Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse in Colorado

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0013; MO 92210-0-0009]

RIN 1018-AW45

Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse in Colorado

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the Preble's meadow jumping mouse (

Zapus hudsonius preblei

) (PMJM) in Colorado, where it is listed as threatened in a Significant Portion of the Range (SPR) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 411 miles (mi) (662 kilometers (km)) of rivers and streams and 34,935 acres (ac) (14,138 hectares (ha)) fall within the boundaries of revised critical habitat in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller Counties.

DATES:

This rule becomes effective on January 14, 2011.

ADDRESSES:

This final rule, the economic analysis, the environmental assessment, comments and materials received, and supporting documentation we used in preparing this final rule, are available for viewing on the Internet at

http://www.regulations.gov

(

see

Docket No. FWS-R6-ES-2009-0013) and also by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Colorado Ecological Services Office, 134 Union Boulevard, Suite 670, Lakewood, CO 80225; telephone 303-236-4773; facsimile 303-236-4005.

FOR FURTHER INFORMATION CONTACT:

Susan Linner, Field Supervisor, U.S. Fish and Wildlife Service, Colorado Ecological Services Office (

see

ADDRESSES

). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics relevant to the designation of revised critical habitat in this final rule. For additional information on the biology of this subspecies, see our October 8, 2009, proposed rule to revise the designation of critical habitat for the PMJM (74 FR 52066); our July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789); and our May 13, 1998, final rule to list the PMJM as threatened (63 FR 26517).

Previous Federal Actions

On August 22, 2003, the City of Greeley filed a complaint in the U.S. District Court for the District of Colorado challenging our June 23, 2003, designation of critical habitat for the PMJM (68 FR 37275) (

City of Greeley, Colorado

v.

United States Fish and Wildlife Service et al.,

Case No. 03-CV-01607-AP). On December 9, 2003, the Mountain States Legal Foundation filed a complaint in the U.S. District Court for the District of Wyoming challenging our 1998 listing of the PMJM and designation of critical habitat for the PMJM (

Mountain States Legal Foundation

v.

Gale E. Norton et al.,

Case No. 03-cv-250-J). That complaint was later expanded to include our July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789) and transferred to the U.S. District Court for the District of Colorado (

Mountain States Legal Foundation

v.

Ken Salazar et al.,

Case No. 1:08-cv-2775-JLK). These lawsuits challenged the validity of the information and reasoning we used to designate critical habitat for the PMJM.

On July 20, 2007, we announced that we would review our June 23, 2003, designation of critical habitat for the PMJM (68 FR 37275) after questions were raised about the integrity of scientific information we used and whether the decision we made was consistent with the appropriate legal standards (Service 2007a). Based on our review of the previous critical habitat designation, we determined that it was necessary to revise critical habitat. This rule incorporates those revisions that we found appropriate.

On July 10, 2008, we amended the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789), and determined that the listing of the PMJM is limited to the SPR in Colorado. Upon that determination, all critical habitat designated in 2003 within the State of Wyoming was removed from the regulations at 50 CFR 17.95 for this species.

On April 16, 2009, we reached a settlement agreement with the City of Greeley in which we agreed to reconsider our critical habitat designation for the PMJM. The settlement stipulated that we submit to the

Federal Register

a proposed rule for revised critical habitat by September 30, 2009, and a final rule for revised critical habitat by September 30, 2010 (U.S. District Court, District of Colorado 2009a). On June 16, 2009, an order was issued granting Mountain States Legal Foundation a motion to dismiss their claims on the 1998 listing and 2008 final determination without prejudice, and stayed their challenge to the 2003 critical habitat designation pursuant to the City of Greeley settlement (U.S. District Court, District of Colorado 2009b).

On October 8, 2009, we published a proposed rule in the

Federal Register

to revise the designation of critical habitat for the PMJM (74 FR 52066), and accepted public comments for 60 days (from October 8 to December 7, 2009). On May 27, 2010, we opened a second comment period of 30 days (from May 27 to June 28, 2010) and requested comments on our draft economic analysis (DEA) (Industrial Economics 2010a), draft environmental assessment, amended Required Determinations section of the proposed rule, and any other part of our proposed revised critical habitat designation (75 FR 29700). On August 9, 2010, an agreement with the City of Greeley extended the date for submission of the final rule for revised critical habitat to the

Federal Register

to December 1, 2010 (U.S. District Court, District of Colorado 2010).

For additional information about previous Federal actions concerning the PMJM, see our July 10, 2008, rule for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of revised critical habitat for the PMJM during the two comment periods. The first comment period, associated with the publication of the proposed rule to revise the designation of critical habitat for the PMJM (74 FR 52066) opened on October 8, 2009, and closed on December 7, 2009. We opened a second comment period on our DEA, draft environmental assessment, amended Required Determinations section of the proposed rule, and any other part of our proposed revised critical habitat designation (75 FR 29700) on May 27, 2010, and closed it on June 28, 2010. We also contacted peer reviewers; appropriate Federal, State, and local agencies; scientific organizations; and other interested parties, and invited

them to comment on the proposed rule and supporting documents.

We received 45 comments in response to the proposed rule. Comments were received from 2 peer reviewers, 1 Federal agency, 1 State agency, and 8 local governmental entities, 7 non-government organizations, and 18 private individuals (including 14 via similar post cards). Thirty-seven comments were received during the October 8 to December 7, 2009, comment period. Eight comments were received during the May 27 to June 28, 2010, comment period, all but one from entities that had commented previously. We received no requests for public hearings. All substantive comments have been either incorporated into the final determination or are addressed below.

Peer Review

In accordance with our policy published in the

Federal Register

on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from two of the peer reviewers that we contacted. The peer reviewers generally agreed that we relied on the best scientific information available, accurately described the species and its habitat requirements, and concurred that our critical habitat proposal was well supported. The peer reviewers provided additional suggestions to improve the final critical habitat rule. Recommended editorial revisions and clarifications have been incorporated into the final rule as appropriate. We respond to all substantive comments below.

Comments From Peer Reviewers

(1)

Comment:

One peer reviewer commented that upstream and adjacent habitat, beyond designated critical habitat, requires management to decrease potential for catastrophic wildfire and flooding, and to maintain appropriate stream flow and channel integrity.

Our Response:

We agree. Federal agencies are directed, under section 7(a)(1) of the Act (16 U.S.C. 1531

et seq.

), to utilize their authorities to carry out programs for the conservation of endangered and threatened species. Proactive management on U.S. Forest Service (USFS) and other Federal lands upstream or outward from designated critical habitat should consider implications to the PMJM and its critical habitat. In addition, section 7(a)(2) of the Act requires every Federal agency 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. The activity does not have to take place within PMJM habitat or critical habitat to be subject to section 7 consultation. In considering the effects of a proposed action, the Federal agency looks at both 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. If, for example, management activities on Federal land, or a Federal permit or Federal funding for an activity upstream of critical habitat, may result in increased runoff, sedimentation, or channel alteration within critical habitat, those effects must be considered by the Federal agency. Outside of Federal lands and when no Federal nexus is present, cooperative conservation efforts with State and local government, and private property owners are the most effective means of addressing appropriate land management.

(2)

Comment:

One peer reviewer commented that we should have emphasized the relationship of “subshrub cover” (low-growing woody shrubs or perennial plants with a woody base) and plant species richness with the presence of PMJM.

Our Response:

We agree that these concepts are important to PMJM habitat. Low shrub cover and species richness are correlated with occupancy of riparian corridors by the PMJM. These relationships may be significant and are described in Clippinger (2002, p. 73). The primary constituent elements (PCEs) of critical habitat for the PMJM are described more broadly and include riparian corridors, in part, “containing dense, riparian vegetation consisting of grasses, forbs, or shrubs, or any combination thereof.” We believe that this final rule appropriately captures the importance of the low, diverse vegetative cover essential to the conservation of PMJM.

(3)

Comment:

One peer reviewer maintained that our explanation of why Buffalo Creek and Wigwam Creek (Jefferson County) were not included as proposed critical habitat should be better supported.

Our Response:

Areas along both Buffalo Creek and Wigwam Creek have been subject to catastrophic fires. These events caused subsequent flooding and increased sedimentation of these streams. Trapping efforts targeting PMJM have not been conducted in these areas since the fires; however, it is unlikely that severely burned areas are currently occupied by the PMJM. The areas remain degraded and for at least the near future will not support the PCEs necessary for the conservation of the PMJM in the appropriate quantity and spatial arrangement to support inclusion as critical habitat. Given the extent of critical habitat proposed elsewhere in this subdrainage, we conclude that it is not necessary or appropriate to designate critical habitat in these degraded stream reaches.

(4)

Comment:

One peer reviewer suggested that our failure to propose critical habitat on the Big Thompson River, North Fork of the Big Thompson River, and Little Thompson River was based more on issues of land ownership than on science.

Our Response:

All three of these rivers are within the Big Thompson River subdrainage (subdrainages equate to U.S. Geological Survey 8-digit hydrological unit boundaries and are hereafter referred to as HUCs). Within this HUC we are designating Buckhorn Creek (Unit 3) and Cedar Creek (Unit 4) as critical habitat, but we identified no other areas that merited designation. Public lands, especially undeveloped Federal lands and other public lands currently devoted to conservation, are more likely to support viable PMJM populations, both currently and in the future. We made our determinations after examining both quality of existing habitat and land ownership, and prioritized designation of Federal lands within this HUC.

Public Comments

Biological Concerns and Methodology

(5)

Comment:

One commenter stated that proposed critical habitat should be expanded to reflect understanding of genetic diversity within the PMJM.

Our Response:

Our designation of revised critical habitat incorporates current knowledge of genetic diversity in the PMJM. Genetic analysis has revealed significant differences between PMJM populations in northern and southern portions of the range (King

et al.

2006, pp. 4337-4338). The Preble's Meadow Jumping Mouse Recovery Team (Jackson 2009, pers. comm.) concluded that recovery populations outlined in the Working Draft of a Recovery Plan (PMJM Recovery Team 2003), and included in the Preliminary Draft Recovery Plan (Draft Plan) (Service 2003a), were spread north and south to provide adequate representation of the genetic differences in northern and

southern portions of the range examined in King

et al.

(2006). This same approximate distribution in populations north and south is reflected in this revised critical habitat designation.

(6)

Comment:

One commenter urged the Service to consider the value of expanding proposed critical habitat to provide habitat linkage for PMJM populations north and south of Denver, and among other drainages where critical habitat was proposed.

Our Response:

Potential connectivity of critical habitat was considered consistent with our conservation strategy and that proposed in the Draft Plan. In most cases, revised critical habitat units exceed minimum reach lengths for large, medium, and small populations proposed in the Draft Plan. All designated critical habitat units and subunits exceed 3 mi (5 km) in stream length, the minimum length of stream the Draft Plan prescribes for a small recovery population. In some cases, we chose not to link stream reaches through the designation of marginal habitat, or not to substantially extend critical habitat to encompass a larger PMJM population, where multiple smaller recovery populations are consistent with our conservation strategy.

(7)

Comment:

One commenter requested that, before designating revised critical habitat, the Service should consult with scientists regarding how climate change may affect PMJM movement, habitat needs, and habitat connectivity. For example, it was suggested that we should consider potential effects of changes in precipitation and earlier spring runoff.

Our Response:

Variability in existing climate models suggests uncertainty as to future climate change and potential effects in Colorado, where the PMJM is listed. We have considered the potential impact of future climate change on the PMJM, and we believe that our revised designation adequately addresses likely climate change scenarios by designating critical habitat areas throughout the north-south range of the PMJM in Colorado that vary in elevation and in stream size (

see

Climate Change,

below). In the Big Thompson River and Upper South Platte River drainages, we are designating critical habitat units in excess of those recovery populations called for in the Draft Plan to provide resilience, should climate change reduce the value of lower elevation habitats currently occupied by the PMJM. These units, the Cache La Poudre Unit (Unit 2) and the Upper South Platte Unit (Unit 11), are centered on Federal lands and include reaches extending to the highest elevation the PMJM is currently known to occupy in Colorado. If, in the future, a clearer picture of the effects of climate change on the PMJM is developed, further revision of critical habitat may be appropriate (

see also

Climate Change,

below).

(8)

Comment:

One commenter stated that both sites where trapping has documented PMJM presence since 2003, and sites of earlier captures, should be included in designated critical habitat.

Our Response:

Not all areas where the PMJM is known to occur in Colorado are being designated as revised critical habitat. See our response to comment 44. We incorporated the best scientific and commercial information available into this final rule, including information regarding all locations where PMJM have been trapped since our 2003 final rule. These more recent capture locations did not significantly expand the known distribution of the PMJM in Colorado. However, we did consider each new capture location and its potential significance prior to our proposing revised critical habitat for the PMJM.

(9)

Comment:

One commenter stated that the Draft Plan for the PMJM, which was cited as a basis for the Service's conservation strategy and certain decisions regarding proposed designation of revised critical habitat, is 6 years old and does not include current data.

Our Response:

The 2003 Draft Plan (Service 2003a) provides a conservation strategy for the PMJM. It was developed primarily by the PMJM Recovery Team and refined through comments and additional information we received. Information on range, occupancy, populations, and habitat characteristics were used in developing the Draft Plan. Recent review by the current PMJM Recovery Team has verified that concepts and strategies incorporated into the Draft Plan remain appropriate (Jackson 2010, pers. comm.). However, we also incorporated new data, as appropriate, in developing our proposal and this final rule, including trapping results, genetic and morphometric confirmation of species identification, and changes to habitat.

(10)

Comment:

One commenter pointed out that the Service has not proposed critical habitat to address all recovery populations called for in the Draft Plan, including HUCs where the PMJM is known to occur.

Our Response:

While the conservation strategy underlying our proposed revision of critical habitat was informed by the Draft Plan and the ongoing recovery planning process, areas we are designating as revised critical habitat in this rule will not be identical to areas ultimately designated as recovery populations. The Draft Plan designated location of certain recovery populations in HUCs where PMJM are known to be present. However, in some HUCs within the likely range of the PMJM, there is little or no available information on the existence of PMJM populations or the extent of occupied habitat. In these cases, the Draft Plan only applied standard criteria to achieve recovery of the species. For example, the Draft Plan required, at minimum, three small recovery populations or one medium recovery population in several HUCs, but only if the HUC was found to be occupied by the PMJM. Since we have determined that the conservation of the PMJM can be achieved by designating critical habitat in areas that are known to support the species, rather than in areas with no confirmed occupancy by the species, we are designating no critical habitat in HUCs where occupancy has not been confirmed. In other cases, such as the Kiowa HUC in Elbert County, trapping efforts have been limited to sites of human development, and, while there is confirmed occurrence of the PMJM, it is not sufficient to inform us of distribution or abundance within the HUC. We exercised our professional judgment and determined that those limited areas of confirmed occurrence of the PMJM in and near human development are not essential to the conservation of the PMJM. We are not designating such sites as critical habitat.

(11)

Comment:

One commenter stated that areas of critical habitat should be designated in excess of recovery goals suggested in the Draft Plan.

Our Response:

In two HUCs, we are designating critical habitat units beyond those recovery populations that the Draft Plan specifies. We are designating critical habitat capable of supporting a large PMJM population independent of, and in addition to, the large recovery populations proposed in the Draft Plan along the Cache la Poudre River (Unit 2) in the Cache La Poudre River HUC and designated reaches of the Upper South Platte River and its tributaries (Unit 10) in excess of recovery goals for the Upper South Platte River HUC. In other HUCs, we did not identify or designate additional areas that met the definition of critical habitat in excess of recovery goals stated in the Draft Plan.

(12)

Comment:

Multiple commenters stated that the outward extent of proposed critical habitat did not accurately reflect limits of PMJM habitat. One commenter stated that distance outward from riparian vegetation is a much better predictor of PMJM habitat than is our use of distance

from the stream edge, based on stream order (a classification of streams by relative size). Another commenter stated that floodplain plus 100 meters should be used as the outward boundary of critical habitat on reaches where floodplain mapping is available.

Our Response:

We believe that the outward extent of critical habitat we are designating includes all PCEs required by the PMJM and effectively protects habitat essential to the conservation of the PMJM. We agree that site-specific assessment of habitat components, including extent of riparian vegetation, is a more precise method of designating critical habitat (

see

our response to comment 14 below). However, site-specific mapping of PMJM habitat in Colorado is not generally available. Land use and recent site history complicate efforts to accurately assess and map riparian habitat limits. Floodplain mapping is not available for most foothill streams designated as PMJM critical habitat. Where limits of the designated 100-year floodplain have been mapped, floodplain limits are often revised, especially in the Colorado Front Range development corridor, where filling of the floodplain may occur and flood levels are altered by development. We used the best available scientific and commercial information with respect to determining the outward extent of PMJM critical habitat.

(13)

Comment:

One commenter suggested that the Service should provide detail on the development of the average floodplain widths used to designate outward limits of critical habitat for streams of different order and stated that the calculation needs to be based on a sufficient sample of sites across PMJM range to be meaningful.

Our Response:

The estimates of average floodplain width based on stream order that we use in this designation of critical habitat were previously developed in conjunction with our June 23, 2003, designation of critical habitat for the PMJM (68 FR 37275). We believe that a sufficient number of representative streams were examined to provide an appropriate estimation of average floodplain width as related to stream order.

(14)

Comment:

One commenter stated that the Riparian Conservation Zone (RCZ) mapping, developed as part of the approved Douglas County Habitat Conservation Plan (HCP), corresponds better to appropriate outward limits of critical habitat than do the boundaries that the Service proposed for revised critical habitat, and that critical habitat boundaries should align with county-wide HCP boundaries for consistency and to avoid confusion.

Our Response:

We agree that it is preferable that critical habitat boundaries match HCP boundaries where HCP boundaries accurately reflect limits of habitat essential to the conservation of the PMJM. RCZ boundaries in the Douglas County HCP were developed based on conservation strategies for the PMJM provided in the Draft Plan. After consideration, we are designating the outward boundaries of revised critical habitat on non-Federal lands in Douglas County to correspond to the boundaries developed for RCZ (see the Delineation of Critical Habitat Boundaries section).

Procedural and Legal Issues

(15)

Comment:

Two commenters stated that the Service cannot propose a critical habitat revision prior to analysis of alternatives under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321

et seq.

), a draft economic analysis (DEA), and a Regulatory Flexibility Act (5 U.S.C. 601

et seq.

) analysis. They stated that the environmental and economic impacts of the proposed action must be considered prior to the proposal.

Our Response:

By Service policy, we draft and circulate the NEPA, DEA, and Regulatory Flexibility Act analyses between the proposed and final critical habitat designation. Comments on the entire proposal, including the draft environmental assessment, DEA, and Regulatory Flexibility Act analysis, were accepted for 30 days following the May 27, 2010, publication making available these documents (75 FR 29700). The information provided in these documents and comments regarding them were fully considered prior to this final rule, in accordance with applicable regulations and statutes.

(16)

Comment:

Two commenters stated that the Service inappropriately proposed critical habitat in areas where the PMJM was not known to exist at the time of listing.

Our Response:

Section 3(5)(A) of the Act defines critical habitat, in part, as those specific areas within the geographic area occupied by the species at the time of listing, and specific areas outside the geographic area occupied by the species at the time of listing upon determination that such areas are essential for the conservation of the species. Our designation constitutes our best assessment of areas determined to be within the geographical area occupied at the time of listing that contain the physical and biological features essential to the conservation of the PMJM that may require special management, and those additional areas not occupied at the time of listing, but that have been determined to be essential to the conservation of the PMJM. Management and protection of all the areas is necessary to achieve the conservation of PMJM. Therefore, we are also designating areas that were not known to be occupied at the time of listing, but which were subsequently identified as being occupied, and which we have determined to be essential to the conservation of the PMJM in our Preliminary Draft Recovery Plan (Service 2003a). We have based our critical habitat designation on the best currently available scientific information.

(17)

Comment:

One commenter stated that only areas “indispensible and absolutely necessary” to the PMJM should be designated as critical habitat and that the Service should include only the “minimum amount of habitat needed to avoid short-term jeopardy” (citing

Middle Rio Grande Conservancy District

v.

Babbitt

). Based on this reasoning, they asserted that we could not tie critical habitat to the Draft Plan, which addresses long-term recovery.

Our Response:

Within the range of the listed species, critical habitat is defined to include areas occupied at the time of listing on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection, and those additional areas not occupied at the time of listing but that have been determined to be essential to the conservation of the species. Conservation is defined in the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Limiting designation of critical habitat to avoiding “short-term jeopardy” would not meet the Act's intent that critical habitat provide for the conservation (e.g., recovery) of the species.

(18)

Comment:

One commenter expressed the concern that details of all existing HCPs involving the PMJM were not readily available for public review and that all HCPs should be available on the Service's “ECOS” Web site and the Service's Mountain-Prairie Region Web site.

Our Response:

Most HCPs that address the PMJM have been available to the public on our ECOS Web site. When we were made aware that certain HCPs were not posted, we provided the commenter the requested materials as expeditiously as possible.

(19)

Comment:

One commenter stated that Geographic Information System (GIS) data depicting proposed critical habitat boundaries should have been made available for public review.

Our Response:

We provided GIS depictions of proposed critical habitat when requested. Additionally, we believe that the legal description of stream reaches and outward distances from streams that we provided in our proposal to revise the designation of critical habitat were adequate to identify the areas proposed.

(20)

Comment:

One commenter recommended that we incorporate a provision in our critical habitat designation that would exclude from critical habitat areas covered by future HCPs, when completed.

Our Response:

The basis for exclusions from critical habitat under section 4(b)(2) of the Act is explained in “Exclusions” below. We cannot make a determination now to exclude areas covered by HCPs that may be developed sometime in the future, because we have no way to evaluate the effectiveness, and determine whether the benefits of exclusion outweigh the benefits of inclusion, of plans that do not yet exist and have not been implemented. If, in the future, we determine that changes in designated critical habitat for the PMJM are appropriate, we have the option to revise critical habitat.

(21)

Comment:

One commenter asked us to confirm that the existing special 4(d) rule, which exempts take of PMJM under section 9 of the Act for specified activities, including ditch maintenance and any continued use of perfected water rights, is not affected by the designation of critical habitat.

Our Response:

The 4(d) rule for the PMJM (

see

50 CFR 17.40 (l)) provides certain exemptions from the take prohibitions found in section 9 of the Act. Take prohibitions under section 9 are not affected by the designation of critical habitat. The primary regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7 of the Act, which applies only to activities conducted, authorized, or funded by a Federal agency. In limited cases, an activity that is excluded from take provisions under the 4(d) rule may require a Federal permit or involve Federal funding. In these cases, while take would be exempted under the 4(d) rule, section 7 consultation would still occur to ensure that Federal actions would not jeopardize the PMJM or result in destruction or adverse modification of its critical habitat.

(22)

Comment:

One commenter stated that under the Act, the Service must re-consult on any projects within newly designated critical habitat that previously underwent section 7 consultation.

Our Response:

For Federal actions, the lead Federal agency determines whether their action may affect designated PMJM critical habitat. This applies to projects previously consulted on under section 7 where the Federal agency has retained discretionary involvement or control over the action. Federal agencies may sometimes need to request reinitiation of consultation on actions for which formal consultation has been completed (

see

50 CFR 402.16).

Comments on Specific Units

(23)

Comment:

One commenter requested us to connect critical habitat Units 1 (North Fork of the Cache la Poudre River) and 2 (Cache la Poudre River) in Larimer County.

Our Response:

The Milton Seaman Reservoir at the downstream extent of Unit 1 is a barrier to PMJM movement and effectively prevents linking of the two units. We do not believe that it is biologically necessary or possible to link these two units. See also our response to Comment 6.

(24)

Comment:

One commenter called for us to exclude the area proposed as critical habitat in Unit 1 (North Fork of the Cache la Poudre River) on the mainstem of the North Fork of the Cache la Poudre River upstream of the Milton Seaman Reservoir and within the footprint of the proposed reservoir expansion.

Our Response:

We have not excluded this reach from designated critical habitat. This area includes Federal and State property that would potentially be inundated by the City of Greeley's proposed expansion of the Milton Seaman Reservoir. Expansion under the currently proposed plan would inundate about 3 mi (5 km) of the river. In 2002, the City of Greeley contended that the reach in question supported only patches of willow shrub, had little habitat for the PMJM, and did not meet the definition of critical habitat (Kolanz 2003). In our on June 23, 2003, designation of critical habitat (68 FR 37275), we concluded the area in question supported those physical or biological features essential to the conservation of the species, and may require special management considerations or protection. We stated that, within the reach in question, some habitat components appeared discontinuous, and PMJM habitat was, at that time, of lower quality than habitat upstream of this reach, due to heavy grazing. However, we concluded that the area in question did include the requisite PCEs to support the PMJM, and its designation as critical habitat was essential for the conservation of the large PMJM population along the North Fork of the Cache la Poudre River. The Service chose not to exclude this reach from critical habitat in 2003. This prompted the legal actions by the City of Greeley addressed in “

Previous Federal Actions

” above.

The City of Greeley, in a letter dated May 20, 2009, outlined its concerns regarding designation of critical habitat in this area, and requested exclusion of the area from revised critical habitat under section 4(b)(2) of the Act (Kolanz 2009a). The City of Greeley also submitted a report by ERO Resources Corporation (ERO) assessing the area to be inundated by the proposed reservoir expansion (ERO 2008). ERO concluded that of the approximately 165 ac (66.8 ha) of designated critical habitat that would be inundated, only about 26 acres were of moderate to high quality for the PMJM. Non-habitat and low-quality habitat were attributed to the dominant upland vegetation and steep slopes, while the moderate- to high-quality habitat was associated with the narrow riparian corridor (ERO 2008, pp. 11-12). In our October 8, 2009, proposal to revise the designation of critical habitat for the PMJM (74 FR 52066), we again determined that the area met the definition of critical habitat, that it included physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection. Three other letters from the City of Greeley followed, two within public comment periods for the proposed revised critical habitat, expanding on the City of Greeley's concerns (Kolanz, 2009b, 2009c, 2010).

Consistent with previously stated concerns over habitat quality, the City of Greeley contended that the area in question is not essential to the conservation of the PMJM. The City of Greeley pointed out that it was not mapped as PMJM habitat in our proposal to establish special regulations for the conservation of the PMJM (December 3, 1998, 63 FR 66777), and was not shown to be “occupied” by PMJM in a recent Colorado Division of Wildlife (CDOW) database. The reach in question is part of the USFS Greyrock Grazing Allotment, which extends from Milton Seaman Reservoir, approximately 3 mi (5 km) upstream, and includes lands owned primarily by the USFS (about 2 mi (3 km) of the stream), as well as State lands, City of Greeley lands, and private lands (USFS

2008). The USFS 2008 Biological Assessment for management of the Greyrock Grazing Allotment explains the history of the site and past habitat limitations (USFS 2008). Heavy livestock grazing for many decades drastically reduced riparian shrubs and trees. In the last 7 years, riparian habitat quality has significantly improved in the reach. Following removal of grazing along the North Fork of the Cache la Poudre River, a notable increase in willow growth and a tall, dense herbaceous component of the plant community was observed in the riparian zone in 2007. With no further livestock grazing in the reach through 2010, a lush riparian community has developed that provides PCEs essential to the support of the PMJM, in quantity and spatial arrangement that suggests riparian habitat is now of high quality. Upland habitat in the reach has been slower to recover following heavy grazing, and weed control efforts are needed. While the PMJM had been documented upstream in this drainage, the reach above Milton Seaman Reservoir had not been trapped to establish whether the PMJM was present until 2010, when a limited trapping effort by the USFS captured a jumping mouse within the proposed reservoir expansion area (USFS 2010). The CDOW database will be updated accordingly. Restoration of habitat in this reach has advanced to the point where grazing will again take place on the allotment. Carefully managed grazing will maintain or improve PMJM habitat in this allotment into the future. The USFS has informally consulted with the Service over management of this allotment and we have concluded that carefully managed grazing will maintain or improve PMJM habitat on the allotment into the future.

The City of Greeley also stated that designation of critical habitat in this area would create significant financial burden on the City. Our DEA (section 5.3) assigns a low incremental cost ($20,000 to $38,000) to the designation of critical habitat for the Halligan Reservoir and Milton Seaman Reservoir projects. However, additional costs could be incurred should designation of critical habitat affect regulatory approval of the proposed project, and cause the City of Greeley to pursue a more costly alternative. Because of their speculative nature, these costs were not included in the DEA (see our response to Comment 56), but we discuss them in the FEA and here. Under section 7 of the Act, the Service will evaluate whether any proposed alternative for Milton Seaman Reservoir expansion under permit review by the U.S. Army Corps of Engineers (Corps) will jeopardize the PMJM or result in destruction or adverse modification of its designated critical habitat. Under the City of Greeley's worst case scenario, our designation of critical habitat and subsequent consultation regarding the reservoir project could result in a finding of “destruction or adverse modification of critical habitat” by the Service, or could result in the Corps denying a permit under the Clean Water Act (33 U.S.C. 1251

et seq.

), based on the proposed project not being the “least damaging practicable alternative.” To be attributable to our designation of critical habitat, an outcome and any resultant costs would have to differ from the results of regulatory review of the same project with no critical habitat designation. For example, the outcome would have to differ from the result of Service consultation in the absence of critical habitat that results in a jeopardy determination, or in the absence of critical habitat, the Corps denying a permit based on the presence of the PMJM, combined with an array of other considerations. The question of whether regulatory review under scenarios with or without critical habitat would produce different results contributes to the speculative nature of costs attributable to critical habitat designation. Factors relevant to possible future Service and Corps regulatory determinations follow.

Substantial planning has taken place between the City of Greeley, the Service, The Nature Conservancy, and other entities, to address potential impacts to the PMJM and its habitat from the planned reservoir expansion. The City of Greeley has expressed an interest in implementing conservation measures to offset impact of the proposed project to the PMJM prior to project construction. Conservation measures have been identified that could serve to offset project impacts to the PMJM, should the planned project move forward. These conservation measures are targeted at PMJM populations and supporting ecological processes in critical habitat Unit 1, which includes the reservoir expansion area. Further development of conservation measures and their incorporation into plans for proposed reservoir expansion could help maintain the value of this critical habitat unit to the recovery of the PMJM and reduce or eliminate the possibility of a jeopardy or adverse modification determination by the Service.

Our designation of critical habitat for the PMJM should be considered by the Corps as indicative of the high natural resource value of the lands designated. A decision that the area does not meet the definition of critical habitat would imply a lesser resource value. However, if the Service were to exclude the reach in question from critical habitat for reasons of relevant non-biological factors (economic, social, etc.), it would not change our determination that the area meets the definition of critical habitat, nor would it change the inherent resource value of the reach or its contribution to the conservation and recovery of the PMJM. Therefore, from a resource perspective, the Corps' assessment of the value of this reach and its role in their consideration of issuing a permit to the City of Greeley may not differ between the cases of critical habitat designation and exclusion from designation based on non-biological factors.

Any future Milton Seaman Reservoir expansion may differ from the project currently proposed. The City of Greeley is an active participant in the Halligan-Seaman Water Management Project. To efficiently manage their supplies, the cities of Fort Collins and Greeley have proposed the Halligan-Seaman Water Management Project as a regional water storage and management project on the North Fork of the Cache la Poudre River. Both cities and their partners are working together to increase water storage capacity for their communities through coordinated enlargements of Halligan and Milton Seaman reservoirs. The participants are using an innovative Shared Vision Planning process, which brings together stakeholders in a collaborative planning and model building exercise. The Service is supportive of this process, has participated as resources allow, and anticipates that its results will inform the Halligan-Seaman Water Management Project. The eventual proposal for Milton Seaman Reservoir expansion may vary from the proposal currently envisioned, to facilitate coordinated management of these reservoirs.

Onsite alternatives to the project currently proposed by the City of Greeley may result from the Halligan-Seaman Water Management Project. Such alternatives could reduce the probability of a Service determination of adverse modification of critical habitat, or Corps permit denial based on presence of critical habitat. Any such alternatives could, however, also result in less water storage or storage at a higher cost.

The most costly possible result of our designation of critical habitat would be a case where the City of Greeley would have to abandon expansion plans for the Milton Seaman Reservoir, and develop

storage options at one or more alternate sites. Assuming a current estimated cost of $116 million for the proposed project (Kolanz 2010, p. 4) and the Corps' estimated costs of alternate storage cited in the DEA (up to 8 times the cost of storage through Milton Seaman Reservoir expansion), additional cost due to designation of critical habitat could range to $812 million. The Corps' estimates relate to comparative costs incurred by other Front Range Colorado water projects (Peter, pers. comm. 2010).

Under the scenarios above, the additional cost to the City of Greeley associated with critical habitat designation upstream of the Milton Seaman Reservoir could range from $20,000 to as high as $812 million. We have considered both the potential costs due to designation of critical habitat, and the relative likelihood of their occurrence, when evaluating the City of Greeley's request for exclusion.

The reach of river above the Milton Seaman Reservoir is part of critical habitat Unit 1, established to be consistent with a large recovery population along the North Fork of the Cache La Poudre River and its tributaries, as designated in the Draft Plan. The entire reach of the North Fork between the Halligan Reservoir to the north and Milton Seaman Reservoir to the south is within this unit. The two reservoirs create barriers to PMJM movement along the river, and the population of PMJM between the reservoirs and on adjoining tributaries is thought to be relatively isolated from populations elsewhere. The City of Greeley contends that loss of up to 3 mi (5 km) of the approximately 88 mi (140 km) in this critical habitat unit will have little relative impact on the unit's ability to conserve and recover the PMJM. We do not know the extent of habitat needed to support a large recovery population as described in the Draft Plan. At a minimum, a total of 50 mi (80 km) of connected streams and tributaries is suggested for a large PMJM population in the Draft Plan. But the Draft Plan bases size of PMJM recovery populations on the numbers of PMJM present, not the extent of habitat. Until such time as population estimates for the area are developed, we will not know whether 50 mi (80 km), or even 88 mi (140 km), of streams will be sufficient. In this context, loss of 3 of the 88 mi (5 of the 140 km) may significantly impact the ability of the critical habitat unit to support a large population and meet the recovery goal outlined in the Draft Plan.

The City of Greeley suggested that an exclusion would support ongoing Federal and local cooperation in the development of water resources in the drainage. Water use and storage issues continue to generate close scrutiny in Colorado. The Milton Seaman Reservoir expansion, Halligan Reservoir expansion, and other proposed projects have both their proponents and critics. While an exclusion could lead to the continuation and strengthening of partnerships between the City of Greeley, certain other public and private entities, and the Service, it would likely alienate others. Despite our decision not to exclude the area above Milton Seaman Reservoir from critical habitat designation, we anticipate a continued working relationship with the City of Greeley to address both their needs and those of the PMJM.

If approved, the proposed reservoir expansion would occur well in the future. The required review under NEPA and the permit issuance by the Corps under the section 404 of the Clean Water Act, necessary for reconstruction of the reservoir's dam, are likely to take years. Because of this, considerable uncertainty exists regarding when and in what form an expansion of Milton Seaman Reservoir might occur. Given the uncertainties regarding timing, design, and future conservation commitments associated with reservoir expansion, exclusion of the area, even if it should be determined to be appropriate someday in the future, is premature.

Exclusion of this reach from critical habitat would do little to relieve the costs of regulatory review and associated permitting (delays, administrative costs, consulting costs, and cost of developing additional conservation measures) for the City of Greeley. The area of the proposed expansion includes Federal land owned by the USFS. All alternatives impacting this land will involve USFS approval. In addition, any dam replacement or reconstruction would require a permit from the Corps under the Clean Water Act. Even without critical habitat, section 7 review appears unavoidable. Exclusion from critical habitat would not alleviate the need for section 7 consultation, or appreciably increase the administrative costs involved.

Designation of critical habitat (the identification of lands that are necessary for the conservation of the species) is beneficial in the recovery planning for a species. In this case, the Draft Plan has helped inform critical habitat designation by designating a large recovery population in this area. This final rule may, in turn, contribute to the development of a final recovery plan for the North Fork of the Cache La Poudre River.

We have determined that this portion of the North Fork of the Cache la Poudre River contains the physical and biological features essential to the conservation of the PMJM in accordance with 4(a)(3) of the Act. We conclude that it is inappropriate to exclude this reach from critical habitat under section 4(b)(2) of the Act.

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Comment:

Two commenters pointed out that critical habitat proposed along Spring Brook and South Boulder Creek in Unit 5 (South Boulder Creek), Boulder County, is discontinuous as mapped.

Our Response:

PMJM have been found on both Spring Brook and South Boulder Creek. Spring Brook has been diverted into a canal; therefore, it does not follow its historical course directly into South Boulder Creek. The limits of critical habitat we are designating for the two reaches are separated by approximately 100 ft (30 m) through a rural residential upland area which may not contain the physical and biological features essential for the conservation of PMJM, as defined. However, we do not believe that this discontinuity significantly affects the species' ability to move between these portions of this critical habitat unit.

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Comment:

The City of Boulder requested that we coordinate with the City to “fine tune” the boundaries of Unit 5 (South Boulder Creek) to expedite regulatory review of future projects with a Federal nexus.

Our Response:

As in other units, based on the scale of our mapping, there may be some areas within the general boundaries of designated critical habitat in Unit 5 that do not support PCEs required by the PMJM. For example, specific areas that support existing buildings, roads, and parking lots are not considered critical habitat. These areas are excluded by text in this rule. We will continue to be available to work with the City of Boulder to determine boundaries of areas that do not meet the definition of critical habitat.

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Comment:

The U.S. Department of Energy (DOE) commented that it controls much of the “Rocky Flats Site,” described by the Service as the Rocky Flats National Wildlife Refuge (NWR) (Unit 6), in Jefferson and Broomfield Counties, and noted that proposed critical habitat would include portions of DOE's Central Operable Unit (COU) of 1,300 ac (530 ha), where a former facility processed and manufactured nuclear weapons. Many DOE operational maintenance and monitoring activities continue to take place within the COU under closure and cleanup agreements. The DOE urged the Service to exclude the COU from

designation of critical habitat within this unit because designation could adversely impact actions required under these agreements.

Our Response:

We have modified this final rule to more accurately reflect DOE presence on the Rocky Flats Site. The Rocky Flats Site (Unit 6) is managed by the Service (Rocky Flats NWR) and DOE (the Central Operating Unit and certain other lands). Buildings and other structures at the site have been decommissioned and demolished, and the disturbed areas have been restored, or are undergoing restoration. Clean-up and closure of the COU was completed in 2005. Many operational maintenance and monitoring activities continue to take place in the COU, to maintain the CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, 42 U.S.C. 9601

et seq.

) and RCRA (Resource Conservation and Recovery Act, 42 U.S.C. 6901

et seq.

) remedies implemented in accordance with the Rocky Flats Management Agreement.

The final Rocky Flats NWR Comprehensive Conservation Plan (CCP) was announced in the

Federal Register

on April 18, 2005 (70 FR 20164). The CCP outlines the management direction and strategies for NWR operations, habitat restoration, and visitor services, for a period of 15 years. The CCP provides a vision for the NWR; guidance for management decisions; and the goals, objectives, and strategies to achieve the NWR's vision and purpose. One objective of the CCP is to protect, maintain, and improve approximately 1,000 ac (400 ha) of PMJM habitat on the NWR. A programmatic section 7 consultation with DOE for their cleanup and maintenance activities was completed in 2004 (Service 2004c). This consultation addressed removal of manmade structures in and adjacent to PMJM habitat, and ongoing operations in the COU in support of the CERCLA/RCRA remedy.

We invited information and comments on potential exclusion of the Rocky Flats Site in part because of the previous exclusion of the site from critical habitat in our June 23, 2003, final rule (68 FR 37275). That exclusion appeared at odds with the recent interpretation of critical habitat designation on Federal lands. Federal agencies have an affirmative conservation mandate under section 7(a)(1) of the Act to contribute to the conservation of listed species. On the Rocky Flats Site, as with other Federal lands, we anticipate that effective land management strategies can and will be employed by Federal agencies to conserve PMJM populations. We have determined that lands on the Rocky Flats Site are essential to the conservation of the species. Designation of critical habitat on the Rocky Flats Site highlights the importance of the area to the PMJM, while encouraging the NWR and DOE to provide a consistent and effective approach to conserve the PMJM. These lands require special management considerations or protection, as evidenced by and incorporated in management plans and the programmatic consultation referenced above. Potential effects to habitat on the site that may be addressed under programs, practices, and activities within the authority and jurisdiction of Federal land management agencies include, but are not limited to, weed management, wildland fire management, recreation, construction and maintenance of roads and trails, and operational maintenance and monitoring activities within the COU. For the above reasons, we conclude that the entire Rocky Flats site, including the COU, contains the physical and biological features essential to the conservation of the PMJM and merits designation as critical habitat.

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Comment:

One commenter requested that the easternmost portion of the Rocky Flats Site (Unit 6) in Jefferson and Broomfield Counties, the site of proposed roadway expansion along Indiana Street, be excluded from critical habitat, because it is planned for development. They cited the Rocky Flats National Wildlife Refuge Act of 2001, and Rocky Flats National Wildlife Refuge Comprehensive Conservation Plan and Environmental Impact Statement (CCP/EIS) as addressing the roadway expansion and anticipating its future construction in spite of potential PMJM presence. Two other commenters urged that the specific area in question be included in designated critical habitat.

Our Response:

The areas in question contain the physical and biological features essential to conservation of the PMJM and have not been excluded from critical habitat. Should project plans for the road expansion go forward, the Service has concluded that subsequent environmental review, including compliance with the Act, will be required of any future project proponent to address any impacts to the PMJM, its habitat, and designated critical habitat. The Service has made no conclusions as to how any transfer of Federal land or roadway expansion would affect the PMJM. The Service only found that transfer of a corridor up to 300-ft (92-m) wide would not adversely affect management of the NWR (Service 2004, p. 191).

(29)

Comment:

Denver Water requested exclusion of their properties covered under the Denver Water HCP, provided maps of their properties, and pointed out apparent Service mapping errors.

Our Response:

The eight properties in question include a total of approximately 250 ac (113 ha) in 4 critical habitat units (Units 5, 7, 9, and 10). We have excluded these properties from critical habitat designation under section 4(b)(2) of the Act (see the Exclusions section below), and corrected maps and acreages as appropriate.

(30)

Comment:

Douglas County requested exclusion of non-Federal lands within Douglas County based on their 2006 HCP.

Our Response:

We have not excluded the non-Federal lands in Douglas County. On May 11, 2006, we issued a section 10 incidental take permit that covers the PMJM for the Douglas County HCP (Service 2006a). The Douglas County HCP addresses only specified activities conducted by Douglas County and the towns of Castle Rock and Parker, within Douglas County, Colorado, on private and other non-Federal lands within the RCZ, as mapped by Douglas County. Impacts to the RCZ associated with the covered activities are mitigated by the permanent protection of portions of the RCZ and the restoration of habitat from temporary impacts. Stream segments totaling 15 mi (24 km) in length and 1,132 ac (458 ha) of the RCZ have been permanently protected as part of the Douglas County HCP. Management plans exist or are in development for these protected properties (Dougherty 2009). The majority of proposed critical habitat in Units 8 and 9, and a small amount of non-Federal property in Unit 10 are within the boundaries of the Douglas County HCP.

While the Douglas County HCP includes the extensive mapped RCZ that encompasses areas believed to support the PMJM, the plan does not provide a means by which habitat within these zones will be effectively managed into the future. Only about 5 percent of the lands within the RCZ are set aside for conservation under the plan. The vast majority of lands in the RCZ receive no specific protection under the HCP. Potential impacts to physical and biological features essential to the PMJM from entities other than Douglas County and the cities of Parker and Castle Rock, including those by private landowners, are not addressed in the plan.

(31)

Comment:

One commenter proposed that we link the two subunits proposed in Unit 8 (Cherry Creek), Douglas County.

Our Response:

The Draft Plan calls for a medium recovery population in Lower South Platte—Cherry Creek HUC. Each of the two subunits appears large enough to support a medium recovery population. We determined that linking them was not appropriate, after considering the variable quality of intervening habitat on private lands and determining that a much larger critical habitat unit with more reaches in low-quality habitat would not provide additional benefit to the PMJM.

(32)

Comment:

One commenter stated that we should limit the downstream extent of designated critical habitat along Plum Creek in Unit 9 (West Plum Creek), Douglas County, to the point of maximum reservoir storage under the U.S. Army Corps of Engineers' (Corps') Chatfield Reservoir Reauthorization Project preferred alternative (maximum storage at 5,444 feet (ft) (1,660 meters (m)) in elevation).

Our Response:

The reach in question is federally owned, has been documented to support the PMJM, and has PCEs of appropriate quantity and spatial arrangement to qualify as critical habitat. We have determined that Plum Creek downstream to Chatfield Reservoir contains the physical and biological features essential to the conservation of the PMJM, and we have identified no basis to exclude this area from critical habitat under section 4(b)(2) of the Act. Substantial planning has taken place to address potential impacts to the PMJM should the reservoir expansion proceed, in part because proposed expansion of reservoir storage capacity would impact existing critical habitat on the Upper South Platte River (Unit 10). While designation of critical habitat along Plum Creek will provide additional regulatory protection to PMJM habitat in the area, the project sponsors are developing alternatives to address impacts to designated critical habitat on Plum Creek should the planned project move forward.

(33)

Comment:

One commenter stated that we should exclude the Penley Ranch property along Indian Creek, Unit 9 (West Plum Creek) from critical habitat, on the basis that trapping conducted in 2007 did not document the PMJM on the property and the Service agreed at the time the PMJM was “not likely to be present” on the site. The commenter further stated that if the property was not excluded, we should develop more appropriate (less extensive) site-specific boundaries of critical habitat on the site.

Our Response:

While the PMJM was not captured during the 2007 trapping effort, habitat on the site appeared to support the physical and biological features essential to the conservation of the PMJM. We concurred in 2007 that the PMJM was not likely present and that a proposed rural residential development on the property would not be likely to adversely affect the PMJM. We stated that our concurrence was valid only for one year. The residential development proposed did not take place. Captures of the PMJM have occurred in areas of comparable or lower quality habitat downstream on Indian Creek. PCEs are present along this reach of Indian Creek. While no further trapping efforts have taken place, we believe that the PMJM likely uses the reach, at a minimum as a movement corridor, and may occupy portions of the property. We therefore conclude that this reach of Indian Creek is occupied and merits designation as critical habitat. Indian Creek on the Penley Ranch is within the RCZ established under the Douglas County HCP. Outward extent of critical habitat on the property is being designated consistent with the boundaries of the Douglas County RCZ (

see

the Delineation of Critical Habitat Boundaries section below). See also related comment 61 and our response.

(34)

Comment:

One commenter stated that the upstream extent of critical habitat along Bear Creek in Unit 9 (West Plum Creek) should terminate at the Lake Waconda Dam, as the lake and Perry Park Golf Course create a barrier to PMJM movement, and any PMJM population upstream from the golf course is isolated.

Our Response:

After we considered the extent to which the dam, lake, adjacent golf course, and associated development form a barrier to PMJM movement up and down stream, and assessed the quantity and spatial arrangement of PCEs on the reach upstream of the lake, we elected to limit the upstream extent of designated critical habitat along Bear Creek to the base of the Lake Waconda Dam (see the Summary of Changes from the Proposed Rule section below). Based on review of aerial photographs, we determined that the area upstream of the dam does not contain the physical and biological features essential to the conservation of the PMJM in the necessary spatial arrangement and distribution.

(35)

Comment:

One commenter suggested that we designate critical habitat to link all four proposed subunits of Unit 10 (Upper South Platte River), Jefferson and Douglas Counties, and also designate their tributaries as critical habitat.

Our Response:

The Service has determined that connecting these subunits to form one very large critical habitat unit is not necessary. Land ownership and land uses vary along the South Platte River and its tributaries. While areas designated as critical habitat largely consist of National Forest System lands, many of the intervening reaches do not. Quality of PMJM habitat is not consistent. Reaches of lesser quality that are not being designated as critical habitat generally correspond to those that are not federally owned. In addition, the large West Plum Creek Unit (Unit 9), which corresponds to a large recovery population required in the Draft Plan, is also being designated in the same HUC. Tributaries have been examined, and we are designating only those that we determined meet the definition of critical habitat based on occurrence of physical and biological features essential to the conservation of the PMJM and proximity to known PMJM occurrence. (

See also

our response to comment 6.)

(36)

Comment:

One commenter requested that we exclude critical habitat in Teller County because no PMJM have been documented there.

Our Response:

The PMJM has been documented on Trout Creek, Unit 10 (South Platte River), at or very near the Douglas County-Teller County line (Service 2010). Based on contiguous habitat along Trout Creek in Teller County, we are designating critical habitat upstream to 7,600 ft (2,300 m) in elevation. We believe that this elevation provides a reasonable estimate of the upstream extent of habitat likely to be occupied by the PMJM in this reach.

(37)

Comment:

Two commenters requested exclusion of Unit 11 (Monument Creek), El Paso County, from critical habitat based on potential economic impacts and because protections for the PMJM are already in place as a result of the 1998 listing and local limits on development.

Our Response:

Our DEA addressed the extent of economic impacts likely to occur in this unit as the result of critical habitat designation. The updated final economic analysis (FEA) (Industrial Economics 2010b) concludes that $10.4 million to $17.7 million in incremental impacts due to designation of critical habitat may occur in Unit 11 over the next 20 years, resulting almost entirely from increased costs associated with section 7 consultation on residential and commercial development. However, the FEA (Chapter 3) explains why these estimates may be higher than what will likely occur. Based on the results of the

FEA, we have not excluded any areas from designation of critical habitat based on economic impacts (see the Required Determinations section). Current protections afforded the PMJM by its threatened status under the Act and by local regulations have not protected the PMJM and its habitat from the cumulative impacts of development. Degradation of creeks and riparian vegetation in this unit from recent development and associated stormwater runoff presents an ongoing issue. This degradation and projected future development in the area indicate that the unit requires special management consideration and protection.

(38)

Comment:

One commenter urged us not to exclude El Paso County from critical habitat based on any countywide HCP not finalized.

Our Response:

We have not excluded El Paso County from critical habitat. The county has been developing a countywide HCP for the PMJM in coordination with the Service for several years. A countywide plan would likely cover most or all of the area in critical habitat Unit 11 (Monument Creek). When we proposed revised critical habitat, we anticipated that we would receive a draft HCP prior to final revised critical habitat designation. To date, we have not received a draft of an HCP for our review, nor do we have any assurance as to if, when, or in what form, any countywide HCP will be submitted, or whether an incidental take permit for the PMJM under section 10 would be issued. Since any potential El Paso County plan remains in its formative stages, we have no basis to address possible benefits of exclusion.

Other Comments

(39)

Comment:

One commenter noted that we had no basis to revise the 2003 rule that designated critical habitat for the PMJM.

Our Response:

We stand by our determination that revising critical habitat for PMJM is appropriate. Based on our review of the June 23, 2003, final rule to designate critical habitat for the PMJM (68 FR 37275), we determined that it is necessary to revise critical habitat. Our review found that we excluded three counties from critical habitat based on countywide HCPs under development. The 2003 rule stated, “If pending HCPs are not completed, we will determine whether areas designated in this final rule need further refinement” (68 FR 37290). Seven years later, only one of the three counties excluded from critical habitat has completed an HCP, and coverage under the Douglas County HCP is limited to actions by three local governments. Therefore, the basis upon which these exclusions were made, that countywide HCPs would be completed in the near future, was faulty, and revision is appropriate.

(40)

Comment:

Two commenters pointed out that our 2003 rule downplayed the value of critical habitat designation. One commenter stated critical habitat designation is unhelpful, duplicative, and unnecessary, and that it provides little additional value given that areas proposed are believed to be occupied and currently subject to section 7 review under the Act. Based on this, they contended that the value of including additional critical habitat through our revision was negligible.

Our Response:

Designation of critical habitat is mandated by the Act. The purpose of critical habitat designation is to contribute to the conservation of endangered and threatened species and the ecosystems upon which they depend. It alerts Federal agencies and the public to areas essential for the conservation of the species and provides the species added regulatory protection under section 7 of the Act when Federal actions occur. (See

Benefits of Designating Critical Habitat,

below.)

(41)

Comment:

We received comments that critical habitat provides little additional protection for the PMJM over various layers of existing protections, including local land use regulations, and that this negates the need for critical habitat designation.

Our Response:

Protections under the Act, including those afforded by designation of critical habitat, for the listed SPR of the PMJM in Colorado are necessary in part because local regulations and conservation efforts have proven insufficient to conserve the species. Our July 10, 2008, final rule that refined the listing of the PMJM (73 FR 39789) specifies over what portion of its range the subspecies is threatened.

(42)

Comment:

One commenter stated that designation of critical habitat should be limited to Federal lands.

Our Response:

As defined, critical habitat is not limited by land ownership, but rather based on areas essential to the conservation of the species and in need of special management or protection. Federally owned lands are more likely to contribute to conservation of the PMJM than private lands that are not subject to the Act's affirmative conservation mandate of 7(a)(1), which imposes on Federal agencies a duty to conserve listed species. Therefore, we prioritized the inclusion of Federal lands when deciding what quantity and distribution of lands containing the physical and biological features essential to the conservation of the PMJM are necessary. However, even with this prioritization, the amount of Federal lands alone is insufficient to provide for the conservation of the PMJM, as these lands are limited in geographic location, size, and habitat quality within Colorado. We are designating both Federal lands and non-Federal land as critical habitat where they meet the definition of critical habitat.

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Comment:

One commenter urged us not to exempt HCPs from critical habitat, based on the contentions that their purpose differs from that of critical habitat and that HCPs are less protective. The commenter suggested that the Service should conduct a detailed analysis of past protection of the PMJM afforded by HCPs, as opposed to that afforded by critical habitat designation, including the degree of habitat loss and take of the PMJM. The commenter added that exclusions based on HCPs would fragment habitat corridors otherwise designated as critical habitat.

Our Response:

Critical habitat and HCPs differ in their purpose, but both have a similar role in conservation of the species. In general, critical habitat designation affords an added layer of regulatory protection with regard to Federal actions, while an HCP provides a mechanism to permit take caused by non-Federal entities. We exclude areas covered by HCPs from critical habitat when the benefits of exclusion are greater than the benefits of inclusion. As part of this determination, we analyzed whether the HCP in place affords equal or greater conservation of the species than critical habitat designation would afford. These HCPs were developed to address the conservation needs of the PMJM and maintain its habitat. Issuance of associated section 10 permits by the Service required section 7 consultations. Exclusion of these HCPs is not expected to affect movement corridors, because the HCPs were developed in coordination with the Service and address the conservation requirements of the PMJM.

(44)

Comment:

One commenter believed that, at a minimum, all habitat occupied by PMJM should be designated as critical habitat, and called on us to provide a rationale for any occupied areas not designated.

Our Response:

The Act does not require that we designate critical habitat on all lands occupied by the species. We used the best scientific and commercial data available in our determination of this final designation of revised critical habitat. In addition, we considered peer review comments, public comments, and any additional information we

received. We determined a subset of all known occupied areas that contain PCEs is sufficient to provide for the conservation of the PMJM. This conclusion is based on the recommendations in the Draft Plan that a mix of small, medium, and large populations can conserve the species. We are designating all areas that we found to be essential.

(45)

Comment:

One commenter stated that the Service must consider whether habitat outside that occupied by the listed entity is justified for designation as critical habitat and stated the opinion that occupied habitat in Wyoming must be considered for inclusion.

Our Response:

In accordance with section 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 listed species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. Given the extent and distribution of known PMJM populations, we believe that protection within certain areas currently occupied will be sufficient to conserve the PMJM in Colorado, where the PMJM is listed under the Act.

(46)

Comment:

One commenter suggested that we should conduct research to prove that the PMJM can live in all 418 mi of stream proposed as critical habitat.

Our Response:

We base our designation of critical habitat on the best scientific and commercial information available. The best information available to us indicates that the units we are designating as critical habitat are occupied. In addition, all PCEs upon which the PMJM depends are present within each unit of critical habitat. At any given site within a unit, one or more PCEs must be present for the site to qualify as critical habitat. For example, it may be determined that a reach qualifies as critical habitat based only on its ability to provide connectivity between more extensive habitat upstream and downstream. Determination of the limits of critical habitat at a specific site based on absence of any PCEs will be made by the Service on a site-by-site basis where needed.

(47)

Comment:

One commenter noted the potential impact of critical habitat designation to grazing on Federal lands, which the commenter stated has been shown to be compatible with maintenance of PMJM populations.

Our Response:

The impact of the designation of critical habitat on Federal lands includes consultation under section 7 of the Act to determine if Federal actions would result in adverse modification of critical habitat. Where grazing is compatible with the maintenance and recovery of PMJM populations, we would determine that adverse modification would not be likely. Agriculture, including grazing, can be managed in many different ways, some of which may be beneficial to PMJM habitat, others harmful. Some PMJM habitat on Federal lands is currently grazed in a manner that appears to maintain good habitat for the PMJM. However, there may be areas managed in a manner that is not conducive to the development or maintenance of PMJM habitat. As defined, critical habitat is essential to conserve the species and may require special management considerations or protection. The areas designated as critical habitat have been determined to be essential to the conservation of the PMJM. During consultation required under section 7 of the Act, grazing practices on these areas would receive increased scrutiny by Federal land managing agencies and the Service. In those areas where current management results in maintenance of good PMJM habitat, there is a need to continue such practices, so future management considerations or protections may be required. In other instances, protections of designated critical habitat would help ensure that livestock management practices potentially harmful to the conservation of PMJM are not conducted without required consultation.

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Comment:

One commenter stated that based on any future change to our definition of “adverse modification,” third parties may mount legal challenges to Service consultations under section 7 of the Act and HCPs that address critical habitat.

Our Response:

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the Fifth and Ninth Circuits Court of Appeals have invalidated our definition of destruction or adverse modification (50 CFR 402.02) (see

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service,

378 F.3d 1059 (9th Cir. 2004) and

Sierra Club

v.

U.S. Fish and Wildlife Service et al.,

245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when we analyze whether an action is likely to destroy or adversely modify critical habitat. In response to these decisions, we are reviewing the regulatory definition of adverse modification in relation to conservation. We cannot speculate about future change to the definition of adverse modification, how it may impact conservation of the PMJM, or litigation that could follow. Threat of future lawsuits should not influence our designation of appropriate critical habitat.

Comments on Economic Analysis and Environmental Assessment

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Comment:

One commenter stated that providing only a “revision” of our 2003 economic analysis and environmental assessment, alluded to in our revised critical habitat proposal, is insufficient and circumvents NEPA.

Our Response:

The DEA and NEPA analysis that we conducted for the 2009 proposed rule updated our 2003 analysis. Our FEA and final environmental assessment differ substantially from documents produced in support of our 2003 designation of critical habitat. As all address designation of critical habitat for the PMJM, there are similarities.

(50)

Comment:

One commenter indicated that the DEA underestimated the actual costs of critical habitat designation by applying an incremental approach to identify only those impacts attributable solely to the proposed rule. Because the SPR in Colorado, where the PMJM is listed, lies within the U.S. Tenth Circuit Court of Appeals, its ruling in

New Mexico Cattle Growers Association

v.

United States Fish and Wildlife Service,

248 F.3d 1277 (10th Cir. 2001) should be followed. In this case, the court instructed the Service to conduct a full analysis of the economic impacts of proposed critical habitat, regardless of whether those impacts are attributable co-extensively to other causes.

Our Response:

The economic analysis estimates the total cost of species conservation activities, without subtracting the impact of pre-existing baseline regulations (

i.e.,

the cost estimates are fully co-extensive). In addition, the economic analysis breaks the costs down into the baseline costs of all conservation activities resulting from the listing of PMJM under the Act, and the incremental costs of designation of critical habitat, which are above and additional to the baseline costs. We considered both the coextensive as well as the incremental costs when performing the 4(b)(2) exclusion analysis. In 2001, the U.S. 10th Circuit Court of Appeals instructed the Service to conduct a full analysis of all of the economic impacts of proposed critical habitat designation, regardless of whether those impacts are attributable co-extensively to other causes (

New

Mexico Cattle Growers Ass'n

v.

USFWS,

248 F.3d 1277 (10th Cir. 2001)). The economic analysis for the PMJM complies with direction from the U.S. 10th Circuit Court of Appeals.

In developing this final rule, we considered our February 12, 2008, Draft Critical Habitat Exclusions Guidance. This guidance was developed by the Service in response to critical habitat case law, which documents the Courts' interpretations of the requirements of the Act. This rule is also consistent with the October 3, 2008, opinion from the Solicitor titled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act.”

In this rule, the Service declines to exercise its discretion to exclude any areas based on co-extensive or incremental impacts in this rule. Two courts have found the Secretary's decision not to exclude is completely within the Service's discretion and is not reviewable by a court (

Home Builders Association of Northern California

v.

U.S. Fish & Wildlife Serv.,

2006 U.S. Dist. Lexis 80255, *66 (E.D. Cal. 2006),

reconsideration granted in part on other grounds,

2007 U.S. Dist. Lexis 5208 (Jan. 24, 2007);

Cape Hatteras Access Preservation Alliance

v.

DOI

, 2010 U.S. Dist. Lexis 84515 (D.D.C. Aug. 17, 2010).

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Comment:

One commenter stated that the Service has not adequately quantified and analyzed the myriad potential economic benefits of critical habitat designation.

Our Response:

The purpose of critical habitat is to support the conservation of the PMJM. Quantification and monetization of species' conservation benefits requires information on the incremental change in the probability of PMJM conservation that is expected to result from the designation. No studies exist that provide such information for this species. Even if this information existed, the published valuation literature does not support the monetization of incremental changes in conservation probability for this species. Therefore, the primary benefits of this rule cannot be quantified or monetized based on the best, readily available scientific and economic information. Depending on the project modifications ultimately implemented as a result of the regulation, other ancillary benefits that are not the stated objective of critical habitat may also be achieved. Chapter 9 of the DEA describes the categories of potential benefits, including improvements in the value of adjacent or proximate properties, improvements in water quality, aesthetic benefits, increased recreational opportunities, increased regional expenditures and employment resulting from increased visitation to the region, and educational benefits. Because these categories of benefits are not the primary intention of the rule, and quantification and monetization of these benefits would require significant effort and provide limited value to the Service's decision-making process, we provide only a qualitative discussion of these potential benefits.

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Comment:

One commenter stated that the DEA underestimates the potential impacts in Unit 11 (Monument Creek), El Paso County, by excluding from analysis the following types of parcels not likely to require a section 7 consultation: (1) Those parcels under county or government ownership; (2) those parcels occupied by existing buildings; and (3) those parcels under 100 ac (40 ha) in area. Further, the commenter stated that this assumption is inconsistent with other conclusions reached by the DEA, where: (1) The costs to small governmental jurisdictions are analyzed and estimated in the initial regulatory flexibility analysis (IRFA), (2) cost impacts to parcels occupied by existing buildings as a result of building maintenance activities are considered, and (3) parcels under 100 ac (40 ha) have undergone section 7 consultations for PMJM.

Our Response:

In section 3.6 of the DEA, the Service acknowledges that those parcels removed from further consideration could eventually be developed in such a way that would require a Federal permit or funding, resulting in a section 7 consultation and mitigation. However, the DEA focuses on estimating the potential economic impacts to new residential and commercial development on readily developable, private, and large open parcels of land. As evidenced by the Service's consultation history for the PMJM, such parcels are more likely to have a Federal nexus and undergo a section 7 consultation. As a result, parcels under government ownership were removed from further consideration. In Chapter 4 and Appendix A, the DEA estimates the impacts to governmental entities, including those that are small, and that are associated with other activities, namely road/bridge, utility, and bank stabilization construction and maintenance. These activities do not necessarily occur on parcels of land owned by the government.

With respect to maintenance activities at existing buildings, the Service's consultation history does not suggest such activity requires consultation for the PMJM. However, the Service recognizes that large parcels with existing buildings could eventually be redeveloped (e.g., large ranch parcels), and therefore these parcels were analyzed in Chapter 3 of the FEA. Finally, parcels under 100 ac (40 ha) in size were removed from further consideration in the analysis, because the smallest residential development project that required a formal section 7 consultation since 2003 was 173 units on a 107-ac parcel (Struthers Ranch). The Service's consultation record demonstrates that projects under 100 ac (40 ha) typically undergo informal section 7 consultations and technical assistance with the Service. In section 3.3.2, the DEA estimates the costs for these types of consultations.

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Comment:

One commenter indicated that the DEA underestimates the true economic impact of the proposed rule on the residential sector by not considering the impacts to the local, State, and national economy.

Our Response:

In section 3.5, the DEA estimates the regional economic impacts that may result from a potential reduction in residential home construction in Douglas and El Paso Counties due to the critical habitat designation. These regional impacts include estimates of the indirect (changes in output industries that supply goods and services to those directly affected), induced effects (changes in household consumption resulting from a change in employment), and job loss. To assess the potential impact of the proposed rule on the national economy, the FEA considers estimating the social welfare losses that result from changes in the price and quantity of available housing. However, such an analysis could not be conducted due to insufficient information to reliably model the markets for housing in areas affected by critical habitat. We assume these costs are in addition to the compliance costs incurred by developers or existing landowners or both.

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Comment:

One commenter indicated that the DEA does not include consultation costs for 15 road, bridge, utility, and bank stabilization projects that may not be covered by the existing Douglas County HCP. If these projects occur outside of the RCZ established by the HCP, the commenter indicated that they would incur these costs in full (estimated $60,000 to $150,000), rather than just the incremental costs estimated in the DEA.

Our Response:

As described in section 4 of the DEA, the projected number of road, bridge, utility, and bank stabilization projects potentially

impacted by the designation of critical habitat is based on estimates provided by the Colorado Department of Transportation and the consultation history provided by the Corps. Using this information, the DEA projects between approximately 21 and 24 formal consultations associated with these activities in Douglas County over the next 20 years. Because there was no available information that indicated specifically whether these projects would occur inside or outside the RCZ, the analysis calculates and applies unit-specific, area-based factors to estimate the probability that projects would occur outside the RCZ and within critical habitat, and would therefore require consultation as a result of the designation (see pages 2-15 through 2-17 of the DEA). For Douglas County, these factors are between 6 and 16 percent. Using this methodology, we estimate in the DEA that the total incremental consultation cost (undiscounted) for the 21 to 24 projects ranges between $119,000 and $135,000.

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Comment:

Douglas County commented that the DEA does not account for the costs to purchase additional mitigation lands in Douglas County to support their HCP. Mitigation beyond that already established by the Douglas County HCP may be required for activities that occur in critical habitat. These costs could be significantly higher because the mitigation land already banked under the HCP would be exhausted more rapidly, the banked mitigation lands are unevenly distributed across critical habitat units, and land must be purchased in large blocks to acquire a relatively small percentage of PMJM habitat.

Our Response:

As described in section 4.2.3 of the DEA, the estimated cost of mitigation ranges from $3,580 to $35,800 per ac. The Service believes this tenfold range in unit costs is likely sufficient to cover the costs of additional mitigation land purchases that may result from designation of critical habitat in Douglas County. Since we have adopted the RCZ developed for the Douglas County HCP as the outward extent of critical habitat, additional mitigation required for projects covered by the HCP is not likely to increase greatly in extent. Measures to offset impacts to critical habitat may be restricted to the same unit where impacts occur. Exhibit 3-13 of the DEA provides an assessment of the quantity of land available for mitigation within each unit.

(56)

Comment:

One commenter indicated that the DEA does not estimate a cost associated with the regulatory uncertainty created by the critical habitat label for the City of Greeley's proposed expansion at the Milton Seaman Reservoir.

Our Response:

Because of data limitations, as well as factors other than the designation of critical habitat (such as political, financial, and general environmental impacts) that will influence the outcome of the proposed expansion project at the Milton Seaman Reservoir, the costs associated with regulatory uncertainty attributable to the presence of the PMJM or its designated critical habitat are difficult to quantify. As described in section 5.3.3 of the DEA, a representative of the Corps suggested that the cost to the City of Greeley to pursue an offsite alternative to the preferred Milton Seaman Reservoir project may be as much as three to eight times higher than that of the expansion project that is currently contemplated. This range of increased costs was provided by the Corps, based on their rough estimate of the costs to develop water supply (on a per ac-ft basis) in the study area. It was not intended to be used to quantify the cost impacts of regulation uncertainty due to critical habitat designation, but rather to qualitatively characterize the relative costs of water supply development alternatives. However, we address this issue further in our FEA, and our discussion of the proposed Milton Seaman Reservoir in comment 24, above.

(57)

Comment:

One commenter indicated that the DEA did not calculate the economic impact to the proposed Penley Reservoir (Unit 9) in Douglas County.

Our Response:

The economic analysis focuses on an estimate of impacts to economic activities that are reasonably foreseeable. The DEA did not consider potential impacts to the Penley Reservoir because the project is in the very early stages of planning. Due to insufficient information about this project, and considerable uncertainty as to whether it will be constructed within the next 20 years, the FEA does not quantify the potential impacts to this project, but does acknowledge it as potentially affected by the designation.

(58)

Comment:

One commenter indicated that the DEA does not take into account the full range of activities required as part of the CERCLA and RCRA remedy for the DOE's COU on the Rocky Flats Site (Unit 6), Jefferson and Broomfield counties, and the costs to revise or develop a new programmatic biological assessment and an accompanying biological opinion.

Our Response:

The FEA includes an extended list of the ongoing maintenance and monitoring activities required as part of the CERCLA/RCRA remedy for the COU. Costs to the DOE to initiate one new programmatic consultation with the Service to cover all of these recurring remedial activities within critical habitat are estimated in section 7.2.1.

(59)

Comment:

One commenter indicated that the DEA should recognize that the management and operations of the COU and Rocky Flats NWR areas on the Rocky Flats Site are conducted by two different Federal agencies with different and distinct regulatory requirements and objectives.

Our Response:

In our FEA, we have revised section 7 to clarify and distinguish the respective management and operation of the two areas by the DOE Office of Legacy Management and the Service.

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Comment:

Some commenters questioned the adequacy of the draft environmental assessment. Commenters either suggested that analysis of a wider range of alternatives was required or suggested detailed analysis of a specific alternative. Suggested alternatives included designation as critical habitat on all habitat occupied by the PMJM, designation of critical habitat consistent with all recovery populations called for in the Draft Plan, and designation of lesser amounts of critical habitat than proposed in our action alternative.

Our Response:

Designation as critical habitat of all habitat occupied by the PMJM, and designation of critical habitat consistent with recovery populations called for in the Draft Plan, were alternatives considered but not fully evaluated in the draft environmental assessment. In the first case, based on the Draft Plan, our professional judgment, and the best science available, we determined that only a subset of all occupied habitat was required for conservation of the PMJM. As explained in our July 10, 2008, rule to specify over what portion of its range the PMJM is threatened (73 FR 39789), listing under the Act is largely based on widespread threats to PMJM's habitat from current and future human development. Current populations and distribution of PMJM are more than sufficient to maintain the species if threats are successfully addressed. Protecting all existing PMJM populations and their supporting habitat from development into the future is not required to conserve the species. In the second case, recovery populations specified in the Draft Plan do not necessarily equate to specific areas that meet the definition of critical habitat. For example, many proposed recovery populations were identified by HUC,

but not tied to a specific location. Recovery populations were also assigned to HUCs where the PMJM has not yet been verified as present. Insufficient information on PMJM presence and distribution is available to support designation of critical habitat in all HUCs addressed in the Draft Plan. See also our response to comments 10 and 11.

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Comment:

One commenter believed that the proposed action merits an environmental impact statement (EIS).

Our Response:

An EIS is required only in instances where a major Federal action is expected to have a significant impact on the human environment. Based on our draft environmental assessment, DEA, and the comments we received from the public, we prepared a final environmental assessment and determined that revised critical habitat for the PMJM does not constitute a major Federal action expected to have a significant impact on the human environment. That determination is documented in our Finding of No Significant Impact (FONSI). The final environmental assessment, FEA, and FONSI provide our rationale for our determination that this revised critical habitat designation will not have a significant impact on the human environment.

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Comment:

One commenter urged us to address an alternative consistent with the use of the Douglas County RCZ boundaries as the outward extent of designated critical habitat in our environmental assessment.

Our Response:

Our final environmental assessment addresses the RCZ boundaries as part of the preferred alternative. RCZ boundaries encompass slightly less area but more accurately define appropriate limits of critical habitat. The effects of using RCZ boundaries on three critical habitat units where such boundaries occur differ negligibly from effects of the action alternative in our draft environmental assessment.

(63)

Comment:

One commenter stated that under the NEPA cumulative impacts analysis, the Service should include effects from past permitted take of the PMJM.

Our Response:

Under NEPA, cumulative impacts are impacts to the environment that result from the incremental effects of the action in question when added to past, present, and reasonably foreseeable future actions. Designation of revised critical habitat does not result in take of the PMJM, so evaluation of past, present, and future take is not required in our environmental assessment. Section 7 consultations involving the PMJM and its critical habitat will evaluate past impact and future take during the consultation process.

Summary of Changes From the Proposed Rule

Our final designation of revised critical habitat for the PMJM results in a decrease of 7 mi (11 km) of rivers and streams and a decrease of 4,207 ac (1,702 ha) of land area from what we proposed in our October 8, 2009, proposed rule to revise the designation of critical habitat (74 FR 52066). The following changes account for the difference.

(1) The areas designated as critical habitat in Units 1, 5, 7, 9, 10, and 11 have changed from those areas proposed. We excluded portions of these units from the final designation of critical habitat, because we believe that the benefits of excluding these specific areas from the designation outweigh the benefits of including these areas. We have also concluded that the exclusion of these areas from the final designation of critical habitat will not result in the extinction of the PMJM. These exclusions are discussed in detail in the Exclusions section below.

(2) In Unit 9 in Douglas County, we have reduced the extent of designated critical habitat from that proposed on Bear Creek, a tributary to West Plum Creek. The upstream terminus of designated critical habitat is located at the base of the Waconda Lake Dam, because Waconda Lake and surrounding development present a barrier to PMJM movement along Bear Creek.

(3) We have determined that it is appropriate to use boundaries of the RCZ mapped by Douglas County for their HCP as the outward boundary of revised critical habitat in portions of Units 8, 9, and 10. See the Delineation of Critical Habitat Boundaries section below for a discussion of this change.

(4) Area totals within various units have been recalculated. Area totals described in the proposed rule for various units included slight inaccuracies, which resulted from the GIS methodology that counted overlapping stream segments twice. Therefore, the area within some units has decreased.

(5) We agreed to modify the outward boundaries of proposed critical habitat within Douglas County's mapped RCZ boundaries (see the Delineation of Critical Habitat Boundaries section), as the RCZ represents a site-specific mapping of PMJM habitat boundaries.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing activities that are likely to result in the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implement reasonable and prudent

alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas supporting the essential physical or biological features that provide essential life cycle needs of the species; that is, areas on which are found the physical or biological features laid out in the appropriate quantity and spatial arrangement for the conservation of the species. Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. Substantive comments we receive in response to proposed critical habitat designations are also considered.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat is designated at a particular point in time; with changes in the future, we may find that the designation no longer includes all of the habitat areas necessary for the recovery of the species to respond to these changes. For these reasons, a critical habitat designation does not signal habitat outside the designated area is unimportant or may not be required for recovery of the species.

Areas that support occurrences, but are outside the critical habitat designation, will continue to be subject to conservation actions we and other Federal agencies implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Climate Change

According to the Intergovernmental Panel on Climate Change (IPCC), “Warming of the climate system in recent decades is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global sea level” (IPCC 2007, p. 1). Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy and Hannah 2005, pp. 325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening aspect of climate change for biodiversity (Hannah

et al.

2005, p. 4).

For the southwestern region of the United States, which includes Colorado, warming is occurring more rapidly than elsewhere in the country (Karl

et al.

2009, p. 129). In Colorado, Statewide temperatures have increased 2 °F (3.6 °C) over the past 30 years, but high variability in annual precipitation precludes the detection of long-term trends (Ray

et al.

2008, p. 5).

While there is uncertainty about the exact nature and severity of climate change-related impacts anticipated within the Colorado range of the PMJM, a trend of climate change in the mountains of western North America is expected to decrease snowpack, hasten spring runoff, and reduce summer flows (IPCC 2007, p. 11). This could impact the PMJM habitat in a variety of direct and indirect ways. With increases in temperature, species' ranges are likely to move higher in elevation and northward (Karl

et al.

2009, p. 132). Changes could cause a greater PMJM dependence on higher elevation, cooler, and potentially moister areas for survival in Colorado. The highest elevation at which the PMJM has been documented in Colorado is approximately 7,600 ft (2,317 m) (Service 2010). The preponderance of lands near to or higher than this elevation in the Colorado Front Range are in Federal ownership and are likely subject to fewer threats from human development than non-Federal lands. These Federal lands may serve as an important refuge should PMJM populations shift higher into the mountains.

Changes in stream flow intensity and timing may affect riparian habitats on which the PMJM depends. For example, earlier runoff could impact the smaller high-elevation streams within the upper reaches of drainages, which are maintained primarily by melted snow. Reduced or no flow during summer and fall could make these streams less hospitable to the PMJM and limit their seasonal use. Changes in timing and amount of runoff may also influence human diversion, storage, and conveyance of water (Ray

et al.

2008, p. 41), which in turn could impact riparian habitats required by the PMJM.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12(b), in determining which areas occupied at the time of listing to designate as critical habitat, we consider

the physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection. These features are the primary constituent elements (PCEs), laid out in the appropriate quantity and spatial arrangement for conservation of the species. In general, physical and biological factors include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.

We derive the PCEs required for the PMJM from its biological needs. The areas included in this revised critical habitat designation for the species contain the essential features to fulfill the species life-history requirements. The PCEs and the resulting physical and biological features essential to the conservation of the PMJM are derived from studies of this species' habitat, ecology, and life history as described in our proposed rule to revise the designation of critical habitat for the PMJM, published in the

Federal Register

October 8, 2009 (74 FR 52066).

All units designated as critical habitat for the PMJM are currently believed to be occupied, are within the geographical area occupied by the species at the time of listing, and contain sufficient PCEs to support one or more life-history functions. Individual stream reaches within each unit contain at least one of the PCEs, and are either believed to be occupied by the PMJM, or provide crucial opportunities for connectivity to facilitate dispersal and genetic exchange within the unit.

Based on our current knowledge of the life history, biology, and ecology of the PMJM, and the requirements of the habitat to sustain the essential life-history functions of the species, we have determined that the PCEs specific to the PMJM are:

(1) Riparian corridors:

(A) Formed and maintained by normal, dynamic, geomorphological, and hydrological processes that create and maintain river and stream channels, floodplains, and floodplain benches and that promote patterns of vegetation favorable to the PMJM;

(B) Containing dense, riparian vegetation consisting of grasses, forbs, or shrubs, or any combination thereof, in areas along rivers and streams that normally provide open water through the PMJM's active season; and

(C) Including specific movement corridors that provide connectivity between and within populations. This may include river and stream reaches with minimal vegetative cover or that are armored for erosion control; travel ways beneath bridges, through culverts, along canals and ditches; and other areas that have experienced substantial human alteration or disturbance.

(2) Additional adjacent floodplain and upland habitat with limited human disturbance (including hayed fields, grazed pasture, other agricultural lands that are not plowed or disked regularly, areas that have been restored after past aggregate extraction, areas supporting recreational trails, and urban-wildland interfaces).

Existing human-created features and structures within the boundaries of the mapped units, such as buildings, roads, parking lots, other paved areas, manicured lawns, other urban and suburban landscaped areas, regularly plowed or disked agricultural areas, and other features not containing any of the PCEs that support the PMJM, are not considered critical habitat.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the occupied areas contain the physical and biological features that are essential to the conservation of the species, and whether these features may require special management considerations or protection. Special management considerations or protection means any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species. The areas we are designating as revised critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the PMJM, and to ensure the recovery of the species. In all units, special management considerations or protection of the essential features may be required to provide for the sustained function of the riparian corridors on which the PMJM depends.

The PMJM is closely associated with riparian ecosystems that are relatively narrow and represent a small percentage of the landscape. Our July 10, 2008, final rule for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789) concluded that the decline in the extent and quality of PMJM habitat is the main factor that threatens the subspecies. Special management considerations and protection may be required to address the threats of habitat alteration, degradation, loss, and fragmentation that results from urban development, flood control, water development, agriculture, and other human land uses that adversely impact PMJM populations. Habitat destruction may affect the PMJM directly or by destroying nest sites, food resources, and hibernation sites; by disrupting behavior; or by forming a barrier to movement.

Criteria Used To Identify Critical Habitat

As required by section 4(b) of the Act, we used the best scientific and commercial data available to designate critical habitat. We are designating critical habitat in specific areas that include river and stream reaches, and their adjacent floodplains and uplands, that are within the known geographic and elevational range of the PMJM in the SPR in Colorado where it is listed and that contain the features essential to the conservation of the PMJM. All areas included in critical habitat contain at least one of the PCEs, and are currently occupied by the PMJM or provide crucial opportunities for connectivity to facilitate dispersal and genetic exchange.

Our critical habitat designation identifies the appropriate quantity and spatial arrangement of the requisite PCEs that we have determined to be essential to the conservation of the subspecies. We determined that there are more areas currently occupied by the PMJM than are necessary to conserve the subspecies within the SPR in Colorado. We base this on the known occurrence and distribution of the PMJM (Service 2010) and upon the conservation strategy in the Draft Plan, which indicates that when specified criteria are met for a subset of existing populations throughout the range of the PMJM, the subspecies can be delisted (Service 2003a, p. 19). To recover the PMJM to the point where it can be delisted, the Draft Plan identifies the need for a specified number, size, and distribution of wild, self-sustaining PMJM populations. On the basis of the above described criteria, we have chosen a subset of the areas occupied by the PMJM within the SPR in Colorado that have the physical and biological features essential to the PMJM for inclusion in critical habitat.

We only consider including unoccupied areas within critical habitat designations if they are essential to the conservation of the species, and we determine that we cannot conserve the species by only including occupied areas in the critical habitat. Because we have determined that the conservation of the PMJM can be achieved through the designation of currently occupied lands, we find that no unoccupied areas are essential at this time. The subspecies was listed primarily due to the threat of impending development to the existing remaining habitat for the species within the Front Range of Colorado. We have determined that recovery of the subspecies can be achieved by protecting a subset of the currently occupied habitat from the threat of development. Recolonization of former parts of the range, while beneficial to the subspecies, is not currently believed to be necessary to conserve the PMJM in the long term.

When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PCEs for the PMJM. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the PCEs in the adjacent critical habitat.

Available Information

Our June 23, 2003, final rule designating critical habitat for the PMJM (68 FR 37275) cited the March 11, 2003, Working Draft of a Recovery Plan for the PMJM, and the concepts described within (PMJM Recovery Team 2003), as a source of the best scientific and commercial data available on the PMJM. For designating revised critical habitat, we relied heavily on the information, concepts, and conservation recommendations contained in the Working Draft and the slightly modified Draft Plan (Service 2003a), as well as the current efforts of the recently formed Recovery Team. We used these as a starting point for identifying those areas for inclusion in critical habitat that contain the requisite PCEs in the appropriate quantity and spatial arrangement that are essential for the conservation of the PMJM. The Draft Plan is based on the work of scientists and stakeholders who met regularly over a period of more than 3 years. The plan was developed by incorporating principles of conservation biology and all available knowledge regarding the PMJM. Recovery Team meetings were open to the public, and drafts of the plan were discussed in public meetings held in Colorado and Wyoming. We forwarded a draft of the Draft Plan to species experts for review, and their comments (Armstrong 2003, pers. comm.; Hafner 2003, pers. comm.) were considered prior to the Draft Plan being made available on the Service Web site.

We also have incorporated all new information received since 2003, including:

• Data in reports submitted by researchers holding recovery permits under section 10(a)(1)(A) of the Act;

• Research published in peer-reviewed articles and presented in academic theses, agency reports, and unpublished data; and

• Various Geographic Information System (GIS) data layers and cover type information, including land ownership information, topographic information, locations of the PMJM obtained from radio-collars, and locations of the PMJM confirmed to the species level via deoxyribonucleic acid (DNA) analysis, morphological analysis, and other verified records.

We also received information from Federal, State, and local governmental agencies, and from academia and private organizations that have collected scientific data on the PMJM.

The Draft Plan identifies specific criteria for reaching recovery and the delisting of the PMJM. An important change since our 2003 designation of critical habitat was the 2008 final rule limiting the listing of the PMJM to the SPR in Colorado. The Draft Plan identified areas as necessary for recovery throughout the range of the PMJM, including areas in Wyoming where the PMJM was listed at the time. Identified areas within the SPR in Colorado were based on the best available information and continue to reflect our best judgment of what we believe to be necessary for recovery. While elements of the Draft Plan may change prior to finalization of a recovery plan, our review of the Draft Plan and the ongoing Recovery Team review leads us to conclude that the concepts described within it continue to represent the best scientific and commercial data available regarding steps needed for the recovery of the PMJM.

The Draft Plan provides a review of conservation biology theory regarding population viability (Service 2003a, p. 21). To recover the PMJM to the point where it can be delisted, the Draft Plan identifies the need for a specified number, size, and distribution of wild, self-sustaining PMJM populations across the known range of the PMJM. It defines large populations as maintaining 2,500 mice, and usually including at least 50 mi (80 km) of rivers and streams. It defines medium populations as maintaining 500 mice, and usually including at least 10 mi (16 km) of rivers and streams. The average number of PMJM per stream mile was derived from site-specific studies and used to approximate minimum occupied stream miles required to support recovery populations of appropriate size (Service 2003a, p. 21).

The distribution of these recovery populations is intended both to reduce the risk of multiple PMJM populations being negatively affected by natural or manmade events at any one time, and to preserve the existing genetic variation within the PMJM. The Draft Plan states, “species well-distributed across their historical range are less susceptible to extinction and more likely to reach recovery than species confined to a small portion of their range.” The document also states that “spreading the recovery populations across hydrologic units throughout the range of the subspecies also preserves the greatest amount of the remaining genetic variation, and may provide some genetic security to the range-wide population” (Service 2003a, p. 20). The Draft Plan emphasizes the value of retaining disjunct or peripheral populations that may be important to recovery (Lomolino and Channell 1995, p. 481) and may have diverged genetically from more central populations due to isolation, genetic drift, and adaptation to local environments (Lesica and Allendorf 1995, pp. 754-755).

While the Draft Plan addresses the entire range of the PMJM, the SPR in Colorado where the PMJM remains listed includes multiple subdrainages that are addressed individually in the Draft Plan (Figure 1). Within Colorado, the Draft Plan identifies recovery criteria for the two major river drainages where the PMJM occurs (the South Platte River drainage and the Arkansas River drainage), and for each subdrainage judged likely to support the PMJM. In some cases, the Draft Plan identifies recovery criteria for subdrainages where limited trapping has not confirmed the presence of the PMJM. Boundaries of drainages and subdrainages have been mapped by the

USGS. For the Draft Plan, 8-digit hydrologic unit boundaries were selected to define subdrainages. A total of 13 HUCs in the SPR of PMJM in Colorado are identified in the Plan as occupied or potentially occupied by the PMJM. Ten are identified in the South Platte River drainage and three in the Arkansas River drainage.

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One issue raised by the Recovery Team was whether the conservation strategy that specified the number, size, and distribution of PMJM recovery populations in Colorado remained valid despite the 2008 removal of the Wyoming portion of PMJM's range from listing. In Colorado, the strategy has been to establish at least three large populations and three medium populations spread over six subdrainages. Recovery of the PMJM would require these populations to be protected from threats. Additionally, the Plan suggests establishing at least three small populations or one medium population in seven other subdrainages, if the PMJM is present. Another issue

raised was whether the strategy required modification based on DNA testing that revealed that the PMJM in northern and southern areas of the subspecies' range (Wyoming and Larimer County in Colorado vs. Douglas and El Paso Counties in Colorado) exhibited significant genetic differences (King

et al.

2006, pp. 4337-4338). The Recovery Team concluded (Jackson 2009, pers. comm.) that the 2003 conservation strategy adequately addresses recovery across the PMJM's range in Colorado, and would maintain the genetic diversity reported by King

et al.

(2006).

Biological Factors

Presence of the PMJM was determined based largely on the results of trapping surveys, the vast majority of which were conducted in the 12 years since listing the PMJM under the Act. Consistent with our July 10, 2008, final rule to amend the listing for the PMJM (73 FR 39789), subdrainages judged to be occupied by the PMJM in Colorado include those that: (1) Have recently been documented to support jumping mice identified by genetic or morphological examination as the PMJM; or (2) have recently been documented to support jumping mice not identified to the species level, but occurring at elevations below 6,700 ft (2,050 m), where western jumping mice have infrequently been documented. In our July 17, 2002, proposal (67 FR 47154) and our June 23, 2003, designation of critical habitat (68 FR 37275), we summarized trapping results and means of positive identification for each unit. See our 2003 rule designating critical habitat and our 2008 final rule to amend the listing for the PMJM for more information on our determinations regarding presence of the PMJM in various subdrainages.

Boundaries of some critical habitat units extend beyond capture locations to include those reaches that we believe to be occupied by the PMJM, based on the best scientific data available regarding capture sites, the known mobility of the PMJM, and the quality and continuity of habitat components along stream reaches. Where appropriate, we include details on the known status of the PMJM within specific subdrainages in the “Revised Critical Habitat Designation” section of this rule.

Despite numerous surveys, the PMJM has not been found in the Denver metropolitan area since well before its 1998 listing, and is believed to be extirpated from much of the Front Range urban corridor as a result of extensive urban development. The area does not support the spatial arrangement and quantity of requisite PCEs to support PMJM populations, and, as a consequence, we have determined that this area does not contain the features essential to the conservation of the species.

Additional Factors Considered

Based on the Draft Plan, we believe that we can achieve conservation of the PMJM with only a subset of areas currently occupied or containing essential features. To identify the specific subset of areas for inclusion in critical habitat, we considered several qualitative criteria in addition to the presence of the PCEs. These criteria were used to judge the current status, conservation needs, and probable persistence of the essential features of PMJM populations in specific areas, and included: (1) The quality, continuity, and extent of habitat components present; (2) the presence of lands devoted to conservation (either public lands such as parks, wildlife management areas, and dedicated open space, or private lands under conservation easements); and (3) the landscape context of the site, including the overall degree of current human disturbance and presence, and likelihood of future development based on local planning and zoning.

Where specific areas met the definition of critical habitat under section 3 of the Act (within the geographical area occupied by the species and containing features essential to the conservation of the species which may require special management considerations or protection) and other criteria were comparable, we evaluated land ownership as a selection criterion for inclusion in critical habitat. Consistent with the Draft Plan (Service 2003, p. 52), we first selected Federal lands where effective land management strategies can be employed by Federal agencies to conserve PMJM populations. Federal agencies already have an affirmative conservation mandate under the Act to contribute to the conservation of listed species. Therefore, we determined that federally owned lands are more likely to meet the requirements for recovery of the species than private lands that are not subject to the Act's affirmative conservation mandate. However, we cannot depend solely on federally owned lands for critical habitat, as these lands are limited in geographic location, size, and habitat quality within the SPR in Colorado where the PMJM is listed. In addition to the federally owned lands, we included some non-Federal public lands, including lands owned by the State of Colorado or by local governments, and some privately owned lands.

This revised designation of critical habitat in Colorado consists of 11 units, 6 of which are designed to support three large and three medium PMJM recovery populations, corresponding to those designated in the Draft Plan. While the Draft Plan designates the approximate location of these large and medium recovery populations, it does not delineate specific boundaries.

In addition, the Draft Plan establishes a goal of three small recovery populations (including at least 3 mi (5 km) of rivers or streams) or one medium recovery population in seven other HUCs within the PMJM's range in Colorado. The Draft Plan does not identify the locations of recovery populations within these remaining seven HUCs. It also provides an exception to the above goal; no recovery populations are required in those HUCs that, when adequately surveyed, are found to have no PMJM populations. In some HUCs, presence of the PMJM has not been confirmed and the quality, continuity, and extent of physical and biological features essential to the PMJM appear lacking. In others, insufficient surveys have been conducted to establish distribution of PMJM populations or to determine where recovery populations should be located. Due to insufficient information, we are unable to designate critical habitat units corresponding to Draft Plan requirements in all of these remaining seven HUCs.

The Draft Plan anticipates that, in the future, the locations of these remaining recovery populations will be designated and specific boundaries of all recovery populations (large, medium, and small) will be delineated by State and local governments, and other interested parties, working in coordination with the Service. In contrast to the Draft Plan, this revised designation of critical habitat required delineation of specific boundaries for all critical habitat areas in order to meet the requirements of the Act and our implementing regulations. As a result, any future recovery plan developed for the PMJM may designate recovery populations or delineate their boundaries in a manner inconsistent with the critical habitat units we are designating. This may occur if future information changes our understanding of the occurrence and distribution of PMJM populations.

In some HUCs identified in the Draft Plan, little is known regarding the status of the PMJM. For example, PMJM has not been confirmed to occur in the Crow Creek, Lone Tree, and Bijou HUCs within the South Platte River drainage

in Colorado or in the Big Sandy HUC in the Arkansas River drainage. If the PMJM is not present, designation of recovery populations in these HUCs may not be necessary, and these HUCs may be deleted from any future recovery plan. We do not believe that these areas contain features that are essential to the conservation of the species, so we are not designating critical habitat within these four HUCs.

The conservation strategy employed in the Draft Plan emphasizes the importance of protecting additional PMJM populations beyond those designated as recovery populations, to provide insurance for the PMJM in the event that designated recovery populations cannot be effectively managed or protected as envisioned or in the event that populations are decimated by rare but uncontrollable events, such as catastrophic fires or flooding. The Plan recommends directing recovery efforts toward public lands, rather than private lands, where possible, and calls upon all Federal agencies to protect and manage for the PMJM wherever it occurs on Federal lands. However, Federal lands alone cannot fully provide for the conservation of the species. Therefore, we included non-Federal lands when we found those lands contained the PCEs in the appropriate quantity and spatial arrangement to provide the physical and biological features essential to the conservation of the species.

We believe that the designation of areas of critical habitat outside of those areas identified for recovery populations, on both non-Federal and additional Federal lands, is essential for the conservation of the PMJM. Should unforeseen events cause the continued decline of PMJM populations throughout the SPR in Colorado, PMJM populations and the PCEs on which they depend are more likely to persist and remain viable on Federal lands, where consistent and effective land management strategies can be more easily employed. These additional PMJM populations on Federal lands could serve as substitute recovery populations should designated recovery populations decline or fail to meet recovery goals. In addition, some PMJM populations on Federal lands have been the subject of ongoing research that could prove vital to the conservation of the PMJM. Therefore, in addition to designating critical habitat for sites consistent with those listed in the Draft Plan, we reviewed other sites of PMJM occurrence, especially Federal lands, and are designating certain additional units as critical habitat that include the requisite PCEs and are known to support the PMJM.

Based on this conservation strategy, we are designating critical habitat preferentially on certain Federal lands that support required PCEs in the appropriate spatial arrangement and quantity and are occupied by the PMJM, where Federal property extends along stream reaches at least 3 mi (5 km). This length corresponds to the minimum size of small recovery populations as defined by the Draft Plan. These areas of critical habitat may include intervening non-Federal lands, that in some cases support all PCEs needed by the PMJM or, if fragmented by human development, contain at least one of the PCEs and are at least likely to provide connectivity between areas of PMJM habitat on adjacent Federal lands.

Delineation of Critical Habitat Boundaries

We are designating revised critical habitat for the PMJM based on the interpretation of multiple sources used during our June 23, 2003, designation of critical habitat (68 FR 37275); new information developed in the preparation of our October 8, 2009, proposed rule (74 FR 52066); and information we received in response to our request for public comments on our October 8, 2009, proposed rule (74 FR 52066) and our May 27, 2010, publication (75 FR 29700). For this rule, we used GIS-based mapping using ESRI ArcGIS software incorporating USGS National Hydrography Dataset streams along with stream order (by Strahler code), Colorado Department of Transportation roads, U.S. Census Bureau cities, USGS topographic maps, 2005 Farm Service Agency, National Agricultural Inventory Program 1m color imagery, and the COMaP dataset (Theobald

et al.

2008). We divided lands we are designating as critical habitat into specific mapping units, i.e., critical habitat units, often corresponding to individual HUCs. For the purposes of this rule, these units are described primarily by latitude and longitude, and by Public Land Survey, Township, Section, and Range, to mark the upstream and the downstream extent of critical habitat along rivers and streams.

As in 2003, we were faced with making a decision concerning the outward extent of critical habitat into uplands. Studies suggest that the PMJM uses uplands at least as far out as 328 ft (100 m) beyond the 100-year floodplain (Shenk and Sivert 1999a, p. 11; Ryon 1999, p. 12; Schorr 2001, p. 14; Shenk 2004; Service 2003a, p. 26). Apparent hibernacula (wintering chambers) have been documented outward to 335 ft (102 m) of a perennial stream bed or intermittent tributary (Ruggles

et al.

2003, p. 19). We have typically described potential PMJM habitat as extending outward 300 ft (90 m) from the 100-year floodplain of rivers and streams (Service 2004a, p. 5). The Draft Plan (Service 2003a, p. 26) defines PMJM habitat as the 100-year floodplain plus 328 ft (100 m) outward on both sides, but allows for alternative delineations that provide for all the needs of the PMJM and include the alluvial floodplain, transition slopes, and appropriate upland habitat.

To allow normal behavior and to ensure that the PMJM and the PCEs on which it depends are protected, we believe that the outward extent of critical habitat should at least approximate the outward distances described above in relation to the 100-year floodplain. Unfortunately, floodplains have not been mapped for many streams within the PMJM's range. Where floodplain mapping is available, we have found that it may include local inaccuracies. While alternative delineation of critical habitat based on geomorphology and existing vegetation could accurately portray the presence and extent of required habitat components, we lack an explicit data layer that could support such a delineation of critical habitat.

In 2003, we also considered determining the outward extent of critical habitat based on a distance outward from features such as the stream edge, associated wetlands, or riparian areas. We judged wetlands an inconsistent indicator of habitat extent and found no consistent source of riparian mapping available across the SPR of Colorado where the PMJM is listed. We also considered using an outward extent of critical habitat established by a vertical distance above the elevation of the river or stream to approximate the floodplain and adjacent uplands likely to be used by the PMJM. This proved unacceptable over the diverse topography that surrounds stream reaches occupied by the PMJM.

For this revised designation, we generally maintain consistency with our 2003 designation of critical habitat in delineating the upland extent of critical habitat boundaries as a set distance outward from the river or stream edge (as defined by the ordinary high water mark) varying with the size (order) of a river or stream. We compared known floodplain widths to stream order over a series of sites and approximated average floodplain width for various orders of streams. To that average we added 328 ft (100 m) outward on each

side. For example, this analysis determined the average floodplain for streams of order 1 and 2 (the smallest streams) is approximately 33 ft (10 m). Based on this calculation, for streams of order 1 and 2, we are designating critical habitat as 361 ft (110 m) outward from the stream edge; for streams of order 3 and 4, we are designating critical habitat as 394 ft (120 m) outward from the stream edge; and for stream orders 5 and above (the largest streams and rivers), we are designating critical habitat as 459 ft (140 m) outward from the stream edge. In each case we are approximating average floodplain width plus 328 ft (100 m). While critical habitat will not extend outward to all areas used by individual mice over time, we believe that these corridors of critical habitat ranging from 722 ft (220 m) to 918 ft (280 m) in width (plus the river or stream width) will support the full range of PCEs essential for conservation of PMJM populations in these reaches, and should help protect the PMJM and its habitat from secondary impacts of nearby disturbance.

Following both our July 17, 2002, proposal of critical habitat (67 FR 47154), and our October 8, 2009, proposal to revise critical habitat (74 FR 52066), we received comments regarding the appropriate outward limits of critical habitat and means of establishing them. Most comments suggested one of two alternative methods: (1) Site-specific mapping of critical habitat for each reach; or (2) one outward limit for all rivers and streams. We determined that the first alternative was not feasible with the resources available to us, and that the second alternative less accurately reflected limits of habitat than the methodology employed above.

An exception is our delineation of the outward boundary of designated critical habitat in those portions of Units 8, 9, and 10, where a Riparian Conservation Zone has been mapped in conjunction with development of the Douglas County HCP and delineates the limits of PMJM habitat. The RCZ depicts known or potential PMJM habitat over 283 stream mi (456 km) and over 18,000 ac (7,000 ha) in Douglas County. Mapping of the RCZ relied on geomorphology and existing vegetation to assess presence and extent of required habitat components (i.e., those physical and biological features essential for the conservation of the PMJM). It followed the alternative habitat delineation suggested in the Draft Plan (Service 2003a), and provides for the needs of the PMJM by including the alluvial floodplain, transition slopes, and appropriate upland habitat along stream reaches. When we approved the Douglas County HCP, we reviewed the methodology and concluded that the RCZ reflected the best information available for establishing the limits of PMJM habitat.

Beyond the conclusion that the RCZ boundary provides a more accurate depiction of the appropriate boundary of critical habitat than what we proposed, we also considered the potential confusion that designation of critical habitat that differs from the established RCZ boundary might cause. The RCZ has been widely publicized in Douglas County and is used as a guide to help avoid impacts to PMJM and its habitat. Establishing critical habitat through standard setbacks from streams would have created a confusing pattern of dual lines that depict PMJM habitat limits. For these reasons we are designating the outward boundary of critical habitat on non-Federal lands in Units 8, 9, and 10 to correspond to the boundaries set by the RCZ, where the RCZ is present. In some instances this increases the width of critical habitat designated; in others it decreases the width. Overall, it results in a decrease in critical habitat than that which would otherwise have been designated, but it more accurately reflects on-site habitat conditions. On Federal properties designated as revised critical habitat in Douglas County, and on a very few non-Federal properties not included in the RCZ, outward boundaries of critical habitat units include standard distances from streams based on stream order.

Revised Critical Habitat Designation

We are designating 11 units that total approximately 411 mi (662 km) of rivers and streams and 34,935 ac (14,138 ha) of lands in Colorado, including land under Federal, State, local government, and private ownership. No lands designated as critical habitat are under tribal ownership. The areas we describe below constitute our best assessment at this time of areas that meet the definition of critical habitat for the PMJM. The units are those areas that are most likely to substantially contribute to conservation of the PMJM, will contribute to the long-term survival and recovery of the species, and require special management considerations or protection. These units, in many cases, correspond to the same geographic area of the units in Colorado delineated in the 2003 designation. However, there are multiple revisions and unit additions. This designation of revised critical habitat replaces the former critical habitat designation for the PMJM in 50 CFR 17.95(a).

Table 1 shows each unit, approximate area, and land ownership. Estimates reflect the total river or stream length and area of lands within critical habitat unit boundaries. Limited areas within these boundaries may not include any of the requisite PCEs. Any such developed areas or other areas not supporting any of the requisite PCEs are excluded by text of this rule, and the total area we are designating may, therefore, be less than what is indicated in Table 1.

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Lands that we are designating as revised critical habitat are divided into 11 critical habitat units that contain all of the PCEs necessary to meet the essential biological needs of the PMJM throughout the SPR in Colorado, where PMJM is listed.

We present a brief description of each unit, and reasons why it meets the definition of critical habitat for the PMJM, below. The units are generally based on geographically distinct river drainages and subdrainages (HUCs). These units have been subject to, or are threatened by, varying degrees of degradation from human use and development. For these reasons, the essential features within each of the specific areas we are designating as critical habitat may require special management considerations or protection. Management may include measures in addition to those that may already be in place to preserve such areas to avoid, reduce, or offset human-induced and natural impacts, and to restore such areas following unavoidable adverse impacts, including fire and flooding.

South Platte River Drainage—North of Denver

Unit 1: North Fork of the Cache la Poudre River, Larimer County

Unit 1 encompasses approximately 8,365 ac (3,385 ha) on 87 mi (140 km) of streams within the North Fork of the Cache la Poudre River HUC. We are designating critical habitat along the lower portions of the North Fork of the Cache la Poudre River and its tributaries, to provide for the large recovery population specified in the Draft Plan. The unit includes the North Fork of the Cache la Poudre River from the Milton Seaman Reservoir upstream to the Halligan Reservoir. Major tributaries within the unit include Stonewall Creek, Rabbit Creek (including its North Fork, Middle Fork, and South Fork), and Lone Pine Creek. The Eagle's Nest Open Space area, proposed as critical habitat within Unit 1, has been excluded from this critical habitat designation (see the Exclusions section below). Much of the unit is covered by the 2006 Livermore Area HCP (Service 2006b). The HCP covers certain incidental take of the PMJM related to ongoing agriculture and compatible activities, and conservation and stewardship activities in the Livermore area. However, the HCP does not address take resulting from most development.

The unit includes both public and private lands. It includes portions of the Arapaho-Roosevelt National Forest, as well as Lone Pine State Wildlife Area. In the Cache la Poudre HUC, stream reaches that contain requisite PCEs are widespread. The area remains largely rural and agricultural with habitat components likely to support relatively high densities of the PMJM.

Pressure for residential development is increasing within the area. Management of livestock grazing in the unit is often, but not in all cases, compatible with maintenance of quality PMJM habitat. Proposed reservoir projects and associated water management may impact portions of this unit but may also present conservation opportunities. Based on these and other threats, special management considerations and protection are needed. This unit is essential to the conservation of the PMJM because it contains habitat essential to a population of the PMJM that supports the conservation principles of redundancy and resiliency throughout the SPR in Colorado where the PMJM is listed.

Unit 2: Cache la Poudre River, Larimer County

Unit 2 encompasses approximately 4,929 ac (1,995 ha) on 51 mi (82 km) of streams within the Cache la Poudre River watershed. This unit is within the Cache la Poudre HUC and south of Unit 1. It includes the Cache la Poudre River from Poudre Park upstream to the 7,600 ft (2,317 m) elevation below Rustic. Major tributaries within the unit include Hewlett Gulch, Young Gulch, Skin Gulch, Poverty Gulch, Elkhorn Creek, Pendergrass Creek, and Bennett Creek. The unit is primarily composed of Federal lands of the Arapaho-Roosevelt National Forest, including portions of the Cache la Poudre Wilderness, but includes limited non-Federal lands as well. The unit supports the appropriate spatial arrangement of the requisite PCEs to ensure the conservation of the PMJM. Since this unit is located in the same Cache la Poudre HUC as Unit 1, it is unlikely to serve as an initial recovery population. However, it encompasses a significant area of habitat likely to support a sizeable population of the PMJM. Due to Federal ownership, residential or commercial development pressure is minimal; however, the area is subject to substantial recreational use (rafting, kayaking, fishing) in the Cache la Poudre River corridor. Non-Federal lands include existing development that may limit the habitat components present. Such reaches may serve the PMJM mostly as connectors between areas that contain all of the necessary PCEs. Maintenance of connectivity for PMJM movement through such areas is important. Based on these and other threats, special management considerations and protection are needed. This unit is essential to the conservation of the PMJM because it contains habitat essential to a population of the subspecies that supports the conservation principles of redundancy and resiliency throughout the SPR in Colorado where the PMJM is listed.

Unit 3: Buckhorn Creek, Larimer County

Unit 3 encompasses approximately 3,912 ac (1,583 ha) on 45 mi (73 km) of streams within the Buckhorn Creek watershed. It includes Buckhorn Creek from just west of Masonville, upstream to the 7,600-ft (2,317-m) elevation. Major tributaries within the unit include Little Bear Gulch, Bear Gulch, Stringtown Gulch, Fish Creek, and Stove Prairie Creek. The unit is located in the Big Thompson HUC, and we are designating it as critical habitat to address the medium recovery population called for this area in the Draft Plan (Service 2003a). The unit includes both public lands, mostly on portions of the Arapaho-Roosevelt National Forest, and private lands. Requisite PCEs are present. Pressure for expanded rural development exists on non-Federal lands within the unit while recreational use is centered on public lands. Based on these and other development pressures, special management considerations and protection are needed. This unit is essential to the conservation of the PMJM because it contains habitat essential to a population of the subspecies that supports the conservation principles of redundancy and resiliency throughout the SPR in Colorado where the PMJM is listed.

Unit 4: Cedar Creek, Larimer County

Unit 4 encompasses approximately 641 ac (259 ha) on 8 mi (12 km) of streams within the Cedar Creek watershed, including Dry Creek and Jug Gulch. Cedar Creek is a tributary of the Big Thompson River and enters the Big Thompson River at Cedar Cove. The unit is centered on Federal lands of the Arapaho-Roosevelt National Forest, but includes some stream reaches on non-Federal lands. This unit is located in the Big Thompson HUC and, while unlikely to serve as an initial recovery population, it supports a population on mostly Federal lands of the upper Big Thompson River. Requisite PCEs are present, but the unit is isolated, at least in terms of riparian connection, from the PMJM population on nearby Buckhorn Creek drainage (Unit 3) to the north. This site is upstream of The Narrows of the Big Thompson Canyon, a barrier to PMJM movement, while the confluence of the Big Thompson River and Buckhorn Creek is downstream from The Narrows. However, the close proximity of the headwaters of Jug Gulch within this unit to the headwaters

of Bear Gulch within the Buckhorn Creek critical habitat unit suggests that some PMJM may pass between the two populations and thus between the two significant watersheds within this HUC. Non-Federal lands within this unit support existing development and will likely experience continued residential development pressure. Therefore, special management considerations and protection are needed. This unit is essential to the conservation of the PMJM because it contains habitat essential to a population of the subspecies that supports the conservation principles of redundancy and resiliency throughout the SPR in Colorado where the PMJM is listed.

Unit 5: South Boulder Creek, Boulder County

Unit 5 encompasses approximately 798 ac (323 ha) on 8 mi (12 km) of streams within the South Boulder Creek watershed. It includes South Boulder Creek from Baseline Road upstream to Eldorado Springs, and includes the Spring Brook tributary. Denver Water lands proposed as critical habitat within Unit 5 have been excluded from this critical habitat designation (see the Exclusions section). The unit includes both public and private lands. It includes substantial lands owned by the City of Boulder Open Space and Mountain Parks.

This unit is located in the St. Vrain HUC, and we are designating it as critical habitat to address the medium recovery population designated for this area in the Draft Plan (Service 2003a). Requisite PCEs are present, and portions of the area have been the subject of PMJM research funded by the City of Boulder. At some sites high densities of the PMJM have been documented (Meaney et al. 2003, pp. 616-617). A wide floodplain, complex ditch system, and the irrigation of pastures make habitat within the lower portions of this unit unique. Pressure for expanded development is occurring on the limited private, undeveloped land within the unit. Recreational use of the City of Boulder lands is considerable and could adversely impact the PMJM if not properly managed. Based on these and other threats, special management considerations and protection are needed. This unit is essential to the conservation of the PMJM because it contains habitat essential to a population of the subspecies that supports the conservation principles of redundancy and resiliency throughout the SPR in Colorado where the PMJM is listed.

Unit 6: Rocky Flats Site, Jefferson, Boulder, and Broomfield Counties

Unit 6 encompasses approximately 1,108 ac (448 ha) on 12 mi (20 km) of streams, and includes the Rock Creek Subunit, Woman Creek Subunit, and Walnut Creek Subunit. Greater than 99 percent of Unit 6 is within the Rocky Flats Site and consists of Federal lands managed by the Service and DOE. The Rocky Flats Site was a nuclear industrial facility for the DOE between 1951 and the end of the Cold War. Later it became the DOE Environmental Technology Site. Much of the Rocky Flats Site became the Rocky Flats NWR in 2005, but DOE maintains control over the Central Operable Unit (1,300 ac, 530 ha) and other lands near the western boundary of the site.

The Rock Creek Subunit is located in the St. Vrain HUC, and the Woman Creek and Walnut Creek subunits are in the Middle South Platte-Cherry Creek HUC. Since the unit includes portions of two HUCs, both of which support designated critical habitat corresponding with recovery populations designated elsewhere in the Draft Plan, this unit is unlikely to serve as an initial recovery population. However, this unit is unique and important because it is limited almost entirely to Federal lands of the Rocky Flats Site, and populations on the site have been the subject of the longest span of research of an

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