[Federal Register: October 1, 2002 (Volume 67, Number 190)]
[Rules and Regulations]               
[Page 61531-61537]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF30

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: On May 22, 2001, the U.S. Fish and Wildlife Service adopted 
special regulations governing take of the threatened Preble's meadow 
jumping mouse (Zapus hudsonius preblei), which provide exemption from 
take provisions under section 9 of the Endangered Species Act for 
certain activities related to rodent control, ongoing agricultural 
activities, landscape maintenance, and perfected water rights. On 
August 30, 2001, the Service published a proposal to amend those 
regulations to provide additional exemptions. This action amends the 
regulations to exempt certain noxious weed control and ditch 
maintenance activities from the section 9 take prohibitions.

DATES: This amendment will be effective from October 1, 2002 through 
May 22, 2004.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service's Colorado Field Office, Ecological Services, 
Suite 361, Lakewood, Colorado 80215.

FOR FURTHER INFORMATION CONTACT: In Colorado, contact LeRoy W. Carlson 
at the above address or telephone (303) 275-2370. In Wyoming, contact 
Mike Long, Field Supervisor, Cheyenne, Wyoming, at telephone (307) 772-



    The final rule listing the Preble's meadow jumping mouse (Zapus 
hudsonius preblei) (Preble's) as a threatened species under the 
Endangered Species Act (Act) of 1973, as amended, (16 U.S.C. 1531 et 
seq.) was published in the Federal Register on May 13, 1998 (63 FR 
26517). Section 9 of the Act prohibits take of endangered wildlife. The 
Act defines take to mean harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect or to attempt to engage in any such 
conduct. However, the Act also provides for the authorization of take 
and exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth 
in section 10 of the Act. For federally funded or permitted activities, 
take of listed species may be allowed through the consultation process 
of section 7 of the Act. We, the Fish and Wildlife Service, have issued 
regulations (50 CFR 17.31) that generally apply to threatened wildlife 
the prohibitions that section 9 of the Act establishes with respect to 
endangered wildlife. Our regulations for threatened wildlife also 
provide that a ``special rule'' under section 4(d) of the Act can be 
tailored for a particular threatened species. In that case, the general 
regulations for some section 9 prohibitions do not apply to that 
species, and the special rule contains the prohibitions, and 
exemptions, necessary and advisable to conserve that species.
    On December 3, 1998, we proposed a section 4(d) rule (63 FR 66777) 
to define conditions under which certain activities that could result 
in incidental take of Preble's would be exempt from the section 9 take 
prohibitions. We held two public meetings, attended by 129 people. We 
also received 614 comment letters. On May 22, 2001, we published a 
final rule (66 FR 28125) adopting certain portions of this proposal. 
Some comments received on the proposed rule suggested additional 
exemptions to promote conservation of the Preble's. On August 30, 2001, 
we published a proposed rule (66 FR 45829 ) to amend the section 4(d) 
rule to add special provisions providing exemptions from section 9 
prohibitions for certain noxious weed control and ditch maintenance 
activities. We are now adopting the amendment providing these 
additional exemptions.

Summary of Comments and Recommendations

    In the August 30, 2001, proposed amendment and associated 
notifications, we asked all interested parties to submit comments on 
the proposed amendment. We received nine comment letters in response to 
the proposed amendment to the 4(d) rule. The State of Wyoming sent 
comments from two of their State agencies under one cover letter. One 
Colorado and one Wyoming county submitted comments, as did a Colorado 
municipality. Two letters came from water and irrigation-related 
organizations or companies, one letter came from a real estate interest 
in the development community, and two letters came from ranching/
agriculture-related groups.
    Most of the comment letters acknowledged the need for the proposed 
exemptions. Many stated that the exemptions are necessary to allow 
citizens and companies to comply with State laws in both Colorado and 
Wyoming, and to improve landowner and ditch owner cooperation in 
conservation of the mouse and its habitat. The comments also generally 
recognized that the exemptions are necessary for the long-term 
maintenance of the ditches and the adjacent mouse habitat that is 
dependent upon those ditches.
    Several of the comment letters expressed general concerns or 
questions about the validity of the Preble's listing and its scientific 
foundation, questions about uncertainty in distinguishing Preble's from 
similar species and the need for genetic testing, and requests that the 
listing be withdrawn or that the Service delist the Preble's. These 
issues are not germane to the proposed amendment and, therefore, are 
not discussed here.
    Written comments received during the comment period that are 
specific to the proposed amendment are addressed in the following 
summary. Comments of a similar nature are grouped under a number of 
general issues.

Issues and Discussion

    Issue 1--Two letters expressed confusion regarding the timeframe 
that the proposed amendment would be in place, believing that it 
extended or continued beyond the 36-month timeframe of the existing 
4(d) rule.
    Response--The amendment should run concurrently with the existing 
4(d) rule that became effective on May 22, 2001 (66 FR 45829). 
Therefore, this rule should expire on May 22, 2004, at the same time as 
the existing 4(d) rule.
    Issue 2--One commentor felt that the definition of noxious weeds is 
unclear and seems to apply only to plants designated on the State lists 
of noxious weeds as defined by Colorado and Wyoming. This letter 
suggests that the term ``noxious'' should be replaced with the term 
``undesirable'' wherever it occurs in the rule.
    Response--State statutes in both Colorado and Wyoming require 

[[Page 61532]]

weeds to be controlled. The term ``noxious'' is legally defined in 
statutory requirements to mean plant species that are nonindigenous and 
have negative impacts on crops, livestock, native plant communities, or 
the management of natural or agricultural systems. The term 
``undesirable'' is not a legally defined term relating to these 
statutory requirements and is not consistent with our purpose to limit 
the exemption to control actions for ``noxious'' weeds as defined by 
the States of Colorado and Wyoming. This amendment exempting noxious 
weed control should alleviate possible conflicts due to the Preble's 
listing with statutory requirements regarding weed control activities 
in the States of Colorado and Wyoming and is consistent with the 
conservation of the Preble's.
    Issue 3--The requirement for noxious weed control to be done 
pursuant to a weed management plan implemented in ``consultation with 
the weed control officer designated by the applicable county or 
municipal government'' will be administratively burdensome. The 
commentor suggests that ``consultation'' with local governments use a 
``programmatic approach.''
    Response--We discovered that our proposed rule language regarding 
noxious weed control did not properly consider regulations within the 
State of Wyoming. The Colorado Noxious Weed Act requires county and 
municipal governments to develop a recommended integrated management 
plan for noxious weed control and also requires that individual 
landowners either implement the county or local government plan or 
develop their own integrated management plans for their property. The 
Wyoming Weed and Pest Control Act requires weed management plans to be 
completed by the individual weed and pest districts and requires 
individual landowners to control noxious weeds identified by the State 
list and the local jurisdiction.
    To more accurately reflect these State's regulations, we have 
changed the language of Sec.  17.40 (l)(2)(vi) to read as follows:

    (vi) Noxious weed control. Preble's meadow jumping mice may be 
taken incidental to noxious weed control that is conducted in 
accordance with:
    (A) Federal Law, including Environmental Protection Agency label 
    (B) Applicable State laws for noxious weed control;
    (C) Applicable county bulletins;
    (D) Herbicide application guidelines as prescribed by herbicide 
manufacturers; and
    (E) Any future revisions to the authorities listed in paragraphs 
(1)(2)(vi)(A)-(D) of this section that apply to the herbicides 
proposed for use within the species' range.

    The language in the proposed rule requiring a weed management plan 
and consultation with the weed control officer has been deleted. We 
intend to exempt those noxious weed control activities that are 
conducted in accordance with State law. We are willing to work with 
county and local municipality weed management personnel or other weed 
management professionals familiar with local areas to develop a 
suitable programmatic approach with reasonable and easy-to-follow 
    In the event of future revisions to EPA label restrictions and 
herbicide application guidelines, users shall follow these revisions to 
assure protection of the Preble's meadow jumping mouse.
    Issue 4--One commentor suggested that the standards for ``best 
available methods of integrated management'' be prescribed in the local 
weed management plan, and the required contents of such a plan should 
be understood and agreed to by the local governments prior to including 
this provision in the final rule.
    Response--As addressed in the Response to Issue 3, the proposed 
language in section (vi) (B) referring to ``best available methods of 
integrated management'' language has been deleted from the rule. With 
this rule language, local governments and municipalities retain control 
over noxious weed management. We should exempt those noxious weed 
control activities that are conducted in accordance with State law.
    The Colorado Noxious Weed Act requires that Integrated Pest 
Management techniques be used to the extent that they are the least 
environmentally damaging, practical, and economically reasonable means 
of control. Integrated Pest Management is defined as the planning and 
implementation of a coordinated management program using a variety of 
mechanical, biological, and chemical methods to control noxious weeds. 
Article 3 of the Wyoming Weed and Pest Control Act calls for a 
``Special Management Program,'' which strongly emphasizes the use of 
integrated management and provides for financial incentives when 
individuals sign up under this program. In addition, the Wyoming 
Department of Agriculture, Wyoming Weed and Pest Council, and the 
University of Wyoming conduct two training sessions annually that 
emphasize integrated weed management techniques and the latest 
information in environmentally friendly methods of control.
    Issue 5--Comments included concerns regarding the amount of area in 
which noxious weeds can be controlled and what limitations the Service 
deems ``appropriate.'' One commentor suggested that no limitations 
should be considered because that would contradict State laws and 
Federal policy and that incomplete control would not be effective.
    Response--The rule includes no limitations concerning the ``amount 
of area'' in which noxious weeds can be controlled. The only area 
limitations in the rule relate to ditch maintenance activities. The 
language in the amendment exempts noxious weed control activities that 
are conducted pursuant to State law and in accordance with EPA 
herbicide labeling. We encourage efforts to reduce the adverse effects 
of weed control on native plant communities and limit unnecessary 
eradication of entire plant communities and suggest that methods to 
reduce impacts to nontarget species should be employed whenever 
possible, such as the use of selective herbicides that target broad-
leaved plants and do not damage native grasses.
    Issue 6--One comment letter requested unrestricted ditch 
maintenance be allowed when the ditch is located outside ``naturally 
occurring potential Preble's habitat,'' which the commentor defined as 
``the 100-year flood plains associated with rivers and creeks, between 
7,600 feet and 4,500 feet in elevation.''
    Response--This amendment provides certain exemptions from take as 
defined by the Act. If a ditch does not have habitat and/or mice, then 
no exemption is needed.
    Trapping data show that many ditches have suitable habitat for 
Preble's and, in several areas, that Preble's exist on ditches that 
occur outside the 100-year floodplain. We intend to limit exemption of 
ditch maintenance to those activities that have minimal take of 
Preble's and are consistent with the protection and enhancement of 
Preble's habitat. As stated in the May 22, 2001, 4(d) rule, we believe 
it is imprudent to provide unrestricted exemption from take along 
ditches because in some areas: (a) Many ditches are suspected or known 
to be occupied by Preble's; (b) the stability of the local Preble's 
population is uncertain; (c) the degree of importance of ditch habitat 
to Preble's populations is not completely known; and, (d) some occupied 
ditches may serve as important population refugia and travel corridors 
connecting populations.
    Under appropriate circumstances, permits can be obtained to carry 
out ditch maintenance activities even when

[[Page 61533]]

more than minimal take is likely to occur. These activities may be 
addressed through future Habitat Conservation Plans or section 7 
    Issue 7--One comment letter suggested that exemption will not be 
sufficient and ditches will be unable to convey water. This letter 
requested that the exemption be changed to an ``entire range-wide 
    Response--As discussed above, we do not believe it would be prudent 
to grant a range-wide or unrestricted exemption for ditch maintenance 
activities. It is our intent to limit exemption of ditch maintenance to 
those activities that have minimal take of Preble's and are consistent 
with the protection and enhancement of Preble's habitat.
    Issue 8--How does the exemption apply to ditch maintenance 
activities that are subject to other Federal approvals?
    Response--This exemption does not affect other Federal approvals 
required for ditch maintenance. Under section 7 of the Act, a Federal 
agency that undertakes, permits, or funds activities that are likely to 
adversely affect a listed species, whether or not take is involved, 
shall formally consult with the Service regarding the proposed action. 
Exemption from take prohibitions in section 9 of the Act does not alter 
responsibility of Federal agencies under section 7. This said, the 
number of section 7 consultations is expected to be low based on past 
numbers and, because of exempted actions, the amended rule should 
further expedite the section 7 process because subsequent consultations 
will consist of verifying whether the effects of the proposed action 
are consistent with the effects analysis conducted in establishing this 
regulation and documenting the determination. For actions that are 
consistent with this regulation, consultation will be streamlined by 
linking to the biological opinion prepared in conjunction with this 
rulemaking. For any actions not consistent with this regulation, 
preparation of a separate biological opinion will be necessary.
    Issue 9--Does the exemption apply to both sides of the ditch or 
just one?
    Response--The exemption applies to both sides of the ditch. Ditch 
maintenance activities under the exemption should allow for the loss of 
\1/4\-mile of riparian shrub habitat on both banks of a ditch within 
any 1 linear mile of ditch within any calendar year.
    However, if only one bank of a ditch is to be maintained, the \1/
4\-mile loss limit still applies.
    Issue 10--The final rule should consider both physical and legal 
access under the requirement to ``avoid shrubs if possible.''
    Response--The amendment states that impacts to shrub vegetation 
shall be avoided ``to the maximum extent practicable.'' The intention 
of this statement is to refer to both physically practicable and 
legally practicable, i.e., through legal access to the ditch.
    Issue 11--The \1/4\-mile limitation on ditch maintenance activities 
will result in changes to normal procedures and increased maintenance 
costs. Additionally, one letter expressed concern that the two 
additional exemptions would not benefit landowners and the economy. The 
commentor argued that any benefits to the landowner or economy would 
only be because the owners would not have to consult on every ditch-
cleaning project. This commentor also stated that limits on maintenance 
activities of \1/4\-mile per mile of ditch are inconvenient for owners 
because it would take 4 years to be able to clear the entire ditch.
    Response--This rule does not place any additional restrictions on 
land use activities and does not place any additional prohibitions on 
take of Preble's. Rather, this rule removes some take prohibitions that 
might otherwise restrict certain activities. Currently, on ditches that 
are occupied by Preble's, take is prohibited by section 9 of the Act 
without the appropriate permits. This take prohibition is removed by 
this amendment within the limitations given in the amendment. 
Therefore, this exemption is expected to decrease any current financial 
burden caused by the existing prohibitions. Normal ditch maintenance 
activities should be allowed without the time, money, and effort 
required to obtain incidental take permits, while still allowing for 
the conservation of the species. Under certain circumstances when more 
than minimal take is likely to occur, permits can be obtained through 
Habitat Conservation Plans or section 7 consultations to carry out 
additional maintenance activities not covered by the rule or 
    Issue 12--The November to April timeframe for ditch maintenance 
activities is difficult in Wyoming where it may snow from September 
through May.
    Response--This seasonal limitation for ditch maintenance activities 
is designed to occur while the mouse is in hibernation, in order to 
reduce adverse impacts and be consistent with the conservation of the 
Preble's. However, as stated in the amended rule in ``Timing of Work'', 
under ``Best Management Practices'', this restriction is to be observed 
to the ``maximum extent practicable.'' Otherwise, if this restriction 
is impracticable, exempted maintenance activities shall be conducted 
during daylight hours and only carried out during the Preble's active 
season, May through October.
    Issue 13--The proposed rule has too many ``subjective'' standards 
and does not provide ``adequate notice'' or understandable definitions 
regarding which activities are covered and which are not (e.g., 
``normal and customary,'' ``maximum extent practicable,'' 
``functionally intact and viable'').
    Response--The goal of this amendment is to allow agriculture and 
water use to continue while being consistent with conservation of the 
species. We did not want to define the exemptions too narrowly because 
there is a wide variation of how these activities might be applied on 
the ground. The Service recognizes the need to maintain some amount of 
flexibility in interpretation.
    Issue 14--One comment letter stated that the scale of agricultural 
operations in Wyoming makes the rule ``unworkable.'' The commentor 
believes that these exemptions may be reasonable for smaller, more 
intensively managed plots in Colorado, but will only result in 
``frustrations and resentment'' in Wyoming. The commentor states that 
we are placing an unfair and disproportionate burden on agriculture in 
Wyoming when the real threats lie within the Front Range of Colorado.
    Response--This rule does not place any additional restrictions on 
land use or any additional prohibitions on take. Current prohibitions 
on take through section 9 of the Act require a Federal permit for 
activities that are deemed to adversely affect the Preble's to the 
point where take may occur. Our goal in exempting noxious weed control 
and ditch maintenance activities through this amendment is to remove 
some of these take prohibitions and provide relief from current 
regulatory restrictions on agricultural entities and water users, 
regardless of location.
    Issue 15--Some respondents believed that any exemption should 
include maintenance of (1) water supply wells and water measurement 
devices, (2) dams and other infrastructure, and (3) associated roads.
    Response--In regard to (1) above, an exemption applying to 
activities covered in Sec.  17.40 (l)(2)(v) of the final rule relates 
to existing uses of water associated with the exercise of perfected 
water rights, so maintenance of water supply wells and water 

[[Page 61534]]

devices is covered. In regard to (2), this exemption covers only 
maintenance and replacement of dams or infrastructure directly related 
to, and used in, the operation of ditches. Any person contemplating dam 
or infrastructure work not covered by either of these two exemptions 
should consult with us when the maintenance procedure has the potential 
to take Preble's. Finally, pertaining to (3), this amendment includes a 
limited exemption for maintenance of roads used to access existing 
ditches and related infrastructure provided that these activities do 
not exceed the maximum allowable loss of riparian shrub habitat in any 
calendar year.

Provisions of the Rule Amendment


    The special regulations contained in this amendment are applicable 
until May 22, 2004, which is the end of the effective period for the 
May 22, 2001, final 4(d) rule. We expect that, by that date, 
comprehensive Habitat Conservation Plans for the Preble's should be 
developed, and a recovery plan and other conservation efforts for the 
Preble's should be completed.

Additional Exemptions

    The activities discussed below, which may result in incidental take 
of Preble's, are exempted from the section 9 take prohibitions. 
``Incidental take'' refers to a taking that is otherwise prohibited, if 
such taking is incidental to, and not the purpose of, the carrying out 
of an otherwise lawful activity. Take not exempted by this amendment 
and not otherwise authorized under the Act may be referred to the 
appropriate authorities for civil enforcement or criminal prosecution.
    a. Noxious weed control activities--Comments on the proposed 4(d) 
rule of December 3, 1998, included a request to consider a rangewide 
exemption for control of noxious weeds. The comments stressed that laws 
in both Colorado and Wyoming require control of noxious weeds and that 
such control is compatible with Preble's conservation. We are amending 
the final 4(d) rule by including a rangewide exemption for noxious weed 
control to conform to existing State laws and Federal regulations 
regarding herbicide labeling. We believe that this exemption should 
facilitate conservation of the Preble's, because noxious weeds are 
displacing desirable natural vegetation on which the Preble's depends 
for survival.
    b. Ongoing ditch maintenance activities--In the December 3, 1998, 
proposed 4(d) rule, we stated that we considered adopting an 
unrestricted exemption for periodic maintenance of existing water 
supply ditches, but chose not to do so because ditches support occupied 
and potential Preble's habitat. We received a large number of comments 
on this decision, many supporting an unrestricted exemption and arguing 
that current maintenance practices have resulted in viable habitat for 
the Preble's.
    In response to these comments, we have elected to adopt a limited 
exemption for customary ditch maintenance activities that are designed 
to result in only minimal take of Preble's and are consistent with the 
protection and enhancement of Preble's habitat. This exemption builds 
upon the guidance provided in a January 31, 2001, ``To Whom It May 
Concern Letter'' (Letter), which we originally issued on March 11, 
1999, and reissued on February 1, 2000, and January 31, 2001, and which 
was our initial response to these comments. While the Letter 
specifically describes activities throughout the range of the Preble's 
that we believe would not constitute take under section 9 of the Act, 
this amendment to the 4(d) rule specifies certain activities that may 
result in take and grants exemption from such take.
    Our intent is to allow normal and customary maintenance activities 
that should result only in temporary or limited disturbance of Preble's 
habitat, and that should result in only minimal take of Preble's. We 
intend for this exemption to apply only to manmade ditches and not to 
alteration of habitat along naturally occurring streams and 
    We believe that a limited exemption is necessary and advisable, not 
only to provide relief to those who shall maintain active ditches, but 
to assure that currently existing Preble's habitat along ditches 
remains functionally intact and viable. Should limited ditch 
maintenance not be allowed to continue, we face the possibility that 
these ditches would no longer be capable of conveying water and any 
habitat dependent on this water would degrade over time and eventually 
be lost. Maintenance of these ditches, as defined by this amended rule, 
is necessary and advisable to maintain future conservation options for 
the Preble's.
    Therefore, we are exempting from the section 9 take prohibitions, 
limited maintenance activities on water conveyance ditches throughout 
the range of the Preble's. We believe that providing unrestricted 
exemption from take for all ditch maintenance activities would be 
imprudent because--(a) Some areas contain many ditches known or thought 
to be occupied by Preble's, (b) the stability of many local Preble's 
populations is uncertain, (c) the importance of ditch habitat to 
Preble's populations in many areas is not completely known, and (d) 
some occupied ditches may serve as important population refugia and 
travel corridors connecting populations.
    The following ditch maintenance activities are exempted from the 
take prohibitions of section 9 of the Act, if the Best Management 
Practices described below are followed:
    1. Normal and customary ditch maintenance activities that result in 
the annual loss of no more than \1/4\-mile of riparian shrub habitat 
within any 1 linear mile of ditch within any calendar year. Riparian 
shrub habitat is defined as vegetation dominated by plants that 
generally have more than one woody stem that measures less than 2 
inches in diameter and are typically less than 10 feet in height at 
maturity, put on new growth each season, and have a bushy appearance. 
Examples of shrubs include, but are not limited to, willow, snowberry, 
wild plum, and alder.
    2. Included in No. 1 above is the burning of ditches that results 
in the annual loss of no more than \1/4\-mile of riparian shrub habitat 
within any 1 linear mile of ditch within any calendar year and is 
conducted out-of-season (see ``Best Management Practices'').
    The following Best Management Practices shall be implemented in 
order for the exemptions to apply:
    1. Persons engaged in ditch maintenance activities shall, to the 
maximum extent practicable, avoid impacts to shrub vegetation. For 
example, if it is possible to access the ditch for maintenance or 
repair activities from an area containing no shrubs, then damage to 
adjacent shrub vegetation shall be avoided.
    2. Persons engaged in placing or sidecasting (a) silt and debris 
removed during ditch cleaning, (b) vegetation or mulch from mowing/
cutting, or (c) other material from ditch maintenance shall, to the 
maximum extent practicable, avoid shrub habitat, and at no time disturb 
more than \1/4\-mile of riparian shrub habitat within any 1 linear mile 
of ditch within any calendar year.
    3. To the maximum extent practicable, all ditch maintenance should 
be carried out during the Preble's hibernation season, November through 
April. Any maintenance activities carried out during the Preble's 
active season, May through October, should be conducted during daylight 
hours only.

[[Page 61535]]

    This exemption includes maintenance of roads used to access ditches 
and related infrastructure. These maintenance activities are limited to 
the historic footprint associated with the infrastructure and access 
roads. Examples of activities that are covered by the exemption include 
the following activities, each limited to the destruction of 1/4-mile 
of riparian shrub habitat within 1 linear mile of ditch within any 
calendar year:
    1. Clearing trash, debris, vegetation, and silt by either physical, 
mechanical, chemical, or burning procedures--Examples include mowing or 
cutting grasses and weeds, removal of silt and debris from the ditch 
below the high-water line, and control of shrubs that could result in 
ditch leakage.
    2. Reconstruction, reinforcement, repair, or replacement of 
existing infrastructure with components of substantially similar 
materials and design--Examples include replacement of a damaged 
headgate, grading or filling areas susceptible to ditch failure, 
patchwork on a concrete ditch liner, or replacement of failed culvert 
with a new culvert of the same design and material.
    The following maintenance activities are not exempted from the take 
provisions of section 9 of the Act:
    1. Replacement of existing infrastructure with components of 
substantially different materials and design--such as replacing an 
existing gravel access road with a permanently paved road.
    2. Construction of new infrastructure or the movement of existing 
infrastructure to new locations--Examples include redrilling a well in 
a new location, building a new access road, change in the location of a 
diversion structure or installation of new diversion works where none 
previously existed.
    We proposed the two additional exemptions contained in this rule in 
the August 30, 2001, proposed amendment in response to comments 
received during the public review of the December 3, 1998, 4(d) rule 
proposal. Water rights owners argued that the lack of an exemption for 
periodic maintenance of existing ditches conflicted with the exemption 
for existing uses of perfected water rights, because ditch maintenance 
is an intrinsic part of exercising a perfected water right. In 
addition, respondents noted that ditch maintenance is required by State 
law in both Wyoming and Colorado. Failure to adequately maintain water 
conveyance structures can result in fines, penalties, and liability for 
damage to property caused by ditch failures. Finally, respondents noted 
that prohibition of ditch maintenance could subsequently result in 
curtailment or cessation of water diversions. This situation in turn 
could result in forfeiture or abandonment of water rights under State 
    By exempting limited periodic maintenance activities on existing 
water supply ditches, this amendment facilitates consistency among the 
rangewide exemptions. Where appropriate, permits can be issued under 
section 10 of the Act to allow incidental take of Preble's for 
activities not exempted through this rule.
    Several respondents requested rangewide exemptions for maintenance 
of other types of water-related infrastructure. The suggested 
exemptions included: maintenance of (1) sewer lines; (2) wastewater 
treatment and conveyance facilities; and (3) storm water collection, 
conveyance, and treatment facilities.
    We elected not to exempt these types of water-related 
infrastructure. These systems typically incorporate extensive pipeline 
systems that either cross Preble's habitat, or are installed along 
stream corridors that provide Preble's habitat. Activities to maintain 
this infrastructure can create large areas of surface disturbance 
within or near Preble's habitat that could temporarily or permanently 
prevent occupation of habitat or migration from one Preble's habitat 
area to an adjacent Preble's habitat area.
    Owners and operators of stormwater and wastewater systems should 
contact us when their maintenance activities have the potential to 
result in take of Preble's. We will work with wastewater and stormwater 
system owners and operators to develop maintenance procedures that 
minimize and mitigate take of Preble's when maintenance activities 
occur within Preble's habitat.

Required Determinations

    We prepared a Record of Compliance for the May 22, 2001, final rule 
that exempted from the take prohibitions listed in section 9 of the 
Act, the four activities of rodent control, ongoing agricultural 
activities, landscaping, and ongoing use of existing water rights. A 
Record of Compliance certifies that a rulemaking action complies with 
the various statutory, Executive Order, and Department Manual 
requirements applicable to rulemaking. Amendment of the May 22, 2001, 
rule to include the two additional exemptions adopted herein, noxious 
weed control and ongoing ditch maintenance, does not add any 
significant elements to this Record of Compliance.
    Without this amendment, noxious weed control or ongoing ditch 
maintenance activities that may result in take of Preble's would not be 
exempted from the take prohibitions. This rule allows certain affected 
landowners to engage in certain noxious weed control and ditch 
maintenance activities that may result in take of Preble's. Without 
this rule, anyone engaging in those activities would need to seek an 
authorization from us through an incidental take permit under section 
10(a)(1)(b) or an incidental take statement under section 7(a)(2) of 
the Act. This process takes time and can involve an economic cost. The 
rule allows these landowners to avoid the costs associated with 
abstaining from conducting these activities or with seeking an 
incidental take permit from us. These economic benefits, while 
important, do not rise to the level of ``significant'' under the 
following required determinations.

Regulatory Planning and Review

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

[[Page 61536]]

ongoing agricultural activities, landscaping, and activities associated 
with water rights. This rule simply adds exempted activities to that 

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

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


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


    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. Currently, the State of Colorado, the Service, 
and various local governmental entities in Colorado and Wyoming are 
working together to develop plans to conserve the Preble's and its 
habitat. This collaborative approach is expected to result in the 
development of Habitat Conservation Plans that should provide the 
foundation upon which to build a lasting, effective, and efficient 
conservation program for the Preble's. Because we anticipate beneficial 
impacts of such collaborative conservation efforts, this rule is 
applicable only until the end of the 36-month timeframe of the May 22, 
2001, special rule.

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

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

Executive Order 13211

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, the Service amends 50 CFR part 17, as set forth below:


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

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

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

Sec.  17.40  Special rules--mammals.

* * * * *
    (1) * * *
    (2) * * *
    (vi) Noxious weed control. Preble's meadow jumping mice may be 
taken incidental to noxious weed control that is conducted in 
accordance with:
    (A) Federal law, including Environmental Protection Agency label 
    (B) Applicable State laws for noxious weed control;
    (C) Applicable county bulletins;
    (D) Herbicide application guidelines as prescribed by herbicide 
manufacturers; and
    (E) Any future revisions to the authorities listed in paragraphs 
(1)(2)(vi)(A) through (D) of this section that apply to the herbicides 
proposed for use within the species' range.
    (vii) Ditch maintenance activities. Preble's meadow jumping mice 
may be taken incidental to normal and customary ditch maintenance 
activities only if the activities:
    (A) Result in the annual loss of no more than \1/4\ mile of 
riparian shrub habitat per linear mile of ditch, including burning of 
ditches that results in the annual loss of no more than \1/4\

[[Page 61537]]

mile of riparian shrub habitat per linear mile of ditch.
    (B) Are performed within the historic footprint of the surface 
disturbance associated with ditches and related infrastructure, and
    (C) Follow the Best Management Practices described in paragraphs 
(l)(2)(vii)(C)(1) through (3) of this section.
    (1) Persons engaged in ditch maintenance activities shall avoid, to 
the maximum extent practicable, impacts to shrub vegetation. For 
example, if accessing the ditch for maintenance or repair activities 
from an area containing no shrubs is possible, then damage to adjacent 
shrub vegetation shall be avoided.
    (2) Persons engaged in placement or sidecasting of silt and debris 
removed during ditch cleaning, vegetation or mulch from mowing or 
cutting, and other material from ditch maintenance shall, to the 
maximum extent practicable, avoid shrub habitat and at no time disturb 
more than \1/4\-mile of riparian shrub habitat per linear mile of ditch 
within any calendar year.
    (3) To the maximum extent practicable, all ditch maintenance 
activities should be carried out during the Preble's hibernation 
season, November through April.
    (D) All ditch maintenance activities carried out during the 
Preble's active season, May through October, should be conducted during 
daylight hours only.
    (E) Ditch maintenance activities that would result in permanent or 
long-term loss of potential habitat that would not be considered normal 
or customary include replacement of existing infrastructure with 
components of substantially different materials and design, such as 
replacement of open ditches with pipeline or concrete-lined ditches, 
replacement of an existing gravel access road with a permanently paved 
road, or replacement of an earthen diversion structure with a rip-rap 
and concrete structure, and construction of new infrastructure or the 
movement of existing infrastructure to new locations, such as 
realignment of a ditch, building a new access road, or installation of 
new diversion works where none previously existed.
* * * * *

    Dated: June 21, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-24633 Filed 9-30-02; 8:45 am]