County, Colorado.
(i) This unit consists of 7.6 mi (12.2 km) of streams. Including
South Boulder Creek from Baseline Road (40 0 0N 105 12 55W, T.1S.,
R.70W., Sec. 3) upstream to near Eldorado Springs, Colorado (39 56 7N
105 16 16W, T.1S., R.70W., Sec. 30). Unit 5 also includes Spring Brook
from the Community Ditch near Eldorado Springs (39 55 59N 105 16 10W,
T.1S., R.70W., Sec. 30) upstream to the Denver Water boundary at the
South Boulder Diversion Canal (39 55 13N 105 16 12W, T.1S., R.70W.,
Sec. 31).
(ii) Note: Map of Units 5, 6, and 7 follows:
[[Page 78475]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.006
[[Page 78476]]
(11) Unit 6: Rocky Flats Site, Jefferson County and Broomfield
Counties, Colorado.
(i) This unit consists of three subunits including 12.5 mi (20.1
km) of streams as follows:
(A) The Woman Creek Subunit from Indiana Street (39 52 40N 105 9
55W, T.2S., R.70W., east boundary Sec. 13) upstream to (39 53 3N 105 13
20W, T.2S., R.70W., west boundary Sec. 15). Includes unnamed tributary
from confluence with Woman Creek (39 52 43N 105 10 11W, T.2S., R.70W.,
Sec. 13) upstream to (39 52 39N 105 12 11W, T.2S., R.70W., west
boundary Sec. 14).
(B) The Walnut Creek Subunit from Indiana Street (39 54 5N 105 9
55W, T.2S., R.70W., east boundary Sec. 1) upstream to (39 53 49N 105 11
59W, T.2S., R.70W., Sec. 11). Includes unnamed tributary from its
confluence with Walnut Creek (39 54 6N 105 10 42W, T.2S., R.70W., Sec.
1) upstream to (39 53 35N 105 11 29W, T.2S., R.70W., Sec. 11).
(C) The Rock Creek Subunit from State Highway 128 (39 54 53N 105 11
40W, T.1S., R.70W., Sec. 35) upstream to (39 54 17N 105 13 20W, T.2S.,
R.70W., west boundary Sec. 3). Includes an unnamed tributary from its
confluence with Rock Creek (39 54 40N 105 12 11W, T.2S., R.70W., east
boundary Sec. 3) upstream to (39 54 42 N 105 13 00W, T.2S., R.70W.,
Sec. 3). Also includes an unnamed tributary from its confluence with
Rock Creek at (39 54 26N 105 12 34W, T.2S., R.70W., Sec. 3) upstream to
(39 54 7N 105 12 52W, T.2S., R.70W., Sec. 3). Includes another unnamed
tributary from its confluence with Rock Creek at (39 54 23N 105 12 56W,
T.2S., R.70W., Sec. 3) upstream to (39 54 8N 105 13 20W, T.2S., R.70W.,
west boundary Sec. 3. Includes another unnamed tributary from its
confluence with Rock Creek at (39 54 15N 105 13 5W, T.2S., R.70W., Sec.
3) upstream to (39 54 08N 105 13 09W, T.2S., R.70W., Sec. 3).
(ii) Note: Map of Unit 6 appears at paragraph (10)(ii) of this
entry.
(12) Unit 7: Ralston Creek, Jefferson County, Colorado.
(i) This unit consists of 8.5 mi (13.7 km) of streams. Ralston
Creek from 6,065 ft (1,849 m) elevation at the northern edge of Denver
Water property just upstream of Ralston Reservoir (39 49 12N 105 15
35W, T.3S., R.70W., Sec. 6) upstream into Golden Gate Canyon State Park
to 7,600 ft (2,300 m) elevation (39 50 53 105 21 16W, T.2S., R.71W.,
Sec. 29).
(ii) Note: Map of Unit 7 appears at paragraph (10)(ii) of this
entry.
(13) Unit 8: Cherry Creek, Douglas County, Colorado.
(i) This unit consists of two subunits including 29.8 mi (47.9 km)
of streams as follows:
(A) The Lake Gulch Subunit including Cherry Creek from the northern
boundary of Castlewood Canyon State Recreation Area (39 21 44N 104 45
39W, T.8S., R.66W., south boundary Sec. 10) upstream to the confluence
with Lake Gulch (39 20 24N 104 45 36W, T.8S., R.66W., Sec. 23). Lake
Gulch from the aforementioned confluence upstream to (39 15 37N 104 46
05W, T.9S., R.66W., south boundary Sec. 15). Includes Upper Lake Gulch
from its confluence with Lake Gulch (39 17 24N 104 46 11W, T.9S.,
R.66W., Sec. 3) upstream to (39 13 24N 104 50 21W, T.9S., R.67W., mid-
point Sec. 36).
(B) The Antelope Creek Subunit from its confluence with West Cherry
Creek (39 16 11N 104 42 49W, T.9S R.65W., S18) upstream to the
Franktown Parker Reservoir (39 10 20N 104 46 16W, T.10S R.66W., S22).
It also includes Haskel Creek from its confluence with Antelope Creek
(39 13 43N, 104 45 5W, T.9S R.66W., S35) upstream to the Haskel Creek
Spring Pond at 7,000 ft (2,134 m) elevation (39 11 60N 104 47 40N,
T.10S R.66W., S8).
(ii) Note: Map of Unit 8 follows:
[[Page 78477]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.007
[[Page 78478]]
(14) Unit 9: West Plum Creek, Douglas County, Colorado.
(i) This unit consists of 90.3 mi (145.3 km) of streams. Plum Creek
from Chatfield Lake (39 32 35N 105 03 07W, T.6S., R.68W., Sec. 7)
upstream to its confluence with West Plum Creek and East Plum Creek (39
25 49N 104 58 8W, T.7S., R.68W., Sec. 23), excluding 0.14 mi (0.23 km)
of Plum Creek owned by Denver Water at the Highline Canal crossing
(excluding from 39 30 44N 105 01 41W, T.6S., R.68W., Sec. 20 downstream
to 39 30 41N 105 01 32W, T.6S., R.68W., Sec. 20). West Plum Creek from
the aforementioned confluence (39 25 49N 104 58 8W, T.7S., R.68W., Sec.
23) upstream to the boundary of Pike-San Isabel National Forest and
7,600 ft (2,317 m) elevation (39 13 07N 104 59 20W, T.9S., R.68W., Sec.
34). Includes Indian Creek from its confluence with Plum Creek (39 28
22N 104 59 57W, T.7S., R.68W., Sec. 4) upstream to Silver State Youth
Camp (39 22 24N 105 05 13W, T.8S., R.69W., Sec. 11). Indian Creek
includes an unnamed tributary from its confluence with Indian Creek at
Pine Nook (39 23 01N 105 04 24W, T.8S., R.69W., Sec. 2) upstream to (39
22 10N 105 04 08W, T.8S., R.69W., Sec. 12). Also includes Jarre Creek
from its confluence with Plum Creek (39 25 50N 104 58 15W, T.7S.,
R.68W., Sec. 23) upstream to 7,600 ft (2,317 m) elevation (39 21 50N
105 03 20W, T.8S., R.69W., Sec. 12). Jarre Creek includes an unnamed
tributary from its confluence with Jarre Creek (39 22 58N 105 01 52W,
T.8S., R.68W., Sec. 5) upstream to (39 22 44N 105 02 14W, T.8S.,
R.68W., Sec. 8). Also includes an unnamed tributary from its confluence
with West Plum Creek (39 22 20N 104 57 39W, T.8S., R.68W., Sec. 11)
upstream to (39 21 36N 104 55 40W, T.8S, R67W., Sec.18). Unit 9 also
includes Garber Creek from its confluence with Plum Creek (39 22 10N
104 57 49W, T.8S., R.68W., Sec. 11) upstream to its confluence with
South Garber Creek and Middle Garber Creek (39 21 02N 105 02 13W,
T.8S., R.68W., Sec. 18). Including South Garber Creek from its
confluence with Garber Creek (39 21 02N 105 02 13W, T.8S., R.68W., Sec.
18) upstream to 7,600 ft (2,317 m) elevation (39 19 14N 105 03 13W,
T.8S., R.69W., Sec. 25). Including Middle Garber Creek from its
confluence with Garber Creek (39 20 55N 105 02 35W, T.8S., R.68W., Sec.
18) upstream to (39 19 48N 105 04 09W, T.8S., R.69W., west boundary
Sec. 25). Including North Garber Creek from its confluence with Middle
Garber Creek (39 20 55N 105 02 35W, T.8S., R.68W., Sec. 18) upstream to
7,600 ft (2,317 m) elevation (39 20 47N 105 04 37W, T.8S., R.69W., Sec.
23). Includes Jackson Creek from its confluence with Plum Creek (39 21
02N 104 58 30W, T.8S., R.68W., Sec. 14) upstream to 7,600 ft (2,317 m)
elevation (39 17 59N 105 03 57W, T.9S., R.69W., Sec. 1). Includes
Spring Creek from its confluence with West Plum Creek at (39 19 04N 104
58 26W, T.8S., R.68W., Sec. 35) upstream to (39 15 21N 105 01 40W,
T.9S., R.68W., Sec. 20). Including Dry Gulch from its confluence with
Spring Creek (39 17 54N 104 59 58W, T.9S., R.68W., Sec. 4) upstream to
7,600 ft (2,317 m) elevation (39 16 07N 105 02 33W, T.9S., R.68W., Sec.
18). Including Bear Creek from its confluence with West Plum Creek (39
17 30N 104 58 25W, T.9S., R.68W., Sec. 2) upstream to the base of the
Waconda Lake dam (39 15 43 N, 104 59 09 W, T.9S, R.68W, Sec.15).
Including Gove Creek from its confluence with West Plum Creek (39 14
07N 104 57 42W, T.9S., R.68W., Sec. 26) upstream to 7,600 ft (2,317 m)
elevation (39 11 50N 104 58 32W, T.10S., R.68W., Sec. 11). Includes
Merz Canyon stream from its confluence with Gove Creek (39 13 05N 104
57 33W, T.9S., R.68W., Sec. 36) upstream to (39 12 39N 104 57 04 W,
T.10S., R.68W., Sec.1). Includes Starr Canyon stream from its
confluence with West Plum Creek (39 13 07N 104 58 41W, T.9S., R.68W.,
Sec. 35) upstream to 7,600 ft (2,317 m) elevation (39 12 32N 104 59
01W, T.10S., R.68W., Sec. 3).
(ii) Note: Map of Unit 9 follows:
[[Page 78479]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.008
[[Page 78480]]
(15) Unit 10: Upper South Platte River, Douglas, Jefferson, and
Teller Counties, Colorado.
(i) This unit consists of four subunits including 33.6 mi (54.1 km)
of rivers and streams as follows:
(A) The Chatfield Subunit, on the border of Jefferson County and
Douglas County entirely within Chatfield State Park from Chatfield Lake
(39 31 32N 105 04 45W, T.6S., R.69W., Sec. 14) upstream to the northern
boundary of the Kassler Center land owned by Denver Water (39 29 35N
105 05 14W, T.6S., R.69W., Sec. 26).
(B) The Bear Creek Subunit, Douglas County from Pike-San Isabel
National Forest boundary (39 25 27N 105 07 40W, T.7S., R.69W., west
boundary Sec. 21) upstream to (39 22 32N 105 06 40W, T.8S., R.69W.,
south boundary Sec. 4). Includes West Bear Creek from its confluence
with Bear Creek (39 25 15N 105 07 30W, T.7S., R.69W., Sec. 21) upstream
to a confluence with an unnamed tributary (39 24 17N 105 07 38W, T.7S.,
R.69W., Sec. 33).
(C) The South Platte River Subunit, on the border of Jefferson
County and Douglas County from the southern boundary of Denver Water
land near Nighthawk (39 21 04N 105 10 28W, T.8S., R.70W., Sec. 13)
upstream to the north eastern boundary of Denver Water land at (39 18
47N 105 11 33W, T.8S., R.70W., Sec. 35), excluding Denver Water lands
along this stretch (39 19 10N 105 11 17W, T.8S., R.70W., Sec. 26), and
utilizing the Douglas County Riparian Conservation Zones on non-Federal
lands. Also included in this subunit from the southwestern boundary of
Denver Water property at (39 18 04N 105 12 03W, T.9S., R.70W., Sec. 2)
to the north eastern boundary of Denver Water property at (39 17 27N
105 12 24W, T.9S., R.70W., Sec. 3). Includes Sugar Creek, within
Douglas County from the eastern boundary of Denver Water land near
Oxyoke (39 18 24N 105 11 32W, T.8S., R.70W., Sec. 35) upstream to 7,600
ft (2,317 m) elevation (39 18 31N 105 08 09W, T.8S., R.69W., Sec. 32).
Includes Gunbarrel Creek, within Jefferson County from the western
boundary of Denver Water land near Oxyoke (39 18 27N 105 12 06W, T.8S.,
R.70W., Sec. 34) upstream to (39 18 41N 105 14 36W, T.8S., R.70W., Sec.
32).
(D) The Trout Creek Subunit, Douglas County upstream into Teller
County from (39 13 02N 105 09 31W, T.9S., R.69W., Sec. 31) upstream to
7,600 ft (2,317 m) elevation which is 0.8 mi (1.3 km) into Teller
County (39 07 13N 105 05 49W, T.11S., R.69W., Sec. 3). Includes Eagle
Creek from its confluence with Trout Creek (39 11 52N 105 08 27W,
T.10S., R.69W., Sec. 8) upstream to 7,600 ft (2,317 m) elevation (39 12
06N 105 07 12W, T.10S., R.69W., Sec. 9). Also including an unnamed
tributary from its confluence with Trout Creek (39 11 07N 105 08 05W,
T.10S., R.69W., Sec. 17) upstream to (39 10 18N 105 08 23W, T.10S.,
R.69W., Sec. 20). Also including Long Hollow from its confluence with
Trout Creek (39 10 56N 105 08 01W, T.10S., R.69W., Sec. 17) upstream to
7,600 ft (2,317 m) elevation (39 11 30N 105 06 19W, T.10S., R.69W.,
Sec. 10).
(ii) Note: Map of Unit 10 follows:
[[Page 78481]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.009
[[Page 78482]]
(16) Unit 11: Monument Creek, El Paso County, Colorado.
(i) This unit consists of 38.0 mi (61.1 km) of streams. Monument
Creek from its confluence with Cottonwood Creek (38 55 36N 104 48 55W,
T.13S., R66W., Sec. 7) upstream to the southern property boundary of
the U.S. Air Force Academy (38 57 08N 104 49 49W, T.13S., R.66W., Sec.
6), excluding 0.82 ac (0.33 ha) on the Dahle property (38 56 56N 104 49
39W, T.13S., R66W., Sec. 6). Then Monument Creek from the northern
property boundary of the U.S. Air Force Academy (39 02 31N 104 51 05W,
T.12S., R.67W., north boundary Sec. 2) upstream to Monument Lake (39 05
19N 104 52 43W, T.11S., R.67W., Sec. 15). Includes Kettle Creek from
the property boundary of the U.S. Air Force Academy (38 58 33N 104 47
55W, T.12S., R.66W., Sec. 29) upstream to its intersection with a road
at (39 00 07N 104 45 24W, T.12S., R.66W., east boundary Sec. 15). Which
includes an unnamed tributary from its confluence with Kettle Creek (38
59 06N 104 46 55W, T.12S., R.66W., Sec. 21) upstream to (38 59 14N 104
46 19W, T.12S., R.66W., Sec. 22). Also includes Black Squirrel Creek
from the property boundary of the U.S. Air Force Academy (39 00 06N 104
49 00W, T.12S., R.66W., Sec. 18) upstream to (39 02 30N 104 44 38W,
T.12S., R.66W., north boundary Sec. 2). Including an unnamed tributary
from its confluence with Black Squirrel Creek (39 01 19N 104 46 21W,
T.12S., R.66W., Sec. 10) upstream to (39 02 30N 104 45 42W, T.12S.,
R.66W., north boundary Sec. 3). Which includes another unnamed
tributary from (39 01 50N 104 46 20W, T.12S., R.66W., Sec. 3) upstream
to (39 02 30N 104 46 03W, T.12S., R.66W., north boundary Sec. 3),
excluding approximately 5 ac (2 ha) on the Lefever property (39 00 57N
104 46 33W, T.12S., R.66W., Sec. 9). Also includes an unnamed tributary
from the property boundary of the U.S. Air Force Academy (39 00 14N 104
49 3W, T.12S., R.66W., Sec. 18) upstream to 6,700 ft (2,043 m)
elevation (39 0 29N 104 48 24W, T.12S., R.66W., Sec. 17). Including an
unnamed tributary from (39 0 19N 104 48 55W, T. 12S., R.66W., Sec. 18)
upstream to (39 0 30N 104 48 48N, T. 12S., R.66W., Sec. 18). Unit 11
also includes Monument Branch from the property boundary of the U.S.
Air Force Academy (39 00 50N 104 49 24W, T.12S., R.66W., Sec. 7)
upstream to (39 01 10N 104 48 45W, T.12S., R.66W., east boundary Sec.
7). Also includes Smith Creek from the property boundary of the U.S.
Air Force Academy (39 01 36N 104 49 46W, T.12S., R.66W., Sec. 7)
upstream to (39 02 24N 104 48 00W, T.12S., R.66W., Sec. 5). Also
includes Jackson Creek from its confluence with Monument Creek (39 02
33N 104 51 13W, T.11S., R.67W., Sec. 35) upstream to (39 04 30N 104 49
10W, T.11S., R.66W., Sec. 19). Includes an unnamed tributary from its
confluence with Jackson Creek (39 04 12N 104 50 05W, T.11S., R.67W.,
Sec. 25) upstream to Higby Road (39 04 42N 104 49 40W, T.11S., R.66W.,
Sec. 19). Also includes Beaver Creek from its confluence with Monument
Creek (39 02 52N 104 52 02W, T.11S., R.67W., Sec. 35) upstream to 7,600
ft (2,317 m) elevation (39 03 08N 104 55 32W, T.11S., R.67W., Sec. 31).
Also includes Teachout Creek from its confluence with Monument Creek
(39 03 44N 104 51 53W, T.11S., R.67W., Sec. 26) upstream to Interstate
25 (39 04 19N 104 51 29W, T.11S., R.67W., Sec. 23). Also includes Dirty
Woman Creek from its confluence with Monument Creek (39 04 55N 104 52
34W, T.11S., R.67W., Sec. 22) upstream to Highway 105 (39 05 35N 104 51
28 W, T.11S., R.67W., Sec. 14).
(ii) Note: Map of Unit 11 follows:
[[Page 78483]]
[GRAPHIC] [TIFF OMITTED] TR15DE10.010
* * * * *
Dated: November 24, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-30571 Filed 12-14-10; 8:45 am]
BILLING CODE 4310-55-C