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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A03-14490

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 23, 2003
- **Citation:** 68 FR 37276

## Text

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

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

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.

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

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

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

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.

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

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,

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

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.

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

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

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

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

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

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 conser

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-14490. Public record. Not legal advice.