[Federal Register: August 30, 2001 (Volume 66, Number 169)]
[Proposed Rules]               
[Page 45829-45833]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG10

Endangered and Threatened Wildlife and Plants; Proposed Special 
Regulations for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: On May 22, 2001, the U.S. Fish and Wildlife Service adopted 
special regulations governing take of the Preble's meadow jumping mouse 
(Zapus hudsonius preblei). This notice proposes to amend those 
regulations, which provide exemption from take provisions under section 
9 of the Endangered Species Act for certain activities related to 
rodent control, ongoing agricultural activities, landscape maintenance, 
and perfected water rights. This action would provide exemption from 
the section 9 take prohibitions for certain noxious weed control and 
ditch maintenance activities. We believe this action would provide 
further relief for landowners while ensuring conservation of the 
Preble's meadow jumping mouse.

DATES: Comments must be received on or before October 1, 2001 to 
receive consideration.

ADDRESSES: Comments concerning this proposal should be sent to LeRoy 
Carlson, Field Supervisor, Colorado Field Office, Ecological Services, 
755 Parfet Street, Suite 361, Lakewood, Colorado 80215. Comments and 
materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: LeRoy W. Carlson at the above address 
or telephone 303/275-2370.



    The final rule listing the Preble's meadow jumping mouse (Zapus 
hudsonius preblei) (Preble's) as a threatened species under the 
Endangered Species Act (Act) of 1973 (16 U.S.C. 1531 et seq.) was 
published in the Federal Register on May 13, 1998 (63 FR 26517). 
Section 9 of the Act prohibits take of endangered wildlife. The Act 
defines take to mean harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect or to attempt to engage in any such conduct. 
However, the Act also provides for the authorization of take and 
exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth 
in section 10 of the Act. For federally funded or permitted activities, 
take of listed species may be allowed through the consultation process 
of section 7 of the Act. We, the Fish and Wildlife Service, have issued 
regulations (50 CFR 17.31) that generally apply to threatened wildlife 
the prohibitions that section 9 of the Act establishes with respect to 
endangered wildlife. Our regulations for threatened wildlife also 
provide that a ``special rule'' under section 4(d) of the Act can be 
tailored for a particular threatened species. In that case, the general 
regulations for some section 9 prohibitions do not apply to that 
species, and the special rule contains the prohibitions (and 
exemptions) necessary and appropriate to conserve that species.

[[Page 45830]]

    On December 3, 1998, we proposed a section 4(d) rule (63 FR 66777) 
to define conditions under which certain activities that could result 
in incidental take of Preble's would be exempt from the section 9 take 
prohibitions. We held two public meetings, at which 129 people 
attended. We also received 614 comment letters. On May 22, 2001, we 
published a final rule (66 FR 28125) adopting certain portions of this 
proposal. Some comments received on the proposed rule suggested 
additional exemptions to promote conservation of the Preble's. After 
consideration of these comments, we are now proposing to amend the 
section 4(d) rule to add special provisions providing exemptions from 
section 9 prohibitions for certain weed control and ditch maintenance 

Provisions of the Proposed Rule


    We propose that the special regulations contained in this amendment 
be applicable for a period not to exceed 36 months from May 22, 2001, 
the date the final special rule became effective, in order to be 
consistent with the 36-month timeframe of the May 22, 2001, final 
section 4(d) rule, (i.e., May 22, 2001, to May 22, 2004). We expect 
that, during this time period, comprehensive Habitat Conservation Plans 
for the Preble's will be developed and a recovery plan and other 
conservation efforts for the Preble's will be completed.

Additional Exemptions

    We propose that the activities discussed below, which may result in 
incidental take of Preble's, would be exempted from the section 9 take 
prohibitions. ``Incidental take'' refers to taking that is otherwise 
prohibited, if such taking is incidental to, and not the purpose of, an 
otherwise lawful activity, and is consistent with exceptions provided 
in this special rule. Take not exempted by this proposed rule and not 
otherwise authorized under the Act may be referred to the appropriate 
authorities for civil enforcement or criminal prosecution.
    a. Noxious weed control activities--Comments on the proposed 
section 4(d) rule of December 3, 1998, included a request to consider a 
rangewide exemption for control of noxious weeds. The comments stressed 
that laws in both Colorado and Wyoming require control of noxious weeds 
and that such control is compatible with Preble's conservation. We 
propose to amend the final 4(d) rule by including a rangewide exemption 
for noxious weed control, with appropriate limitations designed to 
prevent eradication of entire plant communities in the course of 
controlling weeds. We believe that this exemption will facilitate 
conservation of the Preble's, because noxious weeds are displacing 
desirable natural vegetation on which the Preble's depends for 
    b. Ongoing ditch maintenance activities--In the December 3, 1998, 
proposed rule, we stated that we considered adopting a rangewide 
exemption for periodic maintenance of existing water supply ditches, 
but chose not to do so because ditches support occupied and potential 
Preble's habitat. We received a large number of comments on this 
decision, many supporting a rangewide exemption and arguing that 
current maintenance practices have resulted in viable habitat for the 
    In response to these comments, we have elected to propose a limited 
exemption for customary ditch maintenance activities that are designed 
to protect and enhance Preble's habitat. This proposed exemption builds 
upon the guidance provided in a January 31, 2001, ``To Whom It May 
Concern Letter'' (Letter), which was originally issued by us on March 
11, 1999, and reissued on February 1, 2000, and January 31, 2001, and 
which was our initial response to these comments. While the Letter 
specifically describes activities throughout the range of the Preble's 
that we believe would not constitute take under section 9 of the Act, 
this proposed amendment to the 4(d) rule specifies certain activities 
that may result in take and grants exemption from such take.
    Our intent is to allow normal and customary maintenance activities 
that will result only in temporary or limited disturbance of Preble's 
habitat, and that will result in only minimal take of Preble's. We 
intend for this exemption to apply only to manmade ditches and not to 
alteration of habitat along naturally occurring streams and 
    We believe that a limited exemption is necessary, not only to 
provide relief to those who must maintain active ditches, but to assure 
that currently existing Preble's habitat along ditches remains 
functionally intact and viable. Should limited ditch maintenance not be 
allowed to continue, we face the possibility that these ditches would 
no longer be capable of conveying water and any habitat dependent on 
this water would degrade over time and eventually be lost. Maintenance 
of these ditches, as defined by this proposed rule, is necessary to 
maintain future conservation options for the Preble's.
    Therefore, we propose to exempt from the section 9 take 
prohibitions, limited maintenance activities on water conveyance 
ditches throughout the range of the Preble's. We believe that providing 
exemption from take for all ditch maintenance activities would be 
imprudent because--(a) some areas contain many ditches known or thought 
to be occupied by Preble's, (b) the stability of many local Preble's 
populations is uncertain, (c) the importance of ditch habitat to 
Preble's populations in many areas is not completely known, and (d) 
some occupied ditches may serve as important population refugia and 
travel corridors connecting populations.
    We propose exemptions from the take prohibitions of section 9 of 
the Act for the following ditch maintenance activities, if the Best 
Management Practices described below are followed.
    1. Normal and customary ditch maintenance activities that result in 
the annual loss of no more than \1/4\ mile of riparian shrub habitat 
within any one linear mile of ditch within any calender year. Riparian 
shrub habitat is defined as vegetation dominated by plants that 
generally have more than one woody stem that measures less than 2 
inches in diameter and are typically less than 10 feet in height at 
maturity, put on new growth each season, and have a bushy appearance. 
Examples of shrubs include, but are not limited to, willow, snowberry, 
wild plum, and alder.
    2. Included in 1. above is the burning of ditches that results in 
the annual loss of no more than \1/4\ mile of riparian shrub habitat 
within any one linear mile of ditch within any calendar year and is 
conducted out-of-season (see ``Best Management Practices'').

Best Management Practices

    Avoiding impacts to shrubs--Persons engaged in ditch maintenance 
activities must, to the maximum extent practicable, avoid impacts to 
shrub vegetation. For example, if it is possible to access the ditch 
for maintenance or repair activities from an area containing no shrubs, 
then damage to adjacent shrub vegetation must be avoided.
    Disposition of debris--Persons engaged in placing or sidecasting 
silt and debris removed during ditch cleaning, vegetation or mulch from 
mowing/cutting, or other material from ditch maintenance must, to the 
maximum extent practicable, avoid shrub habitat, and at no time disturb 
more than \1/4\ mile of riparian shrub habitat within any one linear 
mile of ditch within any calendar year.

[[Page 45831]]

    Timing of work--To the maximum extent practicable, all ditch 
maintenance will be carried out during the Preble's hibernation season, 
November through April. Any maintenance activities carried out during 
the Preble's active season, May through October, will be conducted 
during daylight hours only.
    This exemption includes maintenance of roads used to access ditches 
and related infrastructure. These maintenance activities are limited to 
the historic footprint associated with the infrastructure and access 
roads. Examples of activities that are covered by the exemption include 
the following activities, each limited to the destruction of \1/4\ mile 
of riparian shrub habitat within one linear mile of ditch within any 
calendar year:
    a. Clearing trash, debris, vegetation, and silt by either physical, 
mechanical, chemical, or burning procedures--Examples include mowing or 
cutting grasses and weeds, removal of silt and debris from the ditch 
below the high-water line, and control of shrubs that could result in 
ditch leakage.
    b. Reconstruction, reinforcement, repair, or replacement of 
existing infrastructure with components of substantially similar 
materials and design--Examples include replacement of a damaged 
headgate, grading or filling areas susceptible to ditch failure, 
patchwork on a concrete ditch liner, or replacement of failed culvert 
with a new culvert of the same design and material.
    The following maintenance activities are not exempted from the take 
provisions of section 9 of the Act:
    a. Replacement of existing infrastructure with components of 
substantially different materials and design--such as replacing an 
existing gravel access road with a permanently paved road.
    b. Construction of new infrastructure or the movement of existing 
infrastructure to new locations--Examples include redrilling a well in 
a new location, building a new access road, change in the location of a 
diversion structure or installation of new diversion works where none 
previously existed.


    These additional exemptions are proposed in response to comments 
received during the public review on the December 3, 1998, 4(d) rule 
proposal. Water rights owners argued that lack of an exemption for 
periodic maintenance of existing ditches conflicted with the exemption 
for existing uses of perfected water rights, because ditch maintenance 
is an intrinsic part of exercising a perfected water right. In 
addition, respondents noted that ditch maintenance is required by State 
law in both Wyoming and Colorado. Failure to adequately maintain water 
conveyance structures can result in fines, penalties, and liability for 
damage to property caused by ditch failures. Finally, respondents noted 
that prohibition of ditch maintenance could subsequently result in 
curtailment or cessation of water diversions. This situation in turn 
could result in forfeiture or abandonment of water rights under State 
    By exempting limited periodic maintenance activities on existing 
water supply ditches, this proposed amendment facilitates consistency 
among the rangewide exemptions. Where appropriate, permits can be 
issued under section 10 of the Act to allow incidental take of Preble's 
for activities not proposed to be exempted through this rule.
    Some respondents believed that any exemption should include 
maintenance of water supply wells, water measurement devices, dams, 
other infrastructure, and associated roads.
    The proposed amendment includes a limited exemption for maintenance 
of roads used to access existing ditches and related infrastructure 
provided that these activities do not exceed the maximum allowable loss 
of riparian shrub habitat in any calendar year. This exemption covers 
only maintenance and replacement of dams or infrastructure directly 
related to, and used in, the operation of ditches. An exemption also 
applies to activities covered in Sec. 17.40 (l)(2)(v) of the final rule 
relating to existing uses of water associated with the exercise of 
perfected water rights. Any person contemplating dam or infrastructure 
work not covered by either of these two exemptions should consult with 
us when the maintenance procedure has the potential to take Preble's.
    Several respondents requested rangewide exemptions for maintenance 
of other types of water-related infrastructure. The suggested 
exemptions included maintenance of sewer lines; wastewater treatment 
and conveyance facilities; and stormwater collection, conveyance, and 
treatment facilities.
    We elected not to propose an exemption for these types of water-
related infrastructure. These systems typically incorporate extensive 
pipeline systems that either cross Preble's habitat, or are installed 
along stream corridors that provide Preble's habitat. Activities to 
maintain this infrastructure can create large areas of surface 
disturbance within or near Preble's habitat that could temporarily or 
permanently prevent occupation of habitat or migration from one 
Preble's habitat area to an adjacent Preble's habitat area.
    Owners and operators of stormwater and wastewater systems will be 
required to consult with us when their maintenance activities have the 
potential to result in take of Preble's. We will work with wastewater 
and stormwater system owners and operators to develop maintenance 
procedures that minimize and mitigate take of Preble's when maintenance 
activities occur within Preble's habitat.

Comments Solicited

    The Service invites comments on this proposed rule. Comments should 
be forwarded to the Field Supervisor, Colorado Field Office (see 
ADDRESSES section). While our normal practice is to solicit comments on 
proposed rules for 60 days, we believe a 30-day comment period is 
sufficient in this case because we have already received public 
comments regarding the substance of this proposed rule.

Clarity of This Regulation

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

Required Determinations

    A Record of Compliance was prepared for the May 22, 2001, final 
rule that exempted from the take prohibitions listed in section 9 of 
the Act, the four activities of rodent control, ongoing agricultural 
activities, landscaping, and

[[Page 45832]]

ongoing use of existing water rights. A Record of Compliance certifies 
that a rulemaking action complies with the various statutory, Executive 
Order, and Department Manual requirements applicable to rulemaking. 
Amendment of the May 22, 2001, rule to include the two additional 
exemptions proposed herein, noxious weed control and ongoing ditch 
maintenance, does not add any significant elements to this Record of 
    Without this proposed special rule, noxious weed control or ongoing 
ditch maintenance activities that may result in take of Preble's would 
not be exempted from the take prohibitions. This rule would allow 
certain affected landowners to engage in certain noxious weed control 
and ditch maintenance activities that may result in take of Preble's. 
Without this rule, anyone engaging in those activities would need to 
seek an authorization from us through an incidental take permit under 
section 10(a) or an incidental take statement under section 7(a)(2) of 
the Act. This process takes time and can involve an economic cost. The 
rule would allow these landowners to avoid the costs associated with 
abstaining from conducting these activities or with seeking an 
incidental take permit from us. These economic benefits, while 
important, do not rise to the level of ``significant'' under the 
following required determinations.

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget has determined that this rule is not a 
significant regulatory action. This rule would not have an annual 
economic impact of more than $100 million, or significantly affect any 
economic sector, productivity, jobs, the environment, or other units of 
government. This rule would reduce the regulatory burden of the listing 
of the Preble's meadow jumping mouse under the Act as a threatened 
species by providing certain exemptions to the section 9 take 
prohibitions that currently apply throughout the Preble's range. These 
exemptions would reduce the economic costs of the listing; therefore, 
the economic effect of the rule would benefit landowners and the 
economy. This effect does not rise to the level of ``significant'' 
under Executive Order 12866.
    This rule will not create inconsistencies with other Federal 
agencies' actions. Other Federal agencies would be mostly unaffected by 
this proposed rule.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Because this rule would allow landowners to continue otherwise 
prohibited activities without first obtaining individual authorization, 
the rule's impacts on affected landowners would be positive.
    This rule will not raise novel legal or policy issues. We have 
previously promulgated section 4(d) rules for other species, including 
the special rule for the Preble's pertaining to rodent control, ongoing 
agricultural activities, landscaping, and activities associated with 
water rights. This rule would simply add exempted activities to that 

Regulatory Flexibility Act

    We have determined that this rule would not have a significant 
economic effect on a substantial number of small entities as defined 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial 
regulatory flexibility analysis is not required, and a Small Entity 
Compliance Guide is not required. This rule would reduce the regulatory 
burden of the listing of the Preble's as a threatened species. Without 
this proposed rule and the final special rule, all of the take 
prohibitions listed in section 9 of the Act would apply throughout the 
range of the Preble's. This rule would allow certain affected 
landowners to engage in noxious weed control and ditch maintenance 
activities that may result in take of Preble's. This rule would enable 
these landowners to avoid the costs associated with abstaining from 
conducting these activities to avoid take of Preble's or seeking 
incidental take permits from us.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule would not have 
an annual effect on the economy of $100 million or more; would not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises. As described above, this rule would reduce regulatory 
burdens on affected entities, who are mostly agricultural producers.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.), this rule would not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. This rule would not have a significant or unique 
effect on State, local, or tribal governments or the private sector. A 
Small Government Agency Plan is not required.


    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. By reducing the regulatory burden 
placed on affected landowners resulting from the listing of the 
Preble's as a threatened species, this rule would reduce the likelihood 
of potential takings. Affected landowners would have more freedom to 
pursue activities (i.e., noxious weed control and ditch maintenance) 
that may result in taking of Preble's without first obtaining 
individual authorization.


    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. Currently, the State of Colorado, the Service, 
and various local governmental entities in Colorado and Wyoming are 
working together to develop plans to conserve the Preble's and its 
habitat. This collaborative approach is expected to result in the 
development of Habitat Conservation Plans that will provide the 
foundation upon which to build a lasting, effective, and efficient 
conservation program for the Preble's. Because we anticipate beneficial 
impacts of such collaborative conservation efforts, we are proposing 
that this rule would be applicable only during the 36-month timeframe 
of the final special rule.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

Paperwork Reduction Act

    We have examined this proposed rule under the Paperwork Reduction 
Act of 1995 and found it to contain no requests for information. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

[[Page 45833]]

National Environmental Policy Act

    The National Environmental Policy Act analysis has been conducted. 
An Environmental Assessment was prepared for the final special rule. 
The additional exemptions covered in this proposed rule were included 
in this analysis.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951) and E.O. 13175, we have evaluated possible 
effects on federally recognized Indian Tribes. We have determined that, 
because no Indian trust resources occur within the range of the 
Preble's, this rule would have no effects on federally recognized 
Indian Tribes.

Executive Order 13211

    We have evaluated this proposed rule in accordance with E.O. 13211 
and have determined that this rule would have no effects on energy 
supply, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service proposes to amend 50 CFR part 17, as set 
forth below:


    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.40 by adding paragraph (l)(2)(vi) and (l)(2)(vii) 
to read as follows:

Sec. 17.40  Special rules--mammals.

* * * * *
    (l) Preble's meadow jumping mouse (Zapus hudsonius preblei).
* * * * *
    (2) * * *
    (vi) Noxious weed control. Preble's meadow jumping mice may be 
taken incidental to noxious weed control as long as the weed control:
    (A) Is implemented pursuant to the undesirable plant management 
plan adopted by the applicable county or municipal government;
    (B) Is implemented in consultation with the weed control officer 
designated by the applicable county or municipal government;
    (C) Utilizes the best available methods of integrated management as 
prescribed in the local undesirable plant management plan; and
    (D) Follows herbicide application guidelines as prescribed by 
herbicide manufacturers and Federal law.
    (vii) Ditch maintenance activities. Preble's meadow jumping mice 
may be taken incidental to normal and customary ditch maintenance 
activities only if the activities:
    (A) Result in the annual loss of no more than \1/4\ mile of 
riparian shrub habitat per linear mile of ditch, including burning of 
ditches that results in the annual loss of no more than \1/4\ mile of 
riparian shrub habitat per linear mile of ditch.
    (B) Are performed within the historic footprint of the surface 
disturbance associated with ditches and related infrastructure, and
    (C) Follow the Best Management Practices described in paragraphs 
(1)(2)(vii)(C)(1) through (3) of this section.
    (1) Persons engaged in ditch maintenance activities must avoid, to 
the maximum extent practicable, impacts to shrub vegetation. For 
example, if accessing the ditch for maintenance or repair activities 
from an area containing no shrubs is not possible, then damage to 
adjacent shrub vegetation must be avoided.
    (2) Persons engaged in placement or sidecasting of silt and debris 
removed during ditch cleaning, vegetation or mulch from mowing or 
cutting, and other material from ditch maintenance must, to the maximum 
extent practicable, avoid shrub habitat and at no time disturb more 
than \1/4\ mile of riparian shrub habitat per linear mile of ditch 
within any calendar year.
    (3) To the maximum extent practicable, all ditch maintenance 
activities will be carried out during the Preble's hibernation season, 
November through April.
    (D) All ditch maintenance activities carried out during the 
Preble's active season, May through October, will be conducted during 
daylight hours only.
    (E) Ditch maintenance activities that would result in permanent or 
long-term loss of potential habitat, including replacement of existing 
infrastructure with components of substantially different materials and 
design, such as replacement of open ditches with pipeline or concrete-
lined ditches, replacement of an existing gravel access road with a 
permanently paved road, or replacement of an earthen diversion 
structure with a rip-rap and concrete structure, and construction of 
new infrastructure or the movement of existing infrastructure to new 
locations, such as realignment of a ditch, building a new access road, 
or installation of new diversion works where none previously existed, 
would not be considered normal and customary.
* * * * *

    Dated: August 8, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-21680 Filed 8-29-01; 8:45 am]