[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Proposed Rules]
[Pages 31906-31920]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13684]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2011-0030; 92220-1113-0000-C6]
RIN 1018-AW02
Endangered and Threatened Wildlife and Plants; Revising the
Special Rule for the Utah Prairie Dog
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: Under the Endangered Species Act of 1973, as amended (ESA), we
(the U.S. Fish and Wildlife Service (Service/USFWS)) are proposing to
revise our special regulations for the conservation of the Utah prairie
dog. We are proposing to revise the existing limits on take, and we
also propose a new incidental take exemption for otherwise legal
activities associated with standard agricultural practices. All other
provisions of the special rule not relating to these amendments would
remain unchanged. We seek comment from the public and other agencies,
and welcome suggestions regarding the scope and implementation of the
special rule. After the closing of the comment period, a draft
environmental assessment will be prepared on our proposed actions.
DATES: We will accept comments received or postmarked on or before
August 1, 2011. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES), the deadline for submitting an
electronic comment is Eastern Standard Time on this date. We must
receive requests for public hearings, in writing, at the address shown
in the FOR FURTHER INFORMATION CONTACT section by July 18, 2011.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the Docket number for
this proposed rule, which is FWS-R6-ES-2011-0030. Check the box that
reads ``Open for Comment/Submission,'' and then click the Search
button. You should then see an icon that reads ``Submit a Comment.''
Please ensure that you have found the correct rulemaking before
submitting your comment.
U.S. mail or hand-delivery: Public Comments Processing,
Attention: FWS-R6-ES-2011-0030; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive,
MS 2042-PDM; Arlington, VA 22203.
We will post all information we receive on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Request for Information
section below for more details).
FOR FURTHER INFORMATION CONTACT: For information on Utah prairie dogs
see: http://www.fws.gov/mountain-prairie/species/mammals/UTprairiedog
or http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A04A, or contact Larry Crist, Field
Supervisor, Utah Ecological Services Field Office, 2369 West Orton
Circle, Suite 50, West Valley City, UT 84119 (telephone 801-975-3330;
facsimile 801-975-3331). Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: Under the ESA, we are proposing to revise
our existing special rule for the conservation of the Utah prairie dog
in the Code of Federal Regulations (CFR) at 50 CFR 17.40(g). The
current special rule, administered by the Utah Division of Wildlife
Resources (UDWR), was established in 1991. Since that time, we have
evaluated the take authorized by this rule and the methods used to
implement it.
We are considering the available information and proposing to
revise established limits to permitted take administered by the UDWR.
We propose to revise the regulations for where take is allowed to
occur, the amount of take that may be permitted, and methods of take
that may be permitted. This proposed amendment is largely consistent
with past and current practices and permitting as administered by the
UDWR under the current special rule. Utah prairie dog populations have
remained stable to increasing throughout implementation of the current
special rule implemented under the UDWR permit system. We also propose
a new incidental take exemption for otherwise legal activities
associated with standard agricultural practices.
We seek comment on our proposed rule from the public and other
agencies, and welcome suggestions regarding the scope and
implementation of the special rule. After the closing of the comment
period for this proposed rule, a draft environmental assessment will be
prepared on our proposed action.
Request for Public Comments
You may submit your comments and materials concerning this proposed
rule
[[Page 31907]]
by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment--including your personal
identifying information--will be posted on the Web site. If you submit
a hardcopy comment that includes personal identifying information, you
may request at the top of your document that we withhold this
information from public review. However, we cannot guarantee that we
will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.
Peer Review
We will seek independent review of the science in this proposed
rule to ensure that our final rule is based on scientifically sound
data, assumptions, and analyses. We will initiate the peer review
immediately following publication of this proposed rule in the Federal
Register.
We will take into consideration all comments, including peer review
comments and any additional information we receive on this proposed
rule, during our preparation of a final rulemaking. Accordingly, the
final decision may differ from this proposal.
Public Hearings
Requests for public hearings must be received no later than the
date given in DATES. Such requests must be made in writing and be
addressed to the Field Supervisor at the address in the FOR FURTHER
INFORMATION CONTACT section above.
Special Rules Under ESA Section 4(d)
A 4(d) rule functions by prescribing those regulations that are
necessary and advisable to conserve a threatened species. The Service
has elected to extend all prohibitions under section 9 of the Act to
threatened species through a ``blanket 4(d) rule'' unless otherwise
specified in a separate 4(d) rule. Because the blanket rule effectively
extends all available prohibitions to threatened species, separate 4(d)
rules could be viewed as ``exempting,'' ``allowing,'' or ``permitting''
acts that would otherwise be prohibited. Instead, it is more accurate
to say that a species-specific 4(d) rule supersedes the blanket 4(d)
rule for the species at issue, and extends a more tailored set of
prohibitions to the species. As a result, there may be some
prohibitions that apply to other threatened species that do not apply
to the threatened species at issue. In the interest of providing a
clear rule with simple language, we will be using ``exempt'' and
``allow'' in order to convey that the 4(d) rule will not prohibit
certain actions. It is important to note that this use of language is
for clarity only. The 4(d) rule will still function by prescribing the
regulations necessary and advisable to conserve the Utah Prairie Dog.
Previous Federal Actions
The Utah prairie dog (Cynomys parvidens) was listed as an
endangered species on June 4, 1973 (38 FR 14678), pursuant to the
Endangered Species Conservation Act of 1969. On January 4, 1974, this
listing was incorporated into the ESA of 1973, as amended (39 FR 1158;
see page 1171).
On May 29, 1984, the Service reclassified the Utah prairie dog from
endangered to threatened (49 FR 22330) and developed a special rule
under section 4(d) of the ESA that allowed regulated take of up to
5,000 animals annually on private lands in Iron County, Utah. On June
14, 1991, we amended the special rule to allow regulated take of up to
6,000 animals annually on private lands throughout the species' range
(56 FR 27438).
On February 3, 2003, we received a petition to reclassify the Utah
prairie dog from threatened to endangered (Forest Guardians 2003,
entire). The petition was based in part on threats to the species
associated with the current 4(d) special rule (Forest Guardians 2003,
pp. 104-108). On February 21, 2007 (72 FR 7843), we found that the
petition did not provide substantial scientific or commercial
information indicating that reclassification may be warranted. This
decision was challenged by WildEarth Guardians in litigation (described
below).
On February 4, 2005, we received a petition under the
Administrative Procedure Act (APA) requesting that we issue a rule to
restrict the translocation of Utah prairie dogs and to terminate the
special 4(d) rule allowing regulated take of Utah prairie dogs (Forest
Guardians 2005, entire). On April 6, 2005, we acknowledged receipt of
this petition. On February 23, 2009, we issued a final decision in
which we denied the petitioned action (USFWS 2009, entire). However,
this response acknowledged that we had initiated a process to amend the
special 4(d) rule and that we anticipated that a proposed amended
special 4(d) rule would soon be published in the Federal Register for
public comment (USFWS 2009, p. 1). This decision was also challenged by
WildEarth Guardians.
On September 28, 2010, United States District Court for the
District of Columbia vacated and remanded our February 21, 2007 (72 FR
7843), not-substantial petition finding back to us for further
consideration (WildEarth Guardians v. Salazar, Case 1:08-cv-01596-CKK
(D.D.C.), 2010). In the same order, the court upheld our February 23,
2009, decision on the APA petition. This ruling noted that although the
level of take allowed in the 1991 special rule may not be biologically
sound, some permitted take is advantageous to the Utah prairie dogs'
recovery. The court specifically noted that controlled take can
stimulate population growth, reduce high-density populations prone to
decimation by plague, and, consequently, curb the species' boom-and-
bust population cycle. The court declined to weigh in on the precise
level of take that should be permitted, concluding that this is a
matter squarely within the Service's technical and scientific
expertise.
Background
Species Description
Prairie dogs belong to the Sciuridae family of rodents, which also
includes squirrels, chipmunks, and marmots. There are five species of
prairie dogs, all of which are native to North America, and all of
which have non-overlapping geographic ranges (Hoogland 2003, p. 232).
The Utah prairie dog is the smallest species of prairie dog, with
individuals that are typically 250 to 400 millimeters (mm) (10 to 16
inches (in.)) long (Hoogland 1995, p. 8)). Weight varies from 300 to
900 grams (g) (0.66 to 2.0 pounds (lb)) in the spring and 500 to 1,500
g (1.1 to 3.3 lb) in the late summer and early fall (Hoogland 1995, p.
8). Utah prairie dogs range in color from cinnamon to clay. The Utah
prairie dog is distinguished from other prairie dog species by a
relatively short (30 to 70 mm (1.2 to 2.8 in.) white- or gray-tipped
tail (Pizzimenti and Collier 1975, p. 1; Hoogland 2003, p. 232) and a
black ``eyebrow'' above each eye. They are closely related to the
white-tailed prairie dog (Hoogland 1995, p. 8).
Life History
Utah prairie dogs are hibernators and spend 4 to 6 months
underground each year during the harsh winter months, although they are
seen above ground during mild weather (Hoogland 1995, pp.18-19). Adult
males cease surface activity during August and September, and females
follow suit several weeks later. Juvenile prairie dogs remain above
ground 1 to 2 months longer than adults and usually go into hibernation
by late November. Emergence from hibernation usually occurs in late
February or early March (Hoogland 2003, p. 235).
[[Page 31908]]
Mating begins 2 to 5 days after the females emerge from
hibernation, and can continue through early April (Hoogland 2003, p.
236). Female Utah prairie dogs come into estrus (period of greatest
female reproductive responsiveness, usually coinciding with ovulation)
and are sexually receptive for several hours for only 1 day during the
breeding season (Hoogland 2003, p. 235). However, on average, 97
percent of adult female Utah prairie dogs are in breeding condition
each year and do successfully produce a litter (Mackley 1988, pp. 1,
9).
The young are born after a 28-to-30-day gestation period, in April
or May (Hoogland 2003, p. 236). Litters range in size from one to seven
pups; mean litter size is 3.88 pups; litter sizes vary directly with
maternal body mass (Mackley 1988, pp. 8-9; Hoogland 2001, p. 923).
Young prairie dogs depend almost entirely on nursing while in their
burrow (Hoogland 2003, p. 236). The young emerge above ground by early
to mid-June, and by that time they primarily forage on their own
(Hoogland 2003, p. 236). Because of the relatively large litter sizes,
the observed summer population numbers of prairie dogs are much greater
than the number of animals seen above ground in the spring.
Prairie dog pups attain adult size by October and reach sexual
maturity at the age of 1 year (Wright-Smith 1978, p. 9). Less than 50
percent of Utah prairie dogs survive to breeding age (Hoogland 2001, p.
919). Male Utah prairie dogs frequently cannibalize juveniles, which
may eliminate 20 percent of the litter (Hoogland 2003, p. 238). After
the first year, female survivorship is higher than male survivorship,
though still low for both sexes. Only about 20 percent of females and
less than 10 percent of males survive to age 4 (Hoogland 2001, Figures
1 and 2, pp. 919-920). Utah prairie dogs rarely live beyond 5 years of
age (Hoogland 2001, p. 919). The sex ratio of juveniles at birth is
1:1, but the adult sex ratio is skewed towards females, with adult
female: Adult male sex ratios varying from 1.8:1 (Mackley 1988, pp. 1,
6-7) to 2:1 (Wright-Smith 1978, p. 8)
Natal dispersal (movement of first-year animals away from their
area of birth) and breeding dispersal (movement of a sexually mature
individual away from the areas where it copulated) are comprised mostly
of male prairie dogs. Thus, individual male prairie dogs have a high
mortality rate through predation. Young male Utah prairie dogs disperse
in the late summer, with average dispersal events of 0.56 kilometers
(km) (0.35 mile (mi)) and long distance dispersal events of up to 1.7
km (1.1 mi) (Mackley 1988, p. 10). Most dispersers move to adjacent
territories (Hoogland 2003, p. 239).
Utah prairie dogs are organized into social groups called clans,
consisting of an adult male, several adult females, and their offspring
(Wright-Smith 1978, p. 38; Hoogland 2001, p. 918). Clans maintain
geographic territorial boundaries, which only the young regularly
cross, although all animals use common feeding grounds.
Major predators include coyotes (Canis latrans), badgers (Taxidea
taxis), long-tailed weasels (Mustela frenata), various raptor species
(Buteo spp., Aquila chrysaetos), and snakes (Crotalus spp., Pituophus
spp.) (Hoogland 2001, p. 922). In established colonies, predators
probably do not exert a controlling influence on numbers of prairie
dogs (Collier and Spillett 1972, p. 36).
Habitat Requirements and Food Habits
Utah prairie dogs occur in semiarid shrub-steppe and grassland
habitats (McDonald 1993, p. 4; Roberts et al. 2000, p. 2; Bonzo and Day
2003, p. 1). Within these habitats, they prefer swale-type formations
where moist herbaceous vegetation is available (Collier 1975, p. 43;
Crocker-Bedford and Spillett 1981, p. 24). Plentiful high-quality food
found in swales enables prairie dogs to attain a large body mass, thus
enhancing survival and increasing litter sizes and juvenile growth
rates (Hoogland 2001, p. 923).
Soil characteristics are an important factor in the location of
Utah prairie dog colonies (Collier 1975, p. 53). A well-drained area is
necessary for home burrows. The soil should be deep enough to allow
burrowing to depths sufficient to provide protection from predators and
insulation from environmental and temperature extremes. Prairie dogs
must be able to inhabit a burrow system 1 meter (m) (3.3 feet (ft))
underground without becoming wet.
Prairie dogs are predominantly herbivores, though they also eat
insects (Crocker-Bedford and Spillett 1981, p. 8; Hoogland 2003, p.
238). Grasses are the staple of their annual diet (Crocker-Bedford and
Spillett 1981, p. 8; Hasenyager 1984, p. 27), but other plants are
selected during different times of the year. Utah prairie dogs only
select shrubs when they are in flower, and then only eat the flowers
(Crocker-Bedford and Spillet 1981, p. 8). Forbs are consumed in the
spring. Forbs also may be crucial for the survival of prairie dogs
during drought (Collier 1975, p. 48).
Utah prairie dogs prefer areas with deep, productive soils. These
are the same areas preferred by agricultural producers. Agricultural
tilling practices create unusually deep, soft soils optimum for
burrowing; irrigation increases vegetative productivity; and plantings
of favored moist forb species (such as alfalfa) likely make these areas
more productive than they were historically (Collier 1975, pp. 42-43).
Additionally, Utah prairie dogs grow faster and attain larger body
weights (Crocker-Bedford and Spillett 1981, p. 1), and thus have higher
overwinter survival, in alfalfa crops versus native habitats (Crocker-
Bedford and Spillett 1981, p. 16). Reproduction and weaning of young
also may be more successful in agricultural areas that provide abundant
forage resources that are otherwise unavailable in drier native
habitats (Crocker-Bedford and Spillett 1981, p. 17). Similarly,
colonies in agricultural areas expand more rapidly than those in native
habitats (Crocker-Bedford and Spillett 1981, p. 16). Finally, predator
mortality is generally low for Utah prairie dogs in agricultural fields
(see Life History), because farmers control badgers and coyotes in
these areas (Crocker-Bedford and Spillett 1981, p. 17).
While we believe that the valley bottoms have probably always
supported more prairie dogs than surrounding drier sites, it is likely
that the high densities and abundances occurring in these areas are
unnaturally augmented by today's agricultural practices (Collier 1975,
pp. 43, 53; Crocker-Bedford and Spillett 1981, pp. 15-17, 22).
Overall, agricultural lands can provide valuable habitats for Utah
prairie dogs. However, if the prairie dog populations become too dense,
these same areas may be more prone to outbreaks of plague, a nonnative
disease that occurs across the entire range of the Utah prairie dog and
can extirpate entire colonies (Cully 1989, p. 48; Cully 1993, p. 40;
Biggins and Kosoy 2001, p. 62; Cully and Williams 2001, p. 895). The
rate of the spread of plague is likely dependent in part on the density
of the host (e.g., Utah prairie dog) population (Rayor 1985, entire;
Cully 1993, p. 43; Cully and Williams 2001, p. 899-901; Biggins et al.
2010, p. 18)--populations with higher densities likely have higher
plague transmission rates and higher rates of epizootic (rapidly
spreading die-off cycle) outbreaks. Thus, we conclude that, if left
unmanaged, the unnaturally high densities of Utah prairie dogs on some
agricultural lands increase their susceptibility to plague outbreaks.
[[Page 31909]]
Distribution and Abundance
The Utah prairie dog is the westernmost member of the genus
Cynomys. Historically, the species' distribution extended much further
north than it does today (Collier 1975, pp. 15-17; Pizzimenti and
Collier 1975, p. 1). Utah prairie dog populations declined dramatically
when control programs to eradicate the species were initiated in the
1920s. The actual numeric population reduction is not known, because
historical population figures were not scientifically derived (Collier
and Spillett 1973, pp. 83-84). However, poisoning is estimated to have
removed prairie dogs from approximately 8,094 hectares (ha) (20,000
acres (ac)) of their range prior to 1963 (Collier and Spillett 1972,
pp. 33-35). Other factors that resulted in the historical decline of
Utah prairie dogs were drought, habitat alteration from conversion of
lands to agricultural crops, unregulated shooting, and disease (Collier
and Spillett 1972, pp. 32-35).
The species' range is now limited to the southwestern quarter of
Utah in Iron, Beaver, Garfield, Wayne, Piute, Sevier, and Kane
Counties. The Utah prairie dog has the most restricted range of the
four prairie dog species in the United States.
The best available information concerning Utah prairie dog habitat
and population trends comes from survey and mapping efforts conducted
by the UDWR annually since 1976. These surveys (hereafter referred to
as ``counts'' or ``spring counts'') count adult Utah prairie dogs on
all known and accessible colonies annually, in April and May, after the
adults have emerged, but before the young are above ground in June (see
``Life History''). Some non-Federal lands with active Utah prairie dog
colonies are not surveyed due to lack of access. However, we believe
that over 90 percent of prairie dog colonies are known and annually
surveyed (Brown, pers. comm., 2010). Therefore, actual rangewide
prairie dog numbers may be somewhat higher than reported, though
probably not substantially higher.
Utah prairie dog surveys are completed in the spring (``spring
counts'') by visually scanning each colony area and counting the
numbers of prairie dogs observed. Only 40 to 60 percent of Utah prairie
dogs are above ground at any one time (Crocker-Bedford 1975 in USFWS
1991, p. 5). Therefore, spring counts represent approximately 50
percent of the adult population. Total population estimates are larger
than the estimated adult population because they include reproduction
and juveniles. Based on the male to female ratio, number of breeding
females, average litter size, and observed spring count versus spring
population (see the ``Life History'' section; Wright-Smith 1978, p. 8;
Mackley 1988, pp. 1, 6-9; Hoogland 2001, pp. 919-920; 923), the total
population estimate can thus be calculated from spring counts as
follows: [(2 x spring adult count) x 0.67 (proportion of adult females)
x 0.97 (proportion of breeding females) x 4 (average number of young
per breeding female)] plus (2 x spring adult count). Thus, the total
population estimate is about 7.2 x the spring count.
It should be noted that spring count surveys and population
estimates are not censuses. Rather, they are designed to monitor
population trends over time. Based on the spring counts, rangewide
population trends for the Utah prairie dog are stable to increasing
over the last 30 years (see Figure 1).
In addition to population trend information, the UDWR surveys
provide information on the amount of mapped and occupied habitat across
the species' range. We define mapped habitat as all areas within the
species' range that were identified and delineated as being occupied by
Utah prairie dogs in any year since 1972. These areas may or may not be
occupied by prairie dogs in any given year. The database of all mapped
habitat is maintained by the UDWR and updated annually. Occupied
habitats are defined as areas that support Utah prairie dogs (i.e.,
where prairie dogs are seen or heard or where active burrows or other
signs are found).
The UDWR has mapped 24,142 ha (59,656 ac) of habitat rangewide
(UDWR 2010a, entire). The Utah prairie dog occurs in three
geographically identifiable areas within southwestern Utah, which are
identified as recovery areas in our 1991 Recovery Plan (USFWS 1991, pp.
5-6) and as recovery units in our 2010 Draft Revised Recovery Plan
(USFWS 2010, pp. 1.3.3, 3.2-7, 3.2-8), including: (1) The Awapa
Plateau; (2) the Paunsaugunt Plateau, and (3) the West Desert. The
Awapa Plateau recovery unit encompasses portions of Piute, Garfield,
Wayne, and Sevier Counties. The Paunsaugunt Plateau recovery unit is
primarily in western Garfield County, with small areas in Iron and Kane
Counties. The West Desert recovery unit is primarily in Iron County,
but extends into southern Beaver County and northern Washington County.
Table 1 provides information on each recovery unit, including average
percentage of the rangewide population and average percentage of
prairie dogs occurring on non-Federal land (averages for 2000 to 2009).
Additional information on each recovery unit's distribution, abundance,
and trends can be found in our 2010 Draft Revised Recovery Plan (USFWS
2010, section 1.3)
Table 1--Population and Occupancy Data for Each Recovery Unit
------------------------------------------------------------------------
Average percentage
Average percentage of prairie dogs
of rangewide occurring on non-
population Federal land
------------------------------------------------------------------------
Awapa Recovery Unit............. 8.9 47.6
Paunsaugunt Recovery Unit....... 16.9 71.0
West Desert Recovery Unit....... 74.2 85.1
------------------------------------------------------------------------
Note: Averages calculated from 2000 to 2009.
Source: UDWR 2009, 2010b.
Application of the Prairie Dog Special Rule Through the Present
As explained above in the ``Special Rules Under ESA Section 4(d)''
section, pursuant to section 4(d) of the ESA, the Secretary of the
Interior may extend to a threatened species those protections provided
to an endangered species as deemed necessary and advisable to provide
for the conservation of the species. When the Utah prairie dog was
reclassified from endangered to threatened status in 1984, we issued a
special rule applying all of the ESA's prohibitions to the Utah prairie
dog except for take occurring in specific delineated portions of the
Cedar and Parowan Valleys in Iron County, Utah, when permitted by the
UDWR and in accordance with the laws of the State of
[[Page 31910]]
Utah, provided that such take did not exceed 5,000 animals annually and
that such take was confined to the period from June 1 to December 31
(49 FR 22330; see page 22334, May 29, 1984). The rule required
quarterly reporting by UDWR and allowed us to immediately prohibit or
restrict such taking as appropriate for the conservation of the species
if we received substantive evidence that the allowed take was having an
effect that was inconsistent with the conservation of the Utah prairie
dog (49 FR 22330, May 29, 1984).
In 1991, we amended the special rule (56 FR 27438, June 14, 1991),
expanding the authorized taking area to include all private land within
the species' range, and raised the maximum allowable take to 6,000
animals annually (50 CFR 17.40(g)). The rule required UDWR to maintain
records on permitted take and make them available to the Service upon
request (50 CFR 17.40(g)). Under this rule, we retained the ability to
immediately prohibit or restrict such take as appropriate for the
conservation of the species if we received substantive evidence that
the permitted take was having an effect that is inconsistent with the
conservation of the species (50 CFR 17.40(g)).
Both rules (49 FR 22330, May 29, 1984; 56 FR 27438, June 14, 1991)
were intended to relieve Utah prairie dog population pressures in
overcrowded portions of the range that could not otherwise be relieved.
The rules indicated that agricultural practices were making the habitat
more productive than it was historically, thus allowing the prairie dog
population to achieve unnaturally high densities. The resulting
overpopulation pressures increase the risk of sylvatic plague (Yersinia
pestis) outbreaks (see ``Habitat Requirements and Food Habits,'' above;
49 FR 22333, May 29, 1984; 56 FR 27439-27440, June 14, 1991). The rules
also concluded that removing individuals during summer when populations
were highest would reduce competition in overpopulated areas and result
in increased overwinter survival among remaining animals (49 FR 22334,
page 22333, May 29, 1984; 56 FR 27439-27441, June 14, 1991).
Finally, these rules were necessary and advisable to address the
growing conflicts between landowners and prairie dogs by providing for
ecologically based population control that also alleviated some of the
impacts to agricultural operations (49 FR 22330, May 29, 1984; 56 FR
22330, pages 27439-27440, June 14, 1991). The rules expressed concern
that without control actions, these factors could have a substantially
negative effect on populations and reverse the recovery progress made
since listing (49 FR 22330, page 22333, May 29, 1984; 56 FR 27440, June
14, 1991). The 1991 rule referenced data that demonstrated that Utah
prairie dog population levels in areas with controlled take under the
1984 special rule increased 88 percent during the first 4 years (1985-
1989) of implementation (56 FR 27438, June 14, 1991; see page 27440).
In practice, the UDWR currently permits taking only by shooting or
trapping on agricultural lands where prairie dogs are causing damage
and limits the number of animals taken on an individual colony to no
more than half of a colony's estimated productivity for that year. Over
time, UDWR has permitted take averaging 5.7 percent of the total
rangewide estimated population annually (range equals 1.8 to 12.9
percent); actual take has averaged 2.5 percent of the total rangewide
estimated population (range equals 0.9 to 5.3 percent). Table 2
provides detailed information on permitted and reported take as a
percent of the total rangewide population from 1985 to 2009 (UDWR
2010b, entire). Figure 1 illustrates annual rangewide population
estimates from 1985 to 2009 with a population trend line. Throughout
implementation of the current special rules (49 FR 22330, May 29, 1984;
56 FR 27438, June 14, 1991; 50 CFR 17.40(g)), both the rangewide
population estimates and numbers of prairie dogs in individual colonies
subject to control remain stable to increasing (Figure 1; Day, pers.
comm., 2010).
Table 2--Amount of Utah Prairie Dog Take Permitted and Reported Under the ESA 4(d) Rule by UDWR, 1985-2009 (UDWR 2010b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Permitted take Reported take
Rangewide percentage of percentage of
Year * Spring count population Permitted take rangewide Reported take rangewide
estimate population population
estimate estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
1985.................................................... 3,299 23,752 845 3.5 426 1.8
1986.................................................... 4,400 31,680 2,040 6.4 1,247 3.9
1987.................................................... 4,771 34,351 975 2.8 370 1.1
1988.................................................... 4,640 33,408 2,415 7.2 528 1.6
1989.................................................... 7,527 54,194 3,050 5.6 838 1.5
1991.................................................... 4,492 32,342 4,200 12.9 1,632 5.0
1992.................................................... 4,067 29,282 3,520 12.0 1,543 5.3
1993.................................................... 3,954 28,469 1,050 3.7 599 2.1
1994.................................................... 3,702 26,654 1,190 4.5 779 2.9
1995.................................................... 3,576 25,747 630 2.4 461 1.8
1996.................................................... 3,917 28,202 520 1.8 436 1.5
1997.................................................... 4,359 31,385 1,065 3.4 589 1.9
1998.................................................... 5,106 36,763 1,220 3.3 717 1.9
1999.................................................... 5,068 36,490 2,496 6.8 1233 3.4
2000.................................................... 5,892 42,422 3,700 8.7 1386 3.3
2001.................................................... 4,223 30,406 3,719 12.2 1626 5.3
2002.................................................... 4,933 35,518 3,781 10.6 1760 4.9
2003.................................................... 3,729 26,849 2,620 9.8 1195 4.4
2004.................................................... 4,102 29,534 1,360 4.6 363 1.2
2005.................................................... 5,375 38,700 1,470 3.8 673 1.7
2006.................................................... 5,524 39,773 1,060 2.7 343 0.9
2007.................................................... 5,991 43,135 944 2.2 482 1.1
2008.................................................... 5,791 41,695 1,204 2.9 561 1.3
2009.................................................... 5,827 41,954 1,532 3.6 558 1.3
-----------------------------------------------------------------------------------------------
[[Page 31911]]
AVG................................................. 4,761 34,279 1,942 5.7 848 2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
* In 1990, colonies on private lands were not counted, due to staffing and budget limitations. Thus, these incomplete estimates are excluded from this
table. In addition, take from 1985 to 1990 occurred only on non-Federal lands in Cedar and Parowan Valleys, Iron County. Take from 1991 to present was
authorized on non-Federal lands rangewide.
[GRAPHIC] [TIFF OMITTED] TP02JN11.013
Proposed Amendments
Based on new scientific information and 25 years of available data,
we believe the existing 4(d) special rule should be amended. This
proposed amendment includes limiting the direct take prohibitions
authorized in 1984 and as amended in 1991, and provides additional
incidental take authorization for otherwise legal activities associated
with standard agricultural practices. The proposed amendments are
largely consistent with the past practices and permitting as
administered by UDWR under the current special rule. Utah prairie dog
populations have remained stable to increasing throughout
implementation of the current special rule as implemented under the
UDWR permit system. Below we analyze both the new proposed restrictions
on direct take and the new incidental take provision.
Limiting Where Direct Take Can Be Permitted by the State
The current special rule allows UDWR to permit take on private
lands anywhere within the range of the Utah prairie dog. In practice,
however, UDWR currently permits take only on agricultural lands where
prairie dogs are causing damage. In this revision to the special rule,
we propose to limit the locations where UDWR can permit take to
agricultural lands and private property neighboring conservation
properties.
The first situation where UDWR would be allowed to permit take is
on agricultural land. This is consistent with current UDWR permitting
procedures under the current special rule. However, our proposed
revision would provide a specific definition for agricultural lands for
clarification purposes. Specifically, this rule proposes that the above
activities would be exempted from the take prohibition only on lands
meeting the Utah Farmland Assessment Act of
[[Page 31912]]
1969 definition of agricultural lands (Utah Code Annotated Sections 59-
2-501 through 59-2-515). Thus, to be considered agricultural land under
this proposed amendment, lands must (1) meet the general classification
of irrigated, dryland, grazing land, orchard or meadow; (2) be capable
of producing crops or forage; (3) be at least 2 contiguous ha (5
contiguous ac) (smaller parcels may qualify where devoted to
agriculture use in conjunction with other eligible acreage under
identical legal ownership); (4) be managed in such a way that there is
a reasonable expectation of profit; (5) have been devoted to
agricultural use for at least 2 successive years immediately preceding
the year in which application is made; and (6) meet State average
annual (per-acre) production requirements. Limiting UDWR-permitted take
to agricultural lands is consistent with the justification provided in
the previous special rules for the species (as summarized above).
Additionally, agricultural operators must demonstrate to UDWR that
their land is being physically or economically impacted by Utah prairie
dogs. Before an application can be approved, UDWR must conduct a visual
census of the applicant's property to verify that the land is being
physically or economically impacted by Utah prairie dogs. The visual
census will count prairie dogs on the applicant's property and
determine a population estimate for the colony. A minimum spring count
of five animals is required to ensure that permits are authorized only
where resident prairie dogs have become established on agricultural
lands (Day, pers. comm. 2011). Thus, lands being minimally impacted by
dispersing prairie dogs would not be covered. These proposed
restrictions are consistent with past UDWR practice. Utah prairie dog
populations have remained stable to increasing throughout
implementation of the current special rule and past practices, as
implemented under the UDWR permit system. Therefore, consistent with
past practice and data that indicate these restrictions will support
the ongoing conservation of the species, we propose to adopt these
restrictions.
The second situation where UDWR would be allowed to permit take is
on private property within 0.8 km (0.5 mi) of Utah prairie dog
conservation lands. Although the current special rule already allows
for take in this situation, such take is not currently authorized by
UDWR practices. However, we believe the continuation of this provision
is important for Utah prairie dog recovery efforts. Permitting take by
UDWR in this manner on private property near conservation lands
promotes landowner and community support for Utah prairie dog recovery
on non-Federal lands.
Conservation lands are areas set aside for the preservation of Utah
prairie dogs and are managed specifically or primarily toward that
purpose. Conservation lands may include, but are not limited to, non-
Federal properties set aside as conservation banks, fee title purchased
properties, properties under conservation easements, or properties
subject to a safe harbor agreement. In order to be recognized as Utah
prairie dog conservation land, the parcel must be accompanied by
documentation that clearly defines the conservation benefits to the
Utah prairie dog. In addition, documentation must be available
describing the location of all neighboring private properties within
0.8 km (0.5 mi) of the conservation land parcel; the baseline
populations of prairie dogs on the neighboring private properties (the
highest estimated population size of the last 5 years prior to the
establishment of the conservation property); and the methods of Utah
prairie dog control that will be allowed on the neighboring private
properties. The amount of UDWR-permitted take on properties that
neighbor conservation lands, discussed further below, will be limited
each year to the number of animals that exceed the baseline population
size.
Continuing to allow permitted take on agricultural lands and lands
bordering conservation lands is critical to facilitating the species'
recovery. As previously described, Utah prairie dogs can reach
unnaturally high densities and abundance on agricultural lands because
of increased forage quantity and quality, and lower predator numbers
(see ``Habitat Requirements and Food Habits'' section above). If
prairie dog populations on agricultural lands are left uncontrolled,
the consequent crowding may result in diminished forage resources,
leading to decreased reproduction and survival or increased emigration
(Crocker-Bedford and Spillett 1981, pp. 21-22; Reeve and Vosburgh 2006,
pp. 122-123). Controlling populations by removing some prairie dogs
decreases competition for limited food resources, consequently
resulting in increased reproduction and decreased mortality (Reeve and
Vosburgh 2006, p. 122).
Controlled removal also may help mediate the potential for plague
outbreaks on prairie dog colonies. Plague is a nonnative disease that
periodically erupts in epizootic events when increased population
densities cause additional stress among individuals. High animal
densities facilitate transmission of the disease between individuals
(Cully 1989, p. 49; Anderson and Williams 1997, p. 730; Gage and Kosoy
2005, pp. 509 and 519-520).
Allowing control on agricultural lands will thus enhance the long-
term conservation of the Utah prairie dog on these lands by maintaining
more sustainable populations (i.e., more natural animal densities are
less likely to degrade their forage resources, and less likely to have
large scale plague outbreaks). Utah prairie dog populations have
remained stable to increasing under the current special rule since
1984.
We also have concluded that allowing some control of Utah prairie
dogs will increase the participation of landowners and local
communities in the species conservation and recovery. Until recently,
Utah prairie dog recovery efforts focused on habitat enhancements and
translocation of the animals to Federal lands (USFWS 1991, pp. 19-33).
Consequently, recovery was largely dependent on achieving sufficient
population numbers on Federal lands, without considering the potential
for conservation benefits that could be achieved on private lands. We
now have concluded that recovery will be achieved more rapidly if we
increase conservation efforts on private and other non-Federal lands
(where the majority of the species' occupied habitat occurs) (USFWS
2010, p. 2.3-2). We are in the process of revising the Recovery Plan to
reflect this new direction (USFWS 2010, entire).
New or increased Federal regulations can be disincentives for
recovery efforts. These disincentives may be nearly insurmountable for
State, Tribal, and private landowners. Many agricultural producers
claim that Utah prairie dogs impact their operations through loss of
forage for their cattle; equipment damage from driving across burrows;
livestock injury if animals step in burrows; and decreased crop yields
(e.g., prairie dogs eat crop vegetation such as alfalfa) (Elmore and
Messmer 2006, p. 9). We expect that increased focus on establishing and
managing non-Federal conservation lands will likely increase the size
and extent of prairie dog colonies on and adjacent to these
conservation lands. Thus, as recovery becomes more and more successful
on non-Federal lands, regulatory relief will become increasingly
important.
To achieve recovery, we will need to encourage private landowners
and local communities to participate in prairie dog habitat improvement
and protection measures. We can achieve this only if
[[Page 31913]]
we demonstrate that the benefits of prairie dog conservation outweigh
the costs to the landowner, and if control programs or other damage
compensation is available when needed (Elmore and Messmer 2006, p. 13).
Some producers are interested in working with us on habitat and range
improvement projects that benefit livestock and Utah prairie dogs
simultaneously, or participating in conservation easements that benefit
the species (Elmore and Messmer 2006, pp. 10-11, 13). However,
agricultural producers want the ability to control or translocate
prairie dogs to minimize levels of damage (Elmore and Messmer 2006, pp.
10, 13).
Our recent experiences show that if we are mindful of landowners'
needs, and provide mechanisms to control Utah prairie dogs where they
conflict with human land uses, we can gain landowner and local
community support for species conservation. For example, in a 2005 safe
harbor agreement, a landowner agreed to restore habitat and allow the
establishment of a new colony of prairie dogs on his property through
translocations (USFWS 2005, entire), but conditioned his willingness to
accept translocated animals on the fact that his safe harbor agreement
allowed him to control animals if they impacted his livestock
operations (USFWS 2005, pp. 5-6). We have completed six similar Utah
prairie dog safe harbor agreements, all of which include the ability
for a landowner to control some prairie dogs where they may impact
their agricultural activities.
Additionally, there may be opportunities to protect Utah prairie
dogs and their habitats through fee-title purchase or conservation
easements with willing landowners. We are more likely to gain community
support for these land protection mechanisms if we can provide
regulatory flexibility for neighboring landowners. For example, in
2001, the UDWR and Iron County purchased 73 ha (180 ac) in Parowan
Valley, and renamed the area as the Parowan Valley Wildlife Management
Area, designating it for the protection of a large Utah prairie dog
colony. At the time, there was concern that neighboring landowners
would be negatively impacted if prairie dog management activities
resulted in the growth and expansion of the existing prairie dog
colony. Therefore, to support the purchase and protection of this
important colony, we worked with the landowner to allow the control of
prairie dogs (above a 2001 baseline number on each property) for
properties within 0.8 km (0.5 mi) of the Parowan Valley Wildlife
Management Area. Because of the issuance of this permit, the local
community supported the purchase and management of the property for
conservation of the Utah prairie dog.
Another opportunity to promote the use of conservation easements is
the Utah prairie dog habitat credit exchange program (hereafter
referred to as the ``credit exchange program'') or similar conservation
banking opportunities. The credit exchange program will allow a program
administrator (in this case, the Panoramaland Resource Conservation and
Development Council, Inc.) to enroll willing landowners in a Utah
prairie dog conservation bank that is beneficial to landowners,
developers, and prairie dogs. A pilot program implemented in 2010 will
pay landowners to conserve Utah prairie dogs. Conservation on private
lands can then be used to mitigate development in Utah prairie dog
habitat. The credit exchange program, or other conservation banking
opportunities, can help us promote mitigation in a way that provides a
net benefit to the species by incorporating private lands and
protecting prairie dogs on these lands with perpetual conservation
easements (Environmental Defense 2009, p. 1). Again, we believe that we
are more likely to gain community support for these land protection
mechanisms if we can provide regulatory flexibility for neighboring
landowners.
The protection of many conservation lands will occur as mitigation
required under section 10(a)(1)(B) incidental take permits and habitat
conservation plans (HCPs). The existing Iron County HCP allows the use
of mitigation banks to offset the impacts of development to Utah
prairie dogs (Iron County 2006). We are working with the counties and
local communities to develop a rangewide HCP to replace the Iron County
HCP. It is too early to describe specific mitigation scenarios under a
new rangewide HCP, other than to summarize our intent that a new HCP
contribute to recovery and simultaneously accommodate urban growth.
Conservation banking agreements and conservation easements to conserve
Utah prairie dog habitats on private or other non-Federal lands are
likely tools that we will use under this new HCP. We believe that local
support for any conservation lands set aside for the species in
association with HCPs, especially in urban or agricultural areas, will
be greatly enhanced by our ability to control the expansion of colonies
or dispersal of individual prairie dogs onto neighboring lands.
Many of the enrolled conservation lands will likely be in or
adjacent to agricultural production. The goal in establishing
conservation lands is to increase prairie dog populations. As such, we
believe there will be site-specific needs to control some animals
adjacent to the enrolled conservation lands, on neighboring
agricultural and other private properties. Our ability to provide
sufficient control measures is essential if we are to gain increased
interest on the part of private landowners and local communities in the
long-term conservation of the Utah prairie dog.
Collectively, the available information indicates it would be
prudent to limit where UDWR can permit take to (1) agricultural lands
being physically or economically impacted by Utah prairie dogs when the
spring count on the agricultural lands is five or more individuals and
(2) private properties within 0.8 km (0.5 mi) of Utah prairie dog
conservation land. Limiting the existing take authority to agricultural
lands is consistent with UDWR permitting practices under the current
special rule. It is in these areas that prairie dogs achieve population
densities and abundances that are higher than their counterparts in
native semiarid grassland communities. In addition, allowing take on
private property near conservation lands would promote landowner and
community support for Utah prairie dog that is necessary to achieve
recovery on non-Federal lands. The ability to allow some control of
prairie dogs is prudent from a biological and social context, and has
and will continue to enhance our ability to recover the species. Utah
prairie dog populations have remained stable to increasing throughout
implementation of the current special rule and past practices, as
implemented under the UDWR permit system.
Limiting the Amount and Distribution of Direct Take That Can Be
Permitted
The current special rule allows UDWR to permit take for a maximum
of 6,000 animals annually between June 1 and December 31, without
additional restrictions as long as such take is not having an effect
that is inconsistent with Utah prairie dog conservation. According to
the literature, fixed harvest rates can lead to extirpation of prairie
dog colonies, at least in the case of black-tailed prairie dogs (Reeve
and Vosburgh 2006, pp. 123-125). This colony loss will occur more
rapidly with larger fixed annual harvests (Reeve and Vosburgh 2006, pp.
123-125). From 1985 through 2009, the total estimated rangewide
population (including juveniles) ranged from 23,752 to 54,194 animals
(see Table 2). Thus, since 1991,
[[Page 31914]]
if UDWR had authorized the maximum amount of allowed take (6,000
animals), it would have represented 11 to 25 percent of the total
estimated annual rangewide population (adults and juveniles). The UDWR
has never authorized the current rule's maximum allowed take (6,000
animals). Actual reported take has always been considerably below the
maximum allowance. Nevertheless, when considered alongside the specific
existing data for the Utah prairie dog, the information from available
literature that pertains to harvest of prairie dogs in general seems to
indicate that additional safeguards would be prudent.
According to the literature, a harvest rate based on a percentage
of the known population can help ensure maintenance of a sustainable
population, with no risk of extinction (Reeve and Vosburgh 2006, p.
123). This rule proposes to maintain the current special rule's annual
upper permitted take limit of 6,000 animals. However, this rule
proposes to limit the maximum allowable total permitted take to no more
than 10 percent of the estimated rangewide population annually. Take
associated with agricultural lands could never exceed 7 percent of the
estimated annual rangewide population. The remaining allowable take
would be reserved for properties neighboring conservation lands.
In practice, UDWR implementation of the current special rule has
followed a fluctuating harvest-rate model. Under the UDWR system,
permitted take has averaged 5.7 percent of the total rangewide
population estimate (range equals 1.8 to 12.9 percent), with actual
take averaging 2.5 percent of the rangewide population (range equals
0.9 to 5.3 percent). With these levels of permitted and reported take,
rangewide Utah prairie dog populations have, to date, remained stable
to increasing (see Figure 1). While our proposed limit on allowable
take is above the average actual take, UDWR-permitted take associated
with agricultural lands has exceeded the proposed standard for
agricultural lands (7 percent) seven times since 1985. Thus, this
proposal would be more restrictive than past practice in some years and
less restrictive than past practice in other years. On the whole, we
believe the proposed limit on take would ensure that this rule does not
negatively impact the stable-to-increasing Utah prairie dog population
trends of the last 25 years. Continuing to allow sufficient take limits
will help ensure that private landowners and local communities are
willing to work with us on prairie dog conservation efforts.
Furthermore, the proposal would limit within-colony take on
agricultural lands to not exceed one-half of a colony's estimated
annual productivity (approximately 36 percent of the total estimated
colony population). This limit is consistent with UDWR's past practice,
which has successfully controlled prairie dogs in site-specific
locations without negatively impacting recovery of the species (Day,
pers. comm. 2010). In fact, since 1985 we have never verified the loss
of a prairie dog colony because of take permitted by UDWR (Day, pers.
comm. 2010). Furthermore, according to UDWR personnel, prairie dog
counts have remained stable to increasing on sites where permits are
repeatedly requested, indicating a self-sustaining population and,
sometimes, the expansion of these colonies despite long-term control
efforts (Day, pers. comm. 2010). Consequently, we believe the proposed
actions are sufficient to address prairie dog control issues and Utah
prairie dog recovery simultaneously.
Based on available models, we considered a more restrictive
standard. The proposed standard equates to permitted take of up to 36
percent of the total estimated colony population. Modeling for black-
tailed and Gunnison prairie dog colonies indicates that harvest rates
of 25 percent and less than 20 percent, respectively, are sustainable
(Reeve and Vosburgh 2006, p. 123; Colorado Division of Wildlife 2007,
pp. 135-137). However, in our view, the Utah prairie dog situation
differs from the ones modeled. One major difference is that prairie dog
productivity and survivorship, key assumptions for these models, are
substantially higher in colonies occurring on irrigated agricultural
land than they are on native semiarid grasslands (Collier 1975, pp. 42-
43, 53; Crocker-Bedford and Spillet 1981, p. 1, 15-17). These
differences suggest that existing models for black-tailed and Gunnison
prairie dogs are poor predictors of likely impacts to Utah prairie
dogs. Thus, the suggested sustainable harvest rates recommended by
these models are not directly applicable to agricultural lands occupied
by Utah prairie dogs. Instead, we believe a more reliable indicator of
likely future impacts is the 25 years of data from UDWR that indicate
that this standard will provide for the conservation of the species
(UDWR 2010b, entire). Utah prairie dog populations have remained stable
to increasing throughout implementation of the current special rule and
past practices, as implemented under the UDWR permit system. Thus, this
rule's proposal to limit within-colony take on agricultural lands to
not exceed one-half of a colony's estimated annual productivity
(approximately 36 percent of the total estimated colony population) is
consistent with UDWR's past practice.
We are requesting comments on this issue and may consider a
stricter within-colony take limit in a final rule if available data
indicate such restrictions would be necessary and advisable to provide
for the conservation of the species. We plan to work with the UDWR to
parse the available data to assist in further evaluating this issue in
time for the final rule. We request data, analysis, or expert opinion
which might assist in this evaluation.
As noted above, under this proposal, a maximum of 7 percent of the
10-percent take limit can be allocated to agricultural lands. The
remaining take (3 percent or more, depending on the percent of take
associated with agricultural lands) would be reserved for UDWR-
permitted take on private property within 0.8 km (0.5 mi) of Utah
prairie dog conservation lands. This level of take will allow us to
address impacts to private lands associated with increased prairie dog
distribution and numbers that is likely to result from the rangewide
protection of conservation properties. Without such ability, private
landowners and local governments would likely not support, and could
prevent, much if not all recovery progress on private lands. We have
determined that the ability to respond to this need, in a carefully
regulated environment, is necessary and advisable for the conservation
of the Utah prairie dog.
The extent of take on property adjacent to conservation lands would
be further limited to not reduce populations below the baseline
estimated total (summer) population size that existed on the adjacent
lands prior to the establishment of the conservation property. This
provision provides assurances to the landowners that they will not
incur new Federal regulatory restrictions as a result of their habitat
improvements and the reintroduction of prairie dogs on a conservation
property. Conversely, this provision assists us with the creation of
conservation properties by allowing landowners to take prairie dogs
down to, but not below, the established baseline population--the
property's baseline is the highest estimated population size on the
property during the 5 years prior to establishment of the conservation
property. Thus, this provision will provide a conservation
[[Page 31915]]
benefit for Utah prairie dogs by promoting landowner support for such
efforts while not reducing populations below the established baseline.
Similar provisions have been incorporated into all previously approved
Utah prairie dog safe harbor agreements.
Limiting Methods Allowed To Implement Direct Take
The current special rule does not restrict the method or type of
take UDWR can permit. In practice, UDWR has permitted the control of
Utah prairie dogs through translocation efforts, trapping intended to
lethally remove prairie dogs, and shooting. This proposal would limit
methods of take that can be permitted to be consistent with this past
practice.
Translocations of Utah prairie dogs are used to increase the
numbers of prairie dog colonies in new locations across the species'
range. Translocation of Utah prairie dogs occurs within and between
recovery units in part to address the species' limited levels of
genetic diversity (USFWS 1991; Roberts et al. 2000). Translocation
efforts include habitat enhancement at selected translocation sites and
live trapping of Utah prairie dogs from existing colonies to move them
to the selected translocation sites. In short, translocations play an
important role in establishing new colonies and facilitating gene flow.
Thus, translocation will be one of the approved methods of taking
Utah prairie dogs. Currently, only UDWR performs Utah prairie dog
translocations. This proposal would allow all properly trained and
permitted individuals to translocate prairie dogs to new colony sites
in support of recovery actions, provided these parties comply with
current Service-approved guidance. Translocated prairie dogs count
toward the take limits established by the existing special rule and
will continue to count toward the more restricted take limits proposed
in this rule. Translocation activities must comply with current Service
approved guidelines (at present, the approved guidelines are the 2006
Recommended Translocation Procedures (USFWS 2010, appendix D)) in order
for the provisions of this proposed rule to apply.
While translocation is and shall continue to be the preferred take
option, largely due to its contribution to recovery, finite staff
resources and a limited availability of suitable translocation sites
require that other tools also be available. Thus, this proposal would
limit methods of intentional lethal take to forms with a proven success
record as demonstrated by past UDWR permitting, including lethal
removal through trapping and shooting. Such UDWR-permitted controlled
take can be carried out by the landowner or the U.S. Department of
Agriculture--Wildlife Services with the landowner's permission. Use of
these methods has occurred over the past 25 years, and rangewide
population and individual colonies subject to take have remained stable
to increasing (Day, pers. comm. 2010).
This rule proposes to specifically prohibit drowning and poisoning
as methods of permissible lethal control. Drowning or poisoning are
typically applied across large areas and usually kill large numbers of
prairie dogs (Collier 1975, p. 55). These techniques have not been
employed by UDWR under the existing rule and are explicitly prohibited
by this proposal because they do not allow control agents to target a
specific number of prairie dogs or track actual take.
Most studies on the impacts of shooting are related to recreational
hunting on black-tailed prairie dog colonies. This information
indicates that recreational shooting of other prairie dog species can
cause localized effects on a population (Stockrahm 1979, pp. 80-84;
Knowles 1988, p. 54; Vosburgh 1996, pp. 13, 15, 16, and 18; Vosburgh
and Irby 1998, pp. 366-371; Pauli 2005, p. 1; Reeve and Vosburgh 2006,
p. 144), but populations typically rebound thereafter (Knowles 1988, p.
54; Vosburgh 1996, pp. 16, 31; Dullum et al. 2005, p. 843; Pauli 2005,
p. 17; Cully and Johnson 2006, pp. 6-7). Extirpations due to
recreational shooting, while documented, are rare (Knowles 1988, p.
54).
Impacts to other species of prairie dog from unregulated or
minimally regulated recreational shooting, as cited above, are likely
to be more pronounced than impacts to Utah prairie dog UDWR-permitted
control, given timing and take restrictions. In terms of timing, the
existing special rule restricts UDWR- permitted taking to June 1 to
December 31. Shooting from March to May would likely kill pregnant or
lactating females so that neither they nor their offspring would
reproduce the following year (Knowles 1988, p. 55). If the timing of
shooting is restricted to times outside of the breeding and young-
rearing (lactating) periods, then impacts can be minimized (Vosburgh
and Irby 1998, p. 370; Colorado Division of Wildlife 2007, pp. 135-
137). In fact, as described in this and previous rules (49 FR 22333,
May 29, 1984; 56 FR 27439-27441, June 14, 1991), controlling prairie
dogs when populations are at high densities (i.e., particularly, during
the summer months when the aboveground prairie dog population explodes
as the juveniles emerge from their burrows) may enhance long-term
population growth rates by reducing competition for limited resources
and increasing overwinter survival (see ``Limiting Where Direct Take
Can Be Permitted''). This information is supported by observations that
Utah prairie dog colonies are maintained at high levels on properties
that have received multiple annual control permits despite over 25
years of permitted control under the current special rule (Day, pers.
comm. 2010). According to the literature and on-the-ground experience
with Utah prairie dogs, the current regulation regarding timing of
permitted Utah prairie dog control, when combined with other take
limitations outlined elsewhere in this rule (e.g., a harvest rate based
on a percentage of the known population and restrictions on lands where
take is allowed), is sufficient to allow long-term stable-to-improving
population trends to continue.
Another potential concern is lead poisoning as an indirect impact
from shooting. Specifically, shooting may increase the potential for
lead poisoning in predators and scavengers consuming shot prairie dogs
(Reeve and Vosburgh 2006, p. 154). This risk may extend to prairie
dogs, which have occasionally been observed scavenging carcasses
(Hoogland 1995, p. 14). Expanding bullets leave an average of 228.4
milligrams (mg) (3.426 grains) of lead in a prairie dog carcass, while
nonexpanding bullets averaged 19.8 mg (0.297 grains) of lead (Pauli and
Buskirk 2007, p. 103). The amount of lead in a single prairie dog
carcass shot with an expanding bullet is potentially sufficient to
acutely poison scavengers or predators, and may provide an important
portal for lead entering wildlife food chains (Pauli and Buskirk 2007,
p. 103). A wide range of sublethal toxic effects is also possible from
smaller quantities of lead (Pauli and Buskirk 2007, p. 103).
At the present time, we do not have information to indicate that
these theoretical concerns are translating into impacts on Utah prairie
dogs. UDWR-permitted take is limited to agricultural lands where
prairie dogs are causing physical or economic damage, and private lands
adjacent to conservation lands. Therefore, any potential site-specific
impacts are limited in scope and likely of minor consequence to the
Utah prairie dog. Limitations on the timing of allowed control further
limit the scope of potential impacts. Our December 3, 2009, black-
tailed prairie
[[Page 31916]]
dog status review came to a similar conclusion when it found use of
expandable lead shot did not pose a substantial risk of lead poisoning
to surviving prairie dogs due to scavenging carcasses (74 FR 63343).
Given these findings, this rule does not propose to prohibit
certain types of shot (expandable vs. nonexpendable or lead vs.
nonlead). However, we are accepting comments on this issue and may
consider shot-type restrictions in a final rule if available data
indicate such restrictions would be necessary and advisable to provide
for the conservation of the species.
Incidental Take From Normal Agricultural Practices
Normal agricultural practices can result in the unlawful incidental
take (harm, harass, or kill) of Utah prairie dogs. For example,
agricultural equipment can accidentally crush burrows or individual
animals. Similarly, burrows also can be flooded by normal irrigation
practices and thus made uninhabitable for Utah prairie dogs, or result
in incidental mortality. Although the incidental take permit for the
Iron County HCP (Iron County 2006, entire) authorizes normal
agricultural practices as a form of non-permanent take in Iron County,
this incidental take permit does not extend to address these issues for
agricultural users across the entire range of the Utah prairie dog.
This rule proposes to exempt incidental take resulting from
agricultural practices on legitimately operating agricultural lands.
Exempted practices would include plowing to depths not exceeding 46
centimeters (cm) (18 in.), discing, harrowing, irrigating crops,
mowing, harvesting, and bailing, as long as the activities are not
intended to eradicate Utah prairie dogs. These are traditional
practices on this landscape.
While it is possible that some incidental mortality or harassment
results from these activities, no available information indicates
sizable or noteworthy impacts. Similarly, the available information
(namely, annual Utah prairie dog surveys conducted by UDWR rangewide;
see Distribution and Abundance, above) does not indicate impacts at the
colony or species level. The continued presence of large, persistent
colonies on agricultural lands despite ongoing agricultural uses
indicates any negative impacts are minor and temporary. Agricultural
operations make the land more productive than it would be in its
natural state. Provided that careful regulation of direct take
continues, this increased productivity appears, based on individual
colony persistence and abundance data, to more than offset any
temporary negative impacts that are created by the incidental take of
individual prairie dogs.
Because such incidental take would not be limited in quantity, it
is imperative we build in safeguards to prevent abuse. Therefore, this
rule proposes that the above activities would be exempted from
incidental take prohibitions on agricultural lands, only in accordance
with the previously described Utah Farmland Assessment Act of 1969
(Utah Code Annotated Sections 59-2-501 through 59-2-515). To be
considered agricultural land under this proposed rule, lands must meet
the following requirements: They must meet the general classification
of irrigated, dryland, grazing land, orchard, or meadow; must be
capable of producing crops or forage; must be at least 2 contiguous ha
(5 contiguous ac) (smaller parcels may qualify where devoted to
agriculture use in conjunction with other eligible acreage under
identical legal ownership); must be managed in such a way that there is
a reasonable expectation of profit; must have been devoted to
agricultural use for at least 2 successive years immediately preceding
the year in which application is made; and must meet State average
annual (per acre) production requirements.
Limiting the take to such lands ensures only legitimately operating
agricultural producers will be able to apply the provisions in this
proposed rule. As previously discussed, available information indicates
that prairie dog populations on agricultural lands are not negatively
affected by ongoing standard agricultural practices. In fact, 25 years
of data under the current special rule show stable-to-increasing
rangewide prairie dog population trends. Providing the safeguard of
specifically defining agricultural lands ensures that we limit the
allowable incidental take to specific types of agricultural uses, of
which any possible resulting negative impact would be only a minor and
temporary accompaniment to the continued long-term benefits to the
species.
Effects of These Proposed Rules
The existing special rule (56 FR 27438, June 14, 1991; 50 CFR
17.40(g)) authorizes UDWR to permit take of up to 6,000 animals on
private land within the species' range annually. This amendment
proposes new restrictions on direct take previously authorized and
proposes a new incidental take authorization. Table 3 illustrates the
current regulatory restrictions alongside those proposed in this rule.
Table 3--Comparison of Current Special Rule, Current Practice, and
Proposed Amendments
------------------------------------------------------------------------
Current rule and
practice Proposed amendments
------------------------------------------------------------------------
Where Direct Take Can Be Private lands.... Direct take permitted
Permitted. by the State would
be limited to:
Agricultural land
being physically or
economically
impacted by Utah
prairie dogs when
the spring count on
the agricultural
lands is five or
more individuals;
and private
properties within
0.8 km (0.5 mi) of
Utah prairie dog
conservation land.
Amount of Rangewide Direct 6,000 animals The upper permitted
Take Allowed. annually. take limit of 6,000
animals annually
remains unchanged,
but would be limited
as follows: May not
exceed 10 percent of
the estimated
rangewide population
annually; and, on
agricultural lands,
may not exceed 7
percent of the
estimated annual
rangewide population
annually.
Site-Specific Limits on Amount No restrictions On agricultural
of Direct Take. specified. lands, within-colony
take would be
limited to one-half
of a colony's
estimated annual
production
(approximately 36
percent of estimated
total population).
On properties
neighboring
conservation lands,
take would be
restricted to
animals in excess of
the baseline
population. The
baseline population
is the highest
estimated total
(summer) population
size on that
property during the
5 years prior to
establishment of the
conservation
property.
Timing of Permitted Direct June 1 to Unchanged.
Take. December 31.
[[Page 31917]]
Methods Allowed to Implement No restrictions Direct take would be
Direct Take. specified. limited to
activities
associated with
translocation
efforts by trained
and permitted
individuals
complying with
current Service-
approved guidance,
trapping intended to
lethally remove
prairie dogs, and
shooting. Actions
intended to drown or
poison prairie dogs
would be prohibited.
Service Ability to Further The Service may Unchanged.
Restrict Direct Take. immediately
prohibit or
restrict such
taking as
appropriate for
the conservation
of the species.
Incidental Take............... Not authorized... Utah prairie dogs may
be taken when take
is incidental to
otherwise legal
activities
associated with
standard
agricultural
practices (see rule
for specifics).
------------------------------------------------------------------------
First, this proposal would restrict where direct take can be
permitted by the UDWR to: (1) Agricultural land being physically or
economically impacted by Utah prairie dogs when the spring count on the
agricultural lands is five or more individuals; and (2) on private
property within 0.8 km (0.5 mi) of Utah prairie dog conservation land.
Second, this proposal would limit the amount and distribution of
direct take that can be permitted by UDWR. Total take would not exceed
10 percent of the estimated annual rangewide population, with an upper
permitted take limit of 6,000 animals. On agricultural lands, permitted
take would be limited to 7 percent of the estimated annual rangewide
population and within colony take would be limited to one-half of a
colony's estimated annual productivity. On properties neighboring
conservation lands, the remaining take (3 percent of the estimated
annual rangewide population or more, depending on the amount permitted
on agricultural lands) would be restricted to animals in excess of the
baseline population.
Third, this proposal would limit methods of take that can be
permitted by the UDWR to include: (1) Activities associated with
translocation efforts by trained and permitted individuals complying
with current Service-approved guidance; (2) trapping intended to
lethally remove prairie dogs; and (3) shooting. Regarding shooting, we
are accepting comments on whether to limit the type of shot allowed.
These limitations on direct take are largely consistent with past
UDWR practice. Slight modifications are proposed where implementation
data indicate modifications are warranted.
Additionally, this proposal would exempt standard agricultural
practices from incidental take prohibitions on private property meeting
the Utah Farmland Assessment Act of 1969 (Utah Code Annotated Sections
59-2-501 through 59-2-515) definition of agricultural lands. These
mortalities are in addition to the direct or intentional take described
above. Allowable practices would include plowing to depths that do not
exceed 46 cm (18 in.), discing, harrowing, irrigating crops, mowing,
harvesting, and bailing, as long as the activities are not intended to
eradicate Utah prairie dogs.
Finally, the Service maintains the right, as laid out under the
existing special rule, to immediately prohibit or restrict UDWR-
permitted taking. Restrictions on permitted taking could be implemented
without additional rulemaking, as appropriate for the conservation of
the species, if we receive evidence that taking pursuant to the special
rule is having an effect that is inconsistent with the conservation of
the Utah prairie dog.
These proposed new restrictions on direct take and the proposed new
incidental take provision will support the conservation of the species
while still providing relief and conservation incentives to private
landowners. On the whole, we believe the proposed rule, if finalized,
would help maintain the stable-to-increasing (more likely increasing)
long-term population trends we have seen over the last 25 years, and
facilitate the recovery of the Utah prairie dog.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this proposed rule under
Executive Order 12866 (E.O. 12866). OMB bases its determination upon
the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government;
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions;
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients; or
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
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 must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). Based on the information that
is available to us at this time, we certify that this regulation will
not have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
Utah prairie dogs have been Federally listed under the ESA since
the early 1970s (38 FR 14678, June 4, 1973; 39 FR 1158, January 4,
1974). A 4(d) special rule has been in place since 1984 that provides
protections deemed necessary
[[Page 31918]]
and advisable to provide for the conservation of the species (49 FR
22330, May 29, 1984; 56 FR 27438, June 14, 1991). These special
regulations allow limited take of Utah prairie dogs on private land
from June 1 through December 31, as permitted by UDWR (50 CFR
17.40(g)). While this proposed rule places limits on the current
special rule, the proposed changes are largely consistent with current
UDWR permitting practices. Because this proposal largely
institutionalizes current practices, there should be little or no
increased costs associated with this proposed regulation compared to
the past similar special rules that were in effect for the last several
decades.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that if promulgated, the proposed
amendment would not have a significant economic impact on a substantial
number of small entities. Therefore, an initial regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) If adopted, this proposal will not produce a Federal mandate.
In general, a Federal mandate is a provision in legislation, statute,
or regulation that would impose an enforceable duty upon State, local,
or Tribal governments, or the private sector, and includes both
``Federal intergovernmental mandates'' and ``Federal private sector
mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and Tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding,'' and the State, local,
or Tribal governments ``lack authority'' to adjust accordingly. Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
This proposed rule would not impose a legally binding duty on non-
Federal Government entities or private parties. Instead, this proposed
amendment to the existing special rule proposes to establish take
authorizations and limitations deemed necessary and advisable to
provide for the conservation of the Utah prairie dog. Application of
the provisions within this proposed rule, as limited by existing
regulations and this proposed amendment, is optional.
(b) We do not believe that this rule would significantly or
uniquely affect small governments. The State of Utah originally
requested measures such as this proposed regulation to assist with
reducing conflicts between Utah prairie dogs and local landowners on
agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR
actively assists with implementation of the current special rule, and
would do the same under this proposed regulation, through a permitting
system. Thus, no intrusion on State policy or administration is
expected; roles or responsibilities of Federal or State governments
will not change; and fiscal capacity will not be substantially directly
affected. The special rule operates to maintain the existing
relationship between the States and the Federal government.
Furthermore, the proposed limitations on where permitted take can
occur, the amount of take that can be permitted, and methods of take
that can be permitted, are largely consistent with current UDWR
practices. Therefore, the rule would not have a significant or unique
effect on State, local, or Tribal governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act is not required.
Takings
This action is exempt from the requirements of E.O. 12630
(Government Actions and Interference with Constitutionally Protected
Private Property Rights). According to section VI (D) (3) of the
Attorney General's Guidelines for the Evaluation of Risk and Avoidance
of Unanticipated Takings, regulations allowing the take of wildlife
issued under the ESA fall under a categorical exemption. This proposed
amendment pertains to regulation of take (defined by the ESA as ``to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct'') deemed
necessary and advisable to provide for the conservation of the Utah
prairie dog. Thus, this exemption applies to this action.
Regardless, we do not believe this action would pose significant
takings implications. This rule will substantially advance a legitimate
government interest (conservation and recovery of listed species).
However, it will not deny property owners economically viable use of
their land, and will not present a bar to all reasonable and expected
beneficial use of private property. We believe the existing special
regulation and the proposed amendments provide substantial flexibility
to our partners while still providing for the conservation of the Utah
prairie dog. Should additional take provisions be required, an
applicant has the option to develop a Habitat Conservation Plan and
request an incidental take permit (see Section 10(a)(1)(B) of the ESA).
This approach would allow permit holders to proceed with an activity
that is legal in all other respects, but that results in the
``incidental'' take of a listed species.
We have concluded that this proposed action would not result in any
takings of private property. Should any takings implications associated
with the proposed amendment be realized, they will likely be
insignificant.
Federalism
In accordance with E.O. 13132 (Federalism), this proposed rule
would not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this proposed amendment with, appropriate
State resource agencies in Utah. The State of Utah originally requested
measures such as this proposed regulation to assist with reducing
conflicts between Utah prairie dogs and local landowners on
agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR
actively assists with implementation of the current special rule, and
would do the same under this proposed regulation, through a permitting
system. Thus, no intrusion on State policy or administration is
expected; roles or responsibilities of Federal or State governments
will not change, and fiscal capacity will not be substantially directly
affected. The special rule operates and, if amended, would continue to
operate to maintain the existing relationship between the State and the
Federal government. Therefore, this rule does not have significant
[[Page 31919]]
Federalism effects or implications to warrant the preparation of a
Federalism Assessment pursuant to the provisions of Executive Order
13132.
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed this amendment to the existing
special rule for the Utah prairie dog in accordance with the provisions
of the ESA. Under section 4(d) of the ESA, the Secretary may extend to
a threatened species those protections provided to an endangered
species as deemed necessary and advisable to provide for the
conservation of the species. The amendments proposed here satisfy this
standard.
Paperwork Reduction Act
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
In 1983, upon recommendation of the Council on Environmental
Quality, the Service determined that National Environmental Policy Act
(NEPA) documents need not be prepared in connection with regulations
adopted pursuant to section 4(a) of the ESA. The Service subsequently
expanded this determination to section 4(d) rules. A section 4(d) rule
provides the appropriate and necessary prohibitions and authorizations
for a species that has been determined to be threatened under section
4(a) of the ESA. It is our view that NEPA procedures unnecessarily
overlay NEPA's own matrix upon the ESA section 4 decisionmaking
process. For example, the opportunity for public comment--one of the
goals of NEPA--is already provided through section 4 rulemaking
procedures. This determination was upheld in Center for Biological
Diversity v. U.S. Fish and Wildlife Service, No. 04-04324 (N.D. Cal.
2005).
However, out of an abundance of caution, we intend to comply with
the provisions of NEPA for this rulemaking. Thus, we are analyzing the
impact of this proposed modification to the existing special rule and
will determine if there are any new significant impacts or effects
caused by this proposed rule. A draft environmental assessment will be
prepared on this proposed action, and will be available for public
inspection and comments when completed. All appropriate NEPA documents
will be finalized before this rule is finalized.
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. Therefore, we intend to coordinate
with affected Tribes within the range of the Utah prairie dog. We will
fully consider all of the comments on the proposed special regulations
that are submitted by Tribes and Tribal members during the public
comment period, and we will attempt to address those concerns, new
data, and new information where appropriate.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this action to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from our Utah Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons stated in the preamble, the Service proposes to
amend part 17, chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
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 revising paragraphs (g)(1) and (g)(3) and
adding paragraphs (g)(4) and (g)(5) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(g) * * *
(1) Except as noted in paragraphs (g)(2) through (g)(4) of this
section, all prohibitions of Sec. 17.31(a) and (b) and exemptions of
Sec. 17.32 apply to the Utah prairie dog.
* * * * *
(3) Direct or intentional take permitted by the Utah Division of
Wildlife Resources. Methods for
[[Page 31920]]
controlling Utah prairie dogs are limited to activities associated with
translocation efforts by trained and permitted individuals complying
with current Service-approved guidance, trapping intended for lethal
removal, and shooting. Actions intended to drown or poison Utah prairie
dogs are prohibited. Under the provisions of paragraph (g)(2) of this
section and permitted by the Utah Division of Wildlife Resources,
direct or intentional take is limited to agricultural land and private
property near conservation land as follows:
(i) Agricultural land. (A) Take may be permitted only on
agricultural land being physically or economically affected by Utah
prairie dogs, and only when the spring count on the agricultural lands
is five or more individuals; and
(B) The land must:
(1) Meet the general classification of irrigated, dryland, grazing
land, orchard, or meadow;
(2) Be capable of producing crops or forage;
(3) Be at least 2 contiguous ha (5 contiguous ac) in area (smaller
parcels may qualify where devoted to agricultural use in conjunction
with other eligible acreage under identical legal ownership);
(4) Be managed in such a way that there is a reasonable expectation
of profit;
(5) Have been devoted to agricultural use for at least 2 successive
years immediately preceding the year in which application is made; and
(6) Meet State average annual (per-acre) production requirements.
(ii) Private property near conservation land. (A) Take may be
permitted on private properties within 0.8 km (0.5 mi) of Utah prairie
dog conservation land.
(B) Conservation lands are defined as non-Federal areas set aside
for the preservation of Utah prairie dogs and are managed specifically
or primarily toward that purpose. Conservation lands may include, but
are not limited to, properties set aside as conservation banks, fee-
title purchased properties, properties under conservation easements,
and properties subject to a safe harbor agreement (see Sec. 17.22.).
Conservation lands do not include Federal lands.
(iii) Permitted take on agricultural lands and private property
near conservation land. (A) The Utah Division of Wildlife Resources
will ensure that permitted take does not exceed 10 percent of the
estimated rangewide population annually.
(B) On agricultural lands, the Utah Division of Wildlife Resources
will limit permitted take to 7 percent of the estimated annual
rangewide population and will limit within-colony take to one-half of a
colony's estimated annual production.
(C) In setting take limits on properties neighboring conservation
lands, the Utah Division of Wildlife Resources will consider the amount
of take that occurs on agricultural lands. The State will restrict the
remaining permitted take (the amount that would bring the total take up
to 10 percent of the estimated annual rangewide population) on
properties neighboring conservation lands to animals in excess of the
baseline population. The baseline population of neighboring lands is
the highest estimated population on that property during the 5 years
prior to establishment of the conservation property.
(D) Translocated Utah prairie dogs will count toward the take
limits in paragraphs (g)(3)(iii)(B) and (g)(3)(iii)(C) of this section.
(4) Incidental take. Utah prairie dogs may be taken when take is
incidental to otherwise-legal activities associated with standard
agricultural practices on agricultural lands. These mortalities are in
addition to the direct or intentional take provisions in paragraphs
(g)(2) and (g)(3) of this section. Acceptable practices include plowing
to depths that do not exceed 46 cm (18 in.), discing, harrowing,
irrigating crops, mowing, harvesting, and bailing, as long as the
activities are not intended to eradicate Utah prairie dogs.
(5) If the Service receives evidence that take pursuant to
paragraphs (g)(2) through (g)(4) of this section is having an effect
that is inconsistent with the conservation of the Utah prairie dog, the
Service may immediately prohibit or restrict such take as appropriate
for the conservation of the species.
* * * * *
Dated: May 18, 2011.
Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-13684 Filed 6-1-11; 8:45 am]
BILLING CODE 4310-55-P