[Federal Register: September 24, 2004 (Volume 69, Number 185)]

[Proposed Rules]               

[Page 57250-57253]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ07


Endangered and Threatened Wildlife and Plants; Designation of 

Critical Habitat for Gaura neomexicana ssp. coloradensis (Colorado 

Butterfly Plant)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; extension of comment period and notice of 

availability of draft economic analysis and draft environmental 



SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the 

availability of a draft economic analysis and draft environmental 

assessment for the proposed designation of critical habitat for Gaura 

neomexicana ssp. coloradensis (hereafter referred to as ``Colorado 

butterfly plant'') under the Endangered Species Act of 1973, as amended 

(Act). In addition, we announce the extension of the comment period on 

the proposed rule to designate critical habitat for the Colorado 

butterfly plant.

DATES: We will accept all comments received on or before October 25, 

2004. Any comments that we receive after the closing date may not be 

considered in the final decision on this proposal.

ADDRESSES: If you wish to comment, you may submit your comments and 

materials concerning this proposed rule, the draft economic analysis, 

and the draft environmental assessment by any one of several methods:

    (1) You may submit written comments and information to the Field 

Supervisor, U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 

Airport Parkway, Cheyenne, Wyoming 82001, or by facsimile (307) 772-


    (2) You may hand-deliver written comments to our office, at the 

address given above.

    (3) You may send comments by electronic mail (e-mail) to 

fw6_cobutterflyplant@fws.gov. Please see the Public Comments Solicited 

section below for file format and other information about electronic 

filing. In the event that our Internet connection is not functional, 

please submit your comments by the alternate methods mentioned above.

    Comments and materials received, as well as supporting 

documentation used in preparation of the proposed critical habitat 

rule, will be available for public inspection, by appointment, during 

normal business hours at the above address. You may obtain copies of 

the draft economic analysis and draft environmental assessment for the 

Colorado butterfly plant by contacting the Wyoming Field Office at the 

above address. The draft economic analysis, draft environmental 

assessment, and the proposed rule for critical habitat designation also 

are available on the Internet at http://www.r6.fws.gov/species/plants/cobutterfly/.

 In the event that our Internet connection is not 

functional, please obtain copies of documents directly from the Wyoming 

Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, Field Supervisor 

(telephone (307) 772-2374; facsimile (307) 772-2358), Wyoming Field 

Office, at the address listed above.


Public Comments Solicited

    We intend any final action resulting from the proposed rule to be 

as accurate and as effective as possible. Therefore, we solicit 

comments or suggestions from the public, other concerned governmental 

agencies, the scientific

[[Page 57251]]

community, industry, or any other interested party concerning the 

economic analysis, the environmental analysis, or the proposed rule. We 

particularly seek comments concerning:

    (1) The reasons why any habitat should or should not be determined 

to be critical habitat as provided by section 4 of the Act, including 

whether the benefits of excluding outweigh benefits of including any 

area as critical habitat;

    (2) Specific information on the amount and distribution of Colorado 

butterfly plant habitat and what habitat is essential to the 

conservation of this species and why;

    (3) Land use designations and current or planned activities in the 

subject area and their possible impacts on proposed critical habitat;

    (4) Any foreseeable economic or other impacts resulting from the 

proposed designation of critical habitat, in particular, any impacts on 

small entities or families;

    (5) Whether the economic analysis identifies all State and local 

costs. If not, what costs are overlooked;

    (6) Whether the economic analysis makes appropriate assumptions 

regarding current practices and likely regulatory changes imposed as a 

result of the designation of critical habitat;

    (7) Whether the economic analysis correctly assesses the effect on 

regional costs associated with land use controls that derive from the 


    (8) Whether the designation will result in disproportionate 

economic impacts to specific areas that should be evaluated for 

possible exclusion from the final designation;

    (9) Whether the economic analysis appropriately identifies all 

costs that could result from the designation;

    (10) Whether the environmental analysis accurately reports the 

environmental impact of designating critical habitat; and

    (11) Whether our approach to critical habitat designation could be 

improved or modified in any way to provide for greater public 

participation and understanding, or to assist us in accommodating 

public concern and comments.

    All comments and information submitted during the previous comment 

period on the proposed rule need not be resubmitted. If you wish to 

comment, you may submit your comments and materials concerning this 

rule by any one of several methods (see ADDRESSES section). Please 

submit Internet comments to fw6_cobutterflyplant@fws.gov and include 

``Attn: Colorado Butterfly Plant Critical Habitat'' in your e-mail 

subject header, and your name and return address in the body of your 

message. If you do not receive a confirmation from the system that we 

have received your Internet message, contact us directly by calling our 

Wyoming Field Office (see FOR FURTHER INFORMATION CONTACT section).

    Our practice is to make comments, including names and home 

addresses of respondents, available to the public. Individual 

respondents may request that we withhold their home addresses from the 

administrative record, which we will honor to the extent allowable by 

law. There also may be circumstances in which we would withhold from 

the administrative record a respondent's identity, as allowable by law. 

If you wish us to withhold your name and/or address, you must state 

this prominently at the beginning of your comment. However, we will not 

consider anonymous comments. We will make all submissions from 

organizations or businesses, and from individuals identifying 

themselves as representatives or officials of organizations or 

businesses, available for public inspection in their entirety. Comments 

and materials received will be available for public inspection, by 

appointment, during normal business hours at the above address.


    Colorado butterfly plant is a member of the evening primrose family 

and is a short-lived perennial herb with one to several reddish, 

pubescent stems. It is a regional endemic restricted to Laramie and 

Platte Counties in Wyoming, western Kimball County in Nebraska, and 

Weld County in Colorado. Of the known populations of the Colorado 

butterfly plant, the vast majority occur on private lands managed 

primarily for agriculture and livestock. Haying and mowing at certain 

times of the year, water development, land conversion for cultivation, 

competition with exotic plants, non-selective use of herbicides, and 

loss of habitat to urban development are the main threats to these 

populations (Mountain West Environmental Services 1985, Marriott 1987, 

Fertig 1994).

    On October 18, 2000, the Colorado butterfly plant was designated as 

threatened throughout its entire range under the Act (65 FR 62302). On 

October 4, 2000, the Center for Biological Diversity and the 

Biodiversity Legal Foundation filed a complaint in the Federal District 

Court for the District of Colorado concerning our failure to designate 

critical habitat for the Colorado butterfly plant (Center for 

Biological Diversity, et al. v. Norton, et al. (Civ. Action No. 00-D-

1980)). On March 19, 2001, the Court approved a settlement agreement 

requiring us to submit a final critical habitat designation for the 

Colorado butterfly plant to the Federal Register on or before December 

31, 2004. For more information on previous Federal actions concerning 

the Colorado butterfly plant, refer to the final listing rule (65 FR 

62302). On August 6, 2004 (69 FR 47834), we published a proposed 

critical habitat designation for the Colorado butterfly plant.

    Critical habitat identifies specific areas, both occupied and 

unoccupied, that are essential to the conservation of a listed species 

and that may require special management considerations or protection. 

If the proposed rule is made final, section 7 of the Act will prohibit 

destruction or adverse modification of critical habitat by any activity 

funded, authorized, or carried out by any Federal agency. Federal 

agencies proposing actions affecting areas designated as critical 

habitat must consult with us on the effects of their proposed actions, 

pursuant to section 7(a)(2) of the Act.

    Section 4 of the Act requires that we consider economic impacts, 

impacts to National security, and other relevant impacts prior to 

making a final decision on what areas to designate as critical habitat. 

We have prepared a draft economic analysis for the proposal to 

designate certain areas as critical habitat for the Colorado butterfly 

plant. This analysis considers the potential economic effects of our 

proposed designation. It also considers the economic effects of 

protective measures taken as a result of listing the species under the 

Act, and other Federal, State, and local laws that aid habitat 

conservation in areas proposed for designation.

    The majority of these areas occur on privately owned land. We know 

of no Federal, tribal, or military lands within proposed critical 

habitat. A small portion of land within Unit 7 is owned by the City of 

Cheyenne, Wyoming, and Unit 8 is owned by the City of Fort Collins, 

Colorado. The economic analysis and environmental assessment address 

the impacts of Colorado butterfly plant conservation efforts on 

activities occurring on lands proposed for designation. The economic 

analysis measures lost economic efficiency associated with conservation 

agreements, oil and gas development, real estate development, 

agriculture, road and bridge construction and maintenance projects, as 

well as other State law requirements, uncertainty, and project delay.

[[Page 57252]]

    There is a great deal of uncertainty in estimating the impact of 

Colorado butterfly plant conservation activities in the future. For 

some activities the analysis estimates an upper-bound cost estimate, 

for others a conservative approach is taken to reach a best estimate. 

The implicit lower-bound cost estimate predicts very low impact.

    Total efficiency costs (e.g., lost economic opportunities 

associated with restrictions on land use) for the upper-bound scenario 

of the preferred alternative are estimated to be $286,700 from 2005 to 

2024. The efficiency costs for the lower-bound scenario of the 

preferred alternative are estimated to be $7,000 from 2005 to 2024. In 

both cases, the Service is estimated to experience the highest cost 

overall, followed by agriculture and natural gas pipeline construction 


    The environmental analysis discusses four alternatives, including 

the ``no action'' alternative, and analyzes the following ``impact 

areas''--physical environment; fish, wildlife, and plants; human 

environment; archaeological and cultural resources; environmental 

justice, and cumulative effects. The environmental analysis refers to 

and incorporates the economic analysis.

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 

significant rule because it may raise novel legal and policy issues. 

However, it is not anticipated to have an annual effect on the economy 

of $100 million or more or affect the economy in a material way. Due to 

the tight timeline for publication in the Federal Register, the Office 

of Management and Budget (OMB) has not formally reviewed this rule.

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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 

as amended by the Small Business Regulatory Enforcement Fairness Act 

(SBREFA) of 1996), whenever an agency is required to publish a notice 

of rulemaking for any proposed or final rule, it must prepare and make 

available for public comment a regulatory flexibility analysis that 

describes the effect of the rule on small entities. However, no 

regulatory flexibility analysis is required if the head of an agency 

certifies that the rule will not have a significant economic impact on 

a substantial number of small entities.

    According to the Small Business Administration (SBA), 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 this 

proposed rule as well as 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 proposed rule 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, oil and gas production, timber harvesting). We considered 

each industry individually to determine if certification is 

appropriate. In estimating the numbers of small entities potentially 

affected, we also considered whether their activities have any Federal 

involvement; some kinds of activities are unlikely to have any Federal 

involvement and so will not be affected by the designation of critical 

habitat. Designation of critical habitat affects only activities 

conducted, funded, permitted or authorized by Federal agencies; non-

Federal activities are not affected by the designation.

    If this critical habitat designation is made final, Federal 

agencies must consult with us if their activities may affect designated 

critical habitat. Consultations to avoid the destruction or adverse 

modification of critical habitat would be incorporated into the 

existing consultation process. In areas where occupancy by Colorado 

butterfly plant is unknown, the designation of critical habitat could 

trigger additional review of Federal agencies pursuant to section 7 of 

the Act and may result in additional requirements on Federal activities 

to avoid destruction or adverse modification of critical habitat.

    In reviewing past formal consultations under section 7 of the Act 

and the activities they involved in the context of the proposed 

critical habitat, we do not believe the outcomes would have been 

different in areas designated as critical habitat.

    An analysis of the effects of the voluntary conservation agreements 

for Colorado butterfly plant on small entities is conducted pursuant to 

the RFA as amended by the SBREFA in 1996, while the energy analysis is 

required by Executive Order No. 13211.

    The draft economic analysis considers the extent to which the 

analytic results reflect impacts to small businesses. The small 

business analysis presented in this section is based on information 

gathered from the SBA, U.S. Census Bureau, U.S. Department of 

Agriculture, and Dun and Bradstreet, and comparisons with the results 

of the economic analysis. The following summarizes the sources of 

potential future impacts on small businesses attributable specifically 

to the rulemaking.

    Based on the draft economic analysis results, activities undertaken 

by small businesses that are potentially affected by the rulemaking 

include agricultural production. The SBA small business size standard 

for farming and ranching is annual sales of $750,000. Recent county-

level farm sales data from the National Agricultural Statistics Service 

2002 Agriculture Census was used to determine the number of small agri-

businesses operating within the proposed critical habitat designation. 

The 2002 Agriculture Census data indicate that 95 percent of the 

farmers operating within the five counties encompassed by the proposed 

designation have annual sales less than $500,000. In Laramie County, 

Wyoming, where more than 85 percent of the critical habitat is located, 

736 of 755 farmers reported annual farm sales less than $500,000. These 

data indicate that ranching operations in the area surrounding the 

proposed designation tend to be small. For the purpose of this small 

business analysis, because of the high percentage of farming operations 

with annual sales below $500,000, all agriculture operations forecast 

to be impacted by the proposed designation of critical habitat for the 

Colorado butterfly plant are considered small.

    Assuming all landowners within the proposed designation participate 

in the voluntary conservation agreement program with the Service, up to 

37 agriculture operations could be impacted by conservation measures 

for the Colorado butterfly plant. Assuming an operation is required to 

implement all of the activities recommended to protect the species and 

its habitat, the annualized cost of the conservation measures to the 

operator ($263) represents 0.1 of a percent of the average

[[Page 57253]]

annual farm's sales in the five counties surrounding the proposed 

designation. The annualized impact ranges between 0.1 of a percent of 

an average farm's sales in Weld County in Colorado, to 0.4 of a percent 

in Larimer County in Colorado, and Kimball County in Nebraska. In 

Laramie County, Wyoming, the annualized impact represents 0.3 of a 

percent of the average farmer's annual sales. Note that, we do not know 

the finances of the individual people that may be affected. Thus, the 

draft economic analysis used averaged industry data (see Exhibit 4-10) 

to estimate costs of ranching operations, and this table reflects the 

variability of this data. It is important to note that these costs will 

only be incurred by ranching operations to the extent that they agree 

to participate in the voluntary conservation agreement program with the 


    In summary, we have considered whether this proposed rule would 

result in a significant economic impact on a substantial number of 

small entities, and we have concluded that it would not. We have no 

indication that the types of activities we review under section 7 of 

the Act will change significantly in the future. Therefore, we are 

certifying that this proposed designation of critical habitat for the 

Colorado butterfly plant is not expected to have a significant adverse 

impact on a substantial number of small entities, and an initial 

regulatory flexibility analysis is not required.

    The preceding discussion is based on information regarding 

potential economic impacts that is currently available to us. This 

assessment of economic effect may be modified prior to publication of a 

final rule due to public comments received during the public comment 

period. This analysis is for the purposes of compliance with the 

Regulatory Flexibility Act and does not reflect our position on the 

type of economic analysis required by New Mexico Cattle Growers Assn. 

v. U.S. Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).


    The primary author of this notice is the Tyler Abbott, Wyoming Fish 

and Wildlife Office staff (see ADDRESSES section).

    The authority for this action is the Endangered Species Act of 1973 

(16 U.S.C. 1531 et seq.).

    Dated: September 17, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-21480 Filed 9-23-04; 8:45 am]