[Federal Register Volume 68, Number 120 (Monday, June 23, 2003)]
[Rules and Regulations]
[Pages 37275-37332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14490]



[[Page 37275]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius 
preblei); Final Rule

Federal Register / Vol. 68, No. 120 / Monday, June 23, 2003 / Rules 
and Regulations

[[Page 37276]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI46


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius 
preblei)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; notice of availability.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Preble's meadow jumping mouse (Zapus hudsonius 
preblei) pursuant to the Endangered Species Act of 1973, as amended 
(Act). The designation includes 8 habitat units totaling approximately 
12,632 hectares (ha) (31,222 acres (ac)) found along 578.1 kilometers 
(km) (359.2 miles (mi)) of rivers and streams in the States of Colorado 
and Wyoming. The designation includes river and stream reaches and 
adjacent areas in the North Platte River and South Platte River.
    The critical habitat designation defines the width of designated 
critical habitat as a distance outward from the river or stream edge 
(as defined by the ordinary high water mark) varying with the size 
(order) of a river or stream. This publication also provides notice of 
the availability of the Addendum to the Economic Analysis of Critical 
Habitat Designation for the Preble's Meadow Jumping Mouse (Addendum to 
the Economic Analysis) and the final Environmental Assessment for 
Designation of Critical Habitat for the Preble's Meadow Jumping Mouse 
(EA) for this final rule.

DATES: This final rule is effective July 23, 2003.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Colorado Ecological Services Field Office, U.S. Fish and Wildlife 
Service, 755 Parfet Street, Suite 361, Lakewood, CO 80215. You may 
obtain copies of this final rule, the Addendum to the Economic 
Analysis, and the final EA from the field office address above or by 
calling 303-275-2370.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Colorado Ecological 
Services Field Office, (see ADDRESSES section), (telephone 303-275-
2370; facsimile 303-275-2371).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the ESA, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of conservation resources. The Service's present system for designating 
critical habitat is driven by litigation rather than biology, limits 
our ability to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. The 
Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.''
    Currently, only 306 species or 25% of the 1,211 listed species in 
the U.S. under the jurisdiction of the Service have designated critical 
habitat. We address the habitat needs of all 1,211 listed species 
through conservation mechanisms such as listing, section 7 
consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, and the Section 10 incidental take permit process. The Service 
believes that it is these measures that may make the difference between 
extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits regarding critical habitat 
designation, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits and to comply 
with the growing number of adverse court orders. As a result, the 
Service's own to proposals to undertake conservation actions based on 
biological priorities are significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for additional public 
participation beyond those minimally required by the APA, the Act, and 
the FWS implementing regulations, or to take additional time for review 
of comments and information to ensure the rule has addressed all the 
pertinent issues before making decisions on listing and critical 
habitat proposals, due to the risks associated with noncompliance with 
judicially imposed. This in turn fosters a second round of litigation 
in which those who will suffer adverse impacts from these decisions 
challenge them. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides little additional 
protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with NEPA, 
all are part of the cost of critical habitat designation. These costs 
result in minimal benefits to the species that is not already afforded 
by the protections of the Act enumerated earlier, and they directly 
reduce the funds available for direct and tangible conservation 
actions.

Background

    Much of what is now known about the Preble's meadow jumping mouse 
is a result of information gained from the early 1990s to the present. 
Following the Preble's listing as a threatened species in 1998, 
knowledge about its distribution, habitat requirements, abundance, and 
population dynamics has grown substantially. However, much of the 
biology and ecology of the Preble's is still not well understood. Where 
gaps in knowledge exist, scientists have relied on information from 
closely related subspecies of the meadow jumping mouse (Zapus 
hudsonius), whose biology and ecology

[[Page 37277]]

appear similar to the Preble's. Information presented below that is 
specific to the Preble's is described as being relevant to this 
subspecies, the Preble's, but when information pertains to what is 
known about other subspecies of meadow jumping mouse, it will be 
described as relevant to the species, the meadow jumping mouse. 
Portions of the following have been adapted from the general biology 
section of the Preble's Meadow Jumping Mouse Recovery Team's (Recovery 
Team's) February 27, 2002, working draft of a recovery plan for the 
Preble's (the Draft Discussion Document referenced in the proposed 
rule) and the updated March 11, 2003, working draft of the recovery 
plan for the Preble's (Working Draft). We believe that the information 
provided in the Working Draft represents the best available science on 
the Preble's.

Taxonomy and Description

    The Preble's is a member of the family Dipodidae (jumping mice) 
with four living genera, two of which, Zapus and Napaeozapus, are found 
in North America (Hall 1981). The three living species within the genus 
Zapus are Z. hudsonius (the meadow jumping mouse), Z. princeps (the 
western jumping mouse), and Z. trinotatus (the Pacific jumping mouse).
    Edward A. Preble (1899) first documented the meadow jumping mouse 
from Colorado. Krutzsch (1954) described the Preble's as a separate 
subspecies of meadow jumping mouse limited to Colorado and Wyoming. The 
Preble's is now recognized as 1 of 12 subspecies of meadow jumping 
mouse (Hafner et al. 1981).
    The Preble's is a relatively small rodent with an extremely long 
tail, large hind feet, and long hind legs. The tail is bicolored, 
lightly-furred, and typically twice as long as the body. The large hind 
feet can be one-third again as large as those of other mice of similar 
size. The Preble's has a distinct, dark, broad stripe on its back that 
runs from head to tail and is bordered on either side by gray to 
orange-brown fur. The hair on the back of all jumping mice appears 
coarse compared to other mice. The underside hair is white and much 
finer in texture. Total length of adult Preble's mice is approximately 
180 to 250 millimeters (mm) (7 to 10 inches (in)), with the tail 
comprising 108 to 155 mm (4 to 6 in) of that length (Krutzsch 1954, 
Fitzgerald et al. 1994).
    The average weight of 120 adult Preble's mice captured early in 
their active season (prior to June 18) was 18 grams (g) (0.6 ounce 
(oz)); included were 10 pregnant females weighing more than 22 g (0.8 
oz) (Meaney et al., in prep.). Upon emergence from hibernation, adult 
Preble's mice can weigh as little as 14 g (0.5 oz). Through late August 
and into mid-September, Preble's adults ready for hibernation weighed 
25 to 34 g (0.9 to 1.2 oz) (Meaney et al., in prep.), comparable to 
pre-hibernation weights for the meadow jumping mouse cited by 
Muchlinski (1988).
    While the western jumping mouse is recognized as a separate species 
from the Preble's, it is similar in appearance and can easily be 
confused with the Preble's. The range of the western jumping mouse in 
Wyoming and Colorado is generally west of, and at higher elevations 
than, the range of the Preble's. However, the two species appear to 
coexist over portions of their range in southeastern Wyoming and 
Colorado (Long 1965, Clark and Stromberg 1987, Schorr 1999, Meaney et 
al. 2001). Compared to the western jumping mouse, the Preble's is 
generally smaller, has a more distinctly bicolored tail, and a less 
obvious dorsal (back) stripe. However, field identification of the 
western jumping mouse and the Preble's in the range of overlap is 
difficult due to their similarity in size and color. Krutzsch (1954) 
described skull characteristics useful for differentiating the two 
species. Previously, studies found that the meadow jumping mouse could 
be distinguished from the western jumping mouse by a fold in the first 
lower molar (Klingener 1963, Hafner 1993). However, this molar 
characteristic is not always reliable due to tooth wear as animals age; 
specimens showing the tooth fold are presumed to be the Preble's, while 
specimens lacking the fold may be either species (Klingener 1963; 
Conner and Shenk, in prep.). A recent reevaluation of Preble's and 
western jumping mouse morphology showed that, by using a combination of 
six skull measurements and this molar characteristic, the Preble's 
could be distinguished from the western jumping mouse (Conner and 
Shenk, in prep.).
    Riggs et al. (1997) analyzed the mitochondrial DNA from tissue 
samples of western and meadow jumping mice from Colorado and Wyoming 
and concluded that the Preble's forms ``a homogenous group recognizably 
distinct from nearby populations and adjacent species of the genus.'' 
Hafner (1997) reviewed the Riggs study and concluded that the Preble's 
does in fact form a relatively homogenous group, as determined by 
inspection of the original sequence data. Hafner (1997) also stated 
that he remained convinced of the accuracy of the biogeography and 
taxonomic arrangement of jumping mice. While results from the genetic 
study supported the taxonomic status of the Preble's, analysis of 
samples from jumping mice in a few Wyoming and Colorado locations 
produced unexpected results. In these cases, samples of assumed 
Preble's mice at lower elevations were later determined to be the 
western jumping mice and samples of assumed western jumping mice at 
higher elevations were later determined to be Preble's mice. Hafner 
(1997) suggested that limited hybridization could have affected the 
results of the study and Beauvais (2001) stated that zones of co-
occurrence of the Preble's and the western jumping mouse in Wyoming 
provide the opportunity for hybridization. However, Krutzsch (1954) 
cited significant range overlap between the meadow jumping mouse and 
the western jumping mouse in North America and indicated that, based on 
examination of skulls from the area of range overlap, there was no 
evidence of interbreeding. The question of possible hybridization 
between the Preble's and the western jumping mouse has yet to be fully 
explored. Future DNA studies, including a current study being conducted 
at the Denver Museum of Nature and Science, may help to resolve this 
and other taxonomic questions regarding Zapus.

Geographic Range

    The Preble's is found along the foothills in southeastern Wyoming, 
southward along the eastern edge of the Front Range of Colorado to 
Colorado Springs, El Paso County (Hall 1981, Clark and Stromberg 1987, 
Fitzgerald et al. 1994). Knowledge about the current distribution of 
the Preble's comes from collected specimens, and live-trapping 
locations from both range-wide survey efforts and numerous site-
specific survey efforts conducted in Wyoming and Colorado since the 
mid-1990s. Recently collected specimens are housed at the Denver Museum 
of Nature and Science and survey reports are filed with the Service's 
Field Offices in Colorado and Wyoming.
    In Wyoming, capture locations of mice confirmed as the Preble's, 
and locations of mice identified in the field as the Preble's and 
released, extend in a band from the town of Douglas southward along the 
Laramie Range to the Colorado border, with captures east to eastern 
Platte County and Cheyenne, Laramie County. In Colorado, the 
distribution of the Preble's forms a band along the Front Range from 
Wyoming southward to Colorado Springs, El Paso County, with eastern 
marginal captures in western Weld County, western Elbert

[[Page 37278]]

County, and north-central El Paso County.
    The Preble's is likely an Ice Age relic (Hafner et al. 1981, 
Fitzgerald et al. 1994). Once the glaciers receded from the Front Range 
of Colorado and the climate became drier, the Preble's was confined to 
the riparian (river) systems where moisture was more plentiful. The 
semi-arid climate in southeastern Wyoming and eastern Colorado limits 
the extent of riparian corridors and restricts the range of the 
Preble's in this region. The Preble's has not been found east of 
Cheyenne in Wyoming or on the extreme eastern plains in Colorado. The 
eastern boundary for the subspecies is likely defined by the dry 
shortgrass prairie, which may present a barrier to eastward expansion 
(Beauvais 2001).
    The western boundary of Preble's range in both States appears 
related to elevation along the Laramie Range and Front Range. The 
Service has used 2,300 meters (m) (7,600 feet (ft)) in elevation as the 
general upward limit of Preble's habitat in Colorado (Service 1998). 
Recent morphological examination of specimens has confirmed the 
Preble's to an elevation of approximately 2,300 m (7,600 ft) in 
Colorado (Meaney et al. 2001) and to 2,360 m (7,750 ft) in southeastern 
Wyoming (Cheri Jones, Denver Museum of Natural Science, in litt., 
2001). In a modeling study of habitat associations in Wyoming, Keinath 
(2001) found suitable habitat predicted in the Laramie Basin and Snowy 
Range Mountains (west of known Preble's occurrence) but very little 
suitable habitat predicted on the plains of Goshen, Niobrara, and 
eastern Laramie Counties (east of known Preble's occurrence).
    Although there is little information on past distribution or 
abundance of the Preble's, surveys have identified various locations 
where the subspecies was historically present but is now absent (Ryon 
1996). Since at least 1991, the Preble's has not been found in Denver, 
Adams, or Arapahoe Counties in Colorado. Its absence in these counties 
is likely due to urban development, which has altered, reduced, or 
eliminated riparian habitat (Compton and Hugie 1993, Ryon 1996).

Ecology and Life History

    Typical habitat for the Preble's comprises well-developed plains 
riparian vegetation with adjacent, undisturbed grassland communities 
and a nearby water source. Well-developed plains riparian vegetation 
typically includes a dense combination of grasses, forbs, and shrubs; a 
taller shrub and tree canopy may be present (Bakeman 1997). When 
present, the shrub canopy is often Salix spp. (willow), although shrub 
species including Symphoricarpus spp. (snowberry), Prunus virginiana 
(chokecherry), Crataegus spp. (hawthorn), Quercus gambelli (Gambel's 
oak), Alnus incana (alder), Betula fontinalis (river birch), Rhus 
trilobata (skunkbrush), Prunus americana (wild plum), Amorpha fruticosa 
(lead plant), Cornus sericea (dogwood), and others also may occur 
(Bakeman 1997, Shenk and Eussen 1998).
    The Preble's have rarely been trapped in uplands adjacent to 
riparian areas (Dharman 2001). However, in detailed studies of the 
Preble's movement patterns using radio telemetry, the Preble's has been 
found feeding and resting in adjacent uplands (Shenk and Sivert 1999b, 
Ryon 1999, Schorr 2001). These studies suggest that the Preble's uses 
uplands at least as far out as 100 m (330 ft) beyond the 100-year 
floodplain (Ryon 1999; Tanya Shenk, Colorado Division of Wildlife, in 
litt., 2002). The Preble's also can move considerable distances along 
streams, as far as 1.6 km (1.0 mi) in one evening (Ryon 1999, Shenk and 
Sivert 1999a).
    In a rangewide comparison of existing habitat data from Colorado, 
Clippenger (2002) found that subshrub cover and plant species richness 
are higher at most sites where meadow jumping mice are present as 
compared to sites where they are absent, particularly at distances 15 
to 25 m (49 to 82 ft) from streams. In a study comparing habitats at 
Preble's capture locations on the Department of Energy's Rocky Flats 
Environmental Technology Site (Rocky Flats), Jefferson County, 
Colorado, and the U.S. Air Force Academy (Academy), El Paso County, 
Colorado, the Academy sites had lower plant species richness at capture 
locations but considerably greater numbers of the Preble's (Schorr 
2001). However, the Academy sites had higher densities of both grasses 
and shrubs. It is likely that Preble's abundance is not driven by the 
diversity of plant species alone, but by the density and abundance of 
riparian vegetation (Schorr 2001).
    The tolerance of the Preble's for invasive exotic plant species is 
not well understood. Whether or not exotic plant species reduce 
Preble's persistence at a site may be due in large part to whether 
plants create a monoculture and replace native species. There is 
particular concern about nonnative species such as Euphorbia esula 
(leafy spurge) that may form a monoculture, displacing native 
vegetation and thus reducing available habitat.
    Fifteen apparent Preble's hibernacula (hibernation nests) have been 
located through radio telemetry, all within 78 m (260 ft) of a 
perennial stream bed or intermittent tributary (Bakeman and Deans 1997, 
Shenk and Sivert 1999a, Schorr 2001). Of these, one was confirmed 
through excavation (Bakeman and Deans 1997); others were left intact to 
prevent harm to the mice. Apparent hibernacula have been located under 
willow, chokecherry, snowberry, skunkbrush, Rhus spp. (sumac), Clematis 
spp. (clematis), Populus spp. (cottonwoods), Gambel's oak, Cirsium spp. 
(thistle), and Alyssum spp. (alyssum) (Shenk and Sivert 1999a). At the 
Academy, four of six apparent hibernacula found by radio-telemetry were 
located in close proximity to Salix exigua (coyote willow) (Schorr 
2001). The one excavated hibernaculum, at Rocky Flats, was found 9 m 
(30 ft) above the stream bed, in a dense patch of chokecherry and 
snowberry (Bakeman and Deans 1997). The nest was constructed of leaf 
litter 30 centimeters (cm) (12 in) below the surface in coarse textured 
soil.
    The Preble's constructs day nests composed of grasses, forbs, 
sedges, rushes, and other available plant material. They may be 
globular in shape or simply raised mats of litter, and are most 
commonly above ground but also can be below ground. They are typically 
found under debris at the base of shrubs and trees, or in open 
grasslands (Ryon 2001). An individual mouse can have multiple day nests 
in both riparian and grassland communities (Shenk and Sivert 1999a), 
and may abandon a nest after approximately a week of use (Ryon 2001).
    Hydrologic regimes that support Preble's habitat range from large 
perennial rivers such as the South Platte River to small drainages only 
1 to 3 m (3 to 10 ft) in width, as at Rocky Flats and in montane 
habitats. Flooding is a common and natural event in the riparian 
systems in southeastern Wyoming and along the Front Range of Colorado. 
This periodic flooding helps create a dense vegetative community by 
stimulating resprouting from willow shrubs, and allows herbs and 
grasses to take advantage of newly-deposited soil.
    Fire is also a natural component of the Wyoming foothills and 
Colorado Front Range, and Preble's habitat naturally waxes and wanes 
with fire events. Within shrubland and forest, intensive fire may 
result in adverse impacts to Preble's populations. However, in a review 
of the effects of grassland fires on small mammals, Kaufman et al. 
(1990) found a positive effect of fire on the meadow jumping mouse in 
one study and no effect of fire on the species in another study.

[[Page 37279]]

    Meadow jumping mice usually have two litters per year, but there 
are records of three litters per year. An average of five young are 
born per litter, but the size of a litter can range from two to eight 
young (Quimby 1951, Whitaker 1963).
    The Preble's is long-lived for a small mammal, in comparison with 
many species of mice and voles that seldom live a full year. Along 
South Boulder Creek, Boulder County, Colorado, seven individuals 
originally captured as adults were still alive 2 years later, having 
attained at least 3 years of age (Meaney et al., in prep.). However, 
like many small mammals, the Preble's annual survival rate is low. 
Preble's survival rates appear to be lower over the summer than over 
the winter. Over-summer survival rates ranged from 22 to 78 percent and 
over-winter survival rates ranged from 56 to 97 percent (Shenk and 
Sivert 1999b; Ensight Technical Services 2000, 2001; Schorr 2001; 
Meaney et al., in prep.).
    The Preble's has a host of known predators including garter snakes 
(Thamnophis spp.), prairie rattlesnakes (Crotalus viridus), bullfrogs 
(Rana catesbiana), foxes (Vulpes vulpes and Urocyon cinereoargenteus), 
house cats (Felis catus), long-tailed weasels (Mustela frenata), and 
red-tailed hawks (Buteo jamaicensis) (Shenk and Sivert 1999a, Schorr 
2001). Other potential predators include coyotes (Canis latrans), barn 
owls (Tyto alba), great horned owls (Bubo virginianus), screech owls 
(Otus spp.), long-eared owls (Asio otus), northern harriers (Circus 
cyaneus), and large predatory fish.
    Other mortality factors of the Preble's include drowning and 
vehicle collision (Schorr 2001, Shenk and Sivert 1999a). Mortality 
factors known for the meadow jumping mouse, such as starvation, 
exposure, disease, and insufficient fat stores for hibernation 
(Whitaker 1963) also are likely causes of death in the Preble's 
subspecies.
    White and Shenk (2000) determined that riparian shrub cover, tree 
cover, and the amount of open water nearby are good predictors of 
Preble's densities, and summarized abundance estimates from nine sites 
in Colorado for field work conducted during 1998 and 1999. Estimates of 
abundance ranged from 4 to 67 mice per km (6 to 110 mice per mi) of 
stream and averaged 33 mice per km (53 mice per mi) of stream.
    While fecal analyses have provided the best data on the Preble's 
diet to date, they overestimate the components of the diet that are 
less digestible. Based on fecal analyses the Preble's eats insects; 
fungus; moss; pollen; willow; Chenopodium sp. (lamb's quarters); 
Salsola sp. (Russian thistle); Helianthus spp. (sunflowers); Carex spp. 
(sedge); Verbascum sp. (mullein); Bromus, Festuca, Poa, Sporobolus and 
Agropyron spp. (grasses); Lesquerella sp. (bladderpod); Equisetum spp. 
(horsetail); and assorted seeds (Shenk and Eussen 1998, Shenk and 
Sivert 1999a). The diet shifts seasonally; it consists primarily of 
insects and fungus after emerging from hibernation, shifts to fungus, 
moss, and pollen during mid-summer (July-August), with insects again 
added in September (Shenk and Sivert 1999a). The shift in diet along 
with shifts in mouse movements suggests that the Preble's may require 
specific seasonal diets, perhaps related to the physiological 
constraints imposed by hibernation (Shenk and Sivert 1999a).
    The Preble's is a true hibernator, usually entering hibernation in 
September or October and emerging the following May, after a potential 
hibernation period of 7 or 8 months. Adults are the first age group to 
enter hibernation because they accumulate the necessary fat stores 
earlier than young of the year. Similar to other subspecies of meadow 
jumping mouse, the Preble's does not store food, but survive on fat 
stores accumulated prior to hibernation (Whitaker 1963). Apparent 
hibernacula of the Preble's have been located both within and outside 
of the 100-year floodplain of streams (Shenk and Sivert 1999a, Ryon 
2001, Schorr 2001). Those hibernating outside of the 100-year 
floodplain would likely be less vulnerable to flood-related mortality.
    Meadow jumping mice are docile to handle and not antagonistic 
toward one another (Whitaker 1972). Introduced species that occupy 
riparian habitats may displace or compete with the Preble's. House mice 
(Mus musculus) were common in and adjacent to historic capture sites 
where the Preble's was no longer found (Ryon 1996).
    The Preble's is primarily nocturnal or crepuscular but also may be 
active during the day, when they have been seen moving around or 
sitting still under a shrub (Shenk 1998). Little is known about social 
interactions and their significance in the Preble's. Jones and Jones 
(1985) described lively social interactions in which several Preble's 
mice were observed jumping into the air and squeaking and suggested 
that they formed a gregarious unit. In a recent study, for the month 
their radio-collars were active, several Preble's mice came repeatedly 
from different day-nest locations to meet at one spot at night (Shenk, 
pers. comm., 2002).

Conservation Issues

    The Preble's is closely associated with riparian ecosystems that 
are relatively narrow and represent a small percentage of the 
landscape. If habitat for the Preble's is destroyed or modified, 
populations in those areas will decline or be extirpated. The decline 
in the extent and quality of Preble's habitat is considered the main 
factor threatening the subspecies (Service 1998, Hafner et al. 1998, 
Shenk 1998). Habitat alteration, degradation, loss, and fragmentation 
resulting from urban development, flood control, water development, 
agriculture, and other human land uses have adversely impacted Preble's 
populations. Habitat destruction may impact individual Preble's mice 
directly or by destroying nest sites, food resources, and hibernation 
sites, by disrupting behavior, or by forming a barrier to movement.
    Despite numerous surveys, the Preble's has not recently been found 
in the Denver and Colorado Springs metropolitan areas, and is believed 
to be extirpated from these areas as a result of extensive urban 
development. Given the overlap of the Preble's range with an area of 
extensive and rapid urban development along the Colorado Front Range, 
it is likely that significant losses of Preble's populations and 
habitats have occurred and may continue to occur.
    Conversion of native riparian ecosystems to commercial croplands 
and grazed rangelands was identified as the major threat to Preble's 
persistence in Wyoming (Clark and Stromberg 1987, Compton and Hugie 
1993). Intensive grazing and haying operations may negatively impact 
the Preble's by removing food and shelter. While some Preble's 
populations coexist with livestock operations, overgrazing can decimate 
riparian communities on which the Preble's depends. Similarly, haying 
operations that allow significant riparian vegetation to remain in 
place may be compatible with persistent Preble's populations.
    Trail systems frequently parallel or intersect riparian communities 
and thus are common throughout Preble's range. Trail development can 
alter natural communities and may impact the Preble's by modifying nest 
sites, food resources, and hibernation sites, and by fragmenting its 
habitat. Humans and pets using these trails may alter behavior patterns 
of the Preble's and cause a decrease in survival and reproductive 
success.
    Habitat fragmentation limits the extent and abundance of the 
Preble's. In

[[Page 37280]]

general, as animal populations become fragmented and isolated, it 
becomes more difficult for them to persist. Small, isolated patches of 
habitat are unable to support as many Preble's mice as larger patches 
of habitat. When threats to persistence are similar, larger populations 
are more secure from extirpation than smaller ones.
    The structure and function of riparian ecosystems are determined by 
the hydrology of the waterway. Changes in timing and abundance of water 
can alter the channel structure, riparian vegetation, and the adjacent 
floodplain, and may result in changes that are detrimental to the 
persistence of the Preble's. Similarly, depletion of groundwater also 
affects the habitat components needed by the Preble's. As groundwater 
supplies are depleted, more xeric (low moisture) plant communities 
replace the riparian vegetation. The conversion of habitats from mesic 
(moderate moisture), shrub-dominated systems to drier grass-dominated 
systems may preclude the Preble's from these areas.
    Alluvial aggregate extraction may produce long-term changes to 
Preble's habitat by altering hydrology and removing riparian 
vegetation. In particular, such extraction removes and often precludes 
reestablishment of habitat components required by the Preble's. Such 
mining impacts the deposits of alluvial sands and gravels that may be 
important hibernation locations for the Preble's.
    Within the Preble's range, bank stabilization, channelization, and 
other measures to address flooding and stormwater runoff have increased 
the rate of stream flow, straightened riparian channels, and narrowed 
riparian areas (Pague and Grunau 2000). Using riprap and other 
structural stabilization options to reduce erosion may destroy riparian 
vegetation, and prevent or delay its re-establishment. In some cases 
these measures can alter the hydrologic processes and plant communities 
present to the point where Preble's populations can no longer persist.
    Transportation and utility corridors frequently cross Preble's 
habitat and may negatively affect populations. As new roads are built 
and old roads are maintained, habitat is destroyed or fragmented. Roads 
and bridges also may act as barriers to dispersal.
    The increasing presence of humans near Preble's habitats may result 
in increased level of predation that may pose a threat to the Preble's. 
The striped skunk (Mephitis mephitis), raccoon (Procyon lotor), red fox 
(Vulpes vulpes), and the domestic and feral cat are found in greater 
densities in and around areas of human activity; all four of these 
species feed opportunistically on small mammals. The indication that 
summer mortality is higher than overwinter mortality underscores the 
impact that predators can have on the Preble's.
    While normal flooding events help maintain the riparian and 
floodplain communities that provide suitable habitat for the Preble's, 
increased development and surfaces impervious to water absorption 
within a drainage can result in more frequent and severe flood events, 
increase erosion, cause downcutting of channels (lowering of channel 
grade relative to the banks and adjacent floodplain), and prevent the 
re-establishment of riparian communities.
    Catastrophic fires can alter habitat dramatically and change the 
structure and composition of the vegetation communities so that the 
Preble's may no longer persist. In addition, precipitation falling in a 
burned area may degrade Preble's habitat by causing greater levels of 
erosion and sedimentation along creeks. Controlled use of fire may be 
one method to maintain appropriate riparian, floodplain, and upland 
vegetation within Preble's habitat. However, over the past several 
decades, as human presence has increased through Preble's range, 
significant effort has been made to suppress fires. Long periods of 
fire suppression may result in a build-up of fuel and result in a 
catastrophic fire.

Previous Federal Actions

    On July 17, 2002, we published the proposed rule to designate 
critical habitat for the Preble's (67 FR 47154). In that proposed rule 
(beginning on page 47518), we included a detailed summary of the 
previous Federal actions completed prior to publication of the 
proposal. We now provide updated information on the actions that we 
have completed since the proposed critical habitat designation. Four 
public hearings were held during the 60-day public comment period, 
which closed September 16, 2002. Public hearings were held in Cheyenne, 
Wyoming, on August 27; Wheatland, Wyoming, on August 28; Castle Rock, 
Colorado, on August 28; and Loveland, Colorado, on August 29. Because 
of numerous requests to reopen the comment period and hold additional 
public hearings in Colorado, the comment period was reopened on 
November 21, 2002, for 60 days, through January 21, 2003 (67 FR 70202). 
Two additional public hearings were held in Golden, Colorado, on 
November 21. On January 28, 2003, the Service announced the 
availability of the Draft Economic Analysis of Critical Habitat 
Designation for the Preble's Meadow Jumping Mouse (Draft Economic 
Analysis) and draft EA for the proposed designation of critical habitat 
for the Preble's (68 FR 4160), and opened the comment period on all 
three documents through February 27, 2003.

Recovery Plan

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our endangered species program. To 
help guide the recovery effort, we prepare recovery plans for most of 
the listed species native to the United States. Recovery plans describe 
actions considered necessary for conservation of the species, establish 
criteria for downlisting or delisting the species, and estimate time 
and cost for implementing the recovery measures needed.
    In early 2000, the Recovery Team was established by the Service 
pursuant to section 4(f)(2) of the Act and our cooperative policy on 
recovery plan participation, a policy intended to involve stakeholders 
in recovery planning (59 FR 34272). Stakeholder involvement in the 
development of recovery plans helps minimize the social and economic 
impacts that could be associated with recovery of endangered species. 
Various stakeholders are represented on the Recovery Team and other 
public participation (including oral comments at recovery team meetings 
and written comments on the early drafts of the recovery plan) has 
taken place. The Recovery Team has prepared a series of drafts of a 
recovery plan for the Preble's. They identify the criteria for reaching 
recovery and delisting of the Preble's. A draft recovery plan, once 
completed, will be published in the Federal Register, will be available 
for public comments, and will provide an additional venue for 
stakeholder and public participation. Our proposed rule to designate 
critical habitat cited the draft dated February 27, 2002, which we 
referred to as the Draft Discussion Document. This final rule and the 
conservation strategy that supports it have been developed 
incorporating information included through the March 11, 2003, Working 
Draft.

Summary of Comments and Recommendations

    In the July 17, 2002, proposed rule, we requested all interested 
parties to submit comments or information concerning the designation of 
critical habitat for the Preble's meadow jumping mouse. During the 
comment period, we held four informational meetings followed by public 
hearings. We

[[Page 37281]]

published newspaper notices inviting public comment and announcing the 
public hearings. In addition we contacted interested parties (including 
elected officials, media outlets, local jurisdictions, and interest 
groups) through a press release and related fact sheets, faxes, mailed 
announcements, telephone calls, and e-mails. We received numerous 
requests to reopen the comment period and hold additional public 
hearings in Colorado. On September 12, 2002, prior to the closing of 
the initial comment period, the Service contacted interested parties in 
a letter, committing to reopen the comment period and, in response to 
criticism that the previous Colorado hearings had been inadequately 
publicized, committed to holding at least one more hearing in Colorado. 
The Service expanded efforts to notify interested parties directly for 
the second (and third) comment periods. The second comment period 
opened on November 21, 2002, for a period of 60 days. Two additional 
public hearings were held. On January 28, 2003, the Service announced 
the availability of the Draft Economic Analysis and draft EA for the 
proposed designation of critical habitat for the Preble's and opened a 
30-day comment period on all three documents.
    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we seek the expert opinions of at least three appropriate and 
independent specialists regarding proposed rules. The purpose of such 
review is to ensure decisions are based on scientifically sound data, 
assumptions, and analyses. We solicited opinions of four independent 
experts familiar with the species or the conservation of small mammals 
to peer review the proposed critical habitat designation. Three of the 
four peer reviewers provided comments. We also received 170 written and 
47 oral comments. Many individuals or organizations commented more than 
once. Approximately 104 comments were from Colorado and 102 from 
Wyoming. Additionally, comments were received from 6 other States. 
Overall, 121 written comments and 38 oral comments opposed designation 
or favored reduced designation, 28 written comments and 6 oral comments 
supported designation or favored expanded designation, and 21 written 
comments and 3 oral comments were deemed neutral. Several neutral 
comments consisted of requests for extending the comment period or 
holding additional hearings.

Peer Review Comments

    Comment 1: Two reviewers commented on the taxonomy of the Preble's, 
both in relation to the western jumping mouse and as compared with 
other subspecies of the meadow jumping mouse. One reviewer stated that 
the limited genetic data available is ``enough to suggest (consistent 
with the prevailing taxonomic review of the genus Zapus by 
Krutsch,1954) that Zapus hudsonius is distinct from the western jumping 
mouse, Z. princeps.'' He emphasized the need to review any available 
genetic studies regarding the validity of the Preble's as compared to 
Z. h. luteus to the south and Z. h. campestris to the north. It was 
that reviewer's opinion that the conservation value of the proposed 
rule was dependent on whether the recognized Preble's subspecies 
represents an evolutionarily significant unit. A second reviewer 
suggested that the two species, western jumping mouse and the meadow 
jumping mouse, may not be distinctly separate within the range of the 
Preble's and that the possibility of hybridization should be given more 
credence. This reviewer noted that the document ``presupposes that the 
taxon Z. h. preblei exists, and that dental, cranial, and genetic 
evidence is just some sort of double-checking of that forgone 
conclusion.'' He suggested specific language to describe existing 
evidence regarding the taxonomic status of the Preble's.
    Our Response: At the time of the 1998 listing, the Service 
concluded that the best scientific and commercial data available 
indicated that the Preble's was a valid subspecies. Little additional 
information has become available since 1998 to revise this conclusion. 
We anticipate that genetic studies, including those currently being 
conducted at the Denver Museum of Nature and Science, will 
significantly add to the existing knowledge regarding the genetic 
makeup of the Preble's and its relationship to other jumping mice. 
Based on the court-approved settlement agreement setting a completion 
date of June 4, 2003, for designation of critical habitat, we can not 
wait for the results of ongoing genetics studies before completing 
critical habitat designation. The designation is based on the best 
scientific information available to date.
    Comment 2: Two reviewers were critical of the use of an elevation 
of 2,300 m (7,600 ft) as a general upper limit to designated critical 
habitat. One pointed out that vegetation differs by elevation depending 
on factors such as aspect, slope, and latitude. The other reviewer 
stated that prairie habitats extend to higher elevations in the 
foothills of the Laramie Mountains than in the Front Range of Colorado. 
One of the reviewers questioned the premise that the Laramie Mountains 
represented the western boundary of Preble's range in southern Wyoming, 
since passes in the range do not exceed 2,300 m (7,600 ft) and 
appropriate habitat appears to exist west of the mountains.
    Our Response: It is likely that a variety of factors dictate the 
maximum elevation at which the Preble's might be found in a given 
drainage. Research conducted to date on the Preble's has not provided 
specific knowledge of all factors involved, nor in most cases have 
drainage-specific trapping studies been done to document the upper 
limits of the Preble's. We believe that the 2,300 m (7,600 ft) 
elevation in most cases provides a reasonable estimate of habitat 
likely to be occupied by the Preble's. While it is possible that the 
Preble's ranges west of the Laramie Mountains in southern Wyoming 
(based on preliminary identification of recently acquired specimens), 
there is currently no conclusive evidence of this. If an established 
population of the Preble's is documented west of the Laramie Mountains, 
it would represent a change in our understanding of the Preble's range.
    Comment 3: One reviewer stated that without comprehensive taxonomic 
or biosystematic study across the range of the Preble's, assumptions 
regarding the identity of trapped and released mice represented a 
critical deficiency in the proposed rule. In contrast, a second 
reviewer concluded that, in order to conserve the Preble's, it seemed 
acceptable to identify and designate critical habitat on stream reaches 
with ``reasonably high chances'' of supporting the Preble's, based on 
captures of jumping mice at elevations shown to support the Preble's.
    Our Response: The western jumping mouse and Preble's meadow jumping 
mouse appear to coexist over portions of their range in southeastern 
Wyoming and Colorado, and they are difficult to distinguish by visual 
examination in the field. Detailed morphological or genetic examination 
is generally required to conclusively establish the identity of a 
specimen. We proposed critical habitat in some areas where the presence 
of Preble's was based only on field identification at sites with 
elevations appropriate for the presence of Preble's. However, we have 
re-examined the merits of this approach in light of the substantive and 
thoughtful critique from a peer reviewer. In consideration of these 
comments from a peer reviewer, we are not persuaded that it is

[[Page 37282]]

appropriate in this instance to include such areas within the critical 
habitat designation, and they are not included in the final 
designation. We have included in the final designation only those units 
occurring in drainages within which there is a specimen verified as 
Preble's through morphological or genetic means. Accordingly, we have 
removed the Horseshoe Creek unit (NP2), the Friend Creek and Murphy 
Canyon unit (NP4), the Horse Creek unit (NP5), the Lone Tree Creek unit 
(SP3), the Cedar Creek unit (SP7), and the Cherry Creek unit (SP11) 
from final critical habitat. Each of these units occurred in a drainage 
within which no mice had been verified to be Preble's through 
morphological or genetic means, but rather only through field 
identification.
    For the purpose of determining whether federal actions may affect 
the Preble's in areas not designated as critical habitat, we will 
continue to accept field identification by qualified individuals using 
established survey guidelines as an adequate basis for determining 
presence or absence of this subspecies. We do not believe it is 
appropriate and practical to hold project-specific section 7 
consultations to the same level of certainty as a final rulemaking 
designating critical habitat, nor do we believe it to be sound public 
policy to require genetic or morphological examination that could 
substantially delay project review. Federal agencies and project 
sponsors may voluntarily opt to employ these more detailed and time 
consuming identification techniques, but it will be at their discretion 
and not as a requirement of the Service.
    Comment 4: One reviewer critiqued conservation strategies used to 
support the Draft Discussion Document and the proposed critical habitat 
rule. He emphasized the need to understand Preble's movements, 
connectivity of habitat, interchange of individuals among populations, 
and potential for re-colonization when populations are extirpated. He 
commented on the lack of redundancy in the proposed recovery 
populations within each hydrological unit, resulting in reduced 
opportunity for re-colonization, and he viewed the number of proposed 
recovery populations as potentially insufficient. He also emphasized 
that persistence of Preble's populations will be dependent on habitat 
quality at the selected recovery sites and that habitat quality may be 
a more important consideration than land ownership. Regarding the 
proposed rule to designate critical habitat, he acknowledged that in 
some drainages designation of additional populations beyond those 
identified as recovery populations in the Draft Discussion Document 
would increase the probability of Preble's persistence.
    Our Response: Currently proposed distribution and potential 
connectivity of recovery populations were considered in developing the 
conservation strategy proposed in the Draft Discussion Document. Future 
peer review will address a draft recovery plan and the conservation 
strategies that support it. Regarding designation of critical habitat, 
we examined both quality of existing habitat and land ownership in 
making our determinations.
    Comment 5: One reviewer suggested that hibernation is a key element 
that separated the Preble's from more common small riparian rodents 
within its range, and that location and integrity of alluvial deposits 
appropriate for excavating hibernacula may be an important aspect of 
Preble's habitat. He also suggested that ``bioassay'' (assessment) of 
probable habitat was preferable to delineating outward boundaries of 
critical habitat based on a set distance from the stream bank.
    Our Response: We believe that designated outward limits of critical 
habitat capture most alluvial deposits likely used by the Preble's for 
hibernacula. We agree that site specific assessment of habitat would be 
preferable to use of a standard distance outward to designate extent of 
critical habitat. However, we had neither the time nor resources to 
conduct such a reach by reach assessment through the range of the 
Preble's. In addition, we believe that appropriate outward boundaries 
of critical habitat are not necessarily equivalent to probable Preble's 
habitat, which corresponds closely to vegetation currently present, and 
is dependent on current land use and recent site history.

Section 4(i) Comments From States

    Comment 1: To suggest that no county-level or individual habitat 
conservation plans (HCPs) are likely to be implemented in Wyoming 
during the next 10 years is unacceptable (Governor Freudenthal, State 
of Wyoming).
    Our Response: The Addendum to the Economic Analysis acknowledges 
the possibility that HCPs may be developed and implemented over the 
next 10 years for activities in Wyoming that are not exempt from 
sections 9 and 10 of the Act by the special 4(d) rule (i.e., 
residential or industrial development).
    Comment 2: An agricultural economist from the University of Wyoming 
should be hired for the economic analysis to ensure familiarity with 
both the economics field and the people being affected rather than 
relying on those who are comparatively unfamiliar with the subject 
matter (Wyoming Department of Agriculture).
    Our Response: To address these very issues, Gary Watts (Watts and 
Associates, Inc., Laramie, Wyoming) was contracted to assist in 
development of the Draft Economic Analysis. Mr. Watts is a natural 
resource and environmental economist from Wyoming with over 30 years of 
research and consulting experience, including several years of 
experience as a Senior Economist with the Division of Business and 
Economic Research at the University of Wyoming. Mr. Watts' expertise 
and experience include economic analyses associated with water 
projects, irrigation, and agriculture.
    Comment 3: The Service needs to define ``near'' as used on page ES-
1 of the Draft Economic Analysis regarding future section 7 impacts in 
or near proposed critical habitat. Provide information on what being 
``near'' critical habitat will mean (Wyoming Department of 
Agriculture).
    Our Response: Section 7(a)(2) of the Act requires every Federal 
agency, in consultation with and with the assistance of the Secretary, 
to insure that any action it authorizes, funds, or carries out is not 
likely to jeopardize the continued existence of a listed species or 
result in the destruction or adverse modification of designated 
critical habitat. In considering the effects of a proposed action, the 
Federal agency looks at the direct and indirect effects of an action on 
the species or critical habitat. Indirect effects are caused by the 
proposed action, are later in time, and are reasonably certain to 
occur. They may occur outside of the area directly affected by the 
action. For example, construction of a housing development upstream of 
critical habitat may result in increased runoff, sedimentation, and 
pollution in critical habitat. The definition of ``near'' or distance 
within which indirect effects should be considered will vary depending 
upon the type of Federal action occurring.
    Comment 4: The Draft Economic Analysis was not clear regarding 
whether the total cost of section 7 included the Service's cost for 
consultation (Wyoming Game and Fish Department).
    Our Response: The total cost of section 7 includes the 
administrative costs of consultation (borne by the Service, the Federal 
action agency, and occasionally third parties), as well as the costs of 
project modifications.

[[Page 37283]]

    Comment 5: The benefits associated with critical habitat 
designations are overstated. Providing habitat for only one species in 
a riparian area will not enhance ecosystem health, but ultimately could 
be detrimental to the system in total. Prevention of vegetative 
succession and successional setbacks will decrease habitat diversity 
and harm some species (Wyoming Game and Fish Department).
    Our Response: The Service contends that good Preble's habitat is 
generally a healthy riparian ecosystem. Clippenger (2002) found 
evidence of ecological disturbance in the form of lower native species 
diversity, lower richness, and increased presence of exotic species 
found in rodent communities at riparian sites lacking meadow jumping 
mice and concluded that Preble's can be a useful indicator of 
environmental integrity in riparian areas and associated upland areas 
in the Colorado piedmont.
    Comment 6: Wyoming's contention continues to be that the original 
Preble's listing was not justified. The existence of the Preble's in 
Wyoming is yet to be verified. Designation of critical habitat based on 
the presumption of presence is wrong (Governor Geringer, State of 
Wyoming). The Service should perform a 5-year status review as required 
under the Act (Governor Freudenthal, State of Wyoming).
    Our Response: We listed the Preble's as a federally-threatened 
species in 1998 and described its range based on the best scientific 
and commercial data available at that time. Substantial additional 
information on the Preble's has become available since the 1998 
listing. Petitions to delist the Preble's have been received and are 
being addressed. We plan to initiate a 5 year review of Preble's meadow 
jumping mouse in the near future. We anticipate that the results of 
continuing genetic and morphological studies of Zapus will supplement 
current information on the taxonomic status of the Preble's subspecies 
and its distribution in Wyoming. The taxonomy and distribution of the 
Preble's are addressed in the Background section of this rule. See also 
the Peer Review section above. As discussed above, we have decided to 
include in the final critical habitat determination only those units 
occurring in drainages within which there is a specimen verified as 
Preble's through morphological or genetic means. Accordingly, we have 
removed the Horseshoe Creek unit (NP2), the Friend Creek and Murphy 
Canyon unit (NP4), the Horse Creek unit (NP5), and the Lone Tree Creek 
unit (SP3) in Wyoming; as well as the Cedar Creek unit (SP7), and the 
Cherry Creek unit (SP11) in Colorado. Each of these units occurred in a 
drainage within which no mice had been verified to be Preble's through 
morphological or genetic means, but rather only through field 
identification. If, in the future, one or more of these areas is 
determined to support mice verified as Preble's through morphological 
or genetic examination, we would consider whether rulemaking to amend 
critical habitat is warranted.
    Comment 7: The majority of areas proposed as critical habitat have 
not been visited by Service personnel. (Wyoming Department of 
Agriculture)
    Our Response: The Service used site visits to specific reaches, 
aerial photographs, habitat maps, coordination with Federal, State, and 
local government agencies, public comments, and other submitted 
information in determining proposed and final designation of critical 
habitat. Time, staffing, and monetary constraints, as well as issues of 
access, limited site visits and methods used to assess specific stream 
reaches.
    Comment 8: The Service should prepare a list of all activities with 
a Federal nexus for which designation of critical habitat may have 
economic effects (Wyoming Game and Fish Department).
    Our Response: In general, actions on Federal lands, and actions on 
non-federal lands that are funded or permitted by a Federal agency have 
a Federal nexus. An exception exists in cases where the Federal agency 
involved has no discretionary involvement or control over the action in 
question (see Federal Actions that May Destroy or Adversely Modify 
Preble's Meadow Jumping Mouse Critical Habitat, below). The 
determination of whether a Federal nexus exists for a given activity 
should be made on a case by case basis and largely rests with the 
Federal agency involved. Preparation of an all-inclusive list of 
potential Federal actions by all Federal agencies, that would result in 
a Federal nexus, is impractical.
    Comment 9: Landowners may forgo Federal assistance because of the 
anxiety associated with section 7 consultations (Governor Freudenthal, 
State of Wyoming).
    Our Response: In cases where a Federal nexus exists and the 
resulting action is beneficial or neutral to the Preble's, consultation 
requirements under section 7 of the Act can be easily completed. We 
anticipate that all Federal agencies will promote projects beneficial 
to the Preble's, work with landowners to reduce potential impacts to 
the Preble's, and provide information and guidance to landowners to 
help alleviate fears regarding Federal regulation of activities on 
private lands.
    Comment 10: If designation of critical habitat is projected to have 
a modest impact on agricultural land use, why are these lands included 
in the designation (Governor Freudenthal, State of Wyoming)? It is 
puzzling that the Service believes that agricultural development is not 
a threat to the Preble's but still believes that agricultural lands 
need critical habitat designation (Wyoming Game and Fish Department).
    Our Response: Agriculture, including grazing and haying, can be 
managed in many different ways, some of which may be beneficial to 
Preble's habitat, others harmful. Much of the habitat in Wyoming is 
currently being grazed or managed for hay production in a manner that 
maintains what appears to be good habitat for the Preble's. However, 
there are also areas being managed in a manner that is not conducive to 
the development or maintenance of Preble's habitat. As defined, 
critical habitat is essential to conserve the species and it may 
require special management considerations or protection. The areas 
designated as critical habitat have been determined to be essential to 
the conservation of the Preble's. Additionally, those areas where 
current management is resulting in maintenance of good habitat have no 
agreements committing to the continuation of such practices. In such 
cases, special management considerations or protections may be 
required. ``Agricultural development'' implies a change in land use and 
could be a threat to the Preble's. In instances where a Federal nexus 
exists, protections would ensure that changes in agricultural practices 
harmful to the Preble's are not instituted without required 
consultation.
    Comment 11: Protection of the Preble's critical habitat is in 
direct opposition to the needs of the threatened Colorado butterfly 
plant (Gaura neomexicana ssp. coloradensis) and the threatened Ute 
ladies'-tresses orchid (Spiranthes diluvialis) (Wyoming Game and Fish 
Department).
    Our Response: At a landscape scale, requirements of these species 
are not in conflict and they are able to co-exist. All have similar, 
although not identical, habitat requirements. All three occur in 
floodplain areas, often within the same drainages. Preble's requires 
more dense vegetation than do the plants, which do not compete well 
with dense vegetation. However, Preble's also utilizes these more open, 
grassy areas for foraging and other activities. We believe that

[[Page 37284]]

management can provide for a mosaic of habitat within individual 
drainages and allow for conservation of these and many other species.
    Comment 12: The Draft Economic Analysis causes confusion by not 
specifying the costs generated from the designation of critical habitat 
as opposed to those generated by the listing. It is difficult to 
estimate the true economic impact of critical habitat designation 
(Governor Freudenthal, State of Wyoming).
    Our Response: The court, as in New Mexico Cattle Growers Ass'n v. 
U.S. Fish and Wildlife Service, 248 F.3d 1277, requires us to look at 
co-extensive costs (consideration of the impact of all economic effects 
that could be a result of the designation, even if they are the same as 
those that arise from the listing). This is the approach the Draft 
Economic Analysis and Addendum to the Economic Analysis take. The 
Service recognizes that if an area is excluded from the final 
designation, not all of the economic impacts described in the Economic 
Analysis may be avoided.
    Comment 13: Critical habitat boundaries should align with county-
wide HCP boundaries for consistency (Colorado Department of Natural 
Resources).
    Our Response: We agree with the comment that critical habitat 
boundaries should match HCP boundaries wherever possible. We have 
included modifications in SP4 where there is agreement on a proposed 
protection zone associated with a rural agricultural conservation plan. 
Additionally, we have excluded units SP8, SP9, SP12, and A1, and 
private lands in Douglas County in unit SP13, which are included 
presently in the following proposed HCPs: Boulder, Douglas County, and 
El Paso County. The reasons for excluding these pending HCPs are 
discussed below.

Public Comments

    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and the Preble's meadow jumping mouse, 
the Draft Economic Analysis, and the draft EA. In the following summary 
of issues we address comments received on all three documents during 
the comment periods and public hearing testimony.
    Comments of a similar nature are grouped into issues.

Issue 1: Biological Concerns and Methodology

    Comment 1: Critical habitat for the Preble's is not determinable. 
Too little is known about the Preble's, its habitat needs, population 
sizes, and its distribution to designate critical habitat.
    Our Response: Several commenters cited our statement that ``* * * 
much of the biology and ecology of the Preble's is still not well 
understood.'' A similar statement could probably made for a majority of 
species upon listing under the Act. See our statement above. We have 
used the best scientific and commercial data available, and exercised 
our professional judgment to propose critical habitat. In addition, 
peer review comments, all public comments, and any additional 
information received were considered in final designation of critical 
habitat.
    Comment 2: The extent of critical habitat proposed by the Service 
is inadequate (e.g., critical habitat should be designated for all 
occupied habitat; all high-quality habitat should be designated 
regardless if the Preble's has been documented in the area). A number 
of comments were received suggesting that specific reaches be added in 
the final designation of critical habitat. One commenter roughly mapped 
approximately 500 km (300 mi) of additional rivers and streams over 
approximately 50 additional reaches in Colorado as suggested additions 
to final critical habitat.
    Our Response: We believe that the suggestions that critical habitat 
designation be extended to all habitat occupied by the Preble's or to 
all potentially occupied areas of high-quality habitat are not 
supported by the definition of critical habitat under 3(5)(A) of the 
Act. Within the geographic area occupied by the species we designate 
only areas currently known to be essential to conserve the species. In 
accordance with sections 3(5)(C) of the Act, not all areas that can be 
occupied by a species will be designated critical habitat. We designate 
as critical habitat areas outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species. 
Based on the best scientific data available there appears no basis for 
designation of critical habitat outside of the geographic area occupied 
by the species. Translocation of the Preble's from existing populations 
to unoccupied habitat is not part of our conservation strategy for the 
Preble's. Given the extent and distribution of known Preble's 
populations, we believe that protection within the area currently 
occupied will be sufficient to conserve the Preble's. Where suggestions 
for additions to proposed critical habitat were accompanied by specific 
justification, our responses are detailed in Issue 3, Comments on 
Specific Units, below. If in the future, we determine from information 
or analysis that those areas designated in this final rule need further 
refinement, or if we identify or determine additional areas to be 
essential to the conservation of the Preble's and requiring special 
management or protection, we will evaluate whether a revision of 
critical habitat is warranted.
    Comment 3: The Draft Discussion Document is not a final document 
and has not received public review; therefore, it should not be used as 
a basis for designation of critical habitat.
    Our Response: Although a draft recovery plan has not been published 
for public review, the Draft Discussion Document, as now modified in 
the subsequent Working Draft, provides the latest available scientific 
information on the Preble's. This information is being used in 
development of a recovery plan and has been used to develop a 
conservation strategy that supports the critical habitat designation. 
For example, information on range, occupancy, populations, and habitat 
characteristics are being used in both efforts. The critical habitat 
proposal has been refined through comments and additional information 
received, as has the Draft Discussion Document. Whenever and wherever 
the best scientific and commercial information presents itself to the 
Service, we will incorporate it into species conservation efforts, as 
illustrated here and in the recovery planning process for the Preble's.
    Comment 4: Critical habitat should correspond more closely to 
proposed recovery populations described in the Draft Discussion 
Document. In several drainages, proposed critical habitat falls short 
of the recovery populations proposed. In some instances proposed 
critical habitat greatly exceeds minimum stream lengths of large or 
medium recovery populations described in the Draft Discussion Document. 
Also, proposed critical habitat has added units beyond those discussed 
as recovery populations in the Draft Discussion Document.
    Our Response: The conservation strategy underlying this critical 
habitat designation was informed by the ongoing recovery planning 
process and the associated Draft Discussion Document and Working Draft, 
but the outcomes are not identical. The Draft Discussion Document and 
the subsequent Working Draft provide recovery criteria for achieving 
recovery of the species. Recovery populations are proposed for specific 
hydrological units within the range of the Preble's,

[[Page 37285]]

described by an 8-digit Hydrological Unit Code or HUC (hereafter, we 
refer to these specific subdrainages as ``HUCs.''). We adopted some of 
the same elements when developing a conservation strategy for 
designating critical habitat. For some HUCs there is little or no 
available information on the existence of Preble's populations or the 
extent of occupied habitat. In these cases we exercised our judgement 
as to whether the areas were essential to the conservation of the 
Preble's and whether designation of critical habitat was warranted 
based on any confirmed occurrence of the Preble's, and quality and 
distribution of appropriate habitat. The Draft Discussion Document 
provided minimum stream lengths deemed necessary to achieve population 
goals; however, we believe that the potential for reaching population 
goals increases with increased length of streams included in a recovery 
population. Therefore, we have not limited the extent of critical 
habitat to minimum stream lengths described in the Draft Discussion 
Document. In some HUCs we proposed critical habitat units beyond the 
number of recovery populations that the Draft Discussion Document 
specifies. We have placed emphasis on those Preble's populations 
occurring on Federal lands and have designated critical habitat for 
several Preble's populations on Federal lands independent of recovery 
populations proposed in the Draft Discussion Document and the 
subsequent Working Draft.
    Comment 5: Proposed critical habitat units are discontinuous within 
some drainages. These areas should be linked even where intervening 
steam reaches do not support the Preble's.
    Our Response: In most cases proposed critical habitat units exceed 
minimum reach lengths for large, medium, and small populations proposed 
in the Working Draft and reflected in our conservation strategy. All 
proposed critical habitat units exceed 5 km (3 mi) in length. In some 
cases we chose not to link stream reaches through designation of 
marginal habitat or to substantially extend critical habitat to cover a 
larger Preble's population where multiple small recovery populations 
are consistent with our conservation strategy.
    Comment 6: Critical habitat should not be designated in reaches 
where the Preble's has not been confirmed present. The Service must 
clearly establish that the Preble's lives in the area before 
designating critical habitat.
    Our Response: See response to Peer Review Comment 3 above.
    Comment 7: Within proposed critical habitat units there are 
locations where Preble's habitat is not present. Some incised, or 
otherwise impacted or altered reaches of stream may be impassable for 
the Preble's and do not serve as travel corridors. There should be a 
process for site-specific exclusions from critical habitat where 
primary constituent elements are not present. Several commenters 
requested that specific sites within proposed critical habitat units 
not be included in the final critical habitat designation.
    Our Response: The Act does not require that a species live in an 
area in order for it to be included in critical habitat. It defines 
critical habitat as including ``specific areas outside the geographical 
area occupied by the species at the time it is listed * * * upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species'' Sec. 3(4)(ii). Additionally, our 
regulations state: ``The Secretary shall designate as critical habitat 
areas outside the geographical area presently occupied by a species 
only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). All primary constituent elements upon which the Preble's 
depends are present within each proposed unit of critical habitat. At 
any given site within the unit, one or more primary constituent element 
must be present for the site to qualify as critical habitat. Site-
specific determination of limits of critical habitat will be made by 
the Service on a site by site basis. For example, it may be determined 
that a reach qualifies as critical habitat based on its ability to 
provide connectivity between habitat upstream and downstream. Reaches 
that provide even minimal connectivity may be essential to maintaining 
Preble's population over a critical habitat unit. Yet, in the same 
reach, uplands away from the creek may be developed and not be 
considered critical habitat. The scale of mapping that we used to 
approximate our delineation of critical habitat did not allow us to 
exclude all developed areas such as roads and rural development. 
Federal actions limited to these areas would not trigger a section 7 
consultation unless they affect the Preble's or primary constituent 
elements within designated critical habitat. Response to comments that 
suggest omitting specific areas from final critical habitat designation 
are included in Issue 3, Comments on Specific Units, below.
    Comment 8: The primary constituent element addressing ecological 
processes should be more clearly described.
    Our Response: We have listed and described the ``dynamic 
geomorphological and hydrological processes'' that create and maintain 
Preble's habitat as a primary constituent element. In designating 
critical habitat we consider presence of primary constituent elements. 
The integrity of such processes in a given area, and thus the 
probability that quality Preble's habitat will be maintained over time, 
was considered in the designation of critical habitat. As with other 
primary constituent elements, there is a qualitative aspect to 
ecological processes. Streams that have highly managed flows or whose 
flows are dictated by urban runoff, and those that are severely 
downcut, channelized, or armored to prevent erosion were less likely to 
be designated as critical habitat. Likewise, we chose not to designate 
man-made ditches as reaches of critical habitat, even though some have 
been shown to support Preble's populations. In some cases current land 
uses (mowing, overgrazing) may limit primary constituent elements 
relating to vegetation, but underlying ecological processes are still 
operative. Such areas may still qualify as critical habitat based on 
presence of this primary constituent element. Actions that would 
degrade these ecological processes would be viewed as adversely 
affecting critical habitat.
    Comment 9: One component of a primary constituent element for the 
Preble's is ``open water throughout the Preble's active season.'' In 
some proposed reaches, water is not present throughout the Preble's 
active season.
    Our Response: We believe that in each critical habitat unit 
proposed, open water is generally available throughout the Preble's 
active season. Portions of certain critical habitat units, including 
side tributaries, may have little or no water in late summer. In 
drought years availability of open water may be more generally limited.
    Comment 10: Mountain streams areas are less important for the 
Preble's than streams with wider floodplains that are present in the 
foothills or on the plains.
    Our Response: While it is likely that streams with wider 
floodplains support higher numbers of the Preble's per unit length of 
stream, we believe that mountain streams are also essential to the 
overall conservation of the Preble's. Preble's populations along 
mountain streams may be less subject to certain threats including water 
projects, residential development, flooding, and long-term climate 
change. For example, while the Upper South Platte River supports 
populations of the Preble's, few are thought to exist along the South

[[Page 37286]]

Platte River through the Denver metropolitan area and downstream areas 
that have been subject to residential development, agriculture, and 
aggregate extraction.
    Comment 11: Varying the outward extent of critical habitat by 
stream order does not consider topography or habitat variability. These 
distances are arbitrary. Lines should be based on site-specific mapping 
of primary constituent elements or county mapping of habitat that has 
been done in support of HCPs currently being developed.
    Our Response: We received significant comment on this topic but 
little in terms of viable alternative approaches, applicable throughout 
the range of the Preble's. Site-specific mapping across the range of 
the Preble's would be a more precise method of designating critical 
habitat, but was not practical given the time, personnel and funding 
constraints under which we were working. Mapping done to define 
boundaries of HCPs varies by planning effort and is being done using 
criteria unlike those used to designate critical habitat. The most 
common suggestion we received was to standardize the distance outward 
for all streams regardless of stream order. We continue to believe that 
varying outward extent of critical habitat based on the width of 
existing riparian corridor and flood plain is appropriate, and that 
stream order provides an approximation of this width.
    Comment 12: The upland habitat included in proposed critical 
habitat is too extensive. Preble's use of uplands proposed as critical 
habitat is not supported by radio-telemetry studies. Value of upland 
habitat to the Preble's varies by type; shortgrass prairie should not 
be included in critical habitat.
    Our Response: We did not intend the outward extent of the proposed 
critical habitat to be limited to areas of most frequent Preble's use. 
Some commenters cited the distance outward that would include 95 
percent of all radio-tracking locations from studies done at research 
sites as an appropriate outward limit of critical habitat, apparently 
with the belief that this would include a significantly smaller 
distance outward than was proposed. (We believe that it would actually 
increase the distance outward.) In determining which areas to designate 
as critical habitat we are required to consider primary constituent 
elements that are essential to conservation of the species, and that 
may require special management considerations and protection. We 
believe that corridors of critical habitat proposed, ranging from 220 m 
(720 ft) to 280 m (920 ft) in width (plus the river or stream width) 
are appropriate to support the full range of primary constituent 
elements identified as essential for persistence of Preble's 
populations.
    Frequently used habitat corresponds closely to vegetation currently 
present, and is dependent on current land use and recent site history. 
We do not have the time, funding or staffing to map vegetation over all 
stream reaches designated as critical habitat. The extent of designated 
critical habitat is designed to protect all primary constituent 
elements required by the Preble's, including geomorphological and 
hydrological processes that shape Preble's habitat. When a Federal 
action takes place that may affect critical habitat, a site-specific 
determination will be made as to the presence of primary constituent 
elements and potential adverse impacts. In some cases, it may be 
determined that the extent of critical habitat into upland areas is 
more limited than the outward boundary of critical habitat designated.
    Comment 13: Stream edge is an ``ephemeral reference point'' and 
should not be used to designate boundaries of critical habitat. The 
proposal fails to identify ``specific geographic areas'' as required by 
the Act.
    Our Response: Stream edge will eventually change, as will the 
stream centerline, 100-year flood plain and other pertinent lines of 
demarcation in Preble's habitat. Alternatives to the use of such 
boundaries would include extending limits of critical habitat to 
identifiable features such as the nearest road or ridgetop, or 
surveying an appropriate line. None of these alternatives were judged 
as desirable or practical as the method employed. Our critical habitat 
maps are based on recent GIS coverages depicting stream locations. 
Specific boundaries of designated critical habitat can be located on 
the ground based on stream edge, stream order, and occurrence of 
primary constituent elements.
    Comment 14: Too many equivocations exist in the proposal. Phrases 
like ``presumed to be,'' ``appears that,'' and ``believed to exist'' 
appear too often.
    Our Response: We are required to use the best available information 
regarding the Preble's. Often information available does not allow us 
to make statements of positive fact. We have tried to be honest and 
accurate in stating what is known with certainty and what is believed 
to be true based on the best scientific data available, and our 
professional judgement.
    Comment 15: The 1998 listing of the Preble's is flawed. There is no 
evidence that the Preble's is declining. The Preble's should be 
delisted.
    Our Response: The reasons for listing the Preble's were outlined in 
the 1998 rule listing the Preble's as threatened. While additional 
populations have been documented, the threats to the Preble's described 
at the time of listing remain. A process exists for petitioning the 
Service to delist a species and such petitions are currently being 
assessed. No decisions have been made regarding these delisting 
petitions that would affect the final designation of critical habitat.
    Comment 16: Structural measures to control and stabilize channels 
are not a threat to the Preble's. Stabilization of channels is 
positive. Such measures will not affect hydrology.
    Our Response: At times, structural measures may stabilize channels 
where erosion is taking place and allow revegetation. In some instances 
where habitat is largely degraded, such stabilization may provide 
benefits over time. However, in general, structural measures limit the 
hydrological and geomorphological processes that maintain and restore 
habitats required by the Preble's. Elimination of natural meanders, 
channelization, and armoring of rivers and streams generally degrades 
riparian and flood plain habitats needed by the Preble's. Impact of 
specific projects on the Preble's and its habitat must be assessed on a 
case by case basis.
    Comment 17: Irrigation of hayfields is beneficial to the Preble's. 
It promotes Preble's habitat where it would not otherwise be present.
    Our Response: Irrigation of hayfields maintains more moist 
conditions over a wider area of streamside habitat for a longer period 
than would naturally occur. This promotes a wider area of dense 
riparian-type vegetation along streams, but is generally accompanied by 
repeated mowing, sometime very near the banks of streams, that may kill 
individual mice, disrupt breeding and other behaviors, leave little 
native vegetation, and destroy food sources during the period when the 
Preble's is preparing for hibernation. While some aspects of irrigated 
hayfields are undoubtably beneficial to the Preble's, overall effects 
on Preble's populations are likely complex and have not yet been 
studied.
    Comment 18: The Service should breed the Preble's in captivity and 
release them on unoccupied public lands or to supplement existing 
populations. The Preble's could be maintained in zoos or on small 
preserves; they do not need extensive habitat.

[[Page 37287]]

    Our Response: At this time we do not anticipate that captive 
breeding and release will be part of the conservation strategy to 
recover the Preble's. We believe that translocation (moving animals 
from one site to another) and captive breeding should be considered 
only as a ``last resort'' for maintaining a population. Small 
populations in zoos or in small, highly managed preserves would not 
substantially contribute to recovery goals.

Issue 2: Procedural and Legal Compliance

    Comment 19: Designation of critical habitat will result in taking 
of private lands.
    Our Response: See Takings within the Required Determinations 
section of this rule below.
    Comment 20: The Draft Economic Analysis and the draft EA should 
have been released along with the proposed critical habitat 
designation. The 30-day comment period following availability of all 
three documents was insufficient. They must be viewed together.
    Our Response: Comments on the entire proposal, and all three 
document, were accepted for 30 days following the notice of 
availability of the Draft Economic Analysis and the draft EA. We 
believe that 30 days was sufficient time for review, especially 
considering that the proposed rule for critical habitat designation had 
been available for review months prior to release of the other two 
documents.
    Comment 21: The proposed rule to designate critical habitat does 
not comply with Office of Management and Budget, and Department of 
Interior 2002 information quality guidelines.
    Our Response: The rule to designate critical habitat is subject to 
the requirements of the Federal Data Quality Act (DQA) 44 U.S.C. 3506, 
and the specific guidelines that the Department of the Interior issued 
regarding data quality. These guidelines, Information Quality 
Guidelines Pursuant to section 515 of the Treasury and General 
Government Appropriations Act For Fiscal Year 2001, became effective 
October 1, 2002. This final rule meets these information quality 
standards as it is based on the best available information. The Service 
rulemaking with regard to designation of critical habitat for the 
Preble's includes a comprehensive public comment process and imposes a 
legal obligation on us to respond to comments on all aspects of the 
action. These procedural safeguards can ensure a thorough response to 
comments on quality of information. The thorough consideration required 
by this process generally meets the needs of the request for correction 
of information process. In the case of rulemakings and other public 
comment procedures, where we disseminate a study analysis, or other 
information prior to the final rulemaking, requests for correction will 
be considered prior to the final action. We believe the public comment 
and review process for this rulemaking adequately addresses the 
commenter's concerns regarding the quality, objectivity, utility, and 
integrity of the proposed rule.
    Comment 22: The Service can not treat public lands and private 
lands differently when making decisions regarding designation of 
critical habitat.
    Our Response: The Service has not treated public and private lands 
differently as far as prerequisites for critical habitat designation 
are concerned. However, public lands, especially undeveloped Federal 
lands and other public lands currently devoted to conservation 
purposes, are more likely, both currently and in the future, to support 
viable Preble's populations. Therefore, such lands contribute 
significantly to a rangewide conservation strategy for the Preble's 
and, as a percentage of occurrence, have more frequently been proposed 
as critical habitat than have private lands.
    Comment 23: The final critical habitat designation should be 
postponed until the Service promulgates rules to clarify the definition 
of ``adverse modification.''
    Our Response: In a March 15, 2001, decision of the United States 
Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish and 
Wildlife Service et al., F.3d 434), the Court found our definition of 
destruction or adverse modification to be invalid. In response to this 
decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species. However, 
clarifying the adverse modification definition is not a sufficient 
reason to delay designation of critical habitat.
    Comment 24: Under the Act, designated critical habitat should be 
limited to ``the geographic range occupied by the species at the time 
of listing.'' At the time of listing much less was known about the 
range of the Preble's.
    Our Response: The reference to ``at the time of listing'' applies 
to designation of critical habitat concurrent with listing. When 
critical habitat is proposed later, as in this case, status at the time 
the proposal is used. It would make no sense to ignore the latest 
available scientific information when proposing critical habitat.
    Comment 25: Insufficient notice was given for the public hearings. 
Service guidance indicates that a notice should be placed in the 
Federal Register 15 days prior to the hearing.
    Our Response: We have attempted to provide the notice of public 
hearings through a variety of means. We held additional hearings based 
on requests received from the public. Delays in publication of the 
notice of meetings in the Federal Register prevented us from meeting 
the 15-day guidance.
    Comment 26: All affected landowners should be notified directly of 
the proposed critical habitat designation. The Service should create a 
file of affected landowners.
    Our Response: The Service employed the normal means to notify the 
public of the proposed rule and of public hearings. While direct 
notification of affected landowners would have been desirable, the 
scope of proposed critical habitat and the number of land owners 
involved made it impractical.
    Comment 27: The Service should be receptive to making changes in 
the final rule that add critical habitat, rather than just deleting 
areas previously proposed.
    Our Response: To add significantly to the critical habitat proposed 
would likely require us to repropose the rule and open an additional 
public comment period. Since the proposal was published, we have not 
received any scientific or commercial information that indicates that 
we should make significant additions to areas proposed.

Issue 3: Comments on Specific Units

    Comment 28: The Horseshoe Creek unit (NP2), and Friend Creek and 
Murphy Canyon unit (NP4) contain lower quality habitat than many of the 
units comprised mostly of private land.
    Our Response: Based on site visits and information provided by the 
Forest Service, these units contain habitat suitable for use by the 
Preble's. The Horseshoe Creek unit and the Friend Creek subunit contain 
wide riparian areas with beaver ponds, stands of willows, and 
subirrigated meadows interspersed with some narrower, rocky areas. 
These narrower areas provide connection between patches of good 
habitat. The Murphy Canyon subunit is a narrower, mountain canyon, but 
does support some healthy willow stands and healthy areas of native 
riparian vegetation. However, both units have been removed from this 
designation as the drainages contain no mice verified as Preble's 
through morphological or genetic means.
    Comment 29: In the Chugwater Creek unit (NP3), remove Spring Creek 
and Three Mile Creek from critical habitat

[[Page 37288]]

designation based upon the very limited amount of actual riparian 
habitat, hydrology, and the nature of the surrounding upland habitat.
    Our Response: Based upon information regarding habitat suitability 
obtained through public comment and additional site visits to portions 
of NP3, the Service has removed four tributaries to Chugwater Creek 
from the critical habitat designation. See the discussion of NP3 for 
more details regarding these tributaries and the rationale for their 
removal.
    Comment 30: About 5 km (3 mi) upstream from Chugwater in the 
Chugwater Creek unit (NP3), the proposed critical habitat extends one-
half mile from Chugwater Creek to include a pivot sprinkler in an 
attempt to gain control of the water.
    Our Response: Our maps do not indicate any location in that general 
vicinity where the critical habitat widens to more than 120 m (394 ft) 
from Chugwater Creek nor are any small tributaries included in that 
vicinity of NP3.
    Comment 31: In the Lodgepole Creek and Upper Middle Lodgepole Creek 
unit (SP1), extend critical habitat to join the two subunits into one 
larger, contiguous unit. Expand the Upper Middle Lodgepole Creek 
subunit upstream along the south branch of Middle Lodgepole Creek for a 
distance of approximately 2 mi (3 km).
    Our Response: Our conservation strategy has a goal of three small 
recovery populations in this subdrainage. Each of the subunits is 
slightly larger than necessary to support a small population and is 
located in an area determined to support the Preble's. Expanding the 
critical habitat to connect the subunits would provide a larger unit 
than that called for in our conservation strategy. Additionally, it 
appears this intervening habitat is less suitable than the habitat 
found in each of the subunits. According to the National Wetland 
Inventory maps for the area, much of the habitat between the two 
subunits has little shrub component and becomes narrow and steep, 
providing only for connectivity between the two subunits. The Service 
has decided not to add additional critical habitat to connect these two 
subunits. Additionally, no areas of adequate habitat are available to 
provide a third subunit in this intervening area.
    The Service considered upstream expansion of the Upper Middle 
Lodgepole Creek subunit. However, this upstream reach contains less of 
the shrub component and is less complex than the north branch of Middle 
Lodgepole Creek. Additionally, although the Service recognizes the 
difficulties in using elevation as a general upper limit to critical 
habitat (see response to Peer Review comment 2), the Service has 
generally used 2,300 m (7,600 ft) as the upper bound of critical 
habitat. This unit is an exception based upon genetic and morphological 
identification of a specimen in this area from approximately 2,350 m 
(7,700 ft). However, extension of the critical habitat upstream for 3 
km (2 mi) on the south branch of Middle Lodgepole Creek would include 
elevations up to approximately 2,400 m (7,900 ft). Based on these 
factors, the Service has decided not to add the suggested additional 
critical habitat to this subunit.
    Comment 32: In the Crow Creek watershed, add critical habitat on 
Middle Crow Creek from near Turtle Rock downstream to the forest 
boundary and unidentified sections of the south fork of Middle Crow 
Creek.
    Our Response: The Service considered including Middle Crow Creek 
and the south fork of Middle Crow Creek on the Pole Mountain unit of 
the Medicine Bow National Forest when proposing critical habitat. 
Previously, Forest Service trapping efforts at sites relatively close 
to the forest boundary along both creeks yielded mice identified as the 
Preble's in the field. At that time, voucher specimens were not being 
collected for further morphological examination. As with most of the 
creeks occurring on the Pole Mountain unit, most of Middle Crow Creek 
and the south fork of Middle Crow Creek are at elevations above those 
generally used by the Preble's. The Service has decided not to include 
Middle Crow Creek or the south fork of Middle Crow Creek as critical 
habitat. However, the Service will encourage the collection of voucher 
specimens to clarify the actual distribution of the Preble's in these 
higher elevations.
    Comment 33: In the Lone Tree Creek unit (SP3), extend critical 
habitat to join the two subunits into one larger, contiguous unit.
    Our Response: We have removed this unit from the final designation 
of critical habitat after reevaluating the available data regarding the 
identification of jumping mice form this drainage. Mice from this 
drainage have not been confirmed as Preble's through morphological or 
genetic means.
    Comment 34: Reduce the area proposed as critical habitat on the 
mainstem of the North Fork of the Cache La Poudre River unit (SP4) 
upstream of Seaman Reservoir, from the reservoir to approximately 0.5 
mi (0.8 km) above Long Draw Creek. The reach supports only patches of 
willow and has little habitat for the Preble's.
    Our Response: Within the limited area suggested for exclusion, 
current habitat appears discontinuous and of lower current quality than 
habitat upstream of this reach; however, we believe that the area in 
question does, and in the future will, help to support the Preble's 
population along the North Fork of the Cache La Poudre River. 
Therefore, the Service has included this reach as designated critical 
habitat.
    Comment 35: On the North Fork of the Cache La Poudre River unit 
(SP4) critical habitat should not be designated for the area downstream 
for a distance of 600 m (2,000 ft) from the existing Halligan Dam. 
Disturbance from past dam construction, lack of continuous riparian 
vegetation, steep slopes, and heavy grazing contribute to conditions 
unlikely to support the Preble's.
    Our Response: Preble's habitat downstream of Halligan Dam is within 
a canyon environment and is more limited in continuity and extent than 
habitat that develops on broad sedimentary floodplains. Nonetheless, we 
believe that this reach represents habitat essential to the 
conservation of the Preble's. The Service has included this reach as 
designated critical habitat. Depending on presence of primary 
constituent elements that support the Preble's, outward extent of 
critical habitat may be limited in certain canyon areas. Similarly, 
presence of past disturbance in areas directly below the Halligan Dam 
suggests that site specific adjustment of critical habitat boundaries 
may be appropriate based on presence or absence of primary constituent 
elements.
    Comment 36: Mainstem portions of the Cache La Poudre River unit 
(SP5) are highly impacted by State Highway 14, campgrounds, and 
recreational use of the river. Human disturbance limits Preble's 
habitat and travel corridors used by the Preble's. The Cache la Poudre 
is designated a Wild and Scenic River and the mainstem has been 
classified as a Recreational River. Designation of critical habitat 
through this reach would make management of National Forest System 
lands along the river more difficult, with little benefit to Preble's 
populations.
    Our Response: Habitat along the Cache La Poudre River serves as a 
travel corridor connecting several tributaries proposed as part of this 
critical habitat unit. While human uses have degraded and fragmented 
habitat in some areas, in other places high quality Preble's habitat 
occurs along the mainstem of the river. Therefore, the Service has 
included this reach as designated

[[Page 37289]]

critical habitat. We recognize that both natural limitations (steep 
canyon slopes) and human activities (roads, campgrounds, recreation 
areas) affect the site-specific boundaries of critical habitat present 
within this reach. We anticipate working closely with the Forest 
Service to further define areas that are, or are not, Preble's critical 
habitat, as determined by primary constituent elements present along 
the reach. Proposed Forest Service actions in this area that affect the 
Preble's will generally require section 7 consultation regardless of 
whether critical habitat is designated in this reach. We do not believe 
that this designation will substantially impact the management of 
National Forest System lands in this area. In addition, maintaining 
habitat for the Preble's appears consistent with wildlife management 
goals of the Recreational River segment.
    Comment 37: The Buckhorn Creek unit (SP6) between Little Bear Gulch 
and Stringtown Gulch lacks habitat connectivity due to steep slopes. 
Bear Gulch has a series of waterfalls at its confluence with Buckhorn 
Creek that forms a barrier to movement.
    Our Response: A confirmed Preble's and other mice thought to be the 
Preble's have been captured on Little Bear Creek and Bear Creek. These 
captures suggest that connectivity (either via riparian habitat or 
through nearby uplands) is being maintained through this reach. 
Therefore, the Service has included this reach as designated critical 
habitat. The ability of the Preble's to traverse canyon areas is not 
fully known. We do not anticipate that the Preble's climbs sheer 
cliffs; however, it may be adept at circumventing steep areas to travel 
up and down stream. Portions of the Buckhorn Creek unit may serve only 
as a travel corridor for the Preble's. Site-specific determinations 
could define boundaries of critical habitat and limits of areas that 
serve as travel corridors.
    Comment 38: The Cedar Creek unit (SP7) should be omitted from final 
critical habitat designation. Jumping mice captured in the unit were 
not conclusively identified as the Preble's. Management of private and 
public lands in the unit is consistent with conservation of the 
Preble's.
    Our Response: We have removed this unit from the final designation 
of critical habitat after reevaluating the available data regarding the 
identification of jumping mice form this drainage. Mice from this 
drainage have not been confirmed as Preble's through morphological or 
genetic means.
    Comment 39: Designation of critical habitat is not needed along 
South Boulder Creek unit (SP8) because existing protection (City of 
Boulder Open Space and Mountain Parks Lands, Colorado State Natural 
Area) and reasonably foreseeable protections (Boulder HCP) exist.
    Response: We have excluded the unit from critical habitat 
designation under 4(b)(2) of the Act (see Relationship to Sections 
3(5)(A) and 4(b)(2) of the Act below).
    Comment 40: Within the South Boulder Creek unit (SP8), designate 
critical habitat to connect Spring Creek to South Boulder Creek.
    Our Response: We have elected not to designate critical habitat in 
this unit.
    Comment 41: Spring Brook, in the South Boulder Creek unit (SP8) is 
discontinuous from South Boulder Creek and only about 1 mile of Spring 
Brook has been proposed as critical habitat. It does not meet the 5 km 
(3 mi) minimum criteria for a small population as described in the 
Draft Discussion Document. It is of insufficient length and quality to 
warrant critical habitat designation.
    Our Response: See response to Comment 40.
    Comment 42: Segments of the St. Vrain River and Coal Creek (Boulder 
County, Colorado) support the Preble's, have the primary constituent 
elements required by the Preble's, and should be designated critical 
habitat.
    Our Response: We have reviewed these reaches and do not believe 
that they are known to be essential for the conservation of the 
Preble's consistent with our conservation strategy. Much of the St. 
Vrain River reach where the Preble's has been documented to occur is 
impacted by past or ongoing aggregate mining. While portions of Coal 
Creek have been show to support the Preble's, other portions have 
experienced repeated unsuccessful trapping efforts. Our conservation 
strategy calls for one medium recovery population in the St. Vrain 
subdrainage and designates South Boulder Creek as the location of that 
population.
    Comment 43: Hake Ditch near Coal Creek (Boulder County, Colorado) 
should be designated as critical habitat.
    Our Response: Hake Ditch is judged not worthy of critical habitat 
designation by the Service. As described above, Coal Creek is not known 
to be essential consistent with our conservation strategy for the 
Preble's. No reaches of ditches have been specifically designated as 
critical habitat in this rule.
    Comment 44: On the Rocky Flats Environmental Technology Site unit 
(SP9), final critical habitat should be designated to improve 
connectivity between Rock Creek, Walnut Creek, and Woman Creek.
    Our Response: These three creeks are not connected on or near the 
Rocky Flats site. As in other cases, we have designated critical 
habitat only along natural water courses. The Service has chosen not to 
connect these stream by designation of critical habitat over uplands 
separating these drainages. While not confirmed by studies to date, it 
appears probable that individual Preble's mice occasionally move from 
one drainage to another over uplands at Rocky Flats.
    Comment 45: How would designation of Woman Creek on Rocky Flats 
Environmental Technology Site unit (SP9) affect the timing of ongoing 
cleanup at the facility and the transfer of lands at the site to the 
Service? How would it affect the designated road right-of-way along 
Indiana Street on Rocky Flats.
    Our Response: We have excluded the Rocky Flats site from 
designation.
    Comment 46: The Rocky Flats Environmental Technology Site unit 
(SP9) includes Indiana Street and a parcel east of the road, on 
property owned by the City and County of Broomfield, that does not 
support riparian habitat.
    Our Response: See Response to Comment 45.
    Comment 47: Preble's presence at the Ralston Creek unit (SP10) is 
based on a single positive trapping survey. The population is unlikely 
to persist over time.
    Our Response: Under our conservation strategy, the Ralston Creek 
population would likely be one of three small recovery populations in 
the Clear Creek subdrainage. We believe that maintenance of even a 
small population along Ralston Creek is significant to the conservation 
of the Preble's and therefore the Service has designated this reach as 
critical habitat.
    Comment 48: Exclude from final critical habitat three unnamed 
tributaries to Upper Lake Gulch in the Cherry Creek unit (SP11) in 
Douglas County, Colorado. In the West Plum Creek Unit (SP12) exclude 
portions of an unnamed tributary to West Plum Creek, Upper Metz Canyon, 
and Bear Creek in the Lake Waconda area. These reaches do not support 
Preble's habitat based on mapped done for the Douglas County HCP. They 
have been altered by human land uses and lack primary constituent 
elements required by the Preble's.
    Our Response: We have removed the Cherry Creek unit (SP11) from the 
final designation of critical habitat after reevaluating the available 
data regarding

[[Page 37290]]

the identification of jumping mice form this drainage. Mice from this 
drainage have not been confirmed as Preble's through morphological or 
genetic means. We have excluded SP12 as part of the pending Douglas 
County HCP.
    Comment 49: Subunits in the Upper South Platte River unit (SP13) 
should be connected to provide one contiguous critical habitat unit 
including the South Platte River and tributaries proposed for 
designation.
    Our Response: Quality Preble's habitat is not contiguous along the 
South Platte River. In addition, ownership and land uses vary. The 
proposed areas largely consist of National Forest System lands. Many of 
the intervening reaches do not. The Service has determined that 
connection these subunits to form one very large critical habitat unit 
is not warranted.
    Comment 50: Portions of proposed Upper South Platte River unit 
(SP13), were burned in the 2002 Hayman Fire. The Forest Service 
recommends that these areas be removed from consideration for critical 
habitat designation.
    Our Response: We have visited the reaches in question and the 
Service has elected not to designate the proposed Wigwam Creek subunit 
as critical habitat. This subunit was severely burned, does not 
currently support the primary constituent elements required by the 
Preble's, and it appears that such habitat elements will not return for 
a period of years. In contrast, we have determined that other reaches 
proposed as critical habitat that were impacted by the Hayman Fire have 
been less severely burned and continue to support primary constituent 
elements required by the Preble's. These areas, in the South Platte 
River subunit and the Trout Creek subunit, have been designated 
critical habitat despite impacts of the Hayman Fire.
    Comment 51: In the Upper South Platte River unit (SP13) there are 
instances where, based on mapping, critical habitat appears to extend 
above 2,300 m (7,600 ft). The Service should revisit the mapping to 
make sure it is consistent with coverage developed by the Forest 
Service and Colorado Division of Wildlife.
    Our Response: The upward limit of critical habitat proposed in this 
unit was 2,300 m (7,600 ft). We have reviewed the maps that depict 
critical habitat boundaries and have not found deviation from the 2,300 
m (7,600 ft) standard. Any apparent discrepancies may result from GIS 
base mapping used by the different agencies.
    Comment 52: Proposed critical habitat within the Monument Creek 
unit (A1) should be modified to correspond to the mapped Regional 
Habitat Conservation Plan habitat area.
    Our Response: The Service has not designated critical habitat in 
this unit.
    Comment 53: Include the Union Meadows area (along Union Boulevard 
and the Templeton Gap Floodway) in El Paso County, Colorado, as 
critical habitat. An isolated site such as this could be valuable to 
the conservation of the Preble's.
    Our Response: The Preble's is not known to exist on or near the 
area. Our evaluation of this area indicates that it does not warrant 
critical habitat designation.
    Comment 54: Do not exclude the Academy, in El Paso County, Colorado 
from critical habitat.
    Our Response: The Service has excluded the Academy from critical 
habitat for reasons cited in Relationship with Department of Defense 
Lands below.
    Comment 55: Kettle Creek on the Academy should not be included in 
the Monument Creek unit (A1) based on the proposed exclusion for the 
Academy.
    Our Response: Inclusion of this reach of the A1 Unit in the 
proposed rule to designate critical habitat was in error. Like all 
portions of the Academy, it is excluded in the final critical habitat 
designation.

Issue 4: Other Relevant Issues:

    Comment 56: Provide exemptions from critical habitat where county-
wide HCPs are currently being developed. Alternately, provide assurance 
that critical habitat will be terminated for an area addressed in an 
HCPs, upon Service issuance of a section 10 permit for a completed HCP.
    Our Response: Currently, a limited number of regional or county-
wide HCPs are being developed in close cooperation with the Service. 
For finalized HCPs where a section 10 permit has been issued, and for 
certain pending HCPs, the Service has considered whether the area 
covered by the HCP should be excluded under 3(5)(A) or 4(b)(2) of the 
Act. If pending HCPs are not completed, we will determine whether areas 
designated in this final rule need further refinement.
    Comment 57: Exclude Denver Water properties included under Denver 
Water's recently completed HCP from final critical habitat designation. 
The eight properties in question include a total of approximately 250 
ac (113 ha) of proposed critical habitat in four proposed critical 
habitat units in the South Platte River drainage.
    Our Response: The Service has excluded these properties from final 
critical habitat designation (see Relationship to Habitat Conservation 
Plans below).
    Comment 58: HCPs do not provide sufficient protection of the 
Preble's to allow exclusion of these areas covered from critical 
habitat designation. Specifically, areas included in the El Paso County 
HCP currently under development should not be excluded.
    Our Response: See the response to Comment 56 above.
    Comment 59: The Air Force Academy should not be excluded based on 
section 3(5)(A) of the Act.
    Our Response: We continue to believe that an exclusion for the 
Academy is warranted (see Relationship with Department of Defense Lands 
below).
    Comment 60: Critical habitat designation should be limited to 
public lands.
    Our Response: As defined, critical habitat is not limited by land 
ownership, but rather based on being essential to the conservation of 
the species. Federal lands are limited in location, size, and habitat 
quality. We have designated Federal lands where we believe they have 
met the definition, but we are unable to limit critical habitat 
designation to Federal lands.
    Comment 61: Table 1 of the proposed rule, describing land 
ownership, should separate out local government lands from private 
lands.
    Our Response: Property ownership was determined from Bureau of Land 
Management maps that were determined to provide the best ownership 
information over the range of the Preble's. However, these maps address 
only Federal lands, State lands and ``other'' lands. Local government 
lands and private lands were not differentiated on these maps. 
Substantial additional effort, including incorporation of diverse 
mapping data from multiple local jurisdictions, would be required to 
differentiate local public lands from private lands.
    Comment 62: What agricultural practices are allowable, beneficial, 
or detrimental to the Preble's in designated critical habitat?
    Our Response: On May 22, 2001, we adopted special regulations 
governing take of the Preble's (66 FR 28125), which provide exemption 
from take provisions under section 9 of the Act for certain activities 
related to rodent control, ongoing agricultural activities, landscape 
maintenance, and existing uses of water because these activities are 
consistent with conservation of the Preble's. On October 1, 2002, we 
amended those regulations (67 FR 61531) to provide exemptions for 
certain activities related to noxious

[[Page 37291]]

weed control and ongoing ditch maintenance activities because these 
activities are also consistent with conservation of the Preble's. Any 
questions regarding specific practices and their potential effects to 
the Preble's should be addressed to the Service's Colorado or Wyoming 
Field Offices.
    Comment 63: What does the Service consider to be the beneficial and 
adverse effects on critical habitat of forest thinning and prescribed 
burns?
    Our Response: Thinning and prescribed burns may cause both short-
term and long-term effects. These can be both beneficial or adverse for 
the Preble's. Often, minor short-term adverse effects are followed by 
more substantial long-term beneficial effects as ground level 
vegetation experiences enhanced growth.
    Comment 64: What happens to critical habitat if it is greatly 
impacted, for example, from a catastrophic fire?
    Our Response: Once critical habitat is designated, even if it is 
greatly impacted, the boundaries of unit continue to exist. Whether 
primary constituent elements required to support the species are still 
within a given area will be determined by the Service on a case by case 
basis during section 7 consultation.
    Comment 65: Verify that if actions are covered by exemptions 
provided under the existing 4(d) rule, section 7 consultation under the 
Act is not needed.
    Our Response: This is not the case. The 4(d) rule currently in 
place provides an exemption from take prohibitions found in section 9 
of the Act. Federal agencies are required under section 7 of the Act to 
utilize their authorities to conserve listed species, to consult with 
the Service to ensure that their actions are not likely to jeopardize 
the Preble's or destroy or adversely affect its critical habitat. 
Exemptions from section 9 prohibitions do not alter this requirement. 
For consultations that involve the use of Federal land, we expect that 
those lands will be managed in furtherance of the conservation of the 
species to the maximum extent possible. Other types of section 7 
consultations involve actions on non-federal lands. For example, many 
of the activities likely to affect Preble's undertaken outside of 
Federal land, but wholly or partly in wetlands, will be subject to 
permitting requirements of the Clean Water Act, such as section 404 
permits issued by the Army Corps of Engineers. This would be true for 
sites occupied by the Preble's whether or not they are designated as 
critical habitat.
    Comment 66: Weed control may be hampered by designation of critical 
habitat.
    Our Response: Certain practices regarding the control of noxious 
weeds are currently covered under the 4(d) rule. However, consultation 
under section 7 may still be required where a Federal nexus exists. See 
our response to comment 65 above.
    Comment 67: Describe the relationship between critical habitat and 
take prohibitions under section 9 of the Act.
    Our Response: The regulatory effects of a critical habitat 
designation under the Act are triggered through the provisions of 
section 7, which applies only to activities conducted, authorized, or 
funded by a Federal agency (Federal actions). Individuals, 
organizations, States, local governments, and other non-Federal 
entities are not affected by the designation of critical habitat unless 
their actions occur on Federal lands, require Federal authorization, or 
involve Federal funding. Take prohibitions under section 9 are not 
affected by the designation of critical habitat.
    Comment 68: Will take guidance issued by the Service for ditch 
cleaning be affected by the presence of critical habitat?
    Our Response: The take guidance referred to was issued by the 
Service to define ditch-cleaning activities that we believe will not 
result in take of the Preble's as prohibited by section 9 of the Act. 
In addition, the existing 4(d) rule provides exclusions to section 9 
prohibitions for certain ditch-cleaning activities. This guidance and 
rule are specific to section 9 prohibitions and will not be affected by 
designation of critical habitat.
    Comment 69: Describe changes required in biological assessments and 
in ``mitigation ratios'' as a result of critical habitat.
    Our Response: Biological assessments submitted to the Service by a 
Federal agency whose actions may adversely affect critical habitat of 
the Preble's, must address effects of the action on critical habitat. 
This analysis will be similar to that which would be conducted for any 
occupied Preble's habitat. In biological assessments, the term 
``mitigation'' is generally used to describe conservation measures 
submitted by the project proponent as part of the described project. 
While appropriate extent and design of measures to create, restore, or 
enhance Preble's habitat, are unlikely to change based on the presence 
of designated critical habitat, such determinations are best made on a 
case by case basis.
    Comment 70: It is not clear whether upstream activities that affect 
critical habitat downstream are regulated.
    Our Response: In general, if a Federal nexus exists and a Federal 
agency has discretionary authority over an action, such activities 
would be regulated under section 7 of the Act. In any such cases the 
lead Federal agency must evaluate whether the activity may affect the 
Preble's, including designated critical habitat. The location of the 
activity in relation to the location of the effects is not an issue. 
The activity does not have to take place within critical habitat to be 
regulated under section 7.
    Comment 71: Explain the process through which designated critical 
habitat could be amended in the future.
    Our Response: Future modifications to critical habitat for the 
Preble's would occur through a rulemaking process similar to the one 
used to designate critical habitat.
    Comment 72: Describe what happens to critical habitat upon 
delisting of the Preble's.
    Our Response: Critical habitat terminates upon delisting. However, 
recovery criteria for the Preble's may include some long-term 
protection of the Preble's and its habitat.
    Comment 73: Designation of critical habitat makes people lose trust 
in government.
    Our Response: We agree that public support is a vital component of 
protection of the Preble's and its habitat, but designation of critical 
habitat is required under the Act. See our statement above.
    Comment 74: Public comments and hearing testimony does not matter.
    Our Response: All comments received, including oral comments 
provided at the public hearings, were carefully evaluated before we 
made a final designation of critical habitat. Changes have been made 
from the draft rule based on public comments and other information 
received during the comment periods.

Issue 5: Draft Economic Analysis and the Draft EA

    Comment 75: The Service must address the costs of listing, 
including past costs, in the economic analysis.
    Our Response: Our current policy is to consider only costs from the 
time of critical habitat designation forward. We consider co-extensive 
costs, including those associated with the jeopardy standard.
    Comment 76: The 10-year time frame utilized for the economic 
analysis was inappropriate. The use of a ten-year time period for the 
analysis creates unrealistic cost estimates since species

[[Page 37292]]

typically are not delisted within ten years.
    Our Response: The ten-year time frame was chosen for the Draft 
Economic Analysis because, as the time horizon for an economic analysis 
is expanded, the assumptions on which the projected numbers of projects 
are based become increasingly speculative. As a result, it is difficult 
to predict not only the numbers of projects, but also the cost 
estimates for the associated consultations, beyond a ten-year window. 
Consequently, any attempt to extend the economic analysis beyond the 
ten-year time window would be speculative.
    Comment 77: The use of a ``national economic model'' in the 
economic analysis does not apply to Wyoming because local factors 
affect their economy differently than other areas of the nation.
    Our Response: The Draft Economic Analysis utilized a cost model to 
estimate the administrative costs associated with technical assistance 
efforts, informal, and formal consultations. This cost model was 
developed using historical section 7 files from a number of Service 
field offices around the country. However, this model was used as the 
basis for cost estimates only in instances where area- and species-
specific costs were not available. The reliance of the Draft Economic 
Analysis on area- and species-specific cost estimates, where available, 
reflects the use of the best commercial information available and 
consideration for the socioeconomics of the area.
    Comment 78: The Draft Economic Analysis excluded an analysis of the 
lost opportunity costs when agricultural landowners forgo Federal 
operational and conservation funding in order to avoid a Federal nexus, 
and therefore consultation with the Service.
    Our Response: While this may be an issue for some individual 
landowners, overall use of operational and conservation funding within 
the region is not expected to change as a result of the designation. 
The Natural Resources Conservation Service has confirmed that Federal 
operational and conservation funding rarely goes unused in this region, 
and that any forgone funding will likely be used by other landowners 
within the same county.
    Comment 79: The designation of critical habitat will cause 
decreased land values in Wyoming. The proposed critical habitat 
designation may impose operational costs on agricultural activities 
that may affect the value of land sold for agricultural purposes, and 
the proposed designation may result in decreased values associated with 
the speculative nature of agricultural lands (i.e., potential for sale 
and conversion to an alternative use, such as residential development).
    Our Response: A variety of factors impact the value of land in 
Wyoming, including climate, elevation, water rights, population 
density, recreation and scenic values, and timber, mineral, and oil and 
gas resources. Furthermore, the demand for agricultural lands has 
increased slightly due to increased interest in agricultural lands for 
alternative uses, such as ``development potential, recreation, or 
scenic rural homes.'' Proposed critical habitat for the Preble's is 
likely to have only a modest impact on agricultural operations and the 
value of lands sold for agricultural purposes. The value of 
agricultural lands will be greatly reduced if farmers and ranchers 
cannot irrigate their lands. However, there will likely be no impacts 
to agricultural operations and land values as long as the 4(d) rule 
remains in effect. While there is growth pressure in these counties, a 
speculative impact on land values is not anticipated because proposed 
critical habitat is located a significant distance from town centers 
and is thus not experiencing development pressure. Therefore, impacts 
to the speculative value of lands within proposed critical habitat for 
the Preble's are also anticipated to be modest.
    Comment 80: The Draft Economic Analysis excluded a discussion of 
impacts incurred by landowners operating under the special 4(d) rule.
    Our Response: We were unable to identify any impacts experienced by 
landowners under the 4(d) rule. It appears that landowners would only 
experience a decrease in land values and profits following the 
expiration of the special 4(d) rule. Many landowners are relying on an 
extension of the 4(d) rule to avoid future adverse impacts to 
agricultural operations and irrigation ditch maintenance activities due 
to protections for the Preble's.
    Comment 81: The Draft Economic Analysis excluded a discussion of 
several land use activities that may be impacted by the designation of 
critical habitat for the Preble's. Public comments provided input on 
costs associated with activities at F.E. Warren Air Force Base in 
Wyoming, construction of new utility lines, development of HCPs, 
construction of new dams and reservoirs, aggregate mining, Forest 
Service activities including development of Forest Management Plans.
    Our Response: The Addendum to the Economic Analysis analyzes costs 
associated with the above activities and, where appropriate, provides 
modified cost estimates that reflect issues raised in public comments.
    Comment 82: The protection of Preble's habitat may provide benefits 
to the public associated with improved ecosystem services, particularly 
services provided by riparian habitat areas (e.g., habitat for fish and 
wildlife, erosion control).
    Our Response: While the Draft Economic Analysis acknowledges that 
such benefits are likely, the analysis concludes that they cannot be 
monetized due to a lack of information linking project modifications 
for the Preble's to a quantifiable future environmental change.
    Comment 83: The Draft Economic Analysis indicates that increasing 
the quantity of open space (i.e., greenbelts, wetlands, wildlife 
corridors, and riparian areas) in a community can lead to enhanced 
residential property values. Open space already exists in Wyoming, 
precluding benefits associated with preserving open space in that 
State.
    Our Response: The Draft Economic Analysis only assigns potential 
open space benefits to the areas of proposed designation in Colorado 
where a relative scarcity of open space enhances its value. We 
acknowledges the abundance of open space in Wyoming.
    Comment 84: The Draft Economic Analysis should have utilized 
``benefits transfer'' as a means to quantify the potential benefits 
associated with preserving open space.
    Our Response: The Draft Economic Analysis considered the 
possibility of transferring the economic values obtained from the 
literature and applying them to the case of critical habitat for the 
Preble's. To accurately estimate economic impact through a benefits 
transfer approach the economic studies must demonstrate adherence to an 
agreed-upon set of standards or protocol to ensure reliability of 
results, and the attributes of the environmental good being valued by 
the study must be substantially similar to the attributes of critical 
habitat designation for the Preble's. The literature referenced in the 
Draft Economic Analysis provides examples of society's marginal 
willingness to pay for changes in open space. However, the values 
reflect a variety of open space attributes and housing market 
conditions, none of which are substantially similar to the policy 
question at hand. Data do not exist to accurately translate these 
values to areas that may be affected by critical habitat designation in 
Colorado. Therefore, application of benefits

[[Page 37293]]

transfer for the purpose of this analysis is not possible.
    Comment 85: There is a lack of NEPA documentation, as the Service 
failed to produce an environmental analysis of the critical habitat 
proposal.
    Our Response: On January 28, 2003, the Service announced the 
availability of the Draft Economic Analysis and draft EA for the 
proposed designation of critical habitat for the Preble's (68 FR 4160) 
and opened a comment period on the documents through February 27, 2003.
    Comment 86: The draft EA fails to indicate whether or not the July 
2002 Proposed Rule will result in significant impacts under NEPA and 
require an Environmental Impact Statement.
    Our Response: Based on Information provided in the Draft Economic 
Analysis and the Addendum to the Economic Analysis, as well as comments 
received from the public, we prepared this final EA and made a Finding 
of No Significant Impact (FONSI), negating the need for preparing an 
Environmental Impact Statement. The final EA, Draft Economic Analysis, 
the Addendum to the Economic Analysis, and the FONSI provide our 
rationale for determining that critical habitat designation would not 
have a significant effect on the human environment. Those documents are 
available from the Colorado Ecological Services Field Office (U.S. Fish 
and Wildlife Service, 755 Parfet Street, Suite 361, Lakewood, CO 80215) 
or by calling 303-275-2370.
    Comment 87: The Service should have considered in detail the 
alternative designating as critical habitat all areas described as 
Mouse Protection Areas and Potential Mouse Protection Areas in the 1998 
Proposed Special Regulations for Preble's Meadow Jumping Mouse (63 FR 
66777).
    Our Response: The Service determined that full evaluation of this 
alternative was not appropriate for several reasons. Mouse Protection 
Areas and Potential Mouse Protection Areas were never official 
designations of areas, but rather general classifications of areas 
based on very crude mapping as an initial attempt to identify those 
areas of possible conservation value to the Preble's. Many of the areas 
were later determined to be unsuitable or only marginally suitable for 
use by Preble's. As such, these areas do not meet the definition of 
critical habitat under 3(5)(A) of the Act. Within the geographic area 
occupied by the species we designate only areas currently known to be 
essential to conserve the species. In accordance with sections 3(5)(C) 
of the Act, not all areas that can be occupied by a species will be 
designated critical habitat. We designate as critical habitat areas 
outside the geographical area presently occupied by a species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species. Based on the best science 
available, there appears no basis for designation of critical habitat 
outside of the geographic area occupied by the species.
    Comment 88: The threats section of the draft EA is not an adequate 
representation of the threats. Characterizing grazing as a threat 
(based upon the conclusions of Compton and Hugie 1993) is 
inappropriate. The document needs to disclose the positive attributes 
relative to the mouse of several of the actions described as threats, 
specifically grazing and water management.
    Our Response: Based upon information obtained since the listing of 
Preble's, the Service does not completely accept the broad conclusions 
of Compton and Hugie (1993). The Service has adjusted the discussion of 
grazing and water management to indicate that these activities, under 
certain management scenarios, may be consistent with Preble's 
conservation. However, the Service still views both grazing and water 
development/management as threats to the Preble's. Grazing can be 
managed in many different ways, some of which may be beneficial to 
Preble's habitat, others harmful. For example, much of the habitat in 
Wyoming is currently being grazed (or managed for hay production) in a 
manner that maintains what appears to be good habitat for Preble's. In 
those cases, it might be considered that special management is already 
taking place, although not committed to an agreement. However, there 
are also areas being managed in a manner that is not conducive to the 
development or maintenance of Preble's habitat. Changes in the timing 
and abundance of water may result in changes that are detrimental to 
Preble's habitat. Elimination of natural meanders, channelization, and 
armoring of streams generally degrades riparian and floodplain habitats 
needed by Preble's. While irrigation of hayfields may promote a wider 
area of dense riparian-type vegetation by maintaining more moist 
conditions over a wider area of streamside habitat for a longer period 
than would naturally occur, this is generally accompanied by repeated 
mowing that may kill individual mice, disrupt breeding and other 
behaviors, and destroy food sources during the period when Preble's is 
preparing for hibernation.
    Comment 89: The section 7 informal consultation discussion (section 
2.2.2) differs from that in the economic analysis.
    Our Response: Changes were made to section 2.2.2 to better reflect 
pertinent information presented in the Draft Economic Analysis and the 
Addendum.
    Comment 90: In Section 3.1, Alternatives Considered But Not Fully 
Evaluated, the Service incorrectly states that ``* * * much of the 
historic range does not meet the definition of critical habitat,'' 
since the entire historic range in Wyoming and most of that in Colorado 
has been proposed as critical habitat.
    Our Response: Neither the entire range of Preble's in Wyoming nor 
most of its range in Colorado has been proposed for designation as 
critical habitat. Many areas of suitable habitat, including many known 
to be occupied by Preble's, have not been included in the proposed 
critical habitat. The Service did not find these areas to be essential 
to the conservation of Preble's.
    Comment 91: In the draft EA, the Description of the Affected 
Environment, the descriptions of the states are not appropriately 
contrasted. For example, there is no mention of Federal water projects 
in the South Platte drainage.
    Our Response: Changes were made to the Description of the Affected 
Environment to better contrast the states and river drainages.
    Comment 92: The anticipated impacts to transportation projects 
(Wyoming Department of Transportation in particular) cannot be 
realistic and should be re-evaluated.
    Our Response: We used information and estimates provided to us by 
the Wyoming Department of Transportation, the Colorado Department of 
Transportation, and others. These estimates are based on the best 
commercial information available since the best estimate of impacts is 
likely to come from the entity that will bear the costs.
    Comment 93: The draft EA's discussion of Environmental Justice does 
not identify any adverse impacts unique to low-income populations. 
However, the ranching community in Wyoming is financially strapped. The 
average annual income in Wyoming is $21,000, much less than the average 
income in Colorado.
    Our Response: The Service does not believe the ranching community 
in Wyoming qualifies as a low-income population, as discussed in 
Executive Order 12898 and further defined by the

[[Page 37294]]

Council on Environmental Quality (1997).
    Comment 94: In the draft EA's Analysis of Significance, the 
statement that effects are expected to be small may be true on a 
national, regional or local scale, but on a family ranching operation 
scale they are significant.
    Our Response: Significance is not addressed on an individual scale, 
but rather as it pertains to several different scales, including 
society as a whole, the affected region, the affected locality, and 
affected interests. The ranching community in the four affected 
counties in Wyoming was identified as an affected interest. Potential 
economic impacts to agricultural activities in Wyoming were evaluated 
in the Draft Economic Analysis and the Addendum to the Economic 
Analysis and discussed in the Regulatory Flexibility Act section in the 
Final Rule. Through those analyses, its was determined that only 
approximately 3 percent of the small agricultural operations in the 
counties in which critical habitat units are located may experience a 
significant effect from section 7 implementation in critical habitat 
annually.

Summary of Changes From the Proposed Rule

    In development of this final designation of critical habitat for 
the Preble's meadow jumping mouse we made several changes to the 
proposed critical habitat designation based on review of public 
comments received on the proposed designation, the Draft Economic 
Analysis, the draft EA, and further evaluation of lands proposed as 
critical habitat.
    In several cases, changes have been made based upon our 
reevaluation of available data regarding the method of identification 
of the Preble's (identification in the field versus through genetic or 
morphological means). Without morphological of genetic verification of 
the identity of the mice, it is not possible to know whether an area is 
essential to the conservation of the species. Therefore, we have 
decided to include in the critical habitat determination only those 
units occurring in drainages within which there is a specimen verified 
as Preble's through morphological or genetic means. Accordingly, we 
removed from final designation those units occurring in drainages where 
mice were identified as Preble's only through field identification. If, 
in the future, one or more of these areas is determined to support mice 
verified as Preble's through morphological or genetic examination, we 
would consider whether rulemaking to amend critical habitat is 
warranted.
    In the North Platte River drainage, we have removed the Horseshoe 
Creek unit (NP2), the Friend Creek and Murphy Canyon unit (NP4), and 
the Horse Creek unit (NP5). Each of these units occurred in a drainage 
within which no mice had been verified to be Preble's through 
morphological or genetic means, but rather only through field 
identification.
    Also in the North Platte River drainage, some adjustments were made 
to the tributaries included in Unit NP3, the Chugwater Creek unit in 
Albany, Laramie, and Platte Counties, Wyoming. Upon review of 
additional information obtained through public comment and during site 
visits to the area, four tributaries were removed from the final 
designation. These four tributaries include two named Spring Creek, 
Threemile Creek, and Sand Creek. Reasons why these tributaries were 
determined not to be critical habitat included limited riparian 
vegetation, lack of open water through the Preble's active season, arid 
uplands with limited grasses and forbs, and regular haying across one 
creek.
    In the South Platte River drainage Unit SP2, the Warren Air Force 
Base unit, in Laramie County, Wyoming, was excluded in its entirety 
(see Relationship with Department of Defense Lands below).
    Also in the South Platte River drainage, the Lone Tree Creek unit 
(SP3), the Cedar Creek Unit (SP7), and the Cherry Creek unit (SP11) 
have been removed in their entirety because they support no records of 
mice verified to be the Preble's through morphological or genetic 
means, but rather only through field identification.
    In the North Fork Cache La Poudre River (SP4) we have amended the 
outward extent of the critical habitat boundary for two landowners to 
be consistent with a specific negotiated rural and agricultural 
conservation zone for the Preble's. Within existing properties 
belonging to The Nature Conservancy along the North Fork Cache La 
Poudre River and to Al Johnson along Rabbit Creek, Lone Pine Creek, and 
the North Fork Cache La Poudre River, designated critical habitat 
extends from the center line of the stream outward 325 ft (99 m) on 
both sides.
    In the South Platte River drainage, areas of proposed critical 
habitat addressed in the Denver Water HCP were excluded from the final 
designation in units the South Boulder Creek unit (SP8), Boulder 
County, Colorado; the Ralston Creek unit (SP10), Jefferson County, 
Colorado; the West Plum Creek unit (SP12) in Douglas County, Colorado; 
and the Upper Platte River (SP13) unit in Douglas and Jefferson 
Counties, Colorado (see Relationship to Habitat Conservation Plans 
below).
    Also in the South Platte River drainage some adjustments were made 
to tributaries included in the West Plum Creek unit (SP12), in Douglas 
County, Colorado. Upon review of additional information obtained 
through public comment and review of aerial photographs of the area, 
portions of two tributaries were removed from the final designation. 
These include portions of one unnamed tributary to West Plum Creek, and 
the upper portion of Metz Canyon. Reasons why the tributaries were 
determined not to be critical habitat included limited riparian 
vegetation, lack of dense vegetation, lack of open water through the 
Preble's active season, and alterations from human land uses.
    In the Upper South Platte River unit (SP13), the proposed Wigwam 
Creek subunit in Jefferson County, Colorado, was removed from the final 
designation. This area was intensively burned during the Hayman Fire in 
the summer of 2002. Upon review of additional information obtained 
through public comment and a site visit to the area, it was determined 
that habitat capable of supporting the Preble's was no longer present 
and not likely to be re-established in the near future.
    In the Arkansas River drainage, within the Monument Creek unit 
(A1), areas of proposed critical habitat addressed in the Lefever 
Property HCP and the Dahle Property HCP were excluded from the final 
designation. In the same unit an error occurred in the written 
description of Kettle Creek. The text accompanying the map of the unit 
erroneously included a reach of Kettle Creek on the Academy as critical 
habitat, while the map excluded it. The text has been changed to 
accurately reflect the intended reach of critical habitat.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (I) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to conserve the 
species and (II) that may require special management considerations or 
protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential to conserve the species.

[[Page 37295]]

``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or threatened species to the point at 
which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences 
with the Service on Federal actions that are likely to result in the 
destruction or adverse modification of proposed critical habitat. In 
our regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' Aside from the added protection that may be provided 
under section 7, the Act does not provide other forms of added 
protection to lands designated as critical habitat. Because 
consultation under section 7 of the Act does not apply to activities on 
private or other non-Federal lands that do not involve a Federal nexus, 
critical habitat designation does not result in any regulatory 
requirement for these actions.
    To be included in a critical habitat designation, the habitat must 
first be ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of designation. When 
we designate critical habitat at the time of listing or under short 
court-ordered deadlines, we will often not have sufficient information 
to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    In accordance with sections 3(5)(C) of the Act, not all areas that 
can be occupied by a species will be designated critical habitat. 
Within the geographic area occupied by the species we designate only 
areas currently known to be essential. Essential areas should already 
have the features and habitat characteristics that are necessary to 
conserve the species. We will not speculate about what areas might be 
found to be essential if better information becomes available, or what 
areas may become essential over time. If the information available at 
the time of designation does not show that an area provides essential 
life cycle needs of the species, then the area should not be included 
in the critical habitat designation. We will not designate areas within 
the geographic area occupied by the species unless at least one of the 
primary constituent elements are present, as defined at 50 CFR 
424.12(b), that provide essential life cycle needs of the species. 
Moreover, areas occupied by certain known populations of the Preble's 
have not been proposed as critical habitat. For example, we did not 
designate critical habitat for some small scattered populations or 
habitats in areas highly fragmented by human development.
    Our regulations state, ``The Secretary shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
species only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Based on the best scientific data available, there appears 
to be no foundation upon which to make a determination that the 
conservation needs of the Preble's require designation of critical 
habitat outside of the geographic area occupied by the species, so we 
have not designated critical habitat outside of the geographic area 
believed to be occupied.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, procedures, and guidance to ensure decisions made by 
the Service represent the best scientific and commercial data 
available. It requires Service biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States, Tribes, and 
counties, scientific status surveys and studies, and biological 
assessments or other unpublished materials, and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize designation of critical 
habitat may not include all habitat eventually determined as necessary 
to recover the species. For these reasons, all should understand that 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act, and the regulatory protections afforded by the section 7(a)(2) 
jeopardy standard and the section 9 take prohibition, as determined on 
the basis of the best available information at the time of the action. 
Though unlikely, future federally-funded or assisted projects affecting 
listed species outside designated critical habitat areas could still 
result in likely-to-jeopardize findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts, if new information 
available to these planning efforts calls for a different outcome.

Relationship to Sections 3(5)(A) and 4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection. As such, for an area to be 
designated as critical habitat for a species it must meet both 
provisions of the definition. In those cases where an area does not 
provide those physical and biological features essential to the 
conservation of the species, it has been Service policy to not include 
these specific areas in designated critical habitat. Likewise, if we 
believe, based on an analysis, that an area determined to be 
biologically essential has an adequate management plan that covers the 
species, then special management and protection are already being 
provided, and those areas do not meet the second provision of the 
definition and are also not proposed as critical habitat.
    We consider a current plan to provide adequate management or 
protection if it

[[Page 37296]]

meets three criteria: (1) The plan is complete and provides a 
conservation benefit to the species (i.e., the plan must maintain or 
provide for an increase in the species' population, or the enhancement 
or restoration of its habitat within the area covered by the plan); (2) 
the plan provides assurances that the conservation management 
strategies and actions will be implemented (i.e., those responsible for 
implementing the plan are capable of accomplishing the objectives, and 
have an implementation schedule or adequate funding for implementing 
the management plan); and (3) the plan provides assurances the 
conservation strategies and measures will be effective (i.e., it 
identifies biological goals, has provisions for reporting progress, and 
is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data available after taking into consideration the economic 
impact, and any other relevant impact, of specifying any particular 
area as critical habitat. An area may be excluded from critical habitat 
if it is determined that the benefits of such exclusion outweigh the 
benefits of specifying a particular area as critical habitat, unless 
the failure to designate such an area as critical habitat will result 
in the extinction of the species. Consequently, we may exclude an area 
from critical habitat based on economic impacts, or other relevant 
impacts such as preservation of conservation partnerships or military 
readiness considerations, if we determine that the benefits of 
excluding an area from critical habitat outweigh the benefits of 
including the area in critical habitat, provided that exclusion will 
not result in the extinction of the species.
    In summary, we use both the definition in section 3(5)(A) and the 
provisions of section 4(b)(2) of the Act to evaluate those specific 
areas that are proposed for designation as critical habitat as well as 
for those areas that are subsequently finalized (i.e., designated as 
critical habitat). On that basis, it has been our policy to not include 
in proposed critical habitat, or exclude from designated critical 
habitat, those areas: (1) Not biologically essential to the 
conservation of a species; (2) covered by a legally operative 
individual (project-specific) or regional HCP that covers the subject 
species; (3) covered by a complete and approved Integrated Natural 
Resources Plan (INRMP) for specific Department of Defense 
installations; or (4) covered by an adequate management plan or 
agreement that protects the primary constituent elements of the 
habitat.
    As discussed below, for designation of critical habitat for the 
Preble's, we have considered, but have not designated as critical 
habitat, land covered by: The Denver Water HCP; the Lefever Property 
HCP in Black Forest, Colorado (Lefever Property HCP); the Dahle 
Property HCP in Colorado Springs, Colorado (Dahle Property HCP); the 
Academy's Integrated Natural Resources Management Plan (INRMP); and the 
F.E. Warren INRMP.

Relationship to Habitat Conservation Plans

Individual HCPs

    In general, the lands essential to the conservation of the Preble's 
that are managed by an approved individual HCP do not require special 
management and protections because their value for conservation has 
been addressed by the existing protective measures and actions from the 
provisions of the HCP. Consequently, the areas defined in these 
individual HCPs do not meet the definition of critical habitat. 
Further, to the extent that these areas do meet the definition of 
critical habitat as defined in 3(5)(A)(i)(II), it is additionally 
appropriate to exclude these areas from critical habitat pursuant to 
the ``other relevant impacts'' provisions of section 4(b)(2). 
Therefore, individual HCPs that cover the Preble's are not being 
designated as critical habitat.
    Section 10(a) of the Act authorizes the Service to issue permits 
for private actions which result in the taking of listed species that 
are otherwise lawful activities. Incidental take permit applications 
must be supported by an HCP that identifies conservation measures that 
the permittee agrees to implement for the species to minimize and 
mitigate the impacts of the requested incidental take. Service-approved 
HCPs and their associated Incidental Take Permits contain management 
measures and protections for identified areas that protect, restore, 
and enhance the value of these lands as habitat for the Preble's. These 
measures, which include explicit standards to minimize any impacts to 
the covered species and its habitat, are designed to ensure that the 
biological value of covered habitat for the Preble's is maintained, 
expanded, or improved.
    In approving these HCPs, the Service has provided assurances to 
permit holders that once the protection and management required under 
the plans are in place and for as long as the permit holders are 
fulfilling their obligations under the plans, no additional mitigation 
in the form of land or financial compensation will be required of the 
permit holders. Similar assurances will be extended to future permit 
holders in accordance with the Service's HCP Assurance (``No 
Surprises'') rule codified at 50 CFR 17.22(b)(5) and (6) and 
17.32(b)(5) and (6).
    In light of the intensive investigation and analysis, public 
comment, and internal section 7 consultations undertaken prior to 
approval of HCPs, we are confident that individual HCPs identify, 
protect, and, as appropriate and practicable, provide beneficial 
adaptive management for essential habitat within the boundary of HCPs. 
Therefore, we have considered, but not designated as critical habitat 
lands within approved HCPs that include the Preble's as a covered 
species. Our analysis of the special management considerations and 
protections provided by approved HCPs follows below as well as a 
comparison of benefits of including lands within approved HCPs versus 
excluding such lands from critical habitat designations.

Regional HCPs

    Large regional HCPs expand upon the basic requirements set forth in 
section 10(a)(1)(B) of the Act reflecting a voluntary, cooperative 
approach to large-scale habitat and species conservation planning. The 
primary goal of such HCPs is to provide for the protection and 
management of habitat essential for the conservation of the species 
while directing development to other areas. HCPs provide a package of 
management considerations that: meet or enhance the conservation of the 
species and provide an opportunity for data collection and analysis 
regarding the use of particular habitat areas. HCPs and the 
accompanying implementation agreements contain management measures and 
protections for identified areas that protect, restore, and enhance the 
value of these lands as habitat for the Preble's. These measures, which 
include explicit standards to minimize any impacts to the covered 
species and its habitat, are designed to ensure that the value of the 
conservation lands as suitable habitat for the Preble's is maintained, 
expanded, and improved.
    Approved HCPs provide assurances to permit holders that once the 
protection and management required under the plans are in place and for 
as long as the permit is valid and the holders are fulfilling their 
obligations under the plan, no additional mitigation in the form of 
land or financial compensation will be required of the permit holders

[[Page 37297]]

and in some cases, specified third parties. These assurances will be 
extended in accordance with the Service's No Surprises rule codified at 
50 CFR 17.22(b)(5) and (6) and 17.32(b)(5) and (6).
    Because of the similarities between the purposes of regional HCPs 
and designation of critical habitat, and in light of the intensive 
investigation and analysis undertaken in conjunction with regional HCP 
planning processes, regional HCPs currently under development will 
identify, protect and provide appropriate adaptive management for those 
specific lands within the boundaries of the plans that are essential 
for the long-term conservation of the species. Given this coordination, 
we anticipate that the analysis of these HCPs and proposed permits that 
will be conducted under section 7 of the Act will show that activities 
covered under such permits will not result in the destruction or 
adverse modification of designated critical habitat within the 
boundaries of the plans when the covered activities are carried out in 
accordance with the provisions of the HCPs.
    For the foregoing reasons, we find that the continued development 
of the pending HCPs is beneficial. Furthermore, the Service has 
developed positive conservation relationships with the jurisdictions 
involved in the pending HCPs. The maintenance of these relationships 
serves to ensure the eventual completion of these HCPs. The pending 
HCPs, although at different stages of development, represent 
substantial biological analysis as well as substantial investment of 
public and private resources for the benefit of conservation. Exclusion 
of the lands within the pending HCPs benefits the species by providing 
an incentive to finalize the HCPs.
    Inclusion as critical habitat of the lands in the pending HCPs 
provides no benefit greater than that which would result from 
completion of the HCPs. HCPs provide greater actual conservation than 
the mere designation of critical habitat. Thus, the benefits of 
excluding these areas from designation as critical habitat outweigh the 
benefits of including them. The exclusion will not cause the extinction 
of the species. If any pending HCP is not finalized as currently 
proposed, we will re-evaluate the need for critical habitat designation 
on lands not included in finalized HCPs.
    Following is our preliminary analysis of the benefits of including 
lands within approved HCPs versus excluding such lands from critical 
habitat designation.
(1) Special Management Considerations and Section 3(5)(a)
    On November 19, 2002, GreyStone Environmental Consults Inc. 
finalized an HCP for the Preble's on the Lefever Property and was 
issued a section 10 Incidental Take Permit by the Service. This HCP 
allows for the construction of a single-family residence in Black 
Forest, El Paso County, Colorado. Construction will directly impact 
0.252 ha (0.561 ac) of potential Preble's habitat, including 0.087 ha 
(0.215 ac) of temporary disturbance and 0.140 ha (0.346 ac) of 
permanent disturbance. The applicant will preserve and enhance a 1.828 
ha (4.515-ac) conservation easement of similar foraging habitat for the 
mouse in the remaining acres of property. This area has been deeded to 
El Paso County, Colorado, and shall be managed according to specific 
requirements laid out in the HCP. The following activities are 
expressly prohibited by the agreement on the property easement: 
construction or reconstruction of any building or other structure or 
improvement on portions of the property; any division or subdivision of 
the title to the property; commercial timber harvesting; mining or 
extraction of soil, sand, gravel, rock, oil, natural gas, fuel or any 
other mineral substance; paving or otherwise covering with concrete, 
asphalt, or any other paving material; and the dumping or uncontained 
accumulation of any trash, refuse or debris on the property. As further 
compensation for the impacted habitat, 0.36 ha (0.89 ac) of the 1.828 
ha (4.515 ac) shall be planted with 100 shrubs to serve as Preble's 
habitat. This enhancement will follow a strict planting and care plan 
for 2 years to ensure success. A monitoring program will be in effect 
for three full growing seasons or until success is achieved. At the end 
of each growing season, a brief letter report will be submitted to the 
Service describing the status of any remedial work performed. The shrub 
planting will be considered successful when 67 percent of shrubs are 
established and able to survive a full growing season without 
supplemental irrigation.
    On July 23, 2002, Lee Dahle finalized an HCP for Preble's on the 
Dahle Property and was issued a section 10 Incidental Take Permit by 
the Service on July 29, 2002. This HCP allows for the construction of a 
single-family residence on a 0.26 ha (0.65 ac) lot at 17 El Dorado Lane 
in the Thunderbird Estates in Colorado Springs, El Paso County, 
Colorado. Construction will directly impact 0.06 ha (0.15 ac) of upland 
Preble's habitat, including less than 0.01 ha (0.01 ac) of temporary 
disturbance and 0.034 ha (0.085 ac) of permanent disturbance. The 
applicant will preserve and enhance the remaining 0.2 ha (0.5 ac) of 
the property in a native and unmowed condition as a corridor for the 
mouse. As further compensation for the impacted habitat, the preserved 
0.2 ha (0.5 ac) will be enhanced through weed control and willow 
planting. The enhancement area will be monitored for three full growing 
seasons or until success is achieved. At the end of each growing 
season, a brief letter report will be submitted to the Service 
describing the status of any mitigation work performed. The shrub 
planting will be considered successful when 67 percent of shrubs are 
established and able to survive a full growing season without 
supplemental irrigation. The weed control will be considered successful 
when a 50 percent reduction of individual weed plants is achieved.
    On April 16, 2003, Denver Water finalized an HCP for the Preble's 
and was issued a section 10 Incidental Take Permit by the Service on 
May 1, 2003. This HCP covers the water facilities and infrastructure 
owned and operated by Denver Water including: the Foothills, Marston 
and Moffat treatment plants; 17 pump stations; 29 treated water storage 
reservoirs; and 3,968 km (2,464 mi) of pipe. The HCP promotes avoidance 
and minimization, and where practicable, implementation of applicable 
best management practices that avoid, minimize, and eliminate impacts 
to occupied and potential habitat. Where impacts occur, Denver Water 
will conduct mitigation proposed by the HCP. This HCP provides long-
term assurances that Denver Water's covered activities are permitted 
and in compliance with the Act and provides the Service with a tool to 
minimize and mitigate take on occupied and potential habitat. To 
accomplish these goals, the plan requires the following special 
management and protection:
    (a) Before conducting a covered activity (principally operations 
and maintenance activities) on occupied and potential habitat, Denver 
Water will determine whether avoidance and minimization efforts are 
applicable, practicable, and can be used to avoid, reduce, or eliminate 
take. Generally, the use of best management practices will be the most 
practicable avoidance or minimization tool. Appendix 5 of the HCP lists 
best management practices that may be applicable to Denver Water's 
routine operation and maintenance activities and projects. In some 
cases, the use of best management

[[Page 37298]]

practices will avoid take. In other situations, best management 
practices will minimize take. Where take still results, mitigation will 
be used to offset the impacts.
    (b) As required by section 10 regulations, the HCP requires Denver 
Water to perform compliance monitoring and effectiveness monitoring to 
determine whether the terms and conditions of the HCP are being met. 
Monitoring activities will: document pre- and post-impact site 
conditions; determine the extent of take of occupied and potential 
habitat; determine the success of Preble's habitat revegetation 
efforts; report on additional Denver Water actions, including 
initiation of mitigation, discussion of best management practices 
utilized, if any, and other management decisions that address 
implementation of the HCP; hold an annual meeting between Denver Water 
and the Service; and prepare an Annual Monitoring Report.
    (c) Adaptive management will be employed to gain new data, research 
or new information regarding the biology of the Preble's. The use of 
adaptive management in areas of questionable Preble's habitat 
suitability, Preble's use, or Preble's presence will likely increase 
the potential for success within the HCP and increase the potential for 
new and useful information on Preble's biology to be acquired.
    (d) The HCP will result in the protection of over 2,700 ha (6,000 
ac) of potential and occupied habitat. Denver Water will limit 
temporary impacts to 10 ha (25 ac) of occupied and potential habitat at 
any one time. Temporary impacts are not to exceed 30 ha (74 ac) over 
the term of the HCP. Denver Water will also track all impacts, restore 
disturbed vegetation, and track all successful restorations to ensure 
the above limits are not exceeded.
    (e) To offset foreseeable permanent impacts to one-acre of habitat, 
Denver Water will create 0.10 ha (0.25 ac) of riparian shrub, 0.91 ha 
(2.25 ac) of upland occupied and potential habitat, and revegetate a 
number of trails and dirt roads. Should permanent impacts exceed the 
one-acre, this HCP covers a maximum of 4 ha (10 ac) of permanent 
impacts, and will mitigate this through: a conservation easement at a 
ratio of 8:1; by enhancements at a ratio of 2:1; or a combination of 
preservation at 6:1 and enhancements at 1:1.
    (f) Other mitigation includes: weed management; education, 
training, and the distribution of information to Denver Water employees 
to promote avoidance, minimization, or best management practices as 
applicable and practicable; restoration of habitat linkage corridors; 
population monitoring and research; and provide trapping data to the 
Service.
    Based on our evaluation of special management considerations and 
protection provided by the Denver Water HCP, the Lefever Property HCP, 
and Dahle Property HCP, and in light of the definition of critical 
habitat in section 3(5)(A) of the Act, we have considered, but not 
designated these areas as critical habitat. We believe that the Denver 
Water HCP, the Lefever Property HCP, and Dahle Property HCP meets the 
three criteria used by the Service to determine if a plan provides 
adequate special management or protection to a listed species. First, 
the HCPs provide a conservation benefit to the species through the 
various management actions discussed above. Second, the HCP provides 
assurances that the conservation management strategies and actions will 
be implemented. Denver Water has budgeted $30,000 in 2003 Operations 
Plan for activities required by the HCP. In consecutive years, it will 
have a separate line item in the budget. The Lefever Property HCP has 
funding assurances in the form of a $10,000 letter of credit, has been 
secured to ensure all obligations of the HCP are fulfilled. The Dahle 
Property HCP applicant will provide funding for this agreement. Third, 
the HCPs provides assurances that the conservation strategies and 
measures will be effective because they are based on the best 
scientific data available and they require monitoring and reporting to 
ensure compliance and success. The Denver Water HCP also employs 
adaptive management where practicable and appropriate.
(2) Benefits of Inclusion Under Section 4(b)(2)
    The principal benefit of any designated critical habitat is that 
Federal activities that may affect the habitat require consultation 
under section 7(a)(2) of the Act. Consultation is designed to ensure 
that adequate protection is provided to avoid adverse modification or 
destruction of critical habitat resulting from an action authorized, 
funded, or carried out by a Federal agency. Where HCPs are in place and 
lands are covered by a section 10(a)(1)(B) permit, the benefit of 
designating such lands as critical habitat is negligible when the areas 
concerned are occupied by the species, because the occupied areas 
already are subject to section 7 consultation based on the ``jeopardy 
standard.'' Permitted HCPs are designed to ensure the long-term 
survival of listed species within the area covered by the permit. Under 
an HCP, an area that might be designated as critical habitat will 
already be protected by the terms of the HCP and the incidental take 
permit. The HCP and the incidental take permit include management 
measures and protections for conservation lands that are crafted to 
protect, restore, and enhance their value as habitat for covered 
species.
    In addition, a section 10(a)(1)(B) permit issued by the Service as 
a result of an HCP application must itself undergo section 7 
consultation. This consultation will address the likelihood of adverse 
modification or destruction of critical habitat and jeopardy to the 
listed. Since HCPs address land use within the plan boundaries, habitat 
issues within the plan boundaries will have been thoroughly addressed 
in the HCP and the consultation on the HCP.
    The development and implementation of HCPs provides other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for compatible land use. The educational benefits of 
critical habitat, including informing the public of areas that are 
essential for the long-term survival and conservation of the species, 
are essentially the same as those that would occur from the public 
notice and comment procedures required to establish an HCP, as well as 
the public participation that occurs in the development of all HCPs. 
For these reasons we believe that the designation of critical habitat 
has little or no benefit in areas covered by HCPs.
(3) Benefits of Exclusion Under Section 4(b)(2)
    The benefits of excluding HCPs from designation as critical habitat 
are significant. Benefits of excluding HCPs include relieving 
landowners, communities, and counties of any additional regulatory 
review that might be imposed by critical habitat. Many HCPs take 
considerable time--sometimes years--to develop and, upon completion, 
become the basis for regional conservation plans that are consistent 
with the conservation of covered species. Many of these plans benefit 
both listed and non-listed species. Imposing an additional regulatory 
review after HCP completion may jeopardize conservation efforts and 
partnerships in many areas and could be viewed as a disincentive to 
those developing or considering developing HCPs. Excluding HCPs 
provides us with an opportunity to streamline regulatory

[[Page 37299]]

compliance and confirms regulatory assurances for HCP participants.
    Another benefit of excluding HCPs is that exclusion encourages the 
continued development of partnerships with HCP participants, including 
States, local governments, conservation organizations, and private 
landowners, that together can implement conservation actions that the 
Service would be unable to accomplish alone. By excluding areas covered 
by HCPs from critical habitat designation, we preserve these 
partnerships, and set the stage for more effective conservation actions 
in the future.
    Specifically, for the lands covered by the Denver Water HCP for the 
Preble's, in a letter dated January 21, 2003, Jennifer McCurdy, with 
Denver Water, noted the following: ``Denver Water believes that 
designation of Critical Habitat on Denver Water properties has 
negligible, if any, benefit to the recovery of the Preble's while the 
benefits resulting from the exclusion of Critical Habitat on those 
properties are many. There is little benefit to designating Critical 
Habitat on Denver Water properties because: (a) Denver Water will have 
an HCP in place covering the same properties proposed for designation; 
(b) Denver Water is a private landowner with primarily, if not 
exclusively, private (non-Federal) actions in these Critical Habitat 
areas; (c) No portion of designated habitat encompasses an entire unit 
of proposed habitat, but rather is a small fraction of a unit; (d) 
Designation of Critical Habitat on private property will discourage 
private landowners from participating in an HCP, especially when 
Critical Habitat can be designated on properties already under an HCP 
or an imminent HCP; and (e) In effect, Critical Habitat will not be 
treated differently for this species than what is required under 
Section 9 of the Act. The benefits of exclusion on Denver Water 
properties, however, are that: (a) Denver Water's HCP will provide 
greater assurances and conservation benefits to the Preble's than 
Critical Habitat designation because the HCP will assure the long-term 
protection (30-year) and management of the species and its habitat, and 
funding, through the standards in the HCP Handbook, 5-Point Policy, and 
No Surprises regulations; (b) Exclusion of properties within Denver 
Water's HCP reduces the requirements for additional regulatory review. 
Additional review would likely result in additional permitting costs 
(delays, administrative, consulting and mitigation) for Denver Water. 
The Service and other federal agencies would also be subject to 
additional administrative and technical costs resulting from an 
additional, redundant review process. If only Section 9 or an HCP are 
required, a greater amount of time and funding could possibly be spent 
on further conservation measures; (c) Exclusion of Critical Habitat and 
conservation management based on the HCP will allow more flexibility to 
a municipal water supplier with private lands and privately owned 
facilities to operate as it needs in order to meet its mission of 
supplying high-quality water to its customers; (d) Denver Water's HCP 
will provide other conservation benefits beyond habitat conservation 
such as collection and development of additional biological information 
to assist with conservation and recovery efforts, development of 
innovative programs, and education regarding the importance of species 
survival and habitat protection; and (e) The Denver Water HCP will 
provide an integrated and comprehensive approach to species 
conservation rather than the ``piecemeal'' approaches of multiple 
Section 7 consultations that only address activities with a federal 
nexus. Exclusion of Denver Water properties from the Critical Habitat 
listing will not result in the extinction of the Preble's, nor would it 
preclude conservation or recovery of the species.''
    We have weighed the small benefit, if any, of including the lands 
in the HCP in critical habitat against the benefits of exclusion and 
determined that the benefit of excluding the land covered by the Denver 
Water HCP, the Lefever Property HCP, and the Dahle Property HCP from 
designation as Preble critical habitat outweighs the benefits of 
including the areas. Thus, as required by section 4(b)(2) of the Act, 
we have excluded them from the critical habitat designation.
    In the event that future HCPs covering the Preble's are developed 
within the boundaries of designated critical habitat, we will provide 
technical assistance and work closely with the applicants to identify 
lands essential for the Preble's, ensure that the HCPs provide for 
protection and management of the habitat areas essential to the 
Preble's by either directing development and habitat modification to 
nonessential areas, or appropriately modifying activities within 
essential habitat areas so that such activities will not adversely 
modify the primary constituent elements. The HCP development process 
provides an opportunity for more intensive analysis and data collection 
regarding the use of particular habitat areas by the Preble's and a 
more detailed analysis of the importance of such lands.

Relationship With Department of Defense Lands

The Academy and F.E. Warren

(1) Special Management Considerations and Section 3(5)(a)
    The Sikes Act Improvement Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an INRMP. An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found there. Each INRMP includes an assessment of the 
ecological needs on the installation, including needs to provide for 
the conservation of listed species; a statement of goals and 
priorities; a detailed description of management actions to be 
implemented to provide for these ecological needs; and a monitoring and 
adaptive management plan. The Service consults with the military on the 
development and implementation of INRMPs for installations with listed 
species. Bases that have completed and approved INRMPs that address the 
needs of the species generally do not meet the definition of critical 
habitat discussed above, as they already provide special management or 
protection. Therefore, we do not include these areas in critical 
habitat designations if they meet the following three criteria: (a) A 
current INRMP must be complete and provide a conservation benefit to 
the species; (b) the plan must provide assurances that the conservation 
management strategies will be implemented; and (c) the plan must 
provide assurances that the conservation management strategies will be 
effective, by providing for periodic monitoring and revisions (adaptive 
management) as necessary. If all of these criteria are met, then the 
lands covered under the plan would not meet the second provision of the 
definition of critical habitat pursuant to section 3(5)(A)(i)(II) and 
consequently not be proposed as critical habitat for the covered 
species.
    The Academy in El Paso County, CO has in place an INRMP, a 1999 
``Conservation and Management Plan for the Preble's Meadow Jumping 
Mouse at the U.S. Air Force Academy,'' and a 2000 programmatic section 
7 consultation addressing certain activities at the Academy that may 
affect the Preble's. The conservation and management plan provides 
guidance for Air Force management decisions over the 2000 to 2005, 
five-year period. While it was based upon the most

[[Page 37300]]

current scientific knowledge available at the time that it was 
developed, research regarding the Preble's is ongoing at the Academy 
and the conservation and management plan will be updated as new 
information is collected.
    F.E. Warren in Laramie County, WY also has in place an INRMP. 
Approved in December 2001, the INRMP provides for the conservation, 
protection, and management of fish and wildlife resources as required 
by the Sikes Act. The F.E. Warren INRMP also meets the three criteria 
for assessing whether the management area should be excluded as 
critical habitat. First, the INRMP is complete and provides a 
conservation benefit to the species. F.E. Warren's INRMP provides 
protection for the Preble by: conducting annual trapping surveys; 
collecting data on habitat preference; monitoring noxious weed 
infestation; using biological controls for noxious weeds rather than 
chemical controls; developing a native seed bank for use in restoration 
activities in sensitive habitats; designing an elevated nature trail to 
reduce habitat fragmentation and protect sensitive habitat; providing 
weekly public awareness briefings to all newcomers; conducting field 
trips for local elementary schools with emphasis on the Preble's and 
the Colorado Butterfly plant; and coordinating base projects with the 
Cheyenne Field Office of the Service. Second, the INRMP provides 
assurances that the conservation management strategies will be 
implemented. The Sikes Act requires F.E. Warren to implement its INRMP 
and provides the basis for the Department of Defense Conservation 
Program. Implementation of the INRMP is supported by Headquarters Air 
and Space Command and Headquarters U.S. Air Force through the planning, 
programming, and budgeting process. F.E. Warren and Headquarters Air 
and Space Command also conduct annual environmental compliance 
inspections where INRMP implementation is assessed. The goals of these 
programs are to provide assurances that the INRMP is implemented in 
accordance with the Sikes Act and Air Force and Department of Defense 
policy. F.E. Warren has an annual conservation budget of approximately 
$200,000 dedicated to monitoring, habitat management, and exotic 
vegetation control. These requirements have been validated by 
Headquarters Air and Space Command and are ``must fund'' items. 
Finally, the INRMP provides assurances that the conservation management 
strategies will be effective by providing for periodic monitoring and 
revisions as necessary. F.E. Warren has implemented an annual 
monitoring program to track the effectiveness of its management 
activities and to document population trends and changes in quality and 
availability of habitat. Additionally, F.E. Warren will continue to 
partner with the WY Game and Fish Department, the WY Field Office of 
the Service, and accredited universities and non-profit conservation 
organizations to ensure that the best science and technology is 
utilized in conservation efforts. In addition, pursuant to Air Force 
instructions, the INRMP is reviewed annually and revised at least every 
five years. Further, there are multiple layers of environmental 
protection that further lessen the need for special management or 
protection, including the additional conservation measures provided by 
implementation of NEPA, the Clean Water Act, Executive Order 11990, 
Executive Order 11988, and Department of Defense and Air Force policy.
    We have reviewed these measures and have determined that they 
address the three criteria identified above. Therefore, Academy and 
F.E. Warren lands that are biologically essential to the Preble's, do 
not meet the second provision of the definition of critical habitat 
pursuant to section 3(5)(A)(i)(II) as they currently have special 
management and protection. Consequently, these lands have been 
considered, but not included in the proposed designation of critical 
habitat for the species. Further, to the extent that the areas of the 
Academy and F.E. Warren biologically essential to the Preble's may meet 
the definition of critical habitat as defined in 3(5)(A)(i)(II), it is 
additionally appropriate to exclude these areas from critical habitat 
pursuant to the ``other relevant impacts'' provisions of section 
4(b)(2) as discussed below.
(2) Benefits of Inclusion Under Section 4(b)(2)
    The primary benefit of proposing critical habitat is to identify 
lands essential to the conservation of the species which, if designated 
critical habitat, would require consultation with the Service to ensure 
activities would not adversely modify critical habitat or jeopardize 
the continued existence of the species. As previously discussed, the 
Academy and F.E. Warren have completed final INRMPs that provide for 
sufficient conservation management and protection for the Preble's. 
Moreover, the INRMPs are themselves, already consulted on for 
installations with listed species prior to approval. Further, 
activities authorized, funded, or carried out by Federal agencies in 
these areas that may affect the Preble's will still require 
consultation under section 7 of the Act, based on the requirement that 
Federal agencies ensure that such activities not jeopardize the 
continued existence of listed species. This requirement applies even 
without critical habitat designation on these lands. Thus, the Service 
believes designation of the Academy and F.E. Warren as critical habitat 
will not appreciably benefit the Preble's beyond protection already 
afforded the species under the Act and the approved INRMPs.
(3) Benefits of Exclusion Under Section 4(b)(2)
    However, there would be appreciable benefits to excluding these 
areas from critical habitat pursuant to section 4(b)(2). If designated 
as critical habitat, both the Academy and F.E. Warren would be required 
to consult with the Service under section 7(a)(2) on any action likely 
to result in the destruction or adverse modification of designated 
critical habitat. Completion of any additional formal section 7(a)(2) 
biological opinions may require completion of biological assessments 
that can require extensive lengths of time and thousands of hours to 
complete. They may also require the employment of consultants. However, 
given that section 7(a)(2) consultations are still required, as 
discussed above, and that both areas are implementing approved INRMPs 
that provide special management and protection, these consultations 
offer little added benefit.
    The added burden of consultations for activities adversely 
impacting critical habitat could also result in unnecessary delays, 
disruption of base activities and potentially impair our Nation's 
military readiness. F.E. Warren is the largest and most modern 
strategic missile unit in the U.S. and is comprised of four missile 
squadrons, each with five missile alert facilities and fifty launch 
facilities. Although the missile alert facilities and the launch 
facilities are dispersed throughout a large geographical area, most 
mission support functions are conducted at F.E. Warren, including 
administrative support, maintenance support, training, and helicopter 
support. The F.E. Warren area deemed essential to the conservation of 
the species, but not designated critical habitat totals 134 ha (331 ac) 
and effectively bisects the installation. This area, managed by an 
approved INRMP, extends 120m (400 ft) on either side of Crow Creek and 
includes several pieces of critical infrastructure such as 7 bridges, 6

[[Page 37301]]

buildings, 7 roads, a 15-tank propane tank farm, and a rail line used 
to transport equipment and supplies essential to the Inter Continental 
Ballistic Missile mission.
    The Academy's Jack's Valley Training Center is also vital in the 
training of our armed forces and, ultimately, our national security. 
This 2,000 acre area is used for training throughout the year, but 
primarily for Basic Cadet Training. The training facility has a total 
of nearly 60 different obstacles that provide field training in such 
topics as survival and evasion, chemical warfare, problem solving, 
riffle and pyrotechnics, and anti-terrorism. Other training undertaken 
at the Academy include Combat Survival Training, airmanship programs, 
and free fall parachuting courses. The added burden of consultations 
for activities that adversely impact critical habitat could result in 
unnecessary delays or a disruption in these training activities.
    Based on section 4(b)(2) and the consideration of the information 
described above, we find that the benefits of excluding the areas 
covered by the Academy and Warren greatly exceed the limited benefits 
of including these areas in the designation of critical habitat. 
Exclusion of these lands will not result in the extinction of the 
species.

Department of Energy's Rocky Flats

    The Department of Energy's Rocky Flats site spans portions of the 
St. Vrain HUC and the Middle South Platte-Cherry Creek HUC. Rocky Flats 
has been a focus of research on the Preble's and monitoring of 
populations has taken place for several years. The Department of Energy 
and the Department of the Interior are concluding an agreement mandated 
by Congress under which the Rocky Flats site will become part of the 
National Wildlife Refuge system and will be administered by the 
Service. The Service will manage the refuge in a manner to conserve the 
Preble's. For that reason, we find that the Rocky Flats site is not in 
need of special management measures. Furthermore, there is no benefit 
to including a National Wildlife Refuge in a critical habitat 
designation under the circumstances presented here. Given concerns over 
the cleanup at the facility and the transfer of lands at the site to 
the Service, we find that the benefit of excluding these areas from 
designation as critical habitat outweigh the benefits of including 
them. Therefore we have excluded the Rocky Flats site under sections 
3(5)(A) and 4(b)(2) of the Act. The exclusion will not cause the 
extinction of the species.

Methods

    In determining areas essential to conserve the Preble's, we used 
the best scientific and commercial data available. We have reviewed 
approaches to the conservation of the Preble's undertaken by the 
Federal, State, and local agencies operating within the species' range 
since its listing in 1998, and the identified steps necessary for 
recovery outlined in the Working Draft of the recovery plan for the 
Preble's. We also reviewed available information that pertains to the 
habitat requirements of this species, including material received since 
the listing of the Preble's. The material included research published 
in peer-reviewed articles, academic theses and agency reports; reports 
from biologists conducting research under section 10(a)(1)(A) recovery 
permits; the Working Draft of the recovery plan for the Preble's; 
information from consulting biologists conducting site assessments, 
surveys, formal and informal consultations; as well as information 
obtained in personal communications with Federal, State, and other 
knowledgeable biologists in Colorado and Wyoming.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider physical 
and biological features (primary constituent elements) that are 
essential to conservation of the species, and that may require special 
management considerations and protection. These physical and biological 
features include, but are not limited to--(1) space for individual and 
population growth, and for normal behavior; (2) food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for breeding, reproduction, rearing (or 
development) of offspring; and (5) habitats protected from disturbance 
or that are representative of the historic geographical and ecological 
distributions of a species.
    The primary constituent elements for the Preble's include those 
habitat components essential for the biological needs of reproducing, 
rearing of young, foraging, sheltering, hibernation, dispersal, and 
genetic exchange. The Preble's is able to live and reproduce in and 
near riparian areas located within grassland, shrubland, forest, and 
mixed vegetation types where dense herbaceous or woody vegetation 
occurs near the ground level, where available open water normally 
exists during their active season, and where there are ample upland 
habitats of sufficient width and quality for foraging, hibernation, and 
refugia from catastrophic flooding events. While willows of shrub form 
are a dominant component in many riparian habitats occupied by the 
Preble's, the structure of the vegetation appears more important to the 
Preble's than species composition.
    Primary constituent elements associated with the biological needs 
of dispersal and genetic exchange also are found in areas that provide 
connectivity or linkage between or within Preble's populations. These 
areas may not include the habitat components listed above and may have 
experienced substantial human alteration or disturbance.
    The dynamic ecological processes that create and maintain Preble's 
habitat also are important primary constituent elements. Habitat 
components essential to the Preble's are found in and near those areas 
where past and present geomorphological and hydrological processes have 
shaped streams, rivers, and floodplains, and have created conditions 
that support appropriate vegetative communities. Preble's habitat is 
maintained over time along rivers and streams by a natural flooding 
regime (or one sufficiently corresponding to a natural regime) that 
periodically scours riparian vegetation, reworks stream channels, 
floodplains, and benches, and redistributes sediments such that a 
pattern of appropriate vegetation is present along river and stream 
edges, and throughout their floodplains. Periodic disturbance of 
riparian areas sets back succession and promotes dense, low-growing 
shrubs and lush herbaceous vegetation favorable to the Preble's. Where 
flows are controlled to preclude a natural pattern and other 
disturbance is limited, a less favorable mature successional stage of 
vegetation dominated by cottonwoods or other trees may develop. The 
long-term availability of habitat components favored by the Preble's 
also depends on plant succession and impacts of drought, fires, 
windstorms, herbivory, and other natural events. In some cases these 
naturally-occurring ecological processes are modified or are supplanted 
by human land uses that include manipulation of water flow and of 
vegetation.
    Primary constituent elements for the Preble's include:
    (1) A pattern of dense riparian vegetation consisting of grasses, 
forbs,

[[Page 37302]]

and shrubs in areas along rivers and streams that provide open water 
through the Preble's active season.
    (2) Adjacent floodplains and vegetated uplands with limited human 
disturbance (including hayed fields, grazed pasture, other agricultural 
lands that are not plowed or disced regularly, areas that have been 
restored after past aggregate extraction, areas supporting recreational 
trails, and urban/wildland interfaces).
    (3) Areas that provide connectivity between and within populations. 
These may include river and stream reaches with minimal vegetative 
cover or that are armored for erosion control, travel ways beneath 
bridges, through culverts, along canals and ditches, and other areas 
that have experienced substantial human alteration or disturbance.
    (4) Dynamic geomorphological and hydrological processes typical of 
systems within the range of the Preble's, i.e., those processes that 
create and maintain river and stream channels, floodplains, and 
floodplain benches, and promote patterns of vegetation favorable to the 
Preble's.
    Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, parking lots, other paved 
areas, lawns, other urban and suburban landscaped areas, regularly 
plowed or disced agricultural areas, and other features not containing 
any of the primary constituent elements are not considered critical 
habitat.

Criteria Used To Identify Critical Habitat

    The Service's July 17, 2002, proposed rule to designate critical 
habitat for the Preble's meadow jumping mouse cited the Recovery Team's 
Draft Discussion Document of February 27, 2002, and the concepts 
described within it as a source of the best scientific and commercial 
data available on the Preble's, and used it as a starting point for 
identifying areas that are essential for the conservation of the 
Preble's. The proposed rule stated that a draft of the recovery plan 
would be issued for public comment prior to final designation of 
critical habitat. For various reasons, including staffing and funding 
limitations, a draft recovery plan for the Preble's has not yet been 
finalized or issued for public comment. However, a draft of the 
recovery continues to evolve. While even a final recovery plan is not a 
regulatory document (i.e., recovery plans are advisory documents 
because there are no specific protections, prohibitions, or 
requirements afforded to a species solely on the basis of a recovery 
plan), the information, concepts, and conservation recommendations 
contained in the Working Draft were considered in developing this 
critical habitat designation. Areas identified as necessary for 
recovery in the Working Draft are based on the best available 
information as well as on our best judgement of what we believe to be 
necessary for recovery even in situations where information is limited. 
Total disclosure and open communication with the public of our 
judgements regarding possible future recovery scenarios are essential 
parts of recovery planning. Recovery plans are not regulatory documents 
and do not obligate or commit parties to the actions or determination 
of the plans. Public review, peer review, and stakeholder involvement 
are essential aspects of recovery planning, and are required by the Act 
and by Service policy. For these reasons, decisions made by the Service 
in designation of critical habitat will not preclude determination or 
decisions in any aspect of recovery planning that may be subject to 
public review. Therefore determinations as to recovery strategies, 
criteria, or tasks within the recovery plan will not be limited by this 
critical habitat designation.
    The Working Draft identifies specific criteria for reaching 
recovery and the delisting of the Preble's. While elements of this 
Working Draft may change prior to plan finalization, the concepts 
described within it continue to represent the best scientific and 
commercial data available on the Preble's. To recover the Preble's to 
the point where it can be delisted, the Working Draft identifies the 
need for a specified number, size, and distribution of wild, self-
sustaining Preble's populations across the known range of the Preble's. 
The distribution of these recovery populations is intended both to 
reduce the risk of multiple Preble's populations being negatively 
affected by natural or man-made events at any one time, and to preserve 
the existing genetic variation within the Preble's. The Working Draft 
identifies recovery criteria for each of the three major river 
drainages where the Preble's occurs (the North Platte River drainage in 
Wyoming, the South Platte River drainage in Wyoming and Colorado, and 
the Arkansas River drainage in Colorado) and for each subdrainage 
judged likely to support the Preble's. In some cases the Working Draft 
identifies recovery criteria for subdrainages where trapping for the 
Preble's has not yet occurred or where limited trapping has not 
confirmed the presence of the Preble's. Boundaries of drainages and 
subdrainages have been mapped by the U.S. Geological Survey (USGS). For 
the Working Draft, 8-digit HUC boundaries were selected to define 
subdrainages. A total of 19 HUCs are identified in the Working Draft as 
occupied or potentially occupied by the Preble's. Of these, 5 are 
located in the North Platte River drainage, 11 in the South Platte 
River drainage, and 3 in the Arkansas River drainage. In developing the 
conservation strategy that underlies this rule we have considered and 
incorporated aspects of the Working Draft.
    One large and one medium Preble's population in Wyoming, and one 
large Preble's population in Colorado that are designated in the 
Working Draft as recovery populations, and are consistent with our 
conservation strategy, are reflected in this critical habitat 
designation. The Working Draft defines large populations as maintaining 
2,500 mice and usually including at least 50 mi (80 km) of rivers and 
streams. It defines medium populations as maintaining 500 mice over at 
least 10 mi (16 km) of rivers and streams. While the Working Draft 
designates the approximate location of these recovery populations, it 
does not delineate specific boundaries. In addition, in each of the 
remaining ten HUCs within the Preble's range the Working Draft calls 
for three small recovery populations but, with the exception of the F. 
E. Warren in the Crow Creek HUC and Lone Tree Creek in the Lone Tree-
Owl HUC, does not attempt designate their locations. In most of these 
remaining 10 HUCs, the Working Draft only prescribes the need to 
establish three small recovery populations (or the option of one medium 
recovery population) within a HUC. The Working Draft anticipates that, 
in the future, the locations of these remaining recovery populations 
will be designated and their specific boundaries delineated by State 
and local governments, and other interested parties, working in 
coordination with the Service. In contrast, to meet the requirements 
for this critical habitat designation, we have designated specific 
boundaries for all critical habitat units. It is probable that new 
information regarding populations in these areas will alter specific 
details of any future recovery plan. HUCs where little is know 
regarding status of the Preble's may be proven not to support viable 
populations. If such is the case they may be determined to be 
unnecessary for recovery, and may be deleted from a future recovery 
plan. Other HUCs may be determined to be necessary for recovery even if 
they are not included within this critical habitat designation.

[[Page 37303]]

    Beyond designating critical habitat for sites essential to the 
conservation of the Preble's because they are important to recovery, we 
reviewed other sites of Preble's occurrence, especially on Federal 
lands, for possible designation as critical habitat. Our conservation 
strategy emphasizes the importance of protecting additional Preble's 
populations, to provide insurance for the Preble's in the event that 
designated recovery populations cannot be effectively managed or 
protected as envisioned by the recovery plan, or are decimated by 
uncontrollable catastrophic events such as fires or flooding. Our 
conservation strategy entails directing recovery efforts toward public 
lands rather than private lands where possible, and calls upon all 
Federal agencies to protect and manage for the Preble's wherever it 
occurs on Federal lands. As part of our conservation strategy, we 
believe that the designation of additional areas of critical habitat on 
Federal land is essential for the conservation of the Preble's. Should 
unforseen events cause the continued decline of Preble's populations 
throughout its range, Preble's populations and the primary constituent 
elements on which they depend are more likely to persist and remain 
viable on Federal lands than on non-Federal lands. The likelihood of 
maintaining stable populations is greatest on these Federal lands, 
where consistent and effective land management strategies can be more 
easily employed. Preble's populations on Federal lands could serve as 
substitute recovery populations should designated recovery populations 
decline or fail to meet recovery goals. In addition, some Preble's 
populations on Federal lands have been the subject of ongoing research 
that could prove vital to the conservation of the Preble's.
    For the reasons stated above we have designated selected stream 
reaches on Federal lands supporting the Preble's that we believe to be 
essential to the conservation of the Preble's, even if these areas 
appear unlikely to be selected for initially designated recovery 
populations based on the Working Draft. These areas of designated 
critical habitat may include short reaches of intervening non-Federal 
lands that in some cases support all primary constituent elements 
needed by the Preble's or, if substantially developed, are likely to 
provide only connectivity between areas of Preble's habitat on nearby 
Federal lands.
    Designated critical habitat units include only river and stream 
reaches, and adjacent floodplains and uplands, that are within the 
known geographic and elevational range of the Preble's, have the 
primary constituent elements present, and, based on the best scientific 
data available, are believed to currently support the Preble's.
    In Wyoming and at higher elevations along the Front Range in 
Colorado the geographical distribution of the Preble's has been subject 
to scrutiny due to the close resemblance, and apparent range overlap, 
between the Preble's and the western jumping mouse. However, new 
information obtained since the time of the Preble's listing has not 
appreciably changed the known range of the Preble's. Based on the most 
recent information on elevational range of the Preble's we have, with 
one exception, limited designated critical habitat to 2,300 m (7,600 
ft) in elevation and below.
    Presence of primary constituent elements was determined through a 
variety of sources including, but not limited to--Colorado Division of 
Wildlife mapping of Preble's Habitat Similarity Models derived from 
interpretation of aerial photographs; the Services' 1998 mapping of 
sites occupied or potentially occupied by the Preble's produced in 
conjunction with the Colorado Department of Natural Resources as part 
of proposed special regulations under section 4(d) of the Act (63 FR 
66777); working maps produced by the Recovery Team during development 
of the Working Draft; National Wetland Inventory maps produced by the 
Service; results of research conducted on a variety of Federal 
properties by the Forest Service, the Department of Energy, the Air 
Force, and the Army Corps of Engineers; results of research conducted 
by the Colorado Division of Wildlife, Colorado Department of 
Transportation, and the City of Boulder; field assessments of habitat 
by Service staff; information amassed to support regional HCPs 
including those in Boulder, Douglas, and El Paso Counties in Colorado, 
and for Denver Water properties in Colorado; coordination with Forest 
Service personnel from the Medicine Bow-Routt, Arapaho-Roosevelt, and 
Pike-San Isabel National Forests; and, numerous evaluations of 
potential Preble's habitat by consulting biologists in support of 
developers, landowners, and other clients.
    Presence of the Preble's was determined based largely on the 
results of trapping surveys, the vast majority of which were conducted 
in the past 7 years. Sites judged to be occupied by the Preble's 
include those that--(1) have recently been documented to support 
jumping mice identified by genetic or morphological examination as the 
Preble's; or (2) have recently been documented to support jumping mice 
and for which historical verification of the Preble's exists. While in 
some cases designated critical habitat units extend well beyond these 
capture locations, boundaries of these critical habitat units include 
only those reaches that we believe to be occupied by the Preble's based 
on the best scientific data available regarding capture sites, the 
known mobility of the Preble's, and the quality and continuity of 
habitat components along stream reaches. Where appropriate, we have 
included details on the known status of the Preble's within specific 
subdrainages in the Critical Habitat Designation section of this 
document. Survey efforts to document the Preble's in Wyoming have been 
more limited than in Colorado and have been focused on--(1) Federal 
lands (the Medicine Bow-Routt National Forest, some Bureau of Land 
Management lands, and the F.E. Warren in Laramie County); (2) lands 
owned and surveyed by True Ranches; and (3) areas to be impacted by 
various proposed projects with a Federal nexus, most notably the 
Medicine Bow Lateral Pipeline.
    We considered several qualitative criteria to judge the current 
status and probable persistence of Preble's populations in the 
selection and designation of specific areas as critical habitat. These 
included--(1) the quality, continuity, and extent of habitat components 
present; (2) the state of natural hydrological processes that maintain 
and rejuvenate suitable habitat components; (3) the presence of lands 
devoted to conservation, either public lands such as parks, wildlife 
management areas, and dedicated open space, or private lands under 
conservation easements; and (4) the landscape context of the site, 
including the overall degree of current human disturbance and presence, 
and likelihood of future development based on local planning and 
zoning.
    In those units where, based on our conservation strategy, we 
designate critical habitat on Federal lands, we looked for contiguous 
Federal property along stream reaches at least 5 km (3 mi) in length 
supporting required primary constituent elements and occupied by the 
Preble's. In some cases shorter reaches on Federal lands were 
designated as critical habitat when they were separated from more 
substantial reaches on Federal lands by only small segments of 
intervening non-Federal lands.

[[Page 37304]]

North Platte River Drainage

    Within the Glendo HUC, we have designated critical habitat on the 
Cottonwood Creek watershed consistent with the medium recovery 
population called for in our conservation strategy. Although we 
originally proposed critical habitat in the Horseshoe Creek watershed 
on National Forest System land, we have removed this unit from final 
designation after reevaluation of the available data regarding Preble's 
identification in this drainage. As indicated previously, we have 
decided to include in the critical habitat determination only those 
units occurring in drainages within which there is a specimen verified 
as Preble's through morphological or genetic means. The Horseshoe Creek 
has had no mice verified to be Preble's through morphological or 
genetic means, but rather only through field identification.
    Within the Lower Laramie HUC, we have designated critical habitat 
on Chugwater Creek consistent with the large recovery population. 
Primary constituent elements required by the Preble's appear widespread 
within Chugwater Creek and its tributaries. Richeau Creek and Hunton 
Creek were not included as designated critical habitat since they are 
segregated from the main portion of the Chugwater Creek complex by long 
stretches of less suitable habitat. Upon review of additional 
information obtained through public comment and during site visits to 
the area, some adjustments were made to the tributaries proposed to be 
included in this unit. Four tributaries were removed from the final 
designation. These tributaries include two named Spring Creek, 
Threemile Creek, and Sand Creek. The Spring Creek located farthest 
downstream supports somewhat limited riparian vegetation, transitions 
immediately into arid uplands without adequately vegetation (rather 
than supporting meadows and hayfields like most of Chugwater Creek), 
and does not provide open water through the Preble's active season. 
This tributary is not be considered valuable in providing connectivity, 
as it does not link one area to another. Similarly, although Threemile 
Creek does flow through the Preble's active season, the riparian 
vegetation associated with this creek is extremely limited (only a few 
feet in width in some locations) and transitions immediately into arid 
uplands characterized by the presence of cacti and supporting only 
limited grasses and forbs. Sand Creek has reasonably well developed 
riparian vegetation, but does not regularly contain open, flowing 
water. Water flows are restricted to periods after storm events. The 
Spring Creek occurring farthest upstream flows underground (with haying 
occurring across it) through significant portions of its reach. 
Although the upstream reach of the tributary has above-ground flows and 
adequate vegetation to be considered suitable habitat for the Preble's, 
the upper reaches are not connected to the lower reach or Chugwater 
Creek.
    Also in the Lower Laramie HUC, habitat components typically used by 
the Preble's exist on Federal property on the Medicine Bow-Routt 
National Forest. While many of these locations are at higher elevations 
than those that the Preble's has been shown to inhabit, surveys have 
also captured jumping mice identified in the field as the Preble's from 
the appropriate elevational range. Therefore, we originally proposed 
critical habitat on National Forest System lands and small parcels of 
intervening non-Federal lands within the Friend Creek watershed and 
within the Murphy Canyon watershed. However, as discussed previously, 
we have removed the Friend Creek and Murphy Canyon unit from this 
designation, as those drainages contain no mice verified as Preble's 
through morphological or genetic means.
    Within the Horse Creek HUC, we originally proposed critical habitat 
on Horse Creek consistent with the medium recovery population called 
for in our conservation strategy. However, for reasons discussed 
previously, we have removed the Horse Creek unit from this designation 
as the drainage contains no mice verified as Preble's through 
morphological or genetic means.
    Our conservation strategy calls for three small populations or one 
medium population in both the Middle North Platte-Casper HUC and the 
Middle North Platte-Scottsbluff HUC. Suitable habitat appears to be 
present throughout the Middle North Platte-Casper HUC. However, survey 
efforts targeted at the Preble's have occurred on only a limited basis 
in this subdrainage, with the only known captures of jumping mice at 
elevations above 2,800 m (7,800 ft) and likely to be western jumping 
mice. Therefore, while primary constituent elements for the Preble's 
appear present in this subdrainage and the Preble's probably occurs 
within this system, we have not designated critical habitat based on 
lack of known occurrence.
    Habitat components suitable for the Preble's appear to be quite 
limited in the Middle North Platte-Scottsbluff HUC and are largely 
confined to the westernmost portions of the subdrainage. Some small 
pockets of suitable habitat are scattered throughout the rest of the 
subdrainage, but they are quite isolated. Additionally, trapping 
efforts targeted at the Preble's have occurred on a limited basis in 
this subdrainage with no surveys providing captures of the jumping 
mice. Therefore, while there is a high probability that the Preble's 
occurs within this subdrainage, we have not designated critical habitat 
based on lack of known occurrence.

South Platte River Drainage

    Our conservation strategy calls for three small recovery 
populations or one medium population in the Upper Lodgepole HUC. 
Suitable habitat for the Preble's is generally limited to the western 
half of the subdrainage. Most trapping efforts in this HUC have been on 
the Medicine Bow-Routt National Forest at elevations above 2,300 m 
(7,700 ft). Additionally, one trapping effort at a lower elevation 
produced a jumping mouse identified in the field as a Preble's. We have 
designated two critical habitat units in this subdrainage, Lodgepole 
Creek and Upper Middle Lodgepole Creek, consistent with two of the 
three small recovery populations identified for the HUC in our 
conservation strategy.
    In Crow Creek HUC we proposed designation of critical habitat 
consistent with one of the three small recovery populations called for 
in our conservation strategy. This area, limited to the F.E. Warren in 
Cheyenne, has been excluded from the final critical habitat designation 
under 3(5)(A) and 4(b)(2) of the Act (see Relationship with Department 
of Defense Lands).
    The Lone Tree-Owl HUC supports primary constituent elements for the 
Preble's both in Wyoming and in Colorado. Based on the recovery 
criteria of three small or one medium recovery population assigned to 
this HUC in the Working Draft, we originally proposed two small areas 
of critical habitat along Lone Tree Creek, one in Wyoming and one in 
Colorado. However, for reasons discussed previously, we have removed 
the Lone Tree Creek unit from this designation as the drainage contains 
no mice verified as Preble's through morphological or genetic means.
    We have elected not to designate additional critical habitat on 
Federal property in the Wyoming portion of the South Platte River 
drainage aside from the Upper Middle Lodgepole Creek subunit. Within 
these HUCs, Bureau of Land Management properties are largely upland 
areas with only small segments of streams. National Forest System lands 
in the Medicine Bow--Routt National Forest include many suitable-
looking streams, but most occur at elevations

[[Page 37305]]

ranging from 2,200 m (7,300 ft) to 2,400 m (8,000 ft). Although surveys 
from these riparian areas have produced jumping mice that are 
potentially the Preble's, none have been verified as Preble's through 
genetic or morphological means. It is likely, based on elevation, that 
many of these are western jumping mice. We will continue to work with 
the Forest Service regarding potential Preble's populations on their 
lands and will encourage further survey effort and collection of 
jumping mouse specimens for species verification.
    In the Cache La Poudre HUC, we have designated critical habitat 
along the lower portions of the North Fork of the Cache Le Poudre River 
and its tributaries, consistent with the large recovery population 
called for in our conservation strategy. In addition, further south in 
this subdrainage we have designated a second area limited largely to 
National Forest System lands along the main stem of the Cache Le Poudre 
River and on selected tributaries. While additional stream reaches that 
support Preble's populations are present on National Forest System 
lands in the upper reaches of the North Fork of the Cache Le Poudre and 
its tributaries, including Bull Creek, Willow Creek, Mill Creek, and 
Trail Creek, the extent of contiguous stream reaches in Forest Service 
ownership is very limited. A checkerboard pattern of land ownership, 
resulting in no significant contiguous reaches of Federal lands, 
convinced us that designating additional critical habitat centered on 
Federal lands is not warranted; therefore, we designated no critical 
habitat in this area.
    In the Big Thompson HUC we designated critical habitat on Buckhorn 
Creek and its tributaries consistent with the medium recovery 
population called for in our conservation strategy. We also assessed 
National Forest System lands along the Big Thompson River and Little 
Thompson River for possible inclusion as critical habitat. Potential 
areas along the Big Thompson River and the North Fork of the Big 
Thompson River were largely in private ownership, with substantial 
human development occurring in many places. We originally proposed one 
additional area as critical habitat, centered on National Forest System 
lands on portions of Dry Creek and its tributaries. However, for 
reasons discussed previously, we have removed the Cedar Creek unit from 
this designation as the drainage contains no mice verified as Preble's 
through morphological or genetic means. Forest Service holdings along 
the Little Thompson River and its tributaries are highly fragmented by 
non-Federal lands or represent only short stream reaches near the 2,300 
m (7,600 ft) elevation. No critical habitat has been designated on the 
Little Thompson River.
    Within the St. Vrain HUC, our conservation strategy calls for a 
medium recovery population on South Boulder Creek.
    At the request of representatives from the City of Boulder we 
considered designating critical habitat along the St. Vrain River 
between Hygiene and Lyons. We have little evidence to support 
designation of critical habitat for the Preble's population on the St. 
Vrain River as a preferable alternative to designation of critical 
habitat on South Boulder Creek, nor did we find reason to designate 
critical habitat on a second population on non-Federal lands within 
this subdrainage. We considered designating critical habitat for the 
Preble's on National Forest System lands at higher elevations along the 
North St. Vrain Creek and the Middle St. Vrain Creek. However, since no 
trapping efforts targeted at the Preble's have been conducted in these 
areas and we are aware of no records of the Preble's occurrence in 
these watersheds, neither has been designated as critical habitat.
    The Department of Energy's Rocky Flats site spans portions of the 
St. Vrain HUC and the Middle South Platte-Cherry Creek HUC. Rocky Flats 
has been a focus of research on the Preble's and monitoring of 
populations has taken place for several years. The Department of Energy 
and the Department of the Interior are concluding an agreement mandated 
by Congress under which the Rocky Flats site will become part of the 
National Wildlife Refuge system and will be administered by the 
Service. The Service will manage the refuge in a manner to conserve the 
Preble's. For that reason, we find that the Rocky Flats site is not in 
need of special management measures. Furthermore, there is no benefit 
to including a National Wildlife Refuge in a critical habitat 
designation under the circumstances presented here. Therefore we have 
excluded the Rocky Flats site under sections 3(5)(A) and 4(b)(2) of the 
Act.
    Our conservation strategy calls for three small recovery 
populations or one medium recovery population within the Clear Creek 
HUC, the Preble's has been captured along a segment of Ralston Creek 
above Ralston Reservoir. Based on limited occurrence of habitat 
components needed by the Preble's and the absence of other captures, we 
limited proposed designation of critical habitat within the Clear Creek 
HUC to this single population. In the summer of 2002, a single jumping 
mouse, confirmed as the Preble's through morphological examination, was 
captured on Elk Creek, a small tributary to Clear Creek. Past trapping 
efforts on Clear Creek and its tributaries have failed to document 
Preble's presence. After review of the site, we have decided not to 
designate the reach at the site of the Elk Creek capture as critical 
habitat.
    Our conservation strategy calls for a medium recovery population 
along Cherry Creek in the Middle South Platte-Cherry Creek HUC. 
Preble's habitat in the upper reaches of the Cherry Creek basin appears 
extensive. We proposed critical habitat in an area that includes a 
segment of Cherry Creek, Lake Gulch, and its tributaries. However, for 
reasons discussed previously, we have removed the Cherry Creek unit 
from this designation as the drainage contains no mice verified as 
Preble's through morphological or genetic means.
    We examined other areas of Preble's habitat on Federal lands within 
the Upper South Platte HUC, and have designated critical habitat on 
Army Corps of Engineers lands upstream of Chatfield Reservoir along the 
South Platte River and on three areas centered on National Forest 
System land in the Pike-San Isabel National Forest within the South 
Platte River watershed. Though National Forest System lands in the 
Upper South Platte HUC are extensive, much of the South Platte itself 
is not federally owned. On National Forest System lands on some of the 
major tributaries of the South Platte River, habitat components 
required by the Preble's have been degraded by catastrophic fire, 
flooding, or both. The Buffalo Creek watershed has been highly degraded 
by fire, followed by flooding, accompanying erosion, and sedimentation. 
Critical habitat has not been designated in the Buffalo Creek 
watershed. The Wigwam Creek subunit, proposed as critical habitat in 
the draft rule, has not been designated as critical habitat following 
intense burning by the 2002 Hayman Fire. In contrast, the Trout Creek 
subunit was lightly to moderately burned in the same fire, is expected 
to recover relatively quickly, and is designated as critical habitat. 
Combined, the four areas of designated critical habitat should help 
assure that a viable population of the Preble's is maintained in the 
portion of this HUC upstream of Chatfield Reservoir on the South Platte 
River.
    While our conservation strategy calls for either three small 
populations or one

[[Page 37306]]

medium population in both the Kiowa and Bijou HUCs, no confirmation of 
the Preble's existed at the time of proposed critical habitat 
designation for either of these subdrainages. Based on lack of known 
Preble's occurrence, no critical habitat was proposed within either of 
these areas. Two 2002 trapping efforts on the Kiowa Creek resulted in 
captures of jumping mice identified in the field as the Preble's, with 
one specimen confirmed as the Preble's through morphological 
examination. After review of habitat at the capture sites in relation 
to that found elsewhere on Kiowa Creek and its tributaries, we have 
elected not to designate reaches adjacent to the capture sites as 
critical habitat. We encourage further trapping to better understand 
the extent and distribution of occupied habitat in the Kiowa Creek 
subdrainage.

Arkansas River Drainage

    Within the Fountain Creek HUC our conservation strategy calls for a 
large recovery population along Monument Creek and its tributaries 
including lands within the Air Force Academy. While the Academy 
property would support an essential part of this recovery population, 
we have determined that the Academy does not meet the definition of 
critical habitat under 3(5)(A) and merits exclusion under 4(b)(2) of 
the Act (see Relationship with Department of Defense Lands).
    Our conservation strategy calls for either three small recovery 
populations or one medium recovery population to meet recovery criteria 
in both the Chico and the Big Sandy HUCs. The Preble's has been 
documented at a single location within the Chico HUC, in apparently 
marginal habitat along an unnamed tributary of Black Squirrel Creek. 
Subsequent trapping could not relocate the Preble's at the site. 
Limited trapping of other sites has produced no captures of the 
Preble's and the extent of appropriate habitat components within the 
subdrainage appears limited. We have not designated critical habitat in 
the Chico HUC based on our uncertainty that the Preble's exists within 
any given reach in this area. In the Big Sandy HUC limited trapping 
efforts targeted at the Preble's have not confirmed Preble's presence. 
Sites supporting primary constituent elements required by the Preble's 
appear few. For these reasons we have not designated critical habitat 
in the Big Sandy HUC.

Delineation of Critical Habitat Boundaries

    Critical habitat for the Preble's was delineated based on the 
interpretation of multiple sources used during the preparation of this 
rule. We used GIS-based mapping using ARCInfo that incorporated 
streams, steam order (Stahler method), roads, and cities from USGS 
maps, floodplains from Federal Emergency Management Agency maps, and 
surface management maps depicting property ownership from the Bureau of 
Land Management (primarily from the early 1990s). Lands designated as 
critical habitat were divided into specific mapping units, i.e., 
critical habitat units, often corresponding to individual HUCs. For the 
purposes of this rule these units have been described primarily by 
latitude and longitude, and by section, township, and range, to mark 
the upstream and the downstream extent of designated critical habitat 
along rivers and streams.
    We were presented with a decision in designating outward extent of 
critical habitat into uplands. The Service has typically described 
Preble's habitat as extending outward 300 ft (90 m) from the 100-year 
floodplain of rivers and streams (Service 1998). The Working Draft 
defines Preble's habitat as the 100-year floodplain plus 100 m (330 ft) 
outward on both sides, but allows for alternative delineations that 
provide for all the needs of the Preble's and include the alluvial 
floodplain, transition slopes, and pertinent uplands.
    In order to allow normal behavior and to assure that the Preble's 
and the primary constituent elements on which it depends are protected 
from disturbance, the outward extent of critical habitat should at 
least approximate the outward distances described above in relation to 
the 100-year floodplain. Unfortunately, floodplains have not been 
mapped for many streams within Preble's range and electronic layers 
depicting 100-year floodplains needed to facilitate GIS mapping are not 
available for several counties within Preble's range. Where floodplain 
mapping is available, we have found that it may include local 
inaccuracies.
    While alternative delineation of critical habitat based on 
geomorphology and existing vegetation could accurately portray the 
presence and extent of required habitat components, we lacked an 
explicit data layer that could support such a delineation over the 
species range. Creation of such a layer through interpretation of 
aerial photographs and site visits was not possible given the time and 
resources available for this designation.
    We also considered determining the outward extent of critical 
habitat based on a distance outward from features such as the stream 
edge, associated wetlands, or riparian areas. We judged wetlands an 
inconsistent indicator of habitat extent and found no consistent source 
of riparian mapping available across the range of the Preble's. We also 
considered using an outward extent of critical habitat established by a 
vertical distance above the elevation of the river or stream to 
approximate the floodplain and adjacent uplands likely to be used by 
the Preble's.
    For this designation we ultimately settled on delineating the 
upland extent of critical habitat boundaries as a set distance outward 
from the river or stream edge (as defined by the ordinary high water 
mark) varying with the size (order) of a river or stream. We compared 
known floodplain widths to stream order over a series of sites and 
approximated average floodplain width for various orders of streams. To 
that average we added an additional 100 m (330 ft) outward on each 
side. Based on this calculation, for streams of order 1 and 2 (the 
smallest streams) we have delineated critical habitat as 110 m (360 ft) 
outward from the stream edge, for streams of order 3 and 4 we have 
delineated critical habitat as 120 m (400 ft) outward from the stream 
edge, and for stream orders 5 and above (the largest streams and 
rivers) we have delineated critical habitat as 140 m (460 ft) outward 
from the stream edge. While designated critical habitat will not 
include all areas used by individual Preble's mice over time, we 
believe that these corridors of critical habitat ranging from 220 m 
(720 ft) to 280 m (920 ft) in width (plus the river or stream width) 
will support the full range of primary constituent elements essential 
for persistence of Preble's populations, and should help protect the 
Preble's and their habitats from secondary impacts of nearby 
disturbance. We received a number of public comments regarding the 
appropriate outward limits of critical habitat and means of 
establishing them. However, most comments suggested either 
standardizing a single outward distance for all rivers and streams, 
site specific mapping of critical habitat for each reach designated, or 
relying on alternative mapping created for HCPs as a surrogate for 
site-specific mapping of critical habitat. None of these alternatives 
were determined to be both feasible given the time and resources 
available to us, and a more accurate alternative to the methodology 
employed in the proposed rule.
    In selecting areas of designated critical habitat, we made an 
effort to avoid developed areas that are not likely to contribute to 
Preble's conservation. However, the scale of mapping that we

[[Page 37307]]

used to approximate our delineation of critical habitat did not allow 
us to exclude all developed areas such as roads and rural development. 
In addition, some developed stream reaches serve as essential 
connectors within Preble's populations. Existing structures and 
features within the boundaries of the mapped units, such as buildings, 
roads, parking lots, other paved areas, lawns, other urban and suburban 
landscaped areas, regularly plowed or disced agricultural areas, and 
certain other areas are not likely to contain primary constituent 
elements for the Preble's and, therefore, are not critical habitat. 
Federal actions limited to these areas would not trigger a section 7 
consultation unless they affect the Preble's or primary constituent 
elements within designated critical habitat.
    We could not depend solely on federally-owned lands to designate 
critical habitat, as these lands are limited in geographic location, 
size, and habitat quality within the range of the Preble's. In addition 
to the federally-owned lands, we are designating critical habitat on 
non-Federal public lands and privately owned lands, including lands 
owned by the State of Colorado and State of Wyoming, and by local 
governments. All non-Federal lands designated as critical habitat meet 
the definition of critical habitat under section 3 of the Act in that 
they are within the geographical area occupied by the species, are 
essential to the conservation of the species, and may require special 
management considerations or protection.

Critical Habitat Designation

    The designated critical habitat contained within units discussed 
below constitutes our best evaluation of areas necessary to conserve 
the Preble's. Critical habitat may be revised through rule-making 
(including notice and public comment) if new information becomes 
available after the final rule. Table 1 provides a summary of the area 
of critical habitat in each unit that has been designated as critical 
habitat. Critical habitat for the Preble's includes approximately 201.3 
km (125.1 mi) of rivers and streams and 4,264 ha (10,542 ac) of lands 
in Wyoming and approximately 376.8 km (234.1 mi) of rivers and streams 
and 8,386 ha (20,680 ac) of lands in Colorado. Lands designated as 
critical habitat are under Federal, State, local government, and 
private ownership. No lands designated as critical habitat are under 
Tribal ownership. Estimates reflect the total river or stream length, 
or area of lands within critical habitat unit boundaries, without 
regard to the presence of primary constituent elements. Therefore, 
given exclusions for developed areas and other areas not supporting 
primary constituent elements, the area designated is actually less than 
indicated in Table 1.

   Table 1.--Critical Habitat for the Preble's Meadow Jumping Mouse by
                      Unit in Wyoming and Colorado
------------------------------------------------------------------------
              Linear River Kilometers and Hectares by State
-------------------------------------------------------------------------
                                                   Total
------------------------------------------------------------------------
Wyoming..........................  201.3 km (125.1 mi)
                                   4,264 ha (10,542 ac)
    NP1..........................  43.3 km (26.9 mi)
                                   924 ha (2,284 ac)
    NP3..........................  137.2 km (85.3 mi)
                                   2912 ha (7,194 ac)
    SP1..........................  20.8 km (13.0 mi)
                                   265 ha (654 ac)
Colorado.........................  376.8 km (234.1 mi)
                                   8,368 ha (20,680 ac)
    SP 4.........................  141.8 km (88.1mi)
                                   3,321 ha (8,206 ac)
    SP 5.........................  82.4 km (51.2 mi)
                                   1,912 ha (4,725 ac)
    SP 6.........................  69.2 km (43.0 mi)
                                   1,537 ha (3,798 ac)
    SP 10........................  12.9 km (8.0 mi)
                                   277 ha (686 ac)
    SP 13........................  70.5 km (43.8 mi)
                                   1,321 ha (3,265 ac)
------------------------------------------------------------------------

    Lands designated as critical habitat are divided into 8 critical 
habitat units containing all of those primary constituent elements 
necessary to meet the primary biological needs of the Preble's. We 
exempted the proposed Warren Air Force Base unit (SP2 in the proposed 
rule) from critical habitat designation. In addition we have excluded 
the Horseshoe Creek unit (NP2), the Friend Creek and Murphy Canyon unit 
(NP4), and the Horse Creek unit (NP5), the Lone Tree Creek unit (SP3), 
the Cedar Creek unit (SP7), and the Cherry Creek unit (SP11). In order 
to avoid confusion from changing numbering critical habitat units, we 
have retained the original unit numbers of units that have been 
designated critical habitat.
    In designating critical habitat, we did not include all areas 
currently occupied by the Preble's. A brief description of each 
Preble's critical habitat unit and the reasons why they are essential 
for the conservation of the Preble's are provided below. The units are 
generally based on geographically distinct river drainages and 
subdrainages. These units have been subject to, or are threatened by, 
varying degrees of degradation from human use and development. For 
these reasons, all of the areas in which we are designating critical 
habitat may require special management considerations or protection. 
Unless otherwise noted, references to ``morphological examination'' 
refer to Connor and Shenk (in prep.), references to genetic 
examination'' refer to Riggs et al. (1997), and references to 
``captures presumed to be the Preble's'' refer to field surveys where 
jumping mice identified in the field as the Preble's were released 
alive and not subject to morphological or genetic examination.
    The following critical habitat units are located in the North 
Platte River drainage:

Unit NP1: Cottonwood Creek, Albany, Platte, and Converse Counties, 
Wyoming

    Unit NP1 encompasses approximately 924 ha (2,284 ac) on 43.3 km 
(26.9 mi) of streams within the Cottonwood Creek watershed. It includes 
Cottonwood Creek from Harris Park Road upstream to the 2,100-m (7,000-
ft) elevation. Tributaries include North Cottonwood Creek and Preacher 
Creek. The unit includes both public and private lands, including a 
small portion on the Medicine Bow-Routt National Forest.
    This unit is located in the Glendo HUC and is designated to address 
the large recovery population for the North Platte River drainage in 
our conservation strategy. The Preble's habitat on this unit appears 
generally excellent, particularly on the National Forest System lands. 
This population is essential not only to maintain distribution near the 
northernmost extreme of known Preble's range, but because the large 
size of the population (as predicted by amount and quality of habitat) 
should help ensure viability into the future. Private lands within the 
unit are used extensively for grazing, which could be beneficial to the 
Preble's and its habitat if managed appropriately.
    A specimen examined by Krutzsch (1954) in describing the subspecies 
is from Springhill in this HUC. Five recent specimens from this 
subdrainage have been identified as the Preble's through morphological 
examination (tooth fold presence) (Jones, in litt., 2002). Captures of 
jumping mice identified in the field as the Preble's have occurred at 
several other locations in this subdrainage.

Unit NP3: Chugwater Creek, Albany, Laramie, and Platte Counties, 
Wyoming

    Unit NP3 encompasses approximately 2,912 ha (7,194 ac) on137.2 km 
(85.3 mi) of streams within the Chugwater Creek watershed. It extends 
from several miles downstream of the town of Chugwater, upstream on 
Chugwater Creek and its

[[Page 37308]]

tributaries to approximately the 2,100-m (7,000-ft) elevation. Major 
tributaries within the unit include Middle Chugwater Creek, South 
Chugwater Creek, Ricker Creek, Strong Creek, and Shanton Creek. The 
unit consists of both public and private lands.
    This unit is located in the Lower Laramie HUC and is designated to 
address the large recovery population in the North Platte River 
drainage called for in our conservation strategy. The unit supports 
excellent Preble's habitat with a complex tributary system and is 
likely to support a high density of the Preble's. While some isolated 
portions of this unit may be less suitable, we do not believe those 
areas are permanently affected by current land use practices or pose 
such barriers as to segregate portions of this Preble's population. 
Based on the amount and apparent quality of Preble's habitat contained 
in this unit, it may support one of the largest populations of the 
Preble's within its entire range and has a high probability of 
remaining viable well into the future. Threats are presented by future 
development, road construction, and road improvements. In addition, the 
unit is repeatedly crossed by gas pipelines and utility corridors. 
Haying and grazing may be threats to the Preble's in portions of the 
unit.
    Specimens of the Preble's from this HUC include a specimen from 
Chugwater examined by Krutzsch (1954) in describing the subspecies, and 
specimens from Sybille Creek, Chugwater Creek, and Hunton Creek 
verified as the Preble's through morphological examination (tooth fold 
presence) (Jones, in litt., 2002). Capture of jumping mice presumed to 
be the Preble's has occurred at several other locations in this 
subdrainage.
    The following critical habitat units are located in the South 
Platte River drainage:

Unit SP1: Lodgepole Creek and Upper Middle Lodgepole Creek, Laramie 
County, Wyoming

    Unit SP1 encompasses approximately 265 ha (654 ac) on 20.8 km (13.0 
mi) of streams within two subunits in the Lodgepole Creek watershed, 
Lodgepole Creek and the Upper Middle Lodgepole Creek. The Lodgepole 
Creek subunit includes Lodgepole Creek from Horse Creek Road (County 
Road 211) upstream beyond the confluence of North Lodgepole Creek and 
Middle Lodgepole Creek up to 2,300-m (7,000-ft) elevation on both 
creeks. The subunit consists of almost entirely private lands. The 
Upper Middle Lodgepole Creek subunit includes Middle Lodgepole Creek 
from the eastern boundary of the Pole Mountain Unit of the Medicine 
Bow-Routt National Forest upstream to about 2,400-m (7,750-ft) 
elevation and including the North Branch of Middle Lodgepole Creek. The 
unit consists of public lands including portions of the Medicine Bow-
Routt National Forest.
    This unit is located in the Upper Lodgepole HUC and is designated 
to address two of three small recovery populations called for in this 
HUC in our conservation strategy. The Lodgepole Creek subunit will 
likely be threatened in the future by development including road 
construction. The Upper Middle Lodgepole Creek subunit may be 
threatened by grazing pressure (particularly during drought conditions) 
and off-road vehicle use.
    Critical habitat on this unit is designated based on captures of 
jumping mice on Middle Lodgepole Creek and North Branch of Middle 
Lodgepole Creek. Although these two trap sites are fairly high in 
elevation, a specimen was confirmed as the Preble's on the North Branch 
of Middle Lodgepole Creek through genetic examination and a second 
specimen was verified to be the Preble's through morphological 
examination (tooth fold presence) (Jones, in litt., 2001).

Unit SP4: North Fork Cache La Poudre River, Larimer, Colorado

    Unit SP4 encompasses approximately 3,321 ha (8,206 ac) on 141.8 km 
(88.1 mi) of streams within the North Fork of the Cache La Poudre River 
watershed. It includes the North Fork of the Cache La Poudre River from 
Seaman Reservoir upstream to Halligan Reservoir. Major tributaries 
within the unit include Stonewall Creek, Rabbit Creek (including its 
North Fork, Middle Fork and South Fork), and Lone Pine Creek. The unit 
includes both public and private lands. It includes portions of the 
Arapaho-Roosevelt National Forest, as well as Lone Pine State Wildlife 
Area.
    The unit is located in the Cache La Poudre HUC and is designated to 
address the large recovery population designated for this area in our 
conservation strategy. The area remains rural and agricultural with 
habitat components likely to support relatively high densities of the 
Preble's. Pressure for expanded development is increasing within the 
area. Within existing properties belonging to The Nature Conservancy 
along the North Fork Cache La Poudre River and to Al Johnson along 
Rabbit Creek, Lone Pine Creek, and the North Fork Cache La Poudre 
River, designated critical habitat extends from the center line of the 
stream outward 325 ft (99 m) on both sides.
    Specimens from Rabbit Creek and Lone Pine Creek were verified 
through genetic examination as the Preble's. Jumping mice identified in 
the field as the Preble's have been captured at several locations 
within the unit.

Unit SP5: Cache La Poudre River, Larimer County, Colorado

    Unit SP5 encompasses approximately 1,912 ha (4,725 ac) on 82.4 km 
(51.2 mi) of streams within the Cache La Poudre River watershed. It 
includes the Cache La Poudre River from Poudre Park upstream to the 
2,300 m (7,600 ft) elevation (below Rustic). Major tributaries within 
the unit include Hewlett Gulch, Young Gulch, Skin Gulch, Poverty Gulch, 
Elkhorn Creek, Pendergrass Creek, and Bennett Creek. The unit is 
primarily composed of Federal lands of the Arapaho-Roosevelt National 
Forest, including portions of the Cache La Poudre Wilderness, but 
includes limited non-Federal lands.
    The unit is located in the Cache La Poudre HUC and, while unlikely 
to serve as an initial recovery population, it encompasses a 
significant area of habitat likely to support a sizeable population of 
the Preble's. Due to Federal ownership, development pressure is 
minimal; however, the area is subject to substantial recreational use 
(rafting, kayaking, fishing) in the Cache La Poudre River corridor. 
Non-Federal lands include existing development that may limit habitat 
components present. Some such reaches may serve the Preble's mostly as 
connectors between areas containing all necessary primary constituent 
elements.
    A number of jumping mice, identified in the field as the Preble's, 
have been captured from this unit, with one specimen from Young Gulch 
verified through morphological examination as a Preble's.

Unit SP6: Buckhorn Creek, Larimer County, Colorado

    Unit SP6 encompasses approximately 1,537 ha (3,798 ac) on 69.2 km 
(43.0 mi) of streams within the Buckhorn Creek watershed. It includes 
Buckhorn Creek from just west of Masonville, upstream to the 2,300 m 
(7,600 ft) elevation. Major tributaries within the unit include Little 
Bear Gulch, Bear Gulch, Stringtown Gulch, Fish Creek, and Stove Prairie 
Creek. The unit includes both public and private lands, and includes 
portions of the Arapaho-Roosevelt National Forest.
    The unit is located in the Big Thompson HUC and is designated to 
address the medium recovery population called for this area in our 
conservation strategy. Pressure for

[[Page 37309]]

expanded rural development exists on non-Federal lands within the unit.
    Jumping mice identified in the field as the Preble's have been 
captured from various portions of this unit with one specimen from 
Little Bear Gulch verified through morphological examination as the 
Preble's.

Unit SP10: Ralston Creek, Jefferson County, Colorado

    Unit SP10 encompasses approximately 277 ha (686 ac) on 12.9 km (8.0 
mi) of streams within the Ralston Creek watershed. It includes Ralston 
Creek from Ralston Reservoir upstream to the 2,300 m (7,600 ft) 
elevation. The unit includes both public and private lands including 
lands in Golden Gate Canyon State Park and White Ranch County Park. 
Denver Water lands along Ralston Creek, originally proposed for 
designation within this unit, have been excluded from the final 
designation (see Relationship to Habitat Conservation Plans).
    This unit is located in the Clear Creek HUC and is designated to 
partially address the criteria of three small recovery populations or 
one medium recovery population called for this area in our conservation 
strategy. The segment of Ralston Creek that passes through the Cotter 
Corporation's existing Schwartzwalder Mine serves as a connector 
between areas supporting all primary constituent elements required by 
the Preble's located in areas upstream and downstream. The Preble's has 
been verified through morphological examination of a specimen from the 
lower portion of this unit.

Unit SP13: Upper South Platte River, Jefferson and Douglas Counties, 
Colorado

    Unit SP13 encompasses approximately 1,321 ha (3,265 ac) on 70.5 km 
(43.8 mi) of streams within the Platte River watershed. It includes 
four subunits. The Chatfield subunit includes a section of the South 
Platte River upstream of Chatfield Reservoir within Chatfield State 
Recreation Area (Army Corps of Engineers' property). The Bear Creek 
subunit includes Bear Creek and West Bear Creek, tributaries to the 
South Platte River on National Forest System lands. The South Platte 
sub-unit includes a segment of the South Platte River upstream from 
Nighthawk, including the tributaries Gunbarrel Creek and Sugar Creek. 
This subunit is centered on Federal lands of the Pike-San Isabel 
National Forest but includes some intervening non-Federal lands. Non-
Federal lands in Douglas County are not included in the final 
designation (see Relationship to Habitat Conservation Plans below). The 
Trout Creek subunit includes portions of Trout Creek, a tributary to 
Horse Creek, and also portions of Eagle Creek, Long Hollow, Fern Creek, 
Illinois Gulch, and Missouri Gulch. This subunit is centered on Federal 
lands of the Pike-San Isabel National Forest but includes some 
intervening non-Federal lands along Trout Creek. Denver Water lands 
within the Chatfield, Bear Creek, and South Platte River subunits, 
originally proposed for designation within this unit, have been 
excluded from the final designation (see Relationship to Habitat 
Conservation Plans).
    This unit is located in the Upper South Platte HUC and, while 
unlikely to serve as an initial recovery population, encompasses four 
areas of primarily Federal land spread through the drainage, three 
within the Pike-San Isabel National Forest boundary. Habitat components 
present and the likely density of Preble's populations vary. The Trout 
Creek subunit appears to have high quality Preble's habitat and may 
provide an opportunity to research relationships between the Preble's 
and the western jumping mouse, both of which have been verified from 
the same trapping effort in the subunit. Small segments of non-Federal 
lands in the unit are within the Douglas County HCP currently being 
developed. The Preble's has been confirmed through morphological 
examination of a specimen from Trout Creek near the Douglas County-
Teller County boundary at 2,310 m (7,590 ft). Other captures of jumping 
mice from various locations within this unit have been identified in 
the field as the Preble's.

Effects of Critical Habitat Designation

    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish population goals, prescribe management actions, or directly 
affect areas not designated as critical habitat. Specific management 
recommendations for areas designated as critical habitat are most 
appropriately addressed in recovery, conservation, and management 
plans, and through section 7 consultations and section 10 permits. 
Critical habitat designation does not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be the 
subject of the full range of considerations in recovery planning, 
conservation actions that may be implemented under Section 7(a)(1), 
regulatory protections afforded by the Section 7(a)(2) jeopardy 
standard, and the Section 9 take prohibition. Areas outside of critical 
habitat designation may still be determined to be necessary for species 
recovery and survival. Similarly, Federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings. Critical habitat 
designations made on the basis of the best scientific and commercial 
data available at the time of designation may not dictate the direction 
and substance of future recovery plans, habitat conservation plans 
under section 10 of the Act, or conservation planning.

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, in a March 15, 2001, decision of the United 
States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434), the Court found our definition 
of destruction or adverse modification to be invalid. In response to 
this decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.

Consultation for Designated Critical Habitat

    If a Federal action may affect a listed species or its designated 
critical habitat, the action agency must initiate consultation with us 
(50 CFR 402.14). Through this consultation, we would

[[Page 37310]]

advise the agency whether the action would likely jeopardize the 
continued existence of the species or adversely modify its critical 
habitat.
    When we issue a biological opinion that concludes that an action is 
likely to result in the destruction or adverse modification of critical 
habitat, we must provide reasonable and prudent alternatives to the 
action, if any are identifiable. Reasonable and prudent alternatives 
are actions identified during consultation that can be implemented in a 
manner consistent with the intended purpose of the proposed action, are 
consistent with the scope of the action agency's authority and 
jurisdiction, are economically and technologically feasible, and would 
likely avoid the destruction or adverse modification of critical 
habitat (50 CFR 402.02).

Reinitiation of Prior Consultations

    Following designation of critical habitat, regulations at 50 CFR 
402.16 require a Federal agency to reinitiate consultation for 
previously reviewed actions that may affect critical habitat and over 
which the agency has retained discretionary involvement or control.

Federal Actions That May Destroy or Adversely Modify Preble's Meadow 
Jumping Mouse Critical Habitat

    Section 4(b)(8) of the Act requires us, in any proposed or final 
rule designating critical habitat, to briefly describe and evaluate 
those activities that may adversely modify such habitat, or that may be 
affected by such designation.
    Federal actions that, when carried out, funded or authorized by a 
Federal agency, may destroy or adversely modify critical habitat for 
the Preble's include, but are not limited to:
    (1) Any activity that results in development or alteration of the 
landscape within a unit, including land clearing; activities associated 
with construction for urban and industrial development, roads, bridges, 
pipelines, or bank stabilization; agricultural activities such as 
plowing, discing, haying, or intensive grazing; off-road vehicle 
activity; and mining or drilling of wells;
    (2) Any activity that results in changes in the hydrology of the 
unit, including construction, operation, and maintenance of levees, 
dams, berms, and channels; activities associated with flow control 
(e.g., releases, diversions, and related operations); irrigation; 
sediment, sand, or gravel removal; and other activities resulting in 
the draining or inundation of a unit;
    (3) Any sale, exchange, or lease of Federal land that is likely to 
result in the habitat in a unit being destroyed or appreciably 
degraded;
    (4) Any activity that detrimentally alters natural processes in a 
unit including the changes to inputs of water, sediment and nutrients, 
or that significantly and detrimentally alters water quantity in the 
unit; and
    (5) Any activity that could lead to the introduction, expansion, or 
increased density of exotic plant or animal species that are 
detrimental to the Preble's and to its habitat.
    Federal actions not affecting listed species or critical habitat 
and actions on non-Federal lands that are not federally funded or 
permitted do not require section 7 consultation.

Previous Section 7 Consultations

    Many section 7 consultations for Federal actions affecting the 
Preble's and its habitat have preceded this critical habitat 
designation, including, but not limited to:
    (1) Activities on Federal lands including those of the Department 
of Defense, Forest Service, Department of Energy, and Bureau of Land 
Management;
    (2) Activities affecting waters of the United States by the Army 
Corps of Engineers under section 404 of the Clean Water Act;
    (3) Licensing or relicensing of dams by the Federal Energy 
Regulatory Commission;
    (4) Development, operation, and maintenance of dams, canals, and 
other means of directing flows by the Army Corps of Engineers and the 
Bureau of Reclamation;
    (5) Funding and regulation of highway and bridge construction, and 
improvements by the Federal Highway Administration;
    (6) Licensing or construction of communication sites by the Federal 
Communications Commission;
    (7) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency; and
    (8) Issuance of Endangered Species Act section 10(a)(1)(B) permits 
by the Fish and Wildlife Service.
    If you have any questions regarding whether specific activities 
will likely constitute destruction or adverse modification of critical 
habitat, contact Field Supervisor, Colorado Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT). Requests for copies of 
regulations on listed wildlife and inquiries about prohibitions and 
permits may be addressed to U.S. Fish and Wildlife Service, Ecological 
Services, P.O. Box 25486, DFC, Denver, CO 80225-0486 (telephone 303-
236-7400; facsimile 303-236-0027).

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. We based this 
final rule on the best scientific and commercial data available. In 
order to make a final critical habitat designation, we further utilized 
the Draft Economic Analysis, the Addendum to the Economic Analysis, and 
our analysis of other relevant impacts, and considered all comments and 
information submitted during the public hearings and comment periods. 
No areas proposed as critical habitat were excluded or modified because 
of economic impacts. However, we have excluded areas from the final 
designation on the basis of a final determination that the benefits of 
such exclusions outweigh the benefits of specifying such areas as 
critical habitat (see Relationship to sections 3(5)(A) and 4(b)(2) of 
the Act). In accordance with section 4(b)(2) of the Act, we cannot 
exclude areas from critical habitat when their exclusion will result in 
the extinction of the species. We prepared a Draft Economic Analysis 
that was available for public review and comment during the comment 
period for the proposed rule. You can request copies of the Draft 
Economic Analysis, the Addendum to the Economic Analysis, and EA from 
the Colorado Ecological Services Field Office (see ADDRESSES).
    Section 4(b)(2) of the Act and 50 CFR 424.19 require us to consider 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. Executive Order 12866 defines 
``significant regulatory action,'' in part, as a regulatory action that 
is likely to result in a rule that may have an annual effect on the 
economy of $100 million or more. The Addendum to the Economic Analysis 
for this rule estimates that the potential economic effects could range 
from $7.9 to $17.8 million annually. This includes potential economic 
effects related to consultations, project modifications, and including 
those effects that may be attributed co-extensively with the listing of 
the species. Thus, we do not believe that the adverse modification 
prohibition (from critical habitat designation) will have significant 
economic effects such that it will have an annual economic effect of 
$100 million or more. We recognize, however, that while the impacts may

[[Page 37311]]

not be considered ``significant'' under Executive Order 12866, there 
will be some economic impact within Wyoming and Colorado. Additionally, 
the Addendum to the Economic Analysis recognizes the benefits 
associated with conservation of an endangered species. The Addendum to 
the Economic Analysis provides information on benefits associated with 
habitat protection for the Preble's (e.g., recreation, benefits to 
other species, ecosystem services, and value of open space). These 
benefits are described in detail in the Addendum to the Economic 
Analysis.
    In accordance with Executive Order 12866, this document is a 
significant rule since the Office of Management and Budget (OMB) 
determined that this rule may raise novel legal or policy issues and it 
was reviewed by OMB. We prepared a Draft Economic Analysis of this 
action. We used this analysis to meet the requirement of section 
4(b)(2) of the Endangered Species Act to determine the economic 
consequences of designating the specific areas as critical habitat. The 
Draft Economic Analysis was made available for public comment, and we 
considered those comments during the preparation of this rule. The 
draft analysis indicates that this rule will not have an annual 
economic effect of $100 million or more or adversely affect an economic 
sector, productivity, jobs, the environment, or other units of 
government. Under the Act, critical habitat may not be destroyed or 
adversely modified by a Federal agency action; the Act does not impose 
any restrictions related to critical habitat on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency. Because of the potential for impacts on 
other Federal agencies' activities, we reviewed this action for any 
inconsistencies with other Federal agencies' actions. We believe that 
this rule will not materially affect entitlements, grants, user fees, 
loan programs, or the rights and obligations of their recipients, 
except those involving Federal agencies which would be required to 
ensure that their activities do not destroy or adversely modify 
designated critical habitat. As discussed above, we do not anticipate 
that the adverse modification prohibition (from critical habitat 
designation) will have any significant economic effects such that it 
will have an annual economic effect of $100 million or more. OMB has 
determined that the critical habitat portion of this rule will raise 
novel legal or policy issues, and this rule was reviewed by OMB. The 
final rule follows the requirements for designating critical habitat 
contained in the Act.

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

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, whenever 
a Federal agency is required to publish a notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities. We are certifying that the 
designation of critical habitat for the Preble's will not have a 
significant effect on a substantial number of small entities. The 
following discussion explains our rationale.
    Small entities include small organizations, such as independent 
nonprofit organizations, and small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents, as well as small businesses (13 CFR 121.201). 
Small businesses include manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, we consider the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting, etc.). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. SBREFA does not explicitly define 
either ``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in the area. 
Similarly, this analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis. This approach is 
consistent with several judicial opinions related to the scope of the 
RFA. (Mid-Tex Electric Co-op Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 
1985) and American Trucking Associations, Inc. v. U.S. E.P.A., 175 F.3d 
1027, (D.C. Cir. 1999)).
    To be conservative, (i.e., more likely to overstate impacts than 
understate them), the Preble's economic analysis assumes that a unique 
entity will undertake each of the projected consultations in a given 
year, and so the number of businesses affected is equal to the total 
annual number of consultations (both formal and informal).
    Small businesses in the construction and related development 
industry could potentially be affected by section 7 protection for the 
Preble's if critical habitat designation leads to significant project 
modifications or delays. Our economic analysis assumes that 173 unique 
companies will consult with the Service on development projects during 
the next 10 years, or 17.3 businesses per year. There are approximately 
335 small residential and related development companies in Boulder, El 
Paso, Douglas, and Larimer counties in which critical habitat units are 
located. Thus, according to our economic analysis, approximately 5 
percent of small residential and related development companies may be 
affected by section 7 implementation in critical habitat annually.
    Small businesses in the construction and development industries 
could potentially bear a per-business cost of $25,000 to $2.6 million. 
The annual sales that a company would require for this per-business 
cost to constitute a ``significant effect'' would be less than $86.7 
million. Based on national

[[Page 37312]]

statistics, 100 percent of small developers and 100 percent of builders 
and general contractors in Boulder, Douglas, El Paso, Jefferson, 
Larimer, and Weld Counties have annual sales less than this amount. 
Thus, according to our economic analysis, the expected number of small 
businesses likely to experience a significant effect is 100 percent of 
17.3, or 17.3 businesses annually. This number represents approximately 
5 percent of construction and development companies in Boulder, 
Douglas, El Paso, Jefferson, Larimer, and Weld Counties.
    To the extent that section 7 implementation may lead to an increase 
in the number of consultations and project modifications regarding 
agricultural operations in Wyoming, the Service estimates that 
approximately 54 informal and 10 formal consultations are likely to 
occur within critical habitat areas during the next 10 years, or 5.4 
informal and 1 formal consultations per year. There are approximately 
162 small farms and ranches in the Wyoming counties in which critical 
habitat units are located. Therefore, our economic analysis indicates 
that approximately 4 percent of small agricultural operations in the 
counties in which critical habitat units are located may be affected by 
section 7 implementation in critical habitat annually.
    One hundred and sixty-two agriculture operations in Albany, 
Converse, Laramie and Platte Counties, or approximately 95 percent of 
all agriculture operations in the counties designated as critical 
habitat, are considered small. Small businesses in the agriculture 
industry could potentially bear a per-business cost of $4,100 per 
formal and $2,900 per informal consultation, respectively. The annual 
sales that a rancher or farmer would require for the $4,100 per-
business cost and the $2,900 per-business cost to constitute a 
``significant effect'' would be less than $137,000 and $97,000, 
respectively. Based on national statistics, approximately 86 percent of 
agriculture operations in the counties designated as critical habitat 
have annual sales less than the ``significant effect'' threshold for 
formal consultation, and 82 percent have annual sales less than the 
``significant effect'' threshold for informal consultation. Thus, our 
economic analysis shows that the expected number of small agriculture 
businesses likely to experience a significant effect from formal 
consultation is 86 percent of 0.95 (95 percent of 1 formal consultation 
per year), or about 0.8 annually, and the number of small agriculture 
businesses likely to experience a significant effect from informal 
consultation is 82 percent of 5.1 (95 percent of 5.4 informal 
consultations per year), or about 4.2 annually. These 5 agriculture 
operations (0.8 plus 4.2) represent approximately 3 percent of the 162 
small agricultural operations in the counties designated as critical 
habitat in Wyoming.
    Small businesses in the utility industry could potentially be 
affected by section 7 protection for the Preble's if the designation 
leads to significant project modifications or delays. This analysis 
assumes that 79 unique companies may consult with the Service on 
utilities projects during the next 10 years, or 7.9 businesses per 
year. There are approximately 166 small utility, electric services, 
natural gas distribution, and water supply companies in Boulder, 
Douglas, El Paso, Jefferson, Larimer, Teller, and Weld in which 
critical habitat units are located. Thus, according to our economic 
analysis, approximately 5 percent of small utility companies may be 
affected by section 7 implementation in proposed critical habitat 
annually.
    Small businesses in the utility industry could potentially bear a 
per-business cost of $9,000 to $18,600 per consultation. For utility 
companies with annual sales up to $1 million, 16 percent of all utility 
companies, this cost would be greater than or equal to 3.2 percent of 
annual sales. For utility companies with $1 million to $3 million in 
annual sales, 20 percent of all utility companies, this cost would 
comprise 1.1 to 1.8 percent of annual sales. For utility companies with 
$3 million to $5 million in annual sales, 9 percent of all utility 
companies, this cost would represent 0.6 percent of annual sales. For 
utility companies with greater than $5 million in annual sales, 55 
percent of all utility companies, this cost would comprise less than 
0.1 to 0.2 percent of annual sales.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' In order to ensure that Federal 
agencies ``appropriately weigh and consider the effects of the Federal 
government's regulations on the supply, distribution, and use of 
energy,'' the President has directed agencies to prepare and submit to 
the OMB's Office of Information and Regulatory Affairs a ``Statement of 
Energy Effects'' for their ``significant energy actions.'' The OMB has 
provided guidance for implementing this Executive Order that outlines 
nine outcomes that may constitute ``a significant adverse effect'' when 
compared with the regulatory action under consideration: (1) Reductions 
in crude oil supply in excess of 10,000 barrels per day; (2) Reductions 
in fuel production in excess of 4,000 barrels per day; (3) Reductions 
in coal production in excess of 5 million tons per year; (4) Reductions 
in natural gas production in excess of 25 million mcf; (5) Reductions 
in electricity production in excess of 1 billion kilowatts per year or 
in excess of 500 megawatts of installed capacity; (6) Increases in 
energy use required by the regulatory action that exceed the thresholds 
above; (7) Increases in the cost of energy production in excess of one 
percent; (8) Increases in the cost of energy distribution in excess of 
one percent; or (9) Other similarly adverse outcomes.
    Energy distribution via natural gas pipelines is the only activity 
related to this executive order where section 7 consultation regarding 
the Preble's appears likely. The Service has conducted consultations 
with the Federal Energy Regulatory Commission regarding construction of 
interstate gas pipelines through Preble's habitat. Efforts were made to 
minimize disturbance, in some cases through placing temporal limits on 
construction or by directional drilling under sensitive habitat, and to 
assure timely revegetation of areas disturbed. Costs related to 
required section 7 consultations represent far less than 1 percent of 
the cost of energy distribution. Consequently, this rule will not have 
a ``significant adverse effect'' on the supply, distribution, or use of 
energy, and no ``Statement of Energy Effects'' is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    1. On the basis of information contained in the Draft Economic 
Analysis and Addendum to the Economic Analysis, this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required. Small governments will be 
affected only to the extent that any of their actions involving Federal 
funding or authorization must not destroy or adversely modify the 
critical habitat or take the species under section 9.
    2. This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act).

[[Page 37313]]

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property Rights,'' 
March 18, 1988; 53 FR 8859), we have analyzed the potential takings 
implications of the designation of critical habitat for the Preble's 
meadow jumping mouse. The takings implications assessment concludes 
that this final rule does not pose significant takings implications. A 
copy of this assessment can be obtained by contacting the Colorado 
Services Field Office (see ADDRESSES).

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, the 
Service requested information from and coordinated development of this 
critical habitat designation with appropriate State resource agencies 
in Wyoming and Colorado. We will continue to coordinate any future 
designation of critical habitat for the Preble's with the appropriate 
State agencies. The designation of critical habitat for the Preble's 
imposes few additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined and the primary constituent elements 
of the habitat necessary to the conservation of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally-sponsored 
activities may occur, doing so may assist these local governments in 
long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, 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 designate critical habitat in accordance with 
the provisions of the Act. The rule uses standard property descriptions 
and identifies the primary constituent elements within the designated 
areas to assist the public in understanding the habitat needs of the 
Preble's.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.) is required. This rule will not 
impose new 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 valid OMB control 
number.

National Environmental Policy Act

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)). However, when the range of the species 
includes States within the Tenth Circuit, pursuant to the Tenth Circuit 
ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will complete a 
NEPA analysis with an EA. The range of the Preble's includes States 
within the Tenth Circuit; therefore, we completed a draft EA and made 
it available for public review and comment. A final EA and Finding of 
No Significant Impact have been prepared for this designation and are 
available from the Colorado Ecological Services Field Office (see 
ADDRESSES).

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), along with Executive Order 13175 and 512 
DM 2, we readily acknowledge our responsibility to communicate 
meaningfully with recognized Federal Tribes on a government-to-
government basis. We are required to assess the effects of critical 
habitat designation on tribal lands and tribal trust resources. We 
believe that no tribal lands or tribal trust resources are essential 
for the conservation of the Preble's.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Colorado Ecological Services Field 
Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, for the reasons we have stated in the preamble, we amend 
part 17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec.  17.11(h), revise the entry for ``Mouse, Preble's meadow 
jumping'' under ``MAMMALS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Mouse, Preble's meadow jumping...  Zapus hudsonius       U.S.A. (CO, WY)....  Entire.............  T                       636     17.95(a)           NA
                                    preblei.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 37314]]


0
3. Amend Sec.  17.95(a) by adding critical habitat for the Preble's 
meadow jumping mouse (Zapus hudsonius preblei) in the same alphabetical 
order as the species occurs in Sec.  17.11(h) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals. * * *
Preble's Meadow Jumping Mouse (Zapus hudsonius preblei)
    (1) Critical habitat units are depicted for Wyoming and Colorado. 
Maps and descriptions follow.
    (2) Within these areas, the primary constituent elements for the 
Preble's include those habitat components essential for the biological 
needs of reproducing, rearing of young, foraging, sheltering, 
hibernation, dispersal, and genetic exchange. The primary constituent 
elements are found in and near riparian areas located within grassland, 
shrubland, forest, and mixed-vegetation types where dense herbaceous or 
woody vegetation occurs near the ground level, where available open 
water exists during their active season, and where there are ample 
upland habitats of sufficient width and quality for foraging, 
hibernation, and refugia from catastrophic flooding events. Primary 
constituent elements associated with the biological needs of dispersal 
and genetic exchange also are found in areas that provide connectivity 
or linkage between or within Preble's populations. The dynamic 
ecological processes that create and maintain Preble's habitat also are 
important primary constituent elements. Primary constituent elements 
include:
    (i) A pattern of dense riparian vegetation consisting of grasses, 
forbs, and shrubs in areas along rivers and streams that provide open 
water through the Preble's active season;
    (ii) Adjacent floodplains and vegetated uplands with limited human 
disturbance (including hayed fields, grazed pasture, other agricultural 
lands that are not plowed or disced regularly, areas that have been 
restored after past aggregate extraction, areas supporting recreational 
trails, and urban/wildland interfaces);
    (iii) Areas that provide connectivity between and within 
populations (These may include river and stream reaches with minimal 
vegetative cover or that are armored for erosion control; travelways 
beneath bridges, through culverts, and along canals and ditches; and 
other areas that have experienced substantial human alteration or 
disturbance.); and
    (iv) Dynamic geomorphological and hydrological processes typical of 
systems within the range of the Preble's, i.e., those processes that 
create and maintain river and stream channels, floodplains, and 
floodplain benches, and promote patterns of vegetation favorable to the 
Preble's.
    (3) Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, parking lots, other paved 
areas, lawns, other urban and suburban landscaped areas, regularly 
plowed or disced agricultural areas, and other features not containing 
any of the primary constituent elements are not considered critical 
habitat.
    (4) Critical Habitat Units--Wyoming Index Map Follows:
BILLING CODE 4310-55-P

[[Page 37315]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.000


[[Page 37316]]


    (5) Map Unit NP1: Cottonwood Creek, Albany, Platte, and Converse 
Counties, Wyoming.
    (i) This unit consists of the following: 43.3 km (26.9 mi) of 
streams. Cottonwood Creek from the confluence with Held Creek at (42 18 
44N 105 14 50W, T.27N., R.70W., Sec. 16) upstream to (42 14 34N 105 26 
04W, T.26N., R.72W., Sec. 12). Includes Preacher Creek from its 
confluence with Cottonwood Creek at (42 18 43N 105 16 51W, T.27N., 
R.70W., Sec. 17) upstream to (42 16 39N 105 18 22W, T.27N., R.71W., 
Sec. 25). Also includes an unnamed tributary from its confluence with 
Cottonwood Creek at (42 17 24N 105 21 12W, T.27N., R.71W., south 
boundary Sec. 22) upstream to (42 17 39N 105 23 13W, T.27N., R.71W., 
Sec. 20). Also includes another unnamed tributary from its confluence 
with Cottonwood Creek at (42 16 51N 105 21 23W, T.27N., R.71W., Sec. 
28) upstream to (42 16 46N 105 21 59W, T.27N., R.71W., Sec. 28). Also 
includes North Cottonwood Creek from its confluence with Cottonwood 
Creek at (42 16 39N 105 21 21W, T.27N., R.71W., Sec. 28) upstream to 
(42 16 51N 105 23 59W, T.27N., R.71W., Sec. 30). Which includes an 
unnamed tributary from its confluence with North Cottonwood Creek at 
(42 16 15N 105 21 57W, T.27N., R.71W., Sec. 33) upstream to (42 15 48N 
105 22 30W, T.27N., R.71W., Sec. 32). Cottonwood Creek includes another 
unnamed tributary from its confluence with Cottonwood Creek at (42 16 
08N 105 21 38W, T.27N., R.71W., Sec. 33) upstream to (42 15 17N 105 20 
39W, T.26N., R.71W., Sec. 3). Also includes a final tributary, Kloer 
Creek from its confluence with Cottonwood Creek at (42 14 30N 105 25 
49W, T.26N., R.72W., Sec. 12) upstream to (42 14 20N 105 26 00W, 
T.26N., R.72W., Sec. 12).
    (ii) Map of Unit NP1 follows:
BILLING CODE 4310-55-P

[[Page 37317]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.001


[[Page 37318]]


    (6) Map Unit NP3: Chugwater Creek, Albany, Laramie, and Platte 
Counties, Wyoming.
    (i) This unit consists of the following: 137.2 km (85.3 mi) of 
streams. Chugwater Creek from (41 49 41N 104 48 03W, T.21N., R.66W., 
north boundary Sec. 5) upstream to Farthing Reservoir (41 32 36N 105 14 
31W, T.18N., R.70W., Sec. 9). Also includes Middle Chugwater Creek from 
its confluence with Chugwater Creek (41 33 55N 105 14 20W, T.18N., 
R.70W., Sec. 4) upstream to (41 34 23N 105 21 32W, T.19N., R.71W., Sec. 
33). Which includes Shanton Creek from its confluence with Middle 
Chugwater Creek at (41 34 36N 105 19 05W, T.19N., R.71W., Sec. 35) 
upstream to (41 34 12N 105 20 41W, T.19N., R.71W., southwest corner 
Sec. 34). Also includes Strong Creek from its confluence with Middle 
Chugwater Creek at (41 35 04N 105 19 36W, T.19N., R.71W., Sec. 34) 
upstream to (41 36 16N 105 20 25W, T.19N., R.71W., Sec. 22). Middle 
Chugwater Creek also includes an unnamed tributary from its confluence 
with Middle Chugwater Creek at (41 34 56N 105 20 54W, T.19N., R.71W., 
Sec. 33) upstream to (41 35 14N 105 22 17W, T.19N., R.71W., Sec. 29). 
Finally, another unnamed tributary from its confluence with Middle 
Chugwater Creek at (41 34 43N 105 21 28W, T.19N., R.71W., Sec. 33) 
upstream to (41 34 47N 105 21 56W, T.19N., R.71W., Sec. 32). South 
Chugwater Creek is included in the unit from the ending point of 
Chugwater Creek at Farthing Reservoir (41 32 36N 105 14 31W, T.18N., 
R.70W., Sec. 9) upstream to (41 30 42N 105 20 03W, T.18N., R.71W., 
north boundary Sec. 27). Includes Ricker Creek from its confluence with 
South Chugwater Creek at (41 31 04N 105 16 07W, T.18N., R.70W., Sec. 
19) upstream to (41 29 24N 105 16 39W, T.18N., R.70W., Sec. 31).
    (ii) Map of Unit NP3 follows:
BILLING CODE 4310-55-P

[[Page 37319]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.002


[[Page 37320]]


    (7) Map Unit SP1: Lodgepole Creek and Upper Middle Lodgepole Creek, 
Laramie County, Wyoming.
    (i) This unit consists of the following: 20.8 km (13 mi) of 
streams. Consists of 2 subunits. Subunit Lodgepole Creek, Laramie 
County, from Highway 211 (41 19 53N 105 08 35W, T.16N., R.69W., Sec. 
29) upstream to the confluence of North Lodgepole Creek and Middle 
Lodgepole Creek (41 19 17N 105 11 52W, T16N., R.70W., Sec. 26). 
Includes North Lodgepole Creek from the aforementioned confluence (41 
19 17N 105 11 52W, T16N., R.70W., Sec. 26) upstream to (41 19 27N 105 
13 54W, T.16N., R.70W., west boundary Sec. 27). Also includes Middle 
Lodgepole Creek from (41 19 17N 105 11 52W, T16N., R.70W., Sec. 26) 
upstream to (41 18 40N 105 13 19W, T.16N., R.70W., Sec. 34).
    (ii) Subunit Middle Lodgepole Creek, Albany County, includes Middle 
Lodgepole Creek from the boundary of Medicine Bow National Forest (41 
17 06N 105 17 27W, T15N., R.71W., east boundary Sec. 12) upstream to 
the confluence of North Branch Middle Lodgepole Creek and Middle Branch 
Middle Lodgepole Creek (41 16 48N 105 18 10W, T.15N., R.71W., Sec. 12). 
Includes Middle Branch Middle Lodgepole Creek from the aforementioned 
confluence (41 16 48N 105 18 10W, T.15N., R.71W., Sec. 12) upstream to 
(41 16 29N 105 19 31W, T.15N., R.71W., Sec. 14). Also includes North 
Branch Middle Lodgepole Creek from the aforementioned confluence (41 16 
48N 105 18 10W, T.15N., R.71W., Sec. 12) upstream to (41 16 58N 105 20 
43W, T.15N., R.71W., Sec. 10). Which includes an unnamed tributary from 
its confluence with North Branch Middle Lodgepole Creek (41 16 56N 105 
19 11W, T.15N., R.71W., Sec. 11) upstream to (41 17 12N 105 19 36W, 
T.15N., R.71W., Sec. 11).
    (iii) Map of Unit SP1 follows:
BILLING CODE 4310-55-P

[[Page 37321]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.003

    (8) Critical Habitat Units--Colorado Index Map Follows:

[[Page 37322]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.004


[[Page 37323]]


    (9) Map Unit SP4: North Fork Cache La Poudre River, Larimer County, 
Colorado.
    (i) This unit consists of the following: 141.8 km (88.1 mi) of 
streams and rivers. North Fork Cache La Poudre River from Seaman 
Reservoir (40 43 03N 105 14 27W, T.9N., R.70W., Sec. 28) upstream to 
Halligan Reservoir spillway (40 52 49N 105 20 12W, T.11N., R.71W., Sec. 
34). On property owned by The Nature Conservancy in T.10N., R.71W., 
Sec. 2, 3, and 4, the outward boundary extends to 325 ft (99m) from the 
centerline of the North Fork Cache La Poudre River. Includes Lone Pine 
Creek from its confluence North Fork Cache La Poudre River (40 47 53N 
105 15 28W, T.10N., R.70W., Sec. 32) upstream and continuing upstream 
into North Lone Pine Creek to 2,300m (7,600 ft) elevation (40 49 58N 
105 34 09W, T.01N., R.73W., Sec. 15). Which includes Columbine Canyon 
from its confluence with North Lone Pine Creek (40 49 48N 105 33 28W, 
T.10N., R.73W., Sec. 15) upstream to 2,300m (7,600 ft) elevation (40 49 
33N 105 33 54W, T.10N., R.73W., Sec. 15). Also includes Stonewall Creek 
from its confluence with North Fork Cache La Poudre River (40 48 19N 
105 15 21W, T.10N., R.70W., Sec. 29) upstream to (40 53 26N 105 15 38W, 
T.11N., R.70W., Sec. 29). Which includes Tenmile Creek from its 
confluence with Stonewall Creek (40 51 48N 105 15 30W, T.10N., R.70W., 
Sec. 5) upstream to Red Mountain Road (40 53 00N 105 16 09W, T.11N., 
R.70W., Sec. 31). Also includes Rabbit Creek from its confluence with 
North Fork Cache La Poudre River (40 48 30N 105 16 04W, T.10N., R.70W., 
Sec. 30) upstream to the confluence with North and Middle Forks of 
Rabbit Creek (40 49 34N 105 20 47W, T.10N., R 71W., Sec. 21). Also 
includes South Fork Rabbit Creek from its confluence with Rabbit Creek 
(40 48 40N 105 19 43W, T.10N., R.71W., Sec. 27) upstream to (40 49 39N 
105 24 40W, T.10N., R.72W., north boundary Sec. 24). Which includes an 
unnamed tributary from its confluence with South Fork Rabbit Creek (40 
47 28N 105 20 45W, T.10N., R.71W., Sec. 33) upstream to (40 47 28N 105 
23 10W, T.10N., R.71W., Sec. 31). Which in turn has an unnamed 
tributary from their confluence at (40 47 16N 105 21 45W, T.10N., 
R.71W., east boundary Sec. 32) upstream to (40 46 54N 105 22 14W, 
T.9N., R.71W., Sec. 5). Also includes Middle Fork Rabbit Creek from its 
confluence with Rabbit Creek (40 49 34N 105 20 47W, T.10N., R 71W., 
Sec. 21) upstream to 2,300m (7,600 ft) elevation (40 49 46N 105 26 55W, 
T.10N., R.72W., Sec. 15). This includes an unnamed tributary from its 
confluence with Middle Fork Rabbit Creek (40 49 56N 105 25 49W, T.10N., 
R.72W., Sec. 14) upstream to 2,300m (7,600 ft) elevation (40 48 48N 105 
26 26W, T.10N., R.72W., Sec. 23). This unit includes North Fork Rabbit 
Creek from its confluence with Rabbit Creek (40 49 34N 105 20 47W, 
T.10N., R.71W., Sec. 21) upstream to 2,300m (7,600 ft) elevation (40 49 
38N 105 29 17W, T.10N., R.72W., Sec. 17). Which includes an unnamed 
tributary from its confluence with North Fork Rabbit Creek (40 50 45N 
105 27 23W, T.10N., R.72W., Sec. 9) upstream to 2,300m (7,600 ft) 
elevation (40 50 57N 105 28 42W, T.10N., R.72W., Sec. 9). On property 
owned by Al Johnson in T.10N., R.70W., Sec. 29, 30, 31, and 32, the 
outward boundary extends to 325 ft (99m) from the centerline of the 
North Fork Cache La Poudre River, Rabbit Creek, and Lone Pine Creek.
    (ii) Map of Unit SP4 follows:
BILLING CODE 4310-55-P

[[Page 37324]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.005

    (10) Map Unit SP5: Cache La Poudre River, Larimer County, Colorado.
    (i) This unit consists of the following: 82.4 km (51.2 mi) of 
streams and rivers. Cache La Poudre River from Poudre Park (40 41 16N 
105 18 25W, T.8N.,

[[Page 37325]]

R.71W., Sec. 2) upstream to (40 42 02N 105 34 01W, T.9N., R.73W., west 
boundary Sec. 34). Includes Hewlett Gulch from its confluence with 
Cache La Poudre River (40 41 16N 105 18 25W, T.8N., R.71W., Sec. 2) 
upstream to the boundary of Arapahoe--Roosevelt National Forest (40 43 
45N 105 19 06W, T.9N., R.71W., Sec. 23). Also includes Young Gulch from 
its confluence with Cache La Poudre River (40 41 25N 105 20 56W, T.8N., 
R.71W., Sec. 4) upstream to (40 39 13N 105 20 12W, T.8N., R.71W., south 
boundary Sec. 15). Also includes an unnamed tributary from its 
confluence with Cache La Poudre River at Stove Prairie Landing (40 40 
58N 105 23 21W, T.8N., R.71W., Sec. 6) upstream to (40 39 32N 105 22 
34W, T.8N., R.71W., Sec. 17). Which includes Skin Gulch from its 
confluence with the aforementioned unnamed tributary at (40 40 33N 105 
23 15W, T.8N., R.71W., Sec. 7) upstream to (40 39 41N 105 24 13W, 
T.8N., R.72W., Sec. 13). Unit SP5 also includes Poverty Gulch from its 
confluence with Cache La Poudre River (40 40 28N 105 25 42W, T.8N., 
R.72W., Sec. 11) upstream to 2,300 m (7,600 ft) elevation (40 39 02N 
105 26 38W, T.8N., R.72W., Sec. 22). Also includes Elkhorn Creek from 
its confluence with Cache La Poudre River (40 41 50N 105 26 24W, T.9N., 
R.72W., Sec. 34) upstream to (40 44 04N 105 27 32W, T.9N., R.72W., Sec. 
21). Also includes South Fork Cache La Poudre River from its confluence 
with Cache La Poudre River (40 41 10N 105 26 46W, T.8N., R.72W., Sec. 
3) upstream to 2,300 m (7,600 ft) elevation (40 38 49N 105 29 20W, 
T.8N., R.72W., Sec. 20). Which includes Pendergrass Creek from its 
confluence with South Fork Cache La Poudre River (40 39 54N 105 27 27W, 
T.8N., R.72W., Sec. 15) upstream to 2,300 m (7,600 ft) elevation (40 38 
34N 105 27 26W, T.8N., R.72W., Sec. 22). Also included in the unit is 
Bennett Creek from its confluence with Cache La Poudre River (40 40 26N 
105 28 37W, T.8N., R.72W., Sec. 9) upstream to 2,300 m (7,600 ft) 
elevation (40 39 18N 105 31 31W, T.8N., R.73W., Sec. 13).
    (ii) Map Unit SP5 follows:
BILLING CODE 4310-55-P

[[Page 37326]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.006

    (11) Map Unit SP6: Buckhorn Creek, Larimer County, Colorado.
    (i) This unit consists of the following: 69.1 km (43 mi) of 
streams. Buckhorn Creek from (40 30 20N 105 13 39W, T.6N., R.70W., east 
boundary Sec. 9)

[[Page 37327]]

upstream to 2,300 m (7,600 ft) elevation (40 34 17N 105 25 28W, T.7N., 
R.72W., Sec. 14). Includes Little Bear Gulch from its confluence with 
Buckhorn Creek (40 31 16N 105 15 32W, T.6N., R.70W., Sec. 5) upstream 
to (40 30 43N 105 16 33W, T.6N., R.70W., Sec. 6). Also includes Bear 
Gulch from its confluence with Buckhorn Creek (40 31 15N 105 15 51W, 
T.6N., R.70W., Sec. 5) upstream to 2,300 m (7,600 ft) elevation (40 29 
47N 105 19 59W, T.6N., R.71W., Sec. 10). Also includes Stringtown Gulch 
from its confluence with Buckhorn Creek (40 32 19N 105 16 40W, T.7N., 
R.70W., Sec. 30) upstream to 2,300 m (7,600 ft) elevation (40 30 30N 
105 20 48W, T.6N., R.71W., Sec. 4). Also includes Fish Creek from its 
confluence with Buckhorn Creek (40 32 50N 105 17 05W, T.7N., R.70W., 
Sec. 30) upstream to 2,300 m (7,600 ft) elevation (40 30 56N 105 21 
19W, T.6N., R.71W., Sec. 4). Which includes North Fork Fish Creek from 
its confluence with Fish Creek (40 32 47N 105 18 18W, T.7N., R.71W., 
west boundary Sec. 25) upstream and following the first unnamed 
tributary northwest to (40 33 35N 105 19 42W, T.7N., R.71W., Sec. 22). 
Also includes Stove Prairie Creek from its confluence with Buckhorn 
Creek (40 34 15N 105 19 45W, T.7N., R.71W., Sec. 15) upstream to the 
dirt road crossing at (40 35 22N 105 20 16W, T.7N., R.71W., Sec. 10). 
Also includes Sheep Creek from its confluence with Buckhorn Creek (40 
34 15N 105 20 51W, T.7N., R.71W., Sec. 16) upstream to 2,300 m (7,600 
ft) elevation (40 33 09N 105 21 46W, T.7N., R.71W., Sec. 20). Also 
includes Twin Cabin Gulch from its confluence with Buckhorn Creek (40 
34 38N 105 23 11W, T.7N., R.71W., Sec. 18) upstream to 2,300 m (7,600 
ft) elevation (40 35 44N 105 23 33W, T.7N., R.71W., Sec. 6).
    (ii) Map of Unit SP6 follows:
BILLING CODE 4310-55-P

[[Page 37328]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.007

    (12) Map Unit SP10: Ralston Creek, Jefferson County, Colorado.
    (i) This unit consists of the following: 12.9 km (8.0 mi) of 
streams. Ralston Creek from Ralston Reservoir (39 49 12N 105 15 32W, 
T.3S., R.70W. Sec. 6)

[[Page 37329]]

upstream into Golden Gate Canyon State Park to 2,300 m (7,600 ft) 
elevation (39 50 54N 105 21 12W, T.2S., R.71W. Sec. 29) excluding 5 ha 
(12 ac) of property owned by Denver Water just upstream of the 
reservoir.
    (ii) Map of Unit SP10 follows:
BILLING CODE 4310-55-P

[[Page 37330]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.008


[[Page 37331]]


    (13) Map Unit SP13: Upper South Platte River, Jefferson and Douglas 
Counties, Colorado.
    (i) This unit consists of the following: 70.5 km (43.8 mi) of 
rivers and streams. Consists of 4 subunits. Non-Federal lands in 
Douglas County are not included in the designation. Subunit South 
Platte River north segment, on the border of Jefferson County and 
Douglas County from Chatfield Lake (39 31 35N 105 04 49W, T.6S., 
R.69W., Sec. 14) upstream to the boundary of U.S. Army Corps of 
Engineers property (39 29 33N 105 05 15W, T.6S., R.69W., south boundary 
Sec. 26), excluding 9 ha (22 ac) owned by Denver.
    (ii) Subunit Bear Creek, Douglas County from Pike--San Isabel 
National Forest boundary (39 25 27N 105 07 40W, T.7S., R.69W., west 
boundary Sec. 21) upstream to (39 22 32N 105 06 40W, T.8S., R.69W., 
south boundary Sec. 4). Includes West Bear Creek from its confluence 
with Bear Creek (39 25 15N 105 07 30W, T.7S., R.69W., Sec. 21) upstream 
to a confluence with an unnamed tributary (39 24 17N 105 07 38W, T.7S., 
R.69W., Sec. 33).
    (iii) Subunit South Platte River south segment, on the border of 
Jefferson County and Douglas County from the southern boundary of 
Denver Water property near Nighthawk (39 21 05N 105 10 23W, T.8S., 
R.70W., Sec. 13) upstream to the northern boundary of Denver Water 
property at (39 18 50N 105 11 28W, T.8S., R.70W., Sec. 35) and from the 
southern boundary of Denver Water property at (39 18 02N 105 12 09W, 
T.9S., R.70W., Sec. 2) to the northern boundary of Denver Water 
Property at (39 17 27N 105 12 24W, T.9S., R.70W., Sec. 3). Includes 
Sugar Creek, Douglas County from the eastern boundary of Denver Water 
lands near Oxyoke (39 18 22N 105 11 32W, T.8S., R.70W., Sec. 35) 
upstream to 2,300 m (7,600 ft) elevation (39 18 28N 105 08 07W, T.8S., 
R.69W., Sec. 32). Includes Gunbarrel Creek, Jefferson County from the 
western boundary of Denver Water lands near Oxyoke (39 18 37N 105 12 
02W, T.8S., R.70W., Sec. 34) upstream to (39 18 41N 105 14 34W, T.8S., 
R.70W., Sec. 32).
    (iv) Subunit Trout Creek, Douglas County upstream into Teller 
County from (39 13 02N 105 09 31W, T.9S., R.69W., Sec. 31) upstream to 
2,300 m (7,600 ft) elevation which is 1.3 km (0.8 mi) into Teller 
County (39 07 13N 105 05 49W, T.11S., R.69W., Sec. 3). Includes Eagle 
Creek from its confluence with Trout Creek (39 11 52N 105 08 27W, 
T.10S., R.69W., Sec. 8) upstream to 2,300 m (7,600 ft) elevation (39 12 
06N 105 07 12W, T.10S., R.69W., Sec. 9). Also including an unnamed 
tributary from its confluence with Trout Creek (39 11 07N 105 08 05W, 
T.10S., R.69W., Sec. 17) upstream to (39 10 18N 105 08 23W, T.10S., 
R.69W., Sec. 20). Also including Long Hollow from its confluence with 
Trout Creek (39 10 56N 105 08 01W, T.10S., R.69W., Sec. 17) upstream to 
2,300 m (7,600 ft) elevation (39 11 30N 105 06 19W, T.10S., R.69W., 
Sec. 10).
    (v) Map of Unit SP13 follows:
BILLING CODE 4310-55-P

[[Page 37332]]

[GRAPHIC] [TIFF OMITTED] TR23JN03.009

* * * * *

    Dated: June 4, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-14490 Filed 6-20-03; 8:45 am]
BILLING CODE 4310-55-C