Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0014;4500030114]

RIN 1018-AZ32

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the New Mexico Meadow Jumping Mouse

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the New Mexico meadow jumping mouse (

Zapus hudsonius luteus

) under the Endangered Species Act of 1973, as amended (Act). In total, we designate an area of approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona. The effect of this rule is to designate critical habitat for the New Mexico meadow jumping mouse under the Act.

DATES:

This rule is effective on April 15, 2016.

ADDRESSES:

This final rule is available on the Internet at

http://www.fws.gov/southwest/es/NewMexico/index.cfm

and at

http://www.regulations.gov

under Docket No. FWS-R2-ES-2013-0014. Comments and materials we received, as well as some supporting documentation used in preparing this final rule, are available for public inspection at

http://www.regulations.gov.

All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; telephone 505-346-2525; or facsimile 505-346-2542.

The coordinates or plot points or both from which the critical habitat maps are generated are included in the administrative record for this rulemaking and are available at

http://www.fws.gov/southwest/es/NewMexico/,

at

http://www.regulations.gov

under Docket No. FWS-R2-ES-2013-0014, and at the New Mexico Ecological Services Field Office (see

FOR FURTHER INFORMATION CONTACT

). Any additional tools or supporting information that we may develop for this rulemaking will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included at

http://www.regulations.gov

.

FOR FURTHER INFORMATION CONTACT:

Wally “J” Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-2525; or by facsimile 505-346-2542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

This document is a final rule to designate critical habitat for the endangered New Mexico meadow jumping mouse. Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

The basis for our action.

On June 20, 2013 (78 FR 37363), we proposed to list the New Mexico meadow jumping mouse (jumping mouse) under the Act as an endangered species; that same day, we also proposed to designate critical habitat for the jumping mouse (78 FR 37328). Subsequently, we listed the jumping mouse as an endangered species (79 FR 33119; June 10, 2014). This is a final rule to designate critical habitat for the jumping mouse. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

This final rule will designate critical habitat for the endangered New Mexico meadow jumping mouse.

The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the jumping mouse. We are designating as critical habitat for the subspecies approximately 5,657 hectares (13,973 acres) along 272.4 kilometers (169.3 miles) of flowing streams, ditches, and canals as critical habitat in eight units within Colfax, Mora, Otero, Sandoval, and Socorro Counties in New Mexico; Las Animas, Archuleta, and La Plata Counties in Colorado; and Greenlee and Apache Counties in Arizona.

We have prepared economic and environmental analyses of the designation of critical habitat.

In order to consider economic impacts, we prepared an analysis of the economic impacts of the critical habitat designation and related factors. We also prepared an environmental analysis of the designation of critical habitat in order to evaluate whether there would be any significant environmental impacts as a result of the critical habitat designation. We announced the availability of the draft economic analysis and the draft environmental assessment in the

Federal Register

on April 8, 2014 (79 FR 19307), allowing the public to provide comments on our analyses. We have incorporated the comments and have completed the final economic analysis and final environmental analysis for this final designation.

Peer review and public comment.

We sought comments from four independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from three individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available scientific information. Two of these peer reviewers supported the redundancy of habitat proposed for designation, but were concerned about the viability of existing jumping mouse populations, the short length of some units proposed for designation, and potential for the subspecies' recovery. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated into this final designation. We also considered all comments and information we received from the public during our two open comment periods, which were open for a total of 90 days. We also held four public information meetings with interested stakeholders.

Previous Federal Actions

Previous Federal actions for the jumping mouse are described in the Previous Federal Actions section of the final listing rule published on June 10, 2014 (79 FR 33119). We published a notice of availability of the draft economic analysis and the draft environmental assessment in the

Federal Register

on April 8, 2014 (79 FR 19307), allowing the public to provide

comments on our analyses. Details regarding the comment periods on the proposed rulemaking are provided below.

It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the jumping mouse. For a thorough assessment of the subspecies' biology and natural history, including limiting factors and subspecies resource needs, please refer to the Final New Mexico Meadow Jumping Mouse Species Status Assessment Report (SSA Report; Service 2014, entire), available online at

http://www.regulations.gov

under Docket No. FWS-R2-ES-2013-0023 and the final listing rule published on June 10, 2014 (79 FR 33119).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the jumping mouse during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 37328) opened on June 20, 2013, and closed on August 19, 2013. A legal notice inviting general public comment was published in the Albuquerque Journal on June 27, 2013. We did not receive any requests for a public hearing within 45 days after the date of the proposed rule being published in the

Federal Register

.

We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a comment period that opened April 8, 2014, and closed on May 8, 2014 (79 FR 19307). We contacted appropriate Federal and State agencies, tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule and associated draft economic analysis and draft environmental assessment. On August 15, 2013, we also held an informational meeting in Durango, Colorado, after receiving requests from interested parties. Similarly, we held informational meetings in Cañon, New Mexico, on April 24, 2014; Durango, Colorado on April 28, 2014; and Alamogordo, New Mexico, on May 28, 2014.

During the two open comment periods, we received 63 comment letters addressing the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. Comments we received are grouped into general issues specifically relating to the proposed critical habitat designation for the jumping mouse. All substantive information provided during both comment periods has either been incorporated directly into this final designation or the SSA Report, or is addressed below.

Peer Review Comments

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise and familiarity with the subspecies, the geographic region in which the subspecies occurs, and conservation biology principles. We received responses from three of the four peer reviewers on the proposed designation of critical habitat. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the jumping mouse. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule.

(1)

Comment:

The Service should consider expanding the proposed critical habitat to provide reaches of critical habitat that are at least 25 kilometers (km) (15.5 miles (mi)) in length. A minimum length of 9 km (6 mi) of critical habitat may not be adequate to support a resilient population because many threats (

e.g.,

wildfire, drought, and recreation) are likely to impact entire sections of stream. The average length of proposed critical habitat units was 12.2 km (7.6 mi) (range of 3.7 to 23.3 km; 2.3 to 14.5 mi). Small reaches (

i.e.,

<25 km (15.5 mi)) may not provide resiliency. Notably, the failure of surveys in 2013 to verify persistence of the jumping mouse at Bosque del Apache National Wildlife Refuge (NWR), one of the largest areas proposed as critical habitat (21.1 km (13.1 mi)), suggests that critical habitat units at the upper end of the length designation used by the Service are not large enough to prevent extinction. Consequently, it is likely that all units should be greater than 25 km (15.5 mi) to provide for resiliency. Other public commenters suggested we shorten or exclude areas of the proposed critical habitat units.

Our Response:

In considering the best available data regarding the area needed for maintaining resilient populations of adequate size with the ability to endure adverse events (such as floods or wildfire), we estimate that resilient populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 hectares (ha) (68 to 181 acres (ac)), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. The minimum area needed is given as a range due to the uncertainty of an absolute minimum and because local conditions within drainages will vary.

In our proposed critical habitat designation and this final designation, we selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (

i.e.,

natural vegetation removed), or areas in which suitable habitat no longer existed and was not likely to be restored. Consequently, many areas upstream or downstream of designated critical habitat are currently unoccupied and unusable by the jumping mouse because they lack continuous areas of suitable habitat. Although these degraded or dewatered areas may include historic jumping mouse capture locations, they do not meet the definition of critical habitat under the Act (16 U.S.C. 1531

et seq.

) because they were neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies.

Consequently, we continue to conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable habitat to support viable populations of jumping mice with a high likelihood of long-term persistence. This distribution and amount of suitable habitat would allow for multiple subpopulations of jumping mice to exist along drainages and would provide for sources of recolonization if some areas where extirpated due to disturbances.

We incorporated the best scientific and commercial information available into this final rule, including information regarding all locations where the jumping mouse has been trapped since 2005, and other areas outside of the geographic area occupied by the subspecies. For example, the jumping mouse is not extirpated from the Bosque del Apache NWR; they were detected during surveys in 2014 (Frey 2013, entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 2014a, entire). In the SSA Report, we found that conservation of the jumping mouse should preferentially focus on restoration of habitats adjacent to occupied areas to expand all remaining populations (Malaney

et al.

2012, p. 10). If, in the future, we find that restoration of primary constituent elements, particularly seasonally perennial water, is successful, further revision of critical habitat may be appropriate.

In addition, we recognize that critical habitat designated at a particular point in time may not include all of the

habitat areas that we may later determine are necessary for the recovery of the subspecies. The designation of critical habitat is only one component of recovery for a species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the subspecies; to meet the requirements of the Act, the Service determined areas that were occupied by the subspecies at the time of listing that contained the physical and biological features essential to the conservation of the jumping mouse and unoccupied areas that are essential for its conservation.

(2)

Comment:

Unit 1 (Sugarite Canyon) should be expanded to include the entire watershed of Chicorica Creek.

Our Response:

The entire watershed of Chicorica Creek does not meet the definition of critical habitat for this subspecies because the entire watershed was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. Under the first part of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. We are designating as critical habitat all areas where the jumping mouse is known to occur. Under the second part of the Act's definition of critical habitat, we can designate critical habitat in 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.

We are designating 13.0 km (8.1 mi) in the unit, which is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above). This provides the needed size and connectivity of suitable habitat of the jumping mouse in Sugarite Canyon for population redundancy and resiliency. The areas upstream and downstream of the 13.0 km (8.1 mi) in the unit do not contain suitable habitat, nor are these areas restorable. They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to suitable habitat (see our response to Comment 1, above).

(3)

Comment:

Unit 2 (Coyote Creek) should include the Mora River because there are two historic locations.

Our Response:

The Mora River does not meet the definition of critical habitat for this subspecies because it was neither occupied at the time of listing nor is it essential to the conservation of the subspecies (see our response to Comment 2, above). No recent surveys (

i.e.,

post 2005) have been conducted in the Mora River area (Frey 2008c, p. 37); therefore, the best available scientific and commercial data, the survey data from post 2005, indicate the Mora River is unoccupied.

We are designating 11.8 km (7.4 mi) in Unit 2 to provide the needed size and connectivity of suitable habitat of the jumping mouse within Coyote Creek for population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals, needed for resilient populations of jumping mice (see our response to Comment 1, above). We did not propose or include the Mora River as critical habitat because it is not perennial and does not contain suitable habitat between Guadalupita (a site along Coyote Creek within Unit 2) and the historic collection site on the Mora River (

i.e.,

sewage pond) (Frey 2008c, p. 37). The area is not essential to the conservation of the subspecies because it no longer contains perennial water and is therefore unsuitable and not restorable.

(4)

Comment:

Subunit 3A (San Antonio Creek, in Unit 3—Jemez Mountains) should be expanded to include Redondo Creek and San Antonio Creek on the Valles Caldera National Preserve because there is a historical location on the preserve and potentially suitable habitat in the vicinity of the junction of these two creeks.

Our Response:

Redondo Creek and San Antonio Creek on the Valles Caldera National Preserve do not meet the definition of critical habitat for this subspecies because the areas were neither occupied at the time of listing nor are the areas essential to the conservation of the subspecies. They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to suitable habitat (see our response to Comment 1, above). Although Frey (2005a, p. 6) reported a jumping mouse historical record from the base of Redondo Peak in a beaver pond, possibly in the vicinity of Redondo Creek, the record was based on a personal communication of W. Whitford in the 1970s, and there is no verifiable specimen with a specific capture location. The presence of beavers creates diverse wetland communities that support the dense riparian herbaceous vegetation utilized by jumping mice (see section 5.1.6 of the SSA Report (Service 2014)). There are no longer any established beaver populations within the Valles Caldera National Preserve to maintain suitable habitat. In recent surveys, no jumping mice have been captured on the Valles Caldera National Preserve (VCNP 2012, pp. 20-21), such that the best available scientific and commercial information indicates the area is unoccupied.

We are designating critical habitat within Subunit 3A starting from the northern part of San Antonio Creek where it exits the boundary of the Valles Caldera National Preserve and follows the creek 11.5 km (7.1 mi) where it meets private land immediately downstream of the San Antonio Campground, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Jemez Mountains and provide population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(5)

Comment:

Subunit 3B (Rio Cebolla, in Unit 3—Jemez Mountains) should be expanded to include additional U.S. Forest Service (Forest Service) lands within Lake Fork Canyon, a major tributary to the Rio Cebolla and the area upstream of Hay Canyon to Forest Road 257.

Our Response:

We did not expand the designation to include the tributary in Lake Fork Canyon or the area upstream of Hay Canyon because these areas were neither occupied at the time of listing nor are the areas essential to the conservation of the subspecies. In 2005, two jumping mice were captured at the confluence of Lake Fork Canyon and the Rio Cebolla within the livestock and vehicle exclosure that contained well-developed riparian habitat dominated by sedges, diverse forbs, grasses, and a small patch of alder (Frey 2005a, p. 27). However, no jumping mice were captured further upstream along the tributary of Lake Fork Canyon and the area did not contain perennial water or suitable habitat. Without suitable habitat and a capture record post 2005, the area is not considered occupied at the time of listing. Water is intermittent through the Lake Fork Canyon, and riparian areas are isolated (Frey 2007b, p. 12). They are highly degraded areas that lack dense herbaceous vegetation, and are not likely to be restored to

suitable habitat (see our response to Comment 1, above). Without perennial water in this stretch, suitable habitat is unlikely to be restored because the dense vegetation needed by the subspecies will not be supported without sufficient water. Therefore, the area is not considered essential to the conservation of the subspecies.

The area upstream of Hay Canyon, including McKinney Pond, contains poorly developed riparian habitat that is currently unsuitable for the jumping mouse (Frey 2007b, pp. 9-10). Additionally, deer mice (

Peromyscus maniculatus

) dominated the small mammal community, suggesting a disturbed or degraded riparian system (Frey 2007b, pp. 9-10). Further, there are no historic capture locations in the area upstream of Hay Canyon. These additional areas are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, are sufficient to support conservation; therefore, designating areas outside of the historical range is not necessary.

We are designating critical habitat within Subunit 3B starting from an old beaver dam about 0.6 km (0.4 mi) north of Hay Canyon, and following the creek about 20.7 km (12.9 mi) downstream where it meets the Rio de las Vacas, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Jemez Mountains and provide population redundancy and resiliency. This subunit contains all of the current and historic locations for the jumping mouse along the Rio Cebolla (Frey 2005a, entire; 2007b, entire). Without suitable habitat and without post-2005 survey records we consider the areas above Hay Canyon and along Lake Fork Canyon to be unoccupied. Further, these areas are not considered essential to the conservation of the subspecies for the reasons stated above. The size of the subunit is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(6)

Comment:

Subunit 3C (Rio de las Vacas, in Unit 3—Jemez Mountains) should be expanded to include the Rito Peñas Negras, a major tributary to the Rio de las Vacas, because there are at least three historical jumping mouse locations in the area.

Our Response:

We did not expand the designation to include the Rito Peñas Negras because the area was neither occupied at the time of listing nor is it essential to the conservation of the species. This area contains poorly developed riparian habitat that is unsuitable for the jumping mouse and is not likely restorable (Frey 2005a, pp. 29-30). Without suitable habitat and without post-2005 survey records we consider this area unoccupied. Further, without restorable habitat the area is not considered essential to the conservation of the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). In this subunit, we are designating 454 ha (1,122 ac) along 23.3 km (14.5 mi) of restorable habitat that would provide the needed size and connectivity of suitable habitat for the jumping mouse in the Jemez Mountains and support population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(7)

Comment:

Unit 3 (Jemez Mountains) should be expanded to include a new subunit in Virgin Canyon, a major tributary to the Rio Guadalupe, because there is a historic (1989) jumping mouse location in the area.

Our Response:

We did not expand the designation to include the Virgin Canyon because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. Although Frey (2005a, pp. 6, 25-26) reported a jumping mouse historical record from the Virgin Canyon, the specific capture location is unknown and could have been anywhere from the drainage. The area was surveyed in 2005, and no jumping mice were captured, and there are no current records indicating the subspecies is present (Frey 2005a, pp. 13, 24-25). Consequently, the area is not considered occupied at the time of listing. In 2005, there was little to no suitable riparian habitat or wet meadows along the creek (Frey 2005a, p. 25), and the area is not likely restorable. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Consequently, the area is not considered essential to the conservation of the subspecies.

(8)

Comment:

A new unit should be added for the 1932 capture records from Tularosa Creek near Mescalero, Otero County, New Mexico.

Our Response:

We did not expand the designation to include Tularosa Creek because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. Frey (2008c, p. 35) reported a historic record from 1932 along Tularosa Creek. In 2006, Frey (2008c, p. 35) indicated that the general area of the 1932 capture locations of the jumping mouse along Tularosa Creek may have potentially suitable habitat. However, since then, the stream, marshes, and wet meadows have dried (Sivinski 2012, pp. 18-21) and the area is dominated by invasive plants (Sivinski 1996, p. 3; 2009a, p. 2). Without suitable habitat and a capture record post 2005, the area is not considered occupied at the time of listing. Suitable habitat is unlikely to be restored because without perennial water in this stretch the area will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Therefore, the area is not essential to the conservation of the subspecies.

(9)

Comment:

In 2013, water flowed downstream of the Lincoln National Forest Boundary of Subunit 4A (Silver Springs, in Unit 4—Sacramento Mountains); therefore, the subunit should be expanded downstream at least 1.9 km (1.2 mi) to include this potential and recoverable habitat on the Mescalero Apache Reservation.

Our Response:

We did not expand the designation to include any lands on the Mescalero Apache Reservation because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. There are no records of jumping mouse from post 2005. The flow downstream of the Lincoln National Forest boundary is variable, with water flowing onto the Mescalero Apache Reservation some years and remaining dry other years (Frey 2005a, p. 31). Moreover, the stream channel downstream of the boundary is incised, and suitable jumping mouse habitat no longer exists. Without perennial water flow, the area frequently dries and will not support the dense vegetation needed by the subspecies, and it is not likely to be restored. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above).

(10)

Comment:

Subunit 4B (Upper Peñasco, in Unit 4—Sacramento Mountains) should be expanded to include about 4.0 km (2.5 mi) of Water Canyon upstream from the confluence with the Rio Peñasco. This stretch of stream had water present during 2013. There is also restorable habitat above Forest Road 164 that should be included as critical habitat.

Our Response:

We are designating 136 ha (335 ac) along 6.4 km (4.0 mi) of

restorable habitat. Subunit 4B begins at the junction of Forest Service Road 164 and New Mexico Highway 6563 and follows the Rio Peñasco drainage downstream (or above Forest Service Road 164) to about 2.4 km (1.5 mi) below Bluff Spring at the boundary of private and Forest Service lands. Therefore, the subunit already includes the restorable habitat above Forest Road 164.

We did not expand the designation to include Water Canyon, however, because it was neither occupied at the time of listing nor is it considered essential to the conservation of the subspecies. The water in these additional areas is variable, flowing some years and dry other years (Frey 2005a, p. 33). Moreover, suitable jumping mouse habitat no longer exists and is not likely to be restored because the area frequently dries and will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above).

(11)

Comment:

Subunit 4D (Wills Canyon, in Unit 4—Sacramento Mountains) should be expanded to include the tributary in Hubbell Canyon. Extending the subunit to the Rio Peñasco could provide important connectivity with Subunit 4C (Middle Peñasco, in Unit 4—Sacramento Mountains).

Our Response:

We did not expand the designation to include Hubble Canyon or the additional areas downstream of Subunit 4D because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the jumping mouse historically existed in Hubble Canyon, there are no historic records and recent surveys did not detect the subspecies (Forest Service 2012h, p. 2). The area downstream of Subunit 4D to the confluence of the Rio Peñasco was not included because the stream channel is eroded, riparian habitat is poorly developed, and water is intermittent (Frey 2005a, p. 34). Since the area frequently dries, it is not likely to be restored because it will not support the dense vegetation needed by the subspecies. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above).

(12)

Comment:

Subunit 4E (Agua Chiquita Canyon, in Unit 4—Sacramento Mountains) should be expanded to include additional areas downstream to the Town of Weed, including the tributaries in Hay and Spring Canyons.

Our Response:

We did not expand the designation to include Hay or Spring Canyons or the additional area downstream of Subunit 4E to Weed because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. The area downstream of Subunit 4E to Weed was not included because riparian habitat is nearly absent and the water is intermittent (Frey 2005a, pp. 35-36). In Hay Canyon, there is little to no riparian habitat. In Spring Canyon the streambed is dry and eroded with no riparian vegetation in one historic capture location. In another historic location within Spring Canyon, water only flowed for about 0.16 km (0.1 mi) before ceasing, and riparian habitat was only a narrow strip 2.5 to 3 meters (m) (8.2 to 9.8 feet (ft)) wide (Frey 2005a, p. 35). Since these areas frequently go dry, they will not support the dense vegetation needed by the subspecies and are therefore not likely to be restored. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Further, recent surveys in Hay and Spring Canyons did not detect the subspecies (Frey 2005a, pp. 35-36).

(13)

Comment:

Unit 5 (White Mountains) should be expanded to include a new subunit for the North Fork of the White River on Fort Apache Reservation based on historical records from at least two locations.

Our Response:

We did not include a new subunit for the North Fork of the White River because the area was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. The most recent records are from 1933 and 1967 (Frey 2011; Appendix 1). We do not have recent survey information indicating the area is occupied, nor do we have recent habitat information to demonstrate that the area could support suitable habitat for the jumping mouse. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). In Unit 5, we are designating 478 ha (1,181 ac) along 22.6 km (14.0 mi) of stream, which exceeds the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(14)

Comment:

Subunit 5A (Little Colorado, in Unit 5—White Mountains) should be expanded to include Lee Valley Creek above the Lee Valley Reservoir and the wilderness area in the headwaters of both forks of the Little Colorado River.

Our Response:

We did not expand the designation to include Lee Valley Reservoir or the additional areas in the headwaters of both forks of the Little Colorado River because these areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. The areas are not essential to the conservation of the subspecies because Lee Valley Reservoir does not contain suitable habitat and the reservoir would be an impediment to movements between Lee Valley Creek and the Little Colorado River. In 1981, when the subspecies was last detected, the habitat along Lee Valley Creek contained tall grass meadow with willows growing along a small stream, but the current habitat is composed of shrubs that are very sparse and mostly decadent or dead, with no live willows recorded (Frey 2011, p. 88). The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). Recent surveys in these areas did not detect the subspecies (Frey 2011, pp. 25, 88; Underwood 2007, entire). We are designating 22.6 km (14.0 mi) of restorable habitat, which would provide the needed size and connectivity of suitable habitat of the jumping mouse along the Little Colorado River and provide population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(15)

Comment:

Subunit 5B (Nutrioso, in Unit 5—White Mountains) should be expanded to include additional areas downstream into New Mexico to the Luna Valley, including the tributaries within Stone Creek and Trout Creek watersheds.

Our Response:

We did not expand the designation to include additional areas downstream into New Mexico, including the tributaries within Stone and Trout Creek watersheds because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the subspecies could occur in the watershed, there are no confirmed reports of the jumping mouse in the Luna Valley; consequently, the area is considered unoccupied. These additional areas are outside the historical range of the subspecies. The areas we are identifying as critical habitat, if restored and occupied, are sufficient to support conservation.

(16)

Comment:

Subunits 5D, 5E, and 5F (East Fork Black, West Fork Black, and Boggy and Centerfire, in Unit 5-White Mountains) should be expanded to include additional areas downstream of each subunit until they join together. In the headwaters of Subunit 5E, additional habitat should include the West Fork of the Black River, Thompson Creek, and Burro Creek.

Our Response:

We did not expand the designation to include additional areas downstream in Subunits 5D, 5E, and 5F, nor into the headwaters of Subunit 5E, because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Recent surveys in two small tributaries to Burro Creek did not detect the subspecies, and it is not historically known from this area (Frey 2011, p. 104). Moreover, Burro Creek is not essential to the conservation of the subspecies because the creek has a relatively high gradient with rocky substrate, which is not suitable habitat for the jumping mouse (Frey 2011, p. 104). All of the historical locations on the West Fork of the Black River are within the designated critical habitat (Morrison 1991, pp. 5, 10; Frey 2011, p. 104); there are no recent or historic surveys indicating the subspecies' presence downstream of the area designated as critical habitat. Therefore, the area is considered unoccupied and outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation.

The subspecies is not known historically from Thompson Creek or the headwaters of Subunit 5E. The areas we have identified as critical habitat, if restored and occupied, would likely be sufficient to support conservation; therefore, we do not consider areas outside the historical range as essential to the conservation of the subspecies. Finally, the precise capture locations of two historic records on the East Fork Black River and on the lower Black River could not be determined (Frey 2011, p. 23). Consequently, these areas are not considered occupied or essential for jumping mouse conservation.

(17)

Comment:

Subunit 5G (Corduroy, in Unit 5—White Mountains) should be expanded to include the entire Fish Creek drainage to the Black River.

Our Response:

We did not expand the designation in Subunit 5G to include the additional areas in the Fish Creek drainage because the areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Recent surveys did not detect the subspecies, and the subspecies is not known historically from Fish Creek (Morrison 1991, p. 12; Frey 2011, pp. 87, 89). The additional areas are neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies because they are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation.

(18)

Comment:

Subunit 5H (Campbell Blue, in Unit 5—White Mountains) should be expanded to include additional areas upstream to the junction of Castle Creek, which is a tributary to Campbell Blue, and downstream into New Mexico, including the Blue River drainage.

Our Response:

We did not expand the designation in Subunit 5H to include additional areas upstream of Castle Creek or downstream into New Mexico including the Blue River drainage because these areas were neither occupied at the time of listing nor are these areas essential to the conservation of the subspecies. Recent surveys did not detect the subspecies (Morrison 1991, p. 12; Frey 2011, pp. 87, 89) from these areas. The precise capture location of a historical record on lowermost Campbell Blue Creek could not be determined (Frey 2011, p. 101). The subspecies is not known historically from Castle Creek. There are no confirmed reports of the jumping mouse near the Blue River drainage in New Mexico (Frey 2007, p. 2). Consequently, these areas are not considered occupied. Potentially suitable habitat on lower Campbell Blue Creek was restricted to very small, isolated areas away from the creek. The main channel of Campbell Blue Creek is rocky and devoid of riparian vegetation (Frey 2011, p. 101), and likely not restorable. Finally, no suitable habitat was found downstream of the Turkey Creek confluence along either Campbell Blue or the Blue River (Frey 2011, p. 101). These areas are not essential to the conservation of the subspecies and are outside the historical range of the subspecies. The areas we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation.

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Comment:

Unit 5 (White Mountains) should be expanded to include a new subunit for Beaver Creek, including its tributary Hannagan Creek.

Our Response:

We did not expand the designation in Unit 5 to include a new subunit for Beaver Creek, including Hannagan Creek, because it was neither occupied at the time of listing nor is it essential to the conservation of the subspecies. The historical location is from 1932 and 1933, there is no suitable habitat further downstream along upper Beaver Creek, and water in the higher reaches of Hannagan Creek is intermittent (Frey 2011, p. 105). Since Hannagan Creek is intermittent in areas and frequently dries, and because the stream has a relatively high gradient, it is not likely to be restored because it will not support the dense vegetation needed by the subspecies.

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Comment:

Unit 6 (proposed as Middle Rio Grande, but renamed Bosque del Apache NWR in this final rule) should be expanded to include a new subunit for Bernardo and La Joya Wildlife Areas along the Rio Grande in New Mexico.

Our Response:

We did not expand the designation in Unit 6 to include a new subunit for Bernardo and La Joya Wildlife Areas because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Although it is possible that the jumping mouse historically existed in these areas along the Rio Grande, there are no historical records for these areas. Further, recent surveys at Casa Colorado Waterfowl Area, the one historical location in the general vicinity of the Bernardo and La Joya Wildlife Areas along the Rio Grande, did not detect the subspecies (Morrison 1988, pp. 16-21; Frey 2012e, p. 1). These additional areas are not essential to the conservation of the subspecies because they are outside the historical range of the subspecies. The areas within the historical range of the jumping mouse that we have identified as critical habitat, if restored and occupied, would be sufficient to support conservation.

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Comment:

Subunit 6C (proposed as Bosque del Apache NWR in Unit 6—Middle Rio Grande, but renamed Unit 6—Bosque del Apache NWR in this final rule) should be expanded to include all of the refuge management units known to have been used by the jumping mouse.

Our Response:

We did not expand the designation in Bosque del Apache NWR to include all of the refuge management units known to have been used by the jumping mouse because they were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. While these refuge management units outside of Bosque del Apache NWR are within the historical range of the subspecies, the best available scientific and commercial data do not indicate that they were occupied at the time of listing. The refuge management units outside of the designation do not have suitable habitat (Frey and Wright 2012, p. 23, Figure 6), and the habitat is not

restorable because seasonally perennial flowing water is lacking. The area lacks dense herbaceous vegetation, and is not likely to be restored to suitable habitat (see our response to Comment 1, above). We acknowledge that the area we are designating as Unit 6 in this final rule does not currently contain continuous suitable habitat, but that area generally has seasonally perennial flowing water with saturated soils (Frey and Wright 2012, entire) and, therefore, has a high potential of being restored to suitable habitat. We proposed and are designating 21.1 km (13.1 mi) in Bosque del Apache NWR as critical habitat in Unit 6, which would provide the needed size and connectivity of suitable habitat of the jumping mouse within Bosque del Apache NWR to support population redundancy and resiliency. This size is within the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

(22)

Comment:

Unit 8 (Sambrito Creek) should be expanded to include additional areas on the San Juan and Piedra Rivers between the Navajo Reservoir upstream to 2,316 m (7,600 ft) elevation, which is the upper elevation limit for the jumping mouse in the area.

Our Response:

We did not expand the designation in Unit 8 to include additional areas on the San Juan and Piedra Rivers because they were neither occupied at the time of listing nor are they considered essential to the conservation of the subspecies. Seven of the eight historical locations (from 1960) are within the general area designated as critical habitat along Sambrito Creek (Frey 2008c, pp. 36, 42; 2011a, p. 4). The eighth location is about 4.0 km (1.25 mi) north of Unit 8, and there is no suitable or restorable habitat near this historical location. The area lacks dense herbaceous vegetation and is not likely to be restored to suitable habitat (see our response to Comment 1, above). There are no other historical collections of the jumping mouse within this geographic management area. We are designating 75 ha (184 ac) along 4.6 km (2.9 mi) of stream within Unit 8. This size is above the minimum of the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals needed for resilient populations of jumping mice (see our response to Comment 1, above).

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Comment:

A new unit should be added for the upper Rio Grande based on the 1858 record from Fort Burgwyn, Taos County, and an 1894 record from Santa Fe, Santa Fe County, both in New Mexico.

Our Response:

We did not include a new unit because these areas were neither occupied at the time of listing nor are they essential to the conservation of the subspecies. Both records are over 100 years old, and neither includes a specific capture location. The specific location of the Santa Fe record is completely unknown and could have been anywhere near the City of Santa Fe (Frey 2006d, pp. 12-15; 2008c, p. 40). The Fort Burgwyn location may have been in the vicinity of the confluence of the Rio de la Olla and Rio Grande del Rancho, 14.6 km (9.0 mi) south of Taos, but this is not confirmed. Consequently, these areas were not considered occupied at the time of listing. When Frey (2006d, pp. 28-29, 73) surveyed in the vicinity of Fort Burgwyn, only western jumping mice (

Zapus princeps

) were captured, likely because there was little current suitable habitat for the jumping mouse. Additionally, deer mice dominated the small mammal community, suggesting a disturbed or degraded riparian system (where suitable habitat no longer exists and is not likely restorable) (Frey 2006, p. 29). Consequently, these areas are not essential for the conservation of the subspecies.

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Comment:

There is concern about the exclusion under section 4(b)(2) of the Act of two Pueblos from the final designation because the jumping mouse has a history of occupancy on these lands. The sites proposed on the two Pueblos would be valuable within the context of the overall distribution-wide planning for the conservation of the jumping mouse. Therefore, the Service should work closely with these Pueblos on management plans that would benefit the jumping mouse and its habitat.

Our Response:

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we coordinate with federally recognized tribes on a government-to-government basis. The Pueblo of Isleta has developed and maintained a Riverine Management Plan that includes the jumping mouse and its habitat (Service 2005; 70 FR 60955, October 19, 2005; Pueblo of Isleta 2005, entire; 2014, entire). The Service has established conservation partnerships with Ohkay Owingeh and Pueblo of Isleta, and both pueblos have implemented conservation and recovery actions for the improvement of riparian habitat and the jumping mouse. As analyzed in the

Tribal Lands—Exclusions Under Section 4(b)(2) of the Act

section, below, we have excluded both tribal areas from critical habitat based on our ongoing conservation partnerships where the benefits of exclusion from critical habitat outweigh the benefits of including an area within critical habitat.

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Comment:

One of the peer reviewers indicated that the description of the primary constituent elements (PCEs) contains a small amount of outdated information. While the jumping mouse is often, but not always, associated with beaked sedge, willows, or alders, an association with reed canarygrass is unusual.

Our Response:

Based on this updated information, we have revised the PCEs to remove reference to reed canarygrass (see

Primary Constituent Elements

section, below).

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Comment:

The manner in which Frey (2011, p. 29) is cited in the proposed rule seems to indicate that the author recommended that stream lengths between 4.5 and 6.0 km (2.8 to 3.7 mi) would support a resilient population. The information on stream length was taken out of context.

Our Response:

Frey (2011, p. 29) summarized characteristics of sites where the subspecies had been captured in the White Mountains, Arizona. We revised the SSA Report and this final rule to clarify that Frey (2011, p. 29) reported stream lengths containing at least 4.5 to 6 km (2.8 to 3.7 mi) of continuous, dense, riparian herbaceous vegetation (suitable habitat) would likely support populations of jumping mice with a high likelihood of long-term persistence.

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Comment:

The determination that stream lengths should be at least twice as large as those reported by Frey (2011, p. 29) introduces a non-scientific basis for the designation of critical habitat.

Our Response:

Stream length was not determined by doubling the lengths reported by Frey (2011, p. 29). In the SSA Report, we clarified our use of the best scientific and commercial information available for the jumping mouse (Frey 2011, p. 29) and for the Preble's meadow jumping mouse (

Zapus hudsonius preblei

) (Service 2003, pp. 24-25) to explain that the appropriate configuration of critical habitat is provided by protecting multiple local populations (also called subpopulations) throughout a minimum length of stream, ditch, or canal of 9 to 24 km (5.6 to 15 mi) including about 27.5 to 73.2 ha (68 to 181 ac) of suitable habitat. The minimum area needed is given as a range due to the uncertainty

of an absolute minimum and because local conditions within drainages vary (see our response to Comment 1, above). The Recovery Team for the Preble's meadow jumping mouse recommended that at least several medium-sized populations (at least 500 mice) should be protected with each population distributed along a 14- to 26-km (9- to 16-mi) network of connected streams whose hydrology supports riparian vegetation (Service 2003, p. 25). Frey (2011, p. 29) reported that stream lengths containing at least 4.5 to 6 km (2.8 to 3.7 mi) of continuous, dense, riparian herbaceous vegetation (suitable habitat) would likely support populations of jumping mice with a high likelihood of long-term persistence. Following severe wildfires, we found that, depending on fire intensity and the subsequent ash and debris flow within stream reaches, jumping mouse populations can be significantly affected and likely extirpated, even when 15 km (9 mi) of continuous suitable habitat existed prior to the wildfire (Sugarite Canyon; Frey 2006d, pp. 18-21; 2012b, p. 16; Frey and Kopp 2013, entire). After reviewing this information, we conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of nearly continuous suitable habitat to support populations of jumping mice with a high likelihood of long-term persistence from these types of stochastic and catastrophic events.

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Comment:

The jumping mouse may have been extirpated from Bosque del Apache NWR since 2010, despite the fact that the refuge represents one of the largest protected patches of recently occupied habitat. From 2009-2010, the jumping mouse occupied a 2.7-km (1.7-mi) reach of the Riverside Canal, but the total length of potential habitat was about 10.5 km (6.5 mi). The failure to verify persistence of the subspecies in 2013 suggests that critical habitat units are not large enough.

Our Response:

The jumping mouse is not extirpated from Bosque del Apache NWR. They were detected during surveys in 2014 (Frey 2013, entire; Service 2013, entire; 2013a, entire; 2013b, entire; Service 2014a, entire), which confirmed the persistence of the subspecies on Bosque del Apache NWR within the remaining habitat. We are designating 21.1 km (13.1 mi) within Bosque del Apache NWR, which would provide the needed size and connectivity of suitable habitat to increase the potential distribution of the jumping mouse and provide population redundancy and resiliency. We are designating this area because this area generally has perennial flowing water with saturated soils (Frey and Wright 2012, entire) and a high potential of being restored to suitable habitat.

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Comment:

We received comments pertaining to dispersal distances and the size of critical habitat units. One recommendation was that the Service should consider dispersal distances from studies on the Preble's meadow jumping mouse of up to 4.3 km (2.7 mi), whereas another suggestion found our characterization of dispersal distances and home range sizes of the jumping mouse appropriate. Several of the proposed critical habitat units are roughly the same size or smaller than 4.3 km (2.7 mi), suggesting that these units could consist of only a single subpopulation that would be exceptionally vulnerable to extinction.

Our Response:

We did consider information on the natural history of Preble's meadow jumping mouse; however, as stated in the SSA Report, studies indicate that the jumping mouse does not appear to travel as great a distance as Preble's meadow jumping mouse. The maximum distance travelled between two successive points by all radio-collared jumping mice on Bosque del Apache NWR was 744 m (2,441 ft), but most regular daily and seasonal movements were less than 100 m (328 ft) (Frey and Wright 2012, pp. 16, 109; Figure 9). See section 2.6 “Movements and Home Range” in the SSA Report (Service, 2014) for additional information.

We reviewed the available natural history information and determined that there is not enough justification to modify our original critical habitat units, especially since our units were generally limited to presence of the primary constituent element of seasonally perennial water. Without water, the other PCEs would not be restored. After considering the variable quality of habitat in many areas outside of the proposed critical habitat, we determined that larger critical habitat units with more reaches of unsuitable or low-quality habitat would not provide additional benefit to the jumping mouse. Consequently, we continue to conclude that current jumping mouse populations need connected areas of suitable habitat along at least 9 to 24 km (5.6 to 15 mi) of continuous suitable habitat to support viable populations of jumping mice with a high likelihood of long-term persistence. Also, see our response to Comment 1, above.

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Comment:

Habitat used by jumping mice is usually linear and very narrow, and must have appropriate vegetation structure, which makes the jumping mice especially vulnerable to habitat fragmentation. Moreover, the jumping mouse has a large geographic range and exhibits natural history features that render jumping mice particularly vulnerable to extinction, including habitat specialization, low densities, and low fecundity. Despite these natural vulnerabilities, the total length of proposed critical habitat was only 310.5 km (192.9 mi). In comparison, spikedace (

Meda fulgida

) (1,013 km (630 mi)) and loach minnow (

Tiaroga cobitis

) (983 km (610 mi)) have two to three times more critical habitat than what is proposed for the jumping mouse, yet these fish have a much smaller natural distribution limited to the Gila River watershed. An approach for the jumping mouse based on a rationale similar to spikedace and loach minnow, which emphasized connectivity, would better provide for the conservation of the jumping mouse.

Our Response:

The conservation needs of different species, including critical habitat designations, are developed independent of one another. The Act requires that we designate only specific areas within the geographical area occupied by the species, at the time it is listed, 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. In addition, the Act requires that we determine whether specific areas outside the geographical area occupied by the species at the time it is listed are essential for the conservation of the species. We have identified those areas occupied at the time of listing that contain the PCEs essential for jumping mouse conservation. In addition, we have identified unoccupied areas, adjacent to these occupied areas, which are essential to the conservation of the subspecies. See our response to Comment 1, above, for additional information.

As stated in the SSA Report, habitat connectivity and patch sizes influence the suitability of habitat (Service 2014). However, in designating critical habitat, we selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (

i.e.,

natural vegetation removed), or areas in which there was some other indication that suitable habitat no longer existed and was not likely to be restored. Larger critical habitat units with more stream reaches of unsuitable or low-quality habitat that is not likely restorable would not provide additional benefit to the jumping mouse and do not meet the definition of critical habitat. In the

Criteria Used To Identify Critical

Habitat

section, below, we used the best scientific and commercial data available to set out the criteria for identifying the areas that meet the requirements of the Act.

Comments From Federal Agencies

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Comment:

There is no clear definition of what constitutes occupied versus unoccupied habitat.

Our Response:

Occupied areas include the 29 locations where jumping mice were captured since 2005, plus a 0.8-km (0.5-mi) segment upstream and downstream of the capture localities. The 0.8-km (0.5-mi) segments have the potential to be occupied during the active season of the subspecies if a jumping mouse moves the maximum known distance beyond the protective herbaceous cover found within the 29 locations. We also include areas that are considered unoccupied, but are immediately adjacent to these occupied areas. These unoccupied areas are beyond 0.8 km (0.5 mi) of the capture location and generally do not contain currently suitable habitat. These occupied and unoccupied areas immediately adjacent to each other comprise 19 of the 21 critical habitat units/subunits. These critical habitat units are labeled “partially occupied” because they include both occupied and unoccupied areas. Finally, we included another two subunits that are completely unoccupied but are essential for the conservation of the jumping mouse. Inclusion of these unoccupied areas provides for expansion of the overall geographic distribution of the subspecies and increases the redundancy.

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Comment:

There is no clear distinction between suitable habitat and critical habitat. Consequently, if an area is not deemed to be essential for the conservation of the subspecies, is consultation still necessary?

Our Response:

Suitable habitat is a biological term used to describe the necessary habitat characteristics that support a species. For the jumping mouse, suitable habitat is composed of dense, herbaceous riparian vegetation with sufficient seasonally available or perennial flowing waters to support this vegetation as described in the “Specific Microhabitat Requirements” section 2.4.1 of our SSA Report (Service 2014). Critical habitat is a regulatory term under the Act and means those areas occupied by the species at the time of listing on which are found those physical or biological features essential for the conservation of the species and may require special management, and those unoccupied areas that are essential for the conservation of the jumping mouse. Critical habitat is defined through rulemaking and may include areas that are and are not considered suitable habitat for the jumping mouse. Conversely, not all areas considered to be suitable jumping mouse habitat are included within a critical habitat designation.

Section 7 of the Act requires any Federal agency to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. If a Federal action may affect a listed species or its critical habitat, regardless of whether that habitat is currently suitable or not, the responsible Federal agency (action agency) must enter into consultation with us (50 CFR 402.14). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

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Comment:

Fire, flood, drought, and wild ungulates have always been forces influencing the dynamics of jumping mouse habitat.

Our Response:

The Service recognizes that these factors have likely always influenced jumping mouse habitat to some degree. However, because of historical, current, and future habitat loss, all of the 29 populations found since 2005 occur within extremely small patches of suitable habitat and most likely contain very few jumping mice, resulting in low population resiliency. In addition, these multiple sources of habitat loss are not acting independently, but may produce cumulative impacts that magnify the effects of habitat loss on jumping mouse populations. Historically larger connected populations of jumping mice would have been able to withstand or recover from local stressors, such as habitat loss from drought, wildfire, or floods. However, the current condition of the remaining small populations means the likelihood of local extirpations is higher. See the discussion of these in section 5.0 “Stressors and Sources” in the SSA Report (Service 2014).

Comments From States

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Comment:

Please define the phrase appropriately sized patches of suitable habitat, which is first mentioned under the

Physical and Biological Features

section.

Our Response:

Appropriately sized patches of suitable habitat surrounding each jumping mouse population should be 27.5 to 73.2 ha (68 to 181 ac) along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. The minimum area needed is given as a range due to the uncertainty of an absolute minimum and because local conditions within drainages vary.

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Comment:

In Arizona, many areas where the jumping mouse occurs are also visited by anglers, and the critical habitat designation could impact the public's fishing opportunities.

Our Response:

We do not expect impacts to anglers from the designation of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Where a landowner 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. If there is not a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat. Although expected to be rare, where recreational fishing may have a Federal nexus within the critical habitat designation for jumping mouse, the agency will be required to consult with Service to ensure its actions will not destroy or adversely modify critical habitat.

Where the habitat in question is occupied by the listed species, if there is a Federal nexus, the action agency already consults with the Service to ensure its actions will not jeopardize the continued existence of the species. If critical habitat may be adversely modified or destroyed, then this would also be included in the consultation. If the action was found likely to jeopardize the species or destroy or adversely modify critical habitat, the Service is required, to the extent feasible, to provide reasonable and prudent alternatives (RPAs) that would allow the action to proceed and comply with section 7(a)(2) of the Act. Any RPA must be technologically and economically feasible, must allow for the intended purpose of the action to be met, must avoid jeopardy or adverse modification, and must be within the authority of the action agency to implement. In our experience, in the vast majority of cases, the Service is able

to work with the action agency to successfully provide RPAs.

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Comment:

The Service provides no specific information in the proposed rule regarding the need to designate critical habitat in New Mexico, including the middle Rio Grande, Pecos, and Canadian River basins.

Our Response:

Section 4 of the Act, and its implementing regulations, require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an endangered or threatened species, using the best scientific and commercial data available at the time. In our proposed rule (78 FR 37328; June 20, 2013), we found critical habitat to be both prudent and determinable and are therefore required to designate critical habitat under the Act.

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Comment:

There is no scientific basis for extending the upstream and downstream boundaries by 0.8 km (0.5 mi) of capture locations to include areas that could be potentially used by the jumping mouse.

Our Response:

We have used the best available scientific and commercial data regarding movement and dispersal of the jumping mouse. The 0.8-km (0.5-mi) segments are considered occupied because the maximum distance travelled between two successive points by all radio-collared jumping mice on Bosque del Apache NWR was approximately 0.74 km (0.46 mi) (Frey and Wright 2012, pp. 16, 109, Figure 9). See section 2.6 “Movements and Home Range” in the SSA Report (Service 2014) for additional information.

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Comment:

The Service should exclude proposed jumping mouse critical habitat from the Rio Grande, New Mexico (Unit 6-Middle Rio Grande) because of the Middle Rio Grande Endangered Species Collaborative Program that provides benefits to endangered species and their habitats, including the jumping mouse.

Our Response:

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for more information.

In our proposed rule, we did not consider excluding critical habitat within Unit 6 based on the Middle Rio Grande Endangered Species Collaborative Program because this entity does not own or manage lands within critical habitat. While the Service recognizes the contributions to species conservation made by the Middle Rio Grande Endangered Species Collaborative Program, without lands under their authority which they could manage for listed species, we did not consider exclusion based on this program.

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Comment:

The Service claims that all unoccupied areas contain flowing water. This is an error. Surveys conducted by the Arizona Game and Fish Department in 2011 found Centerfire Creek (Subunit 5F) had little water and was underground in some areas with only standing pools.

Our Response:

In the

Unit Descriptions

section of the proposed rule, we do state that all of the completely or partially unoccupied units and subunits currently have flowing water to allow for future restoration of the essential PCEs 1 and 2. However, in the

Physical or Biological Features

section of the proposed rule, we clarify that suitable habitat is found only when wetland vegetation achieves full growth potential associated with seasonally perennial (persistent water during the vegetation growing season) flowing water and saturated soils. In the

Primary Constituent Elements

section of the proposed rule, we provide further clarification of seasonally perennial flowing water as that which provides saturated soils throughout the jumping mouse's active season that supports tall (average stubble height of herbaceous vegetation of at least 69 centimeters (cm) (27 inches); in this final rule, we have changed that to average stubble height of herbaceous vegetation of at least 61 cm (24 inches)) and dense herbaceous riparian vegetation composed primarily of sedges (

Carex

spp.) and forbs. In the proposed rule (78 FR 37328; June 20, 2013) and the SSA Report (Service 2014), we explain that jumping mouse habitat is subject to dynamic changes that result from flooding and drying of these waterways and the ensuing fluctuations (loss and regrowth) in the quantity and location of dense riparian herbaceous vegetation over time, particularly in response to the ongoing drought. Southwestern riparian and aquatic systems fluctuate due to seasonal and longer-term drought and wet periods, floods, and wildfire. We have updated this final rule and the SSA Report to clarify that flowing water includes seasonally perennial (persistent water during the vegetation growing season) flowing water.

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Comment:

There is too much emphasis placed on the benefits of the American beaver, while ignoring other species such as elk, native fish, mountain lions, bears, and owls.

Our Response:

More than any other species, the management and restoration of beaver is an important component of jumping mouse conservation. The jumping mouse is often associated with beaver activity because the shallow, slow-moving water from dams and ponds behind beaver dams creates diverse wetland communities that support the required dense riparian herbaceous vegetation for jumping mice (Frey 2006d, p. 52; Frey and Malaney 2009, p. 37). The diverse wetland plant species found in beaver-modified habitat patches may contribute as much as 25 percent of the total herbaceous plant species richness of riparian zones (Wright

et al.

2002, p. 99). Beavers can also have a substantial impact on the structure and productivity of riparian areas through the cutting of trees and shrubs, which assist a stream in its ability to resist and recover from disturbance (Naiman

et al.

1988, entire). This may contribute to the maintenance of riparian communities in an early seral (phase of ecological succession advancing towards climax) stage with sparse tree and shrub canopy cover where the sunlight can penetrate, thereby providing a dense herbaceous

understory that is suitable habitat for the jumping mouse.

Beaver activities help to expand areas of shallow ground water and hydrophytic (growing wholly or partially in water) vegetation, and generally create a more heterogeneous floodplain by frequently converting streams from intermittent flow to perennial flow (Baker and Hill 2003, p. 299). This can create natural fire breaks and provide refugia from fire effects, especially where beaver activity results in extensive areas of marsh, wetland, and open water habitats, such as those conditions found within or adjacent to jumping mouse habitat. Because beaver populations have been reduced in many areas throughout the range of the jumping mouse, the corresponding loss of wetland habitats and perennial stream flow has contributed to drying and increased flammability of riparian vegetation.

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Comment:

Colorado Parks and Wildlife encourages the Service to invest additional resources in public outreach for Unit 7 along the Florida River.

Our Response:

We invested additional resources in public outreach along Unit 7. Although we received no requests for public hearings on the proposed designation, we held informational meetings to address public concerns regarding Unit 7 on August 15, 2013, and on April 24, 2014, in Durango, Colorado.

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Comment:

The conclusions drawn in the critical habitat proposal lack robust experimental study designs and are best characterized as conjecture. How is it possible to develop habitat preferences for a species that is difficult to survey?

Our Response:

We agree that it would be useful to have more information on the jumping mouse, but it is often the case that robust biological information is lacking for rare species. Section 4 of the Act, and its implementing regulations, require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be an endangered or threatened species, using the best scientific and commercial data available at the time. We reviewed the best available scientific information pertaining to the biological needs of the jumping mouse and habitat characteristics where this subspecies is located. We sought comments from independent peer reviewers to ensure that our designation is based on scientifically sound data, assumptions, and analysis. We also solicited information from the general public, nongovernmental conservation organizations, State and Federal agencies that are familiar with the subspecies and its habitat, academic institutions, and groups and individuals that might have information that would contribute to an update of our knowledge of the subspecies, as well as information on the activities and natural processes that might be contributing to the decline of the subspecies. The best available scientific and commercial data, as stated in the “Specific Microhabitat Requirements” section of the SSA Report (Service 2014), indicates the jumping mouse has exceptionally specialized habitat requirements that include dense herbaceous riparian habitat with sufficient seasonally available or perennial flowing waters to support this vegetation.

(43)

Comment:

What impact will this critical habitat designation have on the ability of Federal agencies to conduct meaningful forest restoration projects?

Our Response:

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The obligation of the Federal action agency under section 7(a)(2) of the Act is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. It is unlikely that designating critical habitat for the jumping mouse will reduce proactive treatments necessary for forest restoration projects (

i.e.,

to alleviate the risk of catastrophic wildfire) because the majority of treatments are likely to be confined to forested uplands and not within riparian and adjacent upland habitat used by the jumping mouse. As an example, in 2015, when the Service completed a consultation on 110,000 acres for the Southwest Jemez Mountains Restoration Project on the Santa Fe National Forest in New Mexico, no forest restoration treatments were curtailed from the proposed jumping mouse critical habitat (Service 2015). However, the Forest Service or other Federal agencies will need to determine whether their Federal action (

i.e.,

fuels treatments) may affect a listed species or designated critical habitat in accordance with section 7 of the Act. During consultation, the Service works with the Federal agencies on their project description to avoid impacts to the species or critical habitat. If the action is likely to adversely modify critical habitat, reasonable and prudent alternatives to the project description would be established, which could be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of the listed species or resulting in the destruction or adverse modification of critical habitat. Each consultation is evaluated on a case-by-case basis following our regulations (50 CFR part 402).

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Comment:

Why are locations where the jumping mouse has likely been extirpated from impacts due to wildland fire considered as occupied?

Our Response:

We are required to use the best available scientific and commercial data for the designation of critical habitat. In our designation, occupancy was determined based on any detections during surveys conducted since 2005. Recent surveys (surveys conducted since 2005) have relied on detection or non-detection (presence or absence) data to determine whether jumping mice persist in areas that contained historical populations or areas that currently contain suitable habitat. As stated in the SSA Report (Service 2014), of the 29 populations where the New Mexico meadow jumping mice have been found extant since 2005, at least 11 populations have been substantially compromised in the past 2 years and seven others may have been affected by recent wildfires. We recognize that it is possible that the jumping mouse could be extirpated from these areas, but the most recent survey data available indicate that these 29 areas are occupied. Further, at the time of listing, these areas contained the physical or biological features essential to the conservation of the subspecies.

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Comment:

PCE 3 includes sufficient areas that contain suitable or restorable habitat. Habitat that is in need of restoration should not be designated as critical habitat.

Our Response:

Jumping mouse populations are currently small and isolated from one another, and the survival and recovery of the subspecies will require expanding the size of currently occupied areas containing suitable habitat into currently unoccupied areas that may need to reestablish suitable conditions. Currently occupied areas were not deemed sufficient to provide for resiliency and representation for viability. In the SSA Report (Service 2014), we estimate that resilient

populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals (Service 2014a, p. 32). Under the second part of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the subspecies at the time it is listed (

i.e.,

unoccupied), upon a determination that such areas are essential for the conservation of the subspecies.

(46)

Comment:

The premise that any and all livestock grazing is incompatible with jumping mouse habitat is not scientifically defensible. Properly managed livestock grazing can provide ecological benefits to riparian and upland areas.

Our Response:

Whether livestock grazing results in loss of suitable habitat and adverse effects to a jumping mouse population is likely dependent upon a number of factors including, but not limited to: The number of livestock present; the proportion of suitable habitat patch subjected to grazing; whether grazing occurs during the growing season; precipitation patterns; and the amount of isolation from other patches of suitable habitat. Morrison (1990, p. 142) found that moderate levels of livestock grazing may be compatible with the jumping mouse; however, Morrison (1990a, p. 1; 1990, p. 142; 1991, pp. 16-18) also concluded that, compared to other forms of habitat loss, grazing has the greatest potential for negative impacts on the jumping mouse and riparian habitat. Frey (2006b, p. 57) found that when livestock grazing is present for short periods of time (such as a few hours or days because of unauthorized use when cattle enter livestock exclosures), population abundance of jumping mice may be reduced, but is not extirpated.

However, most livestock grazing is likely to be incompatible with the persistence of jumping mouse populations because of the subspecies' sensitivity to habitat disturbance (Frey 2006b, p. 57). Although livestock grazing can be managed in many different ways, the best available scientific and commercial data indicate that the jumping mouse does not persist in areas when its habitat is subjected to heavy grazing pressure (Morrison 1985, p. 31; Frey 2005a, entire; 2005b, p. 2; 2011, entire). Livestock grazing can cause a rapid loss of herbaceous cover and eliminate dense riparian herbaceous vegetation that is suitable jumping mouse habitat in less than 60 days (Frey 2005a, p. 60; 2007b, pp. 16-17; 2011, p. 43, Figure 16), and possibly even as short as 7 days (Morrison 1989, p. 20). Widespread and intensive livestock grazing, leading to a reduction of tall dense riparian herbaceous vegetation, has been detrimental for the jumping mouse because the quality and quantity of occupied habitats containing suitable habitat have been reduced or eliminated (Frey 2003, pp. 10-14; 2005a, pp. 15-40; 2006d, pp. 10-33; 2011, entire; 2012a, pp. 42, 46, 52; Service 2012c, pp. 1, 6-8, Figure 13). In addition, livestock and elk grazing within jumping mouse habitat affects individual mice by reducing the availability of food resources (Morrison 1987, p. 25; Morrison 1990, p. 141; Frey 2005a, p. 59; 2011, p. 70). Current grazing practices in many areas have resulted in the removal of dense riparian herbaceous vegetation that historically provided jumping mouse habitat and caused the loss of historical populations. There is a strong tendency for livestock to congregate in riparian habitat (Forest Service 2006, pp. 76-77). Frey and Malaney (2009, p. 38) suggests that maintenance of suitable riparian habitat and long-term viability of jumping mouse populations might only be possible through creation of refugial areas by complete exclusion of livestock from the riparian zone. Please see the SSA Report (Service 2014) for further information.

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Comment:

What areas proposed for critical habitat designation have privately owned water rights associated with grazing allotments, water diversions, or irrigation? If private landowners are going to be excluded from using these waters, the Service must complete a takings implications assessment.

Our Response:

We did not conduct an analysis of privately owned water rights because it is beyond the scope of the environmental assessment and economic analysis. Nevertheless, the economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. As the Act's critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the jumping mouse in a takings implications assessment. The designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding or assistance or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

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Comment:

What specific recreational uses cause degradation or destruction of riparian habitat?

Our Response:

Unregulated dispersed recreational activities, such as camping, fishing, and off-road vehicle use, pose a concern to the jumping mouse because the development of trails, the development of barren areas, and trampling can render habitat unsuitable by reducing or removing dense riparian herbaceous vegetation containing required microhabitat (see section 2.4.1 “Specific Microhabitat Requirements” in the SSA Report (Service 2014)). The development of streamside trails and large, bare, compacted areas used for camping and fishing has been and continues to be reported throughout jumping mouse habitat in areas of the Jemez Mountains, New Mexico, and the White Mountains, Arizona (Frey 2005a, pp. 27-28; 2011, pp. 70-71, 76, 88, Figure 30). See section 5.1.10 “Recreation” in the SSA Report (Service 2014) for additional details.

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Comment:

The proposed rule states that critical habitat does not include manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) and the land on which they are located; however, some proposed stream reaches, such as the East Fork of the Black River, include developed campgrounds. These areas should be removed from the final critical habitat designation.

Our Response:

We determined that developed campgrounds or other manmade structures (such as buildings, fire lookout stations, runways, roads, and other paved areas) within the boundaries of critical habitat do not contain physical or biological features essential for the conservation of the subspecies. We have made every effort to remove these developed areas where possible; however, due to the scale of the maps, some areas may inadvertently be included. Developed areas are not reasonably believed to contain, or are capable of supporting, the physical or biological features essential for jumping mouse conservation. Therefore, a Federal action involving these developed lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action would directly or

indirectly affect the physical or biological features in the adjacent critical habitat.

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Comment:

What information does the Service have that indicates specific ecological characteristics are currently present or capable of being restored within the proposed critical habitat? The Service should analyze the Forest Service's Terrestrial Ecological Unit data prior to designating critical habitat.

Our Response:

Each unit and subunit was evaluated on a site-by-site basis to determine the best configuration of critical habitat to support jumping mouse populations in that unit or subunit. The information we relied upon is presented in the SSA Report (see section 4.6 “Subspecies Conditions Compared to Needs by Geographic Management Area” in the SSA Report (Service 2014)). The critical habitat units were first delineated by creating rough areas by screen-digitizing polygons (map units) using Google Earth. We then digitized and refined the units using ArcMap version 10 (Environmental Systems Research Institute, Inc.), a computer Geographic Information System (GIS) program. The polygons were finalized by using current (2005 to 2014) and historical (1985 to 1996) subspecies location points, which were then used in conjunction with hydrology, vegetation, and expert opinion to propose and then finalize the designation. The Forest Service's Terrestrial Ecological Unit data are a GIS coverage of mapped units of land that provide an inventory of various ecotypes on the National Forest. Current vegetative conditions are often used to delineate these ecological map units; however, existing vegetation does not always reflect historical or potential vegetation. Consequently, we did not use this information.

(51)

Comment:

How many riparian areas associated with the critical habitat proposal are classified as being in proper functioning condition by the Forest Service?

Our Response:

Proper functioning condition is a qualitative assessment method developed by the Bureau of Land Management (BLM) and Forest Service to assess the condition of riparian wetland areas based on hydrology, vegetation, and erosion or deposition (soils) attributes. Although this analysis may be used to inform management prescriptions, develop environmental assessments, or inform resource management plans, the frequency of most proper functioning condition analyses are sporadic in time and space. As a result, we found the best available information for designation of critical habitat for the jumping mouse was based on site-specific data and our knowledge of the corresponding units as described in the SSA Report (Service 2014) and this final rule.

Comments From Tribes

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Comment:

The land proposed as critical habitat in Unit 7 (Florida River) is within the boundary of the Southern Ute Indian Reservation and should be indicated accordingly on the map.

Our Response:

We verified, using the most current land ownership information in GIS, that Unit 7 does not include any lands within the Southern Ute Indian Reservation.

(53)

Comment:

During the public comment period, we received comments from Isleta Pueblo and Ohkay Owingeh expressing their view that they were opposed to the designation of critical habitat and that exclusion of their lands is warranted due to tribal self-governance and continuing our cooperative working relationships.

Our Response:

Subunits 6A and 6B are excluded from this final designation under section 4(b)(2) of the Act. We have determined that the benefits of exclusion outweigh the benefits of inclusion and have, therefore, excluded these areas from this final critical habitat designation. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for further discussion.

(54)

Comment:

The San Carlos Apache Tribe does not support designation of critical habitat on their reservation.

Our Response:

We did not propose, nor do we designate, any lands as critical habitat on the San Carlos Apache Reservation.

Comments From the Public

(55)

Comment:

It is premature to designate critical habitat for the jumping mouse when it is not even listed as an endangered species.

Our Response:

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. The jumping mouse was listed as endangered on June 10, 2014 (79 FR 33119).

(56)

Comment:

The SSA Report was not published in the

Federal Register

, even though it was the primary document on the biology and habitat of the subspecies.

Our Response:

We made the SSA Report publically available throughout our consideration of critical habitat for the subspecies via the Federal eRulemaking Portal:

http://www.regulations.gov.

We are not required to publish the SSA Report and other supporting documents in the

Federal Register

, but must make all comments, materials, and documentation that we considered in developing this rulemaking publicly available. The June 20, 2013, proposed listing and critical habitat rules (78 FR 37363 and 78 FR 37328, respectively) provided notification that the SSA Report was available on

http://www.regulations.gov

and that we were requesting comments on the proposed rule and associated documents, including the SSA Report. The final listing rule (79 FR 33119; June 10, 2014) also provided notification that the SSA Report was available on

http://www.regulations.gov.

(57)

Comment:

The fencing of riparian areas to allow only wildlife to access the water is illegal and represents an unconstitutional taking of private property water rights in violation of the Fifth Amendment of the U.S. Constitution.

Our Response:

The Service has not fenced any areas for the protection of the jumping mouse or its habitat, nor are we proposing any fencing, on private lands. We conducted an economic analysis, an environmental assessment to comply with National Environmental Policy Act (NEPA; 42 U.S.C. 4321

et seq.

), and a takings implications assessment. Full details can be found in the Required Determinations section, below.

(58)

Comment:

The Service failed to hold any meetings with grazing permittees.

Our Response:

We did not hold any formal public hearings because we did not receive any requests to do so. However, we did receive requests for informational meetings. Consequently, to address concerns related to the proposed critical habitat, we held informational meetings on August 15, 2013, in Durango, Colorado. Similarly, we held informational meetings in Cañon, New Mexico, on April 24, 2014; in Durango, Colorado, on April 24, 2014; and in Alamogordo, New Mexico, on May 28, 2014.

(59)

Comment:

The Service did not coordinate with the respective counties in each State regarding the proposed designation.

Our Response:

We mailed notices to all County Commissioners within the proposed designation regarding the proposed rule. We also notified all County Commissioners within the proposed critical habitat designation of the draft environmental assessment and draft economic analysis. Further, we

published a legal notice inviting the general public to comment on the proposed rule in the Albuquerque Journal on June 27, 2013. We also held several informational meetings, as noted in our response to Comment 58, above.

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Comment:

Designation of critical habitat has yielded very poor results in terms of recovery for the majority of listed species.

Our Response:

Section 4(a)(3) of the Act, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. The jumping mouse was listed as endangered on June 10, 2014 (79 FR 33119). We found the designation of critical habitat to be prudent and determinable in our proposed critical habitat rule (78 FR 37328; June 20, 2013), and we are therefore required to designate critical habitat under the Act.

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Comment:

Will New Mexico Department of Game and Fish be mandated to remove elk to minimize grazing impacts on the critical habitat?

Our Response:

No. The designation of critical habitat does not impose grazing requirements or restrictions. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a State 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 obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. See our response to Comment 35, above.

(62)

Comment:

Does the Endangered Species Act abrogate the Treaty of Guadalupe Hildalgo?

Our Response:

No. The Treaty of Guadalupe Hidalgo resulted in grants of land made by the Mexican government in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States. These grants of land were respected as valid, to the same extent that the same grants would have been valid within the territories if the grants of land had remained within the limits of Mexico.

The designation of critical habitat has no impact on non-Federal actions taken on private land (

e.g.,

land grants), unless those activities involve Federal lands, Federal funding, a Federal permit (

e.g.,

grazing permits), or other Federal action. If such a Federal nexus exists and the action affects the designated critical habitat, we will review the action under section 7 of the Act with the appropriate Federal agency. In these cases, a Federal agency action that may affect the listed species or its designated critical habitat would be required to consult with the Service to ensure that their action does not jeopardize the continued existence of the species, and if critical habitat is designated, to ensure that their action is not likely to destroy or adversely modify critical habitat. Therefore, we do not believe that designation of critical habitat for the jumping mouse abrogates any treaty of the United States, including the Treaty of Guadalupe Hidalgo.

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Comment:

There is no evaluation of conservation easements or whether private lands are subject to county land use restrictions that would prevent the threat of development. This indicates that the Service has not made the required findings under the Act of designating only “determinable” critical habitat. The Service should forgo designating private lands and work with landowners on a voluntary basis.

Our Response:

The Service recognizes the vital importance of voluntary, nonregulatory conservation measures in achieving the recovery of endangered species. However, we found no conservation easements or State, Federal, or local regulations that might provide some protection to the jumping mouse or its habitat (see section 5.3 “Protective Regulations” in the SSA Report (Service 2014)). Therefore, we are unaware of any protective regulations to prevent ongoing losses of jumping mouse habitat or are unlikely to prevent further future declines of the subspecies, which is why the species is currently listed as endangered.

In regards to county land use restrictions, critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. If there is not a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat.

Section 4(a)(3)(A) of the Act, and implementing regulations (50 CFR 424.12), require us to designate critical habitat to the maximum extent prudent and determinable. Regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following exist: (1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (2) the biological needs of the subspecies are not sufficiently well known to permit identification of an area as critical habitat. We found in our June 20, 2013 (78 FR 37328), proposed rule to designate critical habitat that the biological needs of the subspecies and habitat characteristics where this subspecies is located are sufficiently well known. Further, we conducted an economic analysis, an environmental assessment to comply with NEPA, and a takings implications assessment to assess the impacts of the designation. This and other information represent the best scientific and commercial data available and led us to conclude that the designation of critical habitat is prudent and determinable for the jumping mouse. Therefore, we are required to designate critical habitat for this subspecies to fulfill our legal and statutory obligations.

(64)

Comment:

Given the misperceptions of the impact of the Act, and possible intentional damage to jumping mouse habitat on public land by livestock grazing interests, we suggest the Service consider the economic impacts and benefits of a voluntary grazing permit retirement program as a viable solution to land-use conflicts impacting this and other imperiled species.

Our Response:

We did not conduct an analysis of a voluntary grazing permit retirement program. Because we do not anticipate that this designation will result in a voluntary grazing permit retirement program, it is beyond the scope of the environmental assessment and economic analysis.

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Comment:

The Service should exclude the area proposed as critical habitat in Unit 7 because it would have significant economic impacts. The Service should also exclude lands owned by the Arizona Game and Fish Department in Unit 5.

Our Response:

We have not excluded Unit 7 or Unit 5 from designated critical habitat. The Service is not aware of any conservation plans for Unit 7 or Unit 5.

Further, our economic analysis did not find any incremental costs for grazing in Unit 7 and estimated only $5,000 for additional administrative costs for consultation on the operations of the Lemon Dam in Unit 7, the only other possible incremental cost. The economic analysis estimated $9,940,000 of incremental costs for grazing and all other consultation activities in Unit 5 that would only be associated with Forest Service lands and no lands owned by the Arizona Game and Fish Department. Our environmental assessment did not find significant impacts to the human environment. In addition, we are not aware of any national security impacts or any other relevant impacts of the designation of critical habitat. Consequently, neither Unit 7 nor Unit 5 were excluded from this designation under section 4(b)(2) of the Act. The commenters did not provide any additional information for the Service to consider. See Consideration of Impacts under Section 4(b)(2) of the Act, below, for additional information.

(66)

Comment:

One commenter requested that the upstream extent of critical habitat in Unit 7 should be moved farther downstream, as the Florida Ditch's main headgate is regularly maintained and does not currently, nor will it in the future, contain PCEs.

Our Response:

We reviewed photographs provided by the commenter, as well as imagery from Google Earth, and we agree that this segment at the proposed upstream boundary of Unit 7 does not contain the physical and biological features essential to the conservation of the jumping mouse. It is unoccupied, and is not likely to provide habitat in the future. Therefore, we removed this area from this final critical habitat designation by moving the upstream extent of designated critical habitat along the Florida River 68.6 m (225 ft) downstream of the Florida Ditch's main headgate (see the Summary of Changes from the Proposed Rule section, below). We determined that the area around Florida Ditch's main headgate is unsuitable for the jumping mouse because it is frequently devoid of vegetation and contains irrigation diversion structure, creating unsuitable conditions.

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Comment:

Populations of the jumping mouse along the Florida River have been supported by existing land uses without regulatory intervention. Consequently, the Service cannot demonstrate any benefits from the proposed designation of Unit 7 that is predominately composed of private lands, indicating that the designation would be “prudent.”

Our Response:

Regulations at 50 CFR 424.12(a)(1) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species; or (2) the designation of critical habitat would not be beneficial to the species. We found in our June 20, 2013, proposed rule (78 FR 37328) that designation of critical habitat was prudent. There is no indication that the jumping mouse is threatened by collection, and there are no likely increases in the degree of threats to the subspecies if critical habitat is designated. This subspecies is not the target of collection, and the majority of the area we are designating in Unit 7 is privately owned with restricted public access. For these reasons, the designation of critical habitat is unlikely to increase the degree of threats to the jumping mouse.

In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of critical habitat to the jumping mouse include: (1) Protection under section 7(a)(2) of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat in unoccupied areas (for example, Federal agencies were not aware of the potential impacts of an action on the subspecies or, in this case, the majority of habitat along the Florida River that is unoccupied by the subspecies); (2) implementation of section 7(a)(1) of the Act by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the Act; (3) identification of areas where other conservation partners, such as State and local governments, nongovernmental organizations, and individuals, can focus their conservation efforts; (4) provision of educational benefits to State or county governments, or private entities; (5) provision of early conservation planning guidance, to bridge the gap until the Service can complete more thorough recovery planning, because designation of critical habitat occurs near the time of listing; and (6) improvement of awareness to prevent people from causing inadvertent harm to the subspecies. Therefore, we found designation of critical habitat to be prudent (78 FR 37328; June 20, 2013).

(68)

Comment:

The Service did not explain how the general rationale provided justifies designating critical habitat in Units 7 and 8. There is no unit-specific analysis demonstrating that the enormous portion of unoccupied lands in Units 7 and 8 is “essential to the conservation of the species” and that limiting the designation to occupied areas “would be inadequate to ensure the conservation of the species.” Therefore, the broad area proposed for these units is arbitrary and capricious.

Our Response:

As we presented in the SSA Report (Service 2014), the jumping mouse occurs within eight geographic management areas, which are defined by the external boundaries of the geographic distribution of historical populations. Each critical habitat unit is within one of the eight geographic management areas. Rangewide, we determined that the jumping mouse needs at least two resilient populations (where at least two existed historically) within each of eight identified geographic management areas (

i.e.,

critical habitat units). This number and distribution of resilient populations is expected to provide the subspecies with the necessary redundancy and representation to provide for viability.

Units 7 and 8 are considered partially occupied. Currently the jumping mouse is known only from one location within each of these geographic management areas (Units 7 and 8). Further, the current population in the occupied critical habitat units is represented by habitat patches that are undersized, isolated, and too small to be resilient. Consequently, unoccupied critical habitat is needed to allow for the expansion of the current population and for the establishment of new populations. These unoccupied areas are essential to the conservation of the jumping mouse because they contain current and restorable PCEs that will allow for the expansion of the existing populations and allow for the establishment of new populations. Therefore, unoccupied areas are included in the designation under section 3(5)(A)(ii) of the Act. Further description is provided in the SSA Report in sections 3.3 “Rangewide Subspecies Needs” and 4.2 “Habitat Connectivity and Patch Sizes” (Service 2014).

(69)

Comment:

Examination of satellite imagery shows that the 100-m (330-ft) lateral extent of proposed critical habitat units contains a great deal of land in some areas that is under

cultivation, or otherwise does not contain riparian dense herbaceous vegetation, and does not have flowing water. Therefore, this larger area does not include any of the PCEs and should not be part of the designation. Alternatively, other commenters believed that the proposed 100-m (330-ft) lateral extent of proposed critical habitat did not accurately reflect limits of the jumping mouse habitat and is likely to leave individual jumping mice or the entire subpopulation outside of critical habitat areas (

e.g.,

Unit 6), seasonally or even permanently.

Our Response:

The Act defines critical habitat as (1) specific areas within the geographical area occupied by the [sub]species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the [sub]species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the [sub]species at the time it is listed, upon a determination that such areas are essential for the conservation of the [sub]species. The areas that are unoccupied at the time of listing are not required to contain the PCEs essential to conservation of the subspecies. However, all unoccupied areas we are designating as critical habitat have seasonally perennial flowing water with saturated soils and have the potential to be restored to suitable habitat, including the 100-m (330-ft) lateral extent that captures upland areas necessary for hibernation that are outside the regularly inundated floodplain.

Areas used for hibernation likely do not include lands under cultivation, yet little research has been done on hibernacula (hibernation burrows) of the jumping mouse. It is assumed that they are similar to other subspecies of meadow jumping mouse. Preble's meadow jumping mice dig their own hibernation burrows and are solitary hibernators (Service 2003, p. 8). Only one hibernation nest has ever been observed for the New Mexico meadow jumping mouse (Wright and Frey 2011, p. 3). The hibernaculum was below ground and beneath woody debris under a seep willow (

Baccharis

spp.) (Wright and Frey 2011, p. 8). The site was dry, with an absence of herbaceous vegetation, which was similar to maternal nest sites selected by females (Wright and Frey 2011, pp. 8, 11; Frey and Wright 2012, p. 28).

We acknowledge that some jumping mice may use areas outside of the mapped boundary of designated critical habitat. However, the best available scientific and commercial information indicates that a 100-m (330-ft) lateral extent of critical habitat in occupied areas contains the physical or biological features essential to the jumping mouse and in unoccupied areas is essential for the conservation of the subspecies (see our response to Comment 68, above). As stated in the SSA Report (Service 2014), individual jumping mice also need intact upland areas that are up-gradient and beyond the floodplain of rivers and streams and adjacent to riparian areas and wetlands because this is where they build nests or use burrows to give birth to young in the summer and to hibernate over the winter. Trainor

et al.

(2012, p. 433) found that 97 percent of the normal daily movements and resource requirements of Preble's meadow jumping mice occurred within 110 m (361 ft) from the edge of streams; this includes areas outside of the immediate riparian zones. Extensive movements beyond this distance were limited to less than 3 percent of the home range sizes in Preble's meadow jumping mouse (Trainor

et al.

2012, p. 433). We assume that regular use of these adjacent uplands areas would be similar with the jumping mouse. Therefore, we are designating the adjacent floodplain and upland areas extending approximately 100 m (330 ft) outward from the boundary between the active water channel and the floodplain (as defined by the bankfull stage of streams) or from the top edge of the ditch or canal.

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Comment:

The Service should investigate alternatives within proposed Subunit 6C (Unit 6 in this final rule) that would reduce or eliminate any additional water flow requirements at any of the points where the Middle Rio Grande Conservancy District delivers water to Bosque del Apache NWR. What are the specific flow requirements for critical habitat?

Our Response:

The designation of critical habitat does not impose water flow requirements or restrictions. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Our environmental assessment found that it is unlikely that section 7 consultations will result in flow requirements solely for avoiding adverse modification of critical habitat because the flows would already be necessary for avoiding jeopardy to the jumping mouse in the occupied segments along each stream (Harris Environmental 2014, p. 63). In our economic analysis, we also found it is unlikely that critical habitat on Bosque del Apache NWR would generate additional requests for conservation efforts beyond what would be required due to the listing of the species because the subunit is partially occupied by the jumping mouse (IEc 2014, entire). Nevertheless, future section 7 consultations will evaluate whether proposed actions jeopardize the continued existence of the jumping mouse or adversely modify or destroy critical habitat.

(71)

Comment:

The Service should exclude the subunits proposed as critical habitat in Unit 6 (Middle Rio Grande, New Mexico).

Our Response:

Section 4(b)(2) of the Act states that the Secretary may exclude areas from the final critical habitat after considering the economic impact, impact on national security, or any other relevant impact of the designation. In our June 20, 2013, proposed rule (78 FR 37328), Unit 6 consisted of three subunits: 6A (Isleta Marsh), 6B (Ohkay Owingeh), and 6C (Bosque del Apache NWR). Proposed Subunits 6A and 6B are excluded from this final designation under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of including these areas as critical habitat. For more information, see Consideration of Impacts under Section 4(b)(2) of the Act, below. Proposed Subunit 6C, Bosque del Apache NWR, is occupied by the subspecies and is under Federal ownership. The Service's draft 4(b)(2) guidance states that we will generally not exclude Federal lands from critical habitat designation. Consequently, proposed Subunit 6C was not considered for exclusion in our proposed rule (78 FR 37328; June 20, 2013), and is not excluded in this final rule. As a result, proposed Subunit 6C is renamed Unit 6 in this rule. The commenter did not provide any additional information for the Service to consider.

(72)

Comment:

The Service should exclude proposed Subunit 3C (Rio de las Vacas, New Mexico) because it is unoccupied and there is no scientific basis for the designation.

Our Response:

We conclude that this area is essential to the conservation of the jumping mouse because: (1) The areas occupied by the jumping mouse since 2005 do not contain enough suitable, connected habitat to support resilient populations of jumping mouse; (2) the currently unoccupied segments within individual stream reaches or waterways need to be of sufficient size to allow for the expansion of populations and provide connectivity (active season movements and

dispersal) between multiple populations as they become established; (3) additional areas need habitat protection to allow restoration of the necessary herbaceous vegetation for possible future reintroductions; and (4) multiple local populations along streams are important to maintaining genetic diversity within the populations and for providing sources for recolonization if local populations are extirpated. Therefore, all of the partially occupied or completely unoccupied areas are included in the designation under section 3(5)(A)(ii) of the Act.

The Service is not aware of any conservation plans for Subunit 3C. The economic analysis estimated $3,400,000 of incremental costs for grazing and all other consultation activities in Subunit 3C associated with Forest Service lands. Our environmental assessment did not find significant impacts to the human environment. In addition, we are not aware of any national security impacts or any other relevant impacts of the designation of critical habitat. Consequently, we did not exclude Subunit 3C from this designation. See Consideration of Impacts under Section 4(b)(2) of the Act, below. The commenter did not provide any additional information for the Service to consider.

(73)

Comment:

Morrison (1990, entire) reported that grazing may be compatible with maintenance of jumping mouse populations. Moreover, in the environmental impact statement for the San Diego Range Allotment, the Forest Service found that maintaining 10 cm (4 in) of stubble height in grazed areas would not cause a trend toward Federal listing of the jumping mouse.

Our Response:

Morrison (1990, p. 142) found that moderate livestock grazing that is carefully monitored could be compatible. Unfortunately, little monitoring has occurred over the last few decades within jumping mouse habitat on National Forest lands. Morrison (1990, p. 142) also reported that livestock grazing had the highest potential for impacting streamside riparian vegetation and wet meadow habitat. See our response to Comment 46, above, about livestock grazing and the jumping mouse.

We found that current forage utilization guidelines of the Forest Service have limited the availability of adequate vertical cover of herbaceous vegetation and significantly affected jumping mouse habitat in areas that are not protected from livestock (Forest Service 2013, entire; Frey 2005a, entire; 2007b, pp. 16-17; 2011, p. 43; Service 2007, entire).

We have no information that indicates that livestock grazing is likely to be reduced in the future or that areas adjacent to recently documented populations would be managed to provide suitable habitat for expansion of jumping mouse populations. Morrison (2014, p. 2) indicates that grazing is one of the most problematic factors affecting jumping mouse habitat and this issue must be addressed in conjunction with critical habitat and recovery of the subspecies. Consequently, the designation of critical habitat will ensure that livestock management practices authorized by Federal agencies are not conducted without required consultation.

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Comment:

The Service must identify specific areas or sections as critical habitat rather than long stretches of San Antonio Creek (Subunit 3A), Rio Cebolla (Subunit 3B), and Rio de las Vacas (Subunit 3C).

Our Response:

When we conduct a critical habitat analysis, we use the best available scientific and commercial data to determine the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential for the conservation of the species which may require special management considerations or protection. We also analyze whether specific areas outside the geographical area occupied by a species at the time it is listed are essential for the conservation of the species. As stated in the proposed rule (78 FR 37328; June 20, 2013) and the SSA Report (Service 2014), in considering the area needed for maintaining resilient populations of adequate size with the ability to endure adverse events (such as floods or wildfire), we estimate that resilient populations of jumping mice need connected areas of suitable habitat in the range of at least 27.5 to 73.2 ha (68 to 181 ac), along 9 to 24 km (5.6 to 15 mi) of flowing streams, ditches, or canals. We selected upstream and downstream boundaries that would avoid including highly degraded areas that are not likely restorable, areas that were permanently dewatered or permanently developed (

i.e.,

natural vegetation removed), or areas in which there was some other indication that suitable habitat no longer existed and was not likely to be restored. These unoccupied areas are essential to the conservation of the jumping mouse because they will allow for the expansion of the existing populations and allow for the establishment of new populations. See our responses to Comments 1, 68, and 69, above, for additional information.

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Comment:

There is not enough information known on the biological needs of the jumping mouse to designate critical habitat, especially because almost nothing is known about the populations along the Florida River (Unit 7) and Sambrito Creek (Unit 8).

Our Response:

The Act requires us, to the maximum extent prudent and determinable, to designate critical habitat at the time the species is determined to be an endangered or threatened species based on the best scientific and commercial data available. It is often the case that biological information may be limited for rare species; however, we reviewed all available information and incorporated it into this final rule.

(76)

Comment:

There are ongoing efforts by Colorado Parks and Wildlife to revitalize and enhance the wetlands of Sambrito Creek. Accordingly, section 7 consultation requirements for proposed Unit 8 would impact the ability to complete the project in a timely matter and result in increased administrative and substantive costs.

Our Response:

Our understanding from Colorado Parks and Wildlife is that the project is complete and there were no increased administrative and substantive costs.

(77)

Comment:

What dams, diversions, wells, and management activities involve a Federal nexus? What areas proposed as critical habitat have privately owned water rights associated with them?

Our Response:

Section 7(a)(2) of the Act requires that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat in unoccupied areas. The Service conducted outreach efforts to other Federal agencies and limited interviews with relevant stakeholders concerning the likely effects of critical habitat. The U.S. Army Corps of Engineers anticipated section 7 consultation for the rehabilitation of Lake Dorothey and Lake Alice in Unit 1 (partially occupied by the subspecies). In addition, the Service anticipates consulting on the operations of the Lemon Dam in Unit 7 (partially occupied by the subspecies), which is owned by the Bureau of Reclamation. Lastly, the Service anticipates the re-initiation of a programmatic consultation for water use and management activities on the Middle Rio Grande in Unit 6 (partially occupied by the subspecies) (Harris Environmental Inc., 2014, pp. 59-61;

IEc 2014, pp. 14-16). The Service did not receive any further information on water management structures. Per section 7 of the Act, it is the responsibility of the respective Federal agencies to determine whether any of their ongoing or proposed actions may affect jumping mouse critical habitat and to consult with the Service. We did not conduct an analysis of privately owned water rights because it is beyond the scope of the environmental assessment and economic analysis. Nevertheless, the economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jumping mouse. As the Act's critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation.

(78)

Comment:

Many private land inholdings are unfenced and managed as part of a grazing unit with Forest Service lands.

Our Response:

In these instances, the Forest Service will determine whether actions on private lands are interrelated or interdependent with the Federal permit authorizing grazing on public lands. If the action is interrelated or interdependent and may affect the listed species or its designated critical habitat, then section 7 consultation under the Act will be necessary.

(79)

Comment:

The proposed critical habitat designation would conflict with Executive Order 13563 (Improving Regulation and Regulatory Review), which says that our regulatory system must protect public health, welfare, safety, and the environment, while promoting economic growth, innovation, competitiveness, and job creation.

Our Response:

We have developed this rule in a manner consistent with these requirements. See the

Regulatory Planning and Review (Executive Orders 12866 and 13563)

statement in this final rule, below.

(80)

Comment:

It is impossible to maintain an average stubble height of greater than 61 cm (24 in) throughout the growing season because plants die back each year and because site potential or year-to-year variability in growing conditions will preclude plants reaching this height every year.

Our Response:

The designation of critical habitat does not require management or maintenance of the PCEs, such as vegetation height. This suitable habitat, of average stubble height of greater than 61 cm (24 in), is found only when wetland vegetation achieves full growth potential associated with seasonally perennial flowing water and moist soils.

(81)

Comment:

At three locations along the East Fork of the Little Colorado River, Arizona, herbaceous riparian vegetation that was ungrazed did not average 61 cm (24 in) in height. Site potential and yearly variability in growing conditions will preclude plants achieving maximum expression of height on every site and in every year.

Our Response:

We acknowledge and agree that site potential and yearly growing conditions will influence the height of dense herbaceous riparian vegetation. The designation of critical habitat does not require the management or maintenance of the PCEs, such as vegetation height. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. See our response to Comment 61, above, for additional information on section 7 consultation.

(82)

Comment:

There is significant uncertainty and lack of scientific evidence demonstrating that the jumping mouse exists or existed in the Florida River, Colorado (Unit 7); therefore, critical habitat should not be designated there.

Our Response:

The best available scientific evidence confirms the existence of New Mexico meadow jumping mice from the Florida River, Colorado. Frey (2008c, pp. 36, 42, 44) verified three museum specimens (one from 1945 and two from 2007) from Florida River, La Plata County. Two of these jumping mice were captured from private property along the Florida River (Museum of Southwestern Biology 2007, entire; 2007a, entire; Frey 2008c, pp. 42-45, 56; 2011a, pp. 19, 33). Another peer reviewer and subspecies expert, Dr. Jason Malaney (Malaney

et al.

2012, p. 695; Appendix S1), genetically verified specimens collected in 2007 along the Florida River as New Mexico meadow jumping mice (museum numbers 1154917 and 155117). Recent genetic and morphological studies also conclusively found that the New Mexico meadow jumping mouse is a distinct subspecies and is genetically discrete from other

Zapus hudsonius

subspecies (King

et al.

2006, pp. 4336-4348; Vignieri

et al.

2006, p. 242; Frey 2008c, p. 34; Malaney

et al.

2012, p. 695; Figure 1).

(83)

Comment:

The proposed Unit 7 (Florida Unit) extends over 9.7 km (6 mi) upriver from where the two jumping mice were captured; this distance is not supported by scientific information regarding habitat requirements or reported movements by the subspecies.

Our Response:

We used the best available scientific and commercial information in designating critical habitat based on the physical and biological features and PCEs of occupied areas; and unoccupied areas that were essential to the conservation of the subspecies, as specified in section 4 of the Act. See our response to Comment 1, above, which describes our method of designating critical habitat. As stated in the SSA Report (Service 2014, entire) and this final rule, additional populations are needed to provide connectivity and expand jumping mouse populations throughout the drainage. Since there is currently limited suitable habitat of only 0.15 ha (0.37 ac), we included 13.6 km (8.4 mi) in the unit, which would provide the needed size and connectivity of suitable habitat of the jumping mouse in the Florida River and provide population redundancy and resiliency essential to the conservation of the subspecies.

(84)

Comment:

There is no evidence that, even if the specimens from the Florida River (Unit 7) are New Mexico meadow jumping mice, this northern, outlier area is critical to the survival of the subspecies.

Our Response:

See our response to Comment 82, above, about the existence of the subspecies in the Florida River. As stated in the SSA Report (Service 2014), the subspecies' overall level of extinction risk is high, given the ongoing and likely future losses of habitat in conjunction with the disjunct and isolated nature of populations. Rangewide, we concluded that the jumping mouse needs at least two resilient populations (where at least two existed historically) within each of eight identified geographic management areas. This number and distribution of resilient populations is expected to provide the subspecies with the necessary redundancy and representation to provide for viability. Conservation of each of the currently remaining 29 populations is vital for maintaining the overall redundancy and representation for the subspecies. Because jumping mouse populations are currently small and isolated from one another, the survival and recovery of the subspecies will require expanding the size of currently occupied areas containing suitable habitat into currently unoccupied areas that need to reestablish suitable conditions. The ability of jumping mouse populations to be resilient to adverse stochastic events depends on the robustness of a population and the ability to recolonize

if populations are extirpated. In this designation, each of the eight critical habitat units is essential for critical habitat to serve its intended purpose; loss of functionality of even one unit would severely impair the conservation functionality of the entire designation. This is further explained in section 3.3 “Rangewide Subspecies Needs” of the SSA Report (Service 2014).

(85)

Comment:

The prohibition against adversely modifying critical habitat under section 9 of the Act, irrespective of a Federal nexus, will affect private landowners.

Our Response:

Section 9 of the Act does not pertain to critical habitat. The prohibition against “take” of a listed species under section 9 of the Act applies to individuals of an endangered or threatened species.

Comments on Environmental Assessment

(86)

Comment:

The environmental assessment should address the type and extent of monitoring that will be needed for jumping mouse populations and habitat.

Our Response:

The environmental assessment analyzes the environmental consequences that may result from the designation of critical habitat for the jumping mouse. The designation of critical habitat does not require monitoring of populations or habitat of the jumping mouse. This is beyond the scope of the environmental assessment, but will likely be part of the forthcoming recovery plan.

(87)

Comment:

Multiple factors, including significance of impacts, controversy, regulatory takings implications, and environmental justice, indicate that an environmental impact statement is required under NEPA.

Our Response:

An environmental impact statement is required only in instances where a proposed Federal action is expected to have a significant impact on the human environment. In order to determine whether designation of critical habitat would have such an effect, we prepared an environmental assessment of the effects of the proposed designation. On April 8, 2014, we announced the availability of the draft environmental assessment in the

Federal Register

(79 FR 19307) and asked for public comment. Following consideration of public comments, we prepared a final environmental assessment that determined that the critical habitat designation for the jumping mouse does not constitute a major Federal action having a significant impact on the human environment. That determination is the basis for our finding of no significant impact (FONSI). Both the final environmental assessment and FONSI are available for public on

http://www.regulations.gov

under Docket No. FWS-R2-ES-2013-0014.

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Comment:

There has been no consideration of excluding areas of critical habitat based on other relevant impacts to the cultural and historic traditions of the people within northern New Mexico.

Our Response:

In the draft environmental assessment, we evaluated impacts to cultural and historical resources from the designation of critical habitat for the jumping mouse. We found that negative impacts on human health or the natural environment are not anticipated.

In the draft economic analysis, we evaluated impacts to cultural and historical resources from the designation of critical habitat for the mouse. Project modifications to avoid adverse modification of unoccupied critical habitat (Service 2013c), which may affect cultural resources, include: (1) Relocate the project to an area outside of jumping mouse critical habitat; (2) reduce the size and configuration of the proposed project to avoid, reduce, or eliminate the effects to unoccupied critical habitat; and (3) avoid ground-disturbing activities or reduce project elements that would preclude the development of habitat patches containing dense herbaceous riparian vegetation.

These project modifications are unlikely to affect cultural resource projects. Similar project modifications also would apply to many other types of projects (

e.g.,

highway reconstruction, development, water management) and would serve to protect cultural resources from impacts caused by these other projects. Any ground-disturbing actions to protect critical habitat (

e.g.,

exclosure fencing) would require cultural and archaeological surveys and be subject to separate cultural resource and NEPA analysis. In our draft environmental assessment, we analyzed potential impacts on unique cultural and historic resources in the area and found no impacts (Harris Environmental 2014, p. 118).

In the draft environmental assessment, we found that costs associated with designation of critical habitat for the jumping mouse are not likely to have a significant impact on low-income or minority populations because: (1) Total costs are estimated to be less than $100 million in any one year (and were estimated to be $23 million per year in 2014), and (2) costs would be distributed among multiple agencies and private parties. Therefore, significant disproportionately high and adverse impacts to minority or low-income populations, or to cultural and historic traditions, are unlikely to occur.

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Comment:

Several commenters stated that the Service cannot propose a critical habitat designation prior to the analysis of alternatives under NEPA and a draft economic analysis. On August 28, 2013 (78 FR 53058), the Service revised regulations implementing the Act to provide that a draft economic analysis be completed and made available for public comment at the time of publication of a proposed rule to designate critical habitat. The Service did not complete an economic analysis and make it available for public comment at the time of publication of a proposed rule to designate critical habitat for jumping mouse.

Our Response:

The Service published our proposed rule to designate critical habitat for the jumping mouse on June 20, 2013 (78 FR 37328), more than 2 months prior to the publication of the final rule revising the regulations for impact analyses of critical habitat (78 FR 53058; August 28, 2013), and more than 4 months prior to that final rule's effective date (October 30, 2013). On June 20, 2013, our regulations at 50 CFR 424.19 stated: “The Secretary shall identify any significant activities that would either affect an area considered for designation as critical habitat or be likely to be affected by the designation, and shall, after proposing designation of such an area, consider the probable economic and other impacts of the designation upon proposed or ongoing activities.” The Service interpreted “after proposing” to mean after publication of the proposed critical habitat rule. Consequently, when we published the jumping mouse proposed critical habitat rule, we followed the regulations that were current at that time.

The draft environmental assessment is used to decide whether critical habitat will be designated as proposed or if further refinements or analyses are needed. The Council on Environmental Quality's regulations for implementing the procedural provisions of NEPA (40 CFR 1501.3) state that “Agencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.” This same statement is reiterated in the Department of the Interior's regulations for implementing NEPA (43 CFR 46.300(b)). Therefore, we are not required to prepare an environmental assessment prior to the publication of a proposed critical habitat designation. In addition, the Departmental regulations state that

“bureaus may seek comments on an environmental assessment if they determine it to be appropriate” (43 CFR 46.305(b)). As such, on April 8, 2014, we announced the availability of, and solicited public comment on, the draft environmental assessment of the proposed critical habitat designation in the

Federal Register

(79 FR 19307).

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Comment:

The Service must perform a more thorough analysis of the oil and gas potential in proposed Unit 7 because new geological information and technologies may reveal deposits that currently have no or low potential.

Our Response:

We have used the best scientific and commercial data available at the time in developing this critical habitat designation and associated documents such as the environmental assessment and economic analysis. In our draft environmental assessment, we found that conventional oil and gas extraction does not currently occur within the proposed critical habitat, and we are aware of no proposed oil or gas extraction beyond coalbed methane. As stated in the environmental assessment, coalbed methane exploration and production has the potential to fragment or eliminate habitat of the jumping mouse within Sugarite Canyon, New Mexico, and the Florida River and Sambrito Creek, Colorado (Harris Environmental 2014, pp. 76-81). Within Unit 7, there are only 2.5 ha (6 ac) of critical habitat in areas with potential for coalbed methane development on BLM lands. The BLM does not anticipate consultation for coalbed methane development on any of the critical habitat units (BLM 2013, entire). There is no critical habitat on Forest Service lands within Unit 7. This indicates consultation concerning coalbed methane development is not likely.

Consequently, an analysis of potential impacts to conventional oil and gas extraction is not warranted. The “Energy Resources” section of the draft environmental assessment provides further discussion regarding this topic.

(91)

Comment:

The designation of critical habitat will have a greater impact than the mere listing of the subspecies because it contains large areas not occupied by the jumping mouse and will result in additional consultations with Federal agencies that might not have otherwise occurred.

Our Response:

The designation of unoccupied critical habitat may result in additional consultations. However, only those projects that may affect critical habitat and have a Federal nexus would require section 7 consultations with the Service. During these consultations, it is the responsibility of the Federal action agency to consult with the Service, not the private individual or company. If there is not a Federal nexus for a given action or if critical habitat is not affected, then critical habitat designation does not restrict any actions that destroy or adversely modify critical habitat including on private lands. Our environmental assessment found that the effects of proposed critical habitat designation for the jumping mouse would likely only result in minor increases in administrative effort for section 7 consultations (Harris Environmental 2014, pp. 115-116). See our response to Comment 35, above, for further information on section 7 consultation for critical habitat. See also Consideration of Impacts under Section 4(b)(2) of the Act, below.

(92)

Comment:

Several commenters asked that we not designate critical habitat if it would compromise water rights or otherwise adversely impact farmers or other agricultural interests such as livestock grazing, irrigation ditches, acequias, or Rio Grande Compact delivery obligations within critical habitat units.

Our Response:

Pursuant to the Act, we are statutorily required to designate critical habitat for a federally listed species if it is determined to be both prudent and determinable. We made a determination that critical habitat was both prudent and determinable in our proposed rule (78 FR 37328; June 20, 2013). 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 State, tribal, local, or private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. If there is not a Federal nexus for activities taking place on private or State lands, then critical habitat designation does not restrict those actions. Where a landowner 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 obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. The mere promulgation of a regulation, like designating critical habitat, does not take private property unless the regulation on its face denies the property owners all economically beneficial or productive use of their land, which is not the case with critical habitat. The Act does not restrict all uses of critical habitat, but only imposes requirements under section 7(a)(2) on Federal agency actions that may result in destruction or adverse modification of designated critical habitat. These requirements do not apply to private actions that do not need Federal approvals, permits, or funding. Furthermore, as mentioned above, if a biological opinion concludes that a proposed action is likely to result in destruction or modification of critical habitat, we are required to suggest reasonable and prudent alternatives. See our response to Comment 35, above.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Service has considered these factors; see Consideration of Impacts under Section 4(b)(2) of the Act, below. We are unaware of any instances where water rights or other agricultural interests would be significantly impacted by this designation. Our environmental assessment found that the designation of critical habitat would not have a significant impact on the human environment and that potential impacts on environmental resources, both beneficial and adverse, would be minor. Impacts of critical habitat designation on natural resources within the areas proposed as jumping mouse critical habitat were analyzed and discussed in chapter 3 of the environmental assessment. Applying the analysis of impacts to the significance criteria identified in chapter 3, the Service concluded that the adverse impacts of critical habitat designation would not be significant (Harris Environmental 2014, pp. 115-116).

Further, our final economic analysis did not indicate any disproportionate economic impacts resulting from the designation, and no impacts to national security or other relevant impacts were identified with the exception of Isleta Pueblo and Ohkay Owingeh (see Tribal Lands—Exclusions Under Section 4(b)(2) of the Act, below). The economic analysis also addresses impacts to livestock grazing in section 4 and impacts on water management in section 3.

Comments on Economic Analysis

(93)

Comment:

The designation of critical habitat for the jumping mouse in the Middle Rio Grande, New Mexico (Unit 6), would result in an increase in time and cost for consultations and impact water diversions, the use of water, and agriculture.

Our Response:

In our economic analysis, we anticipate the re-initiation of a programmatic consultation for water use and management activities on the Middle Rio Grande, which would include critical habitat on Bosque del Apache NWR. This re-initiation is expected to occur regardless of critical habitat designation because Unit 6 is partially occupied by the subspecies. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat, because the subspecies is tied so closely to its habitat. Our incremental effects memo provides a detailed description of the information used for the analysis (Service 2014, entire). Therefore, incremental costs are likely limited to the additional administrative costs associated with addressing adverse modification in the consultation. This incremental administrative effort due to the designation of critical habitat should not impact the timeliness of consultation.

(94)

Comment:

Any increase in water demand to maintain flow requirements for critical habitat on Bosque del Apache NWR will result in less water for consumptive use within the middle Rio Grande in New Mexico.

Our Response:

In our economic analysis, we found it is unlikely that critical habitat on Bosque del Apache NWR would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the subspecies is tied so closely to its habitat. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above.

(95)

Comment:

The Service is bound by law to provide a more complete economic analysis of the impacts and not just the draft economic screening memorandum.

Our Response:

The economic screening memorandum is our economic analysis of the proposed critical habitat designation (IEc 2014, entire). This analysis provides us with information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. The draft economic analysis addressed potential economic impacts of critical habitat designation for the jumping mouse. To that end, the analysis estimates impacts to activities, including grazing, water use, and recreation, that may experience the greatest impacts in compliance with section 4(b)(2) of the Act. The draft screening memo is provided to the public for review and comment. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable economic impacts of this critical habitat designation. We conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. Information relevant to the probable economic impacts of critical habitat designation for the jumping mouse is available in the screening analysis (IEc 2014), available at

http://www.regulations.gov.

(96)

Comment:

The economic analysis fails to consider consultation with Federal Emergency Management Agency and Natural Resources Conservation Service in proposed Unit 7 that would affect farmers on private land that get loans, grants, subsidies, and technical assistance.

Our Response:

We contacted these agencies via letter and requested information to serve as a basis for conducting an economic analysis of the proposed critical habitat designation for the jumping mouse. We received no information on anticipated consultations relating to this critical habitat designation from these two Federal agencies. Consequently, based on the best available scientific and commercial data, the economic analysis did not forecast any consultations occurring with Federal Emergency Management Agency or Natural Resources Conservation Service in Unit 7.

(97)

Comment:

The Southern Ute Tribe receives water from the Florida Project in proposed Unit 7 (Florida River) to irrigate land within the reservation. The Southern Ute Tribe is concerned that the Service did not evaluate the economic impacts related to consultation with the Bureau of Reclamation and whether the designation of critical habitat may impair their abilities to divert and manage water.

Our Response:

Our economic analysis found that it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the needs of the subspecies are tied so closely to its habitat. It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above. Therefore, incremental costs to this project are likely limited to the additional administrative costs associated with addressing adverse modification in the consultation.

(98)

Comment:

Lemon Dam upstream of Unit 7 (Florida River) is principally managed by the Bureau of Reclamation. Consequently, there is a concern that routine maintenance and operations may trigger section 7 consultation, which may impact timely dam repairs and water releases.

Our Response:

Our economic analysis anticipated that we will undergo a formal consultation on the operations of the Lemon Dam in Unit 7, which is owned by the Bureau of Reclamation (IEc 2014, p. 15). As described in the economic screening memorandum, it is unlikely that critical habitat would generate additional requests for conservation efforts beyond what would be required due to the listing of the subspecies because the subspecies is so closely tied to its habitat. Unit 7 is partially occupied by the jumping mouse (IEc 2014, p. 15). It is unlikely that additional project modification would be required to avoid adversely modifying or destroying critical habitat. See our response to Comment 93, above. Therefore, incremental costs to this project are likely limited to about $5,000, the additional administrative costs associated with addressing adverse modification in the consultation (IEc 2014, pp. 15, 17). This incremental administrative effort due to the designation of critical habitat should not impact the timeliness of repairs and water releases.

(99)

Comment:

Private landowners within the proposed critical habitat units are opposed to the designation due to the economic impacts that will result.

Our Response:

We completed an economic analysis of the likely impacts of designating critical habitat for the jumping mouse on water use and management, transportation, recreation, development, and subspecies and habitat management. The economic analysis provides us with the information on the potential for the proposed critical habitat rule to result in costs exceeding $100 million in a single year. This analysis estimated direct (section 7) and indirect costs likely to result from the proposed critical habitat designation for the jumping mouse undertaken by or permitted by Federal agencies within proposed critical habitat. The total quantifiable

incremental section 7 costs associated with the proposed designation was estimated to be $23,000,000 per year in 2014. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. In addition, the analysis concluded that the designation of critical habitat is unlikely to trigger additional indirect requirements under State or local regulations. Further, this analysis is supplemented by a separate memorandum assessing the potential perceptional effects on grazing. This analysis concludes that the aggregate value of all activities on these lands is less than $100 million. Therefore, we conclude that critical habitat designation for the jumping mouse is unlikely to generate costs exceeding $100 million in a single year. Based on this information, we did not find any areas warranted exclusion from designation of critical habitat based on economic impacts (see our response to Comment 88, above).

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Comment:

The incremental effects memorandum and economic screening memorandum were available for public comment for only 30 days, rather than the required 60 days under 50 CFR 424.16(c)(2).

Our Response:

Under 50 CFR 424.16(c)(2), we are required to allow at least 60 days for public comment following publication of a rule proposing the designation of critical habitat. This regulation applies to th

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