Endangered and Threatened Wildlife and Plants; Proposed Special Regulations for the Preble's Meadow Jumping Mouse

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AF30

Endangered and Threatened Wildlife and Plants; Proposed Special

Regulations for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Preble's Meadow Jumping Mouse (Zapus hudsonius preblei)

(Preble's) was listed as a threatened species under the Endangered

Species Act (Act) of 1973 (16 U.S.C. sections 1531 to 1544) on May 13,

1998. At the time the Preble's was listed, a special rule for the

conservation of Preble's was not promulgated and therefore virtually

all of the restrictions of the Act became applicable to the species.

This proposed rule would establish special standards for the

conservation of the Preble's over the next 18 months, long enough to

devise a more comprehensive and lasting approach for preserving the

species.

DATES: Your comments on the proposed rule must be received by February

1, 1999 to receive consideration by the Service.

ADDRESSES: You should send your comments concerning this proposal to

LeRoy Carlson, Field Supervisor, Colorado Field Office, Ecological

Services, P.O. Box 25486, Denver Federal Center, Denver, Colorado

80225-0207. Comments and materials received are available for public

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service's Colorado Field Office, 755 Parfet Street,

Suite 361, Lakewood, Colorado.

FOR FURTHER INFORMATION CONTACT: LeRoy W. Carlson, Field Supervisor,

Colorado Field Office (see ADDRESSES section), telephone 303/275-2370.

SUPPLEMENTARY INFORMATION:

Background

The Preble's meadow jumping mouse (Zapus hudsonius preblei), a

subspecies of the meadow jumping mouse (Zapus hudsonius) is known to

occur only in portions of Colorado and Wyoming. The final rule listing

Preble's as a threatened species under the Endangered Species Act was

published in the Federal Register on May 13, 1998 (63 FR 26517).

Section 4(d) of the Act (16 U.S.C. section 1533) provides that whenever

a species is listed as a threatened species, the Secretary of the

Interior will issue regulations deemed necessary and advisable to

provide for the conservation of the species. This is done in either of

two ways.

First, the Fish and Wildlife Service (Service) has issued

regulations that generally apply to threatened wildlife virtually all

the prohibitions that section 9 of the Act (16 U.S.C. section 1538)

establishes with respect to endangered wildlife. These prohibitions, in

part, make it illegal for any person subject to the jurisdiction of the

United States to ``take'' any listed wildlife species; i.e., to harass,

harm, pursue, hunt, shoot, wound, kill, trap, or collect any threatened

or endangered species or to attempt to engage in any such conduct [16

U.S.C. section 1532 (19)].

The Service's regulations for threatened wildlife, however, also

provide that a ``special rule'' under section 4(d) of the Act can be

tailored for a particular threatened species. In that case, the general

regulations applying most section 9 prohibitions to threatened species

do not apply to that species, and the special rule is to contain the

prohibitions (and exemptions) necessary and appropriate to conserve

that species.

At the time Preble's was listed, we did not promulgate a special

section 4(d) rule and, therefore, the section 9 prohibitions, including

the take prohibitions, became applicable to the species. We are now

proposing to issue this special rule for the Preble's to replace those

general prohibitions with special measures tailored to the conservation

of this species.

We anticipate that this proposed rule will prohibit actions that

threaten the Preble's, to the extent necessary to provide for the

conservation of the Preble's. It also provides flexibility to private

landowners for ongoing activities that will not jeopardize the species.

We also believe that this rule would garner the support of State and

local governments, private landowners, and other interested parties for

a lasting, cooperative approach for the long-term conservation of the

species.

This proposed rule is best understood in the context of other

regulations and actions, already in place or in development, to provide

for conservation of the Preble's.

First, it is important to understand that an activity now

prohibited under the general regulations or that would be prohibited

under this special rule may still be allowed under section 10 of the

Act. That section provides for a person to obtain from us in

appropriate

[[Page 66778]]

circumstances a permit allowing the ``incidental'' taking of Preble's.

One of the purposes of this proposed rule is to enable us to make, in

advance, general decisions that certain types of activities are

consistent with the conservation of Preble's, without requiring people

to seek individual Section 10 permits authorizing those activities.

Additional activities that would result in the take of Preble's still

could be permitted by us under section 10 of the Act.

Currently, the State of Colorado, the Service, and various local

governmental entities are working together to develop one or more plans

to conserve the Preble's and its habitat. This collaborative approach

is expected to result in the development of one or more habitat

conservation plans and applications to the Service for incidental take

permits under section 10 of the Act. These habitat conservation plans

will provide the foundation upon which to build a lasting, effective,

and efficient recovery program for the Preble's.

Under this planning process, we have held three rounds of public

meetings in each of the five geographic subareas that comprise the

known range of the Preble's in Colorado. Key riparian areas important

to Preble's that require protection have been identified, threats to

the Preble's have been ranked in importance, and preliminary strategies

to minimize or mitigate adverse impacts to the Preble's have been

discussed by stakeholders. Nine Colorado counties and five Colorado

cities have passed resolutions supporting this planning process and

have indicated that they will consider using their regulations,

incentives, and ordinances to protect the Preble's. We are also working

with local governments in Wyoming on similar conservation planning

efforts.

Both this long-term cooperative approach and this short-term

special rule are consistent with the spirit and intent of the November

29, 1995, Memorandum of Agreement between the Secretary of the Interior

and the Governor of Colorado. This agreement commits the Service and

the State to use the flexibility in State and Federal laws and

regulations and promotes participation of a broad spectrum of partners

to achieve long-term conservation and development solutions. By

involving and taking advantage of the land use planning and other

authorities and resources of State and local governments, we believe

that we can more effectively provide for the long-term conservation of

the Preble's than relying just on our own authorities and resources.

One of the purposes of this special rule is to begin allowing for that

cooperation among us, the States, and local governments.

The second important component of the context for this special rule

is that Federal agencies are required under section 7 of the Act to

consult with us to ensure that their actions are not likely to

jeopardize the Preble's. For consultations that involve the use of

Federal land, we expect that those lands will be managed to contribute

to the conservation of the species to the maximum extent possible,

lessening the burden on others. Other types of consultations involve

actions similar to those that are considered under the section 10

process. For example, many of the activities likely to affect the

Preble's will be undertaken wholly or partly in riparian areas, and

will be subject to permitting requirements of the Clean Water Act, such

as Sec. 404 dredge-and-fill permits to be issued by the Army Corps of

Engineers. We expect to apply the same type of approach reflected in

this proposed rule, when appropriate, to those consultations.

Third, a variety of Federal, State, and local programs are

available to help conserve the Preble's through the acquisition and

preservation of its habitat. These include the Service's Partners for

Fish and Wildlife Program, the Natural Resource Conservation Service's

wetland/riparian habitat protection programs, grant programs

administered by Great Outdoors Colorado, city and county open space

programs, and activities of local land trusts. In particular, our

Partners for Fish and Wildlife Program has proven to be an especially

effective approach for wildlife conservation on agricultural lands by

providing funding for restoration of wetland and riparian habitats. We

intend to dedicate additional funds to our Partners for Fish and

Wildlife Program for the conservation of the Preble's on private lands.

Provisions of the Rule

Term of the Rule

We are proposing the conditions contained in this rule to be

enforced for a period of 18 months. It is expected that during this

time period, comprehensive habitat conservation plans for the Preble's

will be developed.

Take Prohibitions

We are proposing that virtually all of the prohibitions under

section 9 of the Act that apply to endangered species continue to apply

to the Preble's, to the same extent as they apply to other threatened

species under our general regulations, except that certain activities

would be exempted. This would make it illegal for any person subject to

the jurisdiction of the United States to take any Preble's; i.e., to

harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect them

or to attempt any of these actions. It would also make it illegal to

import or export, ship in interstate commerce in the course of

commercial activity, or sell or offer for sale in interstate or foreign

commerce any Preble's, or to possess, sell, deliver, carry, transport,

or ship any Preble's that have been taken illegally.

Exempted Activities

We are proposing to include in this rule the following exemptions,

provided that the activities resulting in such take are conducted in

accordance with the requirements identified in this special rule.

1. Activities Outside of Mouse Protection Areas and Potential Mouse

Protection Areas

In this rule, we are proposing to exempt all incidental take

outside of specified Mouse Protection Areas and Potential Mouse

Protection Areas (which are further explained below). As with many

other listed species, the Service maintains records of known occurrence

of the Preble's, as well as information on high potential habitat areas

throughout its range. Mouse Protection Areas are areas where mice have

been documented since 1992 and reported to the Service. Potential Mouse

Protection Areas are areas that have a high potential to support the

Preble's based on habitat conditions. Together these areas include more

than 1,000 linear miles of streams and constitute the known locations

and potential Preble's habitat in Colorado and Wyoming.

We believe that these areas include sufficient habitat to achieve

recovery of the Preble's and that incidental take outside of these

areas will be unlikely and would not compromise Preble's conservation

efforts. These areas may be amended or adjusted based on new

information.

2. Rangewide Exemptions

We are proposing to exempt four types of existing activities from

the take prohibitions anywhere within the Preble's range (including

within Mouse Protection Areas and Potential Mouse Protection Areas).

a. Rodent control within 10 feet of or inside any structure. The

Preble's is generally not found in association with structures such as

barns, houses, and other buildings. We believe that any Preble's

mortality associated with

[[Page 66779]]

trapping near these structures would be insignificant and that this

exemption will promote public support for Preble's conservation

efforts.

b. Ongoing agricultural activities. This exemption provides for a

continuation of existing agricultural practices but does not allow an

increase of impacts to, or further encroachment upon, Preble's habitat.

For example, it does not allow for an increase in grazing intensity in

Preble's habitat or mowing closer to a stream supporting the Preble's.

Situations where Preble's populations coexist with ongoing agriculture

may provide valuable insight into habitat conditions required by the

Preble's and the specific types of grazing and farming practices that

are compatible with the Preble's.

We believe that the exemption for agricultural practices will

provide a positive incentive for agricultural interests to engage in

voluntary conservation activities and will remove much of the existing

reluctance by private landowners to allow Preble's surveys to be

conducted on their lands. These surveys may lead to a more complete

understanding of the status and distribution of the species. With this

knowledge, our ability to develop an effective long-term recovery

program will be enhanced.

c. Maintenance and replacement of existing landscaping and related

structures and improvements, with no increase in impervious surfaces.

Some existing landscaping activities, such as lawn mowing and gardening

associated with residential or commercial development, golf courses,

and parks have disrupted Preble's habitat in certain areas. However,

allowing these activities to continue in ways that do not lead to any

increases in impervious surfaces within Mouse Protection Areas and

Potential Mouse Protection Areas is not expected to adversely affect

Preble's conservation and recovery efforts.

d. Existing uses of water associated with the exercise of perfected

water rights under State law, and interstate compacts and decrees. The

cumulative effect of the development and exercise of water rights has

impacted riparian communities and the Preble's in some areas. However,

the exercise of certain water rights and water development may have

beneficial effects in riparian communities and to the Preble's. Persons

with perfected water rights are encouraged to engage in conservation

planning efforts to provide voluntarily the flows that may be

determined to be important to protect Preble's habitat. Take associated

with new water development would be prohibited.

The Service considered a possible rangewide exemption pertaining to

periodic maintenance of existing water supply ditches. Periodic

maintenance of ditches includes activities such as burning or clearing

vegetation that may impact Preble's habitat. We have concluded,

however, that because some water supply ditches may, in fact, provide

suitable habitat and dispersal routes for the Preble's, take relating

to periodic maintenance of these ditches should be prohibited. We

intend to assess the value of water supply ditches to the conservation

and recovery of the Preble's, both in specific areas where use of these

ditches by Preble's has been documented, and in areas that may contain

suitable habitat to determine if these areas should be classified as

Mouse Protection Areas or Potential Mouse Protection Areas. The

conclusions from this assessment will be used in conservation and

recovery planning for the Preble's. Coordination with the Service is

required when activities are planned in areas potentially significant

for the Preble's.

3. New Development in Mouse Protection Areas and Potential Mouse

Protection Areas

Under this proposed rule, States, counties, and/or municipalities

which manage land use at the local level may, at their option and upon

concurrence by the Service, adopt and enforce necessary protective

standards for the Preble's, as follows:

1. State or local authorities will identify to us their legal

authorities to protect Preble's habitat. They will also commit to use

those authorities to enforce the Preble's protection standards

described below;

2. We will review these authorities and provide concurrence that

the authorities are adequate to protect Preble's habitat; and

3. Upon receiving our concurrence, State/local authorities may

approve development or actions that are consistent with the mouse

protection standards and mitigation guidelines described below.

The Service will closely monitor implementation of this rule by

State and local governments and provide assistance as required. We will

meet quarterly with each governmental entity which has received written

concurrence from us recognizing its present authority and ability to

protect the Preble's.

Projects or actions within the jurisdiction of local governmental

entities that elect not to enforce these standards would be subject to

all the prohibitions on take in this proposed rule, unless the activity

is otherwise exempt in this proposed rule. However, if you are

undertaking an action that may take the Preble's, including

significantly modifying its habitat within an area where the local

government has chosen not to use the provisions in this rule, we will

work directly with you to develop a habitat conservation plan and an

incidental take permit under section 10. If there is Federal approval

or funding involved, we will review the action under section 7 of the

Act (16 U.S.C. section 1536).

In cases where an individual habitat conservation plan is required

for a specific property, the applicant will be responsible for the

costs of developing and implementing the habitat conservation plan.

Habitat conservation plans will be consistent with provisions of this

rule, including the mouse protection standards and associated

mitigation guidelines. However, it may be necessary and desirable to

modify these standards and guidelines to address site specific

conditions of a project.

Mouse Protection Standards

We have developed standards for the Preble's to ensure adequate

protection of important habitats known as Mouse Protection Areas and

Potential Mouse Protection Areas. For the purposes of this rule, a

Mouse Protection Area is the reach of any stream that is located within

1 linear mile upstream and 1 linear mile downstream of any known

location of the Preble's that has been reported to the Service since

1992. Major Preble's surveying efforts began in this year and surveys

since 1992 represent the known occupied habitat of the Preble's. In

instances where two designated Mouse Protection Areas on the same

stream are separated by one linear mile or less, one continuous Mouse

Protection Area will be established. Biological research shows that

there is a high likelihood that these areas will be used by the

Preble's on a year-round basis or as a movement corridor.

A Mouse Protection Area (MPA) also extends 300 feet on each side of

the stream measured from the centerline, or 300 feet from the exterior

boundary of any contiguous wetlands, whichever is further. The basis

for the 300-foot standard is that mice have been documented to

regularly move up to 150 feet from streams and wetlands. The remaining

150-foot zone serves as a buffer zone to avoid disturbance of Preble's

habitat associated with human activities. We believe that this zone

will encompass the normal home range of the Preble's and will provide

an

[[Page 66780]]

adequate buffer from adjoining development.

The Service recognizes that it may be desirable to modify the

boundaries of a Mouse Protection Area to reflect the actual extent of

Preble's habitat along a stream or a wetland. The Service may make

these changes when biologically justified. In addition, local entities

that have agreed to enforce the mouse protection standards may also

propose changes to a Mouse Protection Area based on new biological

information. We would need to approve any changes.

There are many areas within the historic range of the Preble's that

contain suitable Preble's habitat that have not been surveyed, or if

previously surveyed, in which no mice have been captured. These areas,

known as Potential Mouse Protection Areas, have high potential of

supporting a Preble's population based on the presence of suitable

riparian habitat such as willow or shrub vegetation, and/or the

proximity to known locations of the Preble's or other suitable habitat.

These areas require careful scrutiny because the Preble's may actually

live in these locations and they may be important for the recovery and

eventual delisting of the Preble's.

The Service evaluated the potential for new impacts to Mouse

Protection Areas from trails, road and utility line crossings, and

other development, and determined that Preble's persists along some

streams despite the presence of trails, road crossings, limited

residential and commercial development, and other habitat disruption.

Based on this, we have concluded that new projects or actions will be

allowed to modify a cumulative total of up to four percent of the

habitat within a Mouse Protection Area under the following conditions:

1. A State or local government has received Service approval and is

willing to adopt and enforce protection standards for the Preble's;

2. All habitat losses will be fully compensated through mitigation;

and

3. The action will not impede movement of mice up or down riparian

corridors.

A Mouse Protection Area 2 miles long and 600 feet wide encompasses

about 145 acres of habitat. This rule would allow less than 6 acres of

that habitat in a Mouse Protection Area to be modified without further

advance review by us. We believe that exempting this amount of habitat

loss, in conjunction with the mitigation, is biologically sound and

consistent with the conservation of the Preble's. We are soliciting

comment on this point and will conduct a Section 7 consultation.

Existing roads, structures, and other impervious surfaces would not

be considered Preble's habitat for the purposes of computing the four

percent.

Each jurisdiction that elects to implement the mouse protection

standards must ensure that the four percent habitat modification limit

is not exceeded. Where a Mouse Protection Area crosses jurisdictional

boundaries, each jurisdiction would be allowed to modify up to four

percent of the habitat in the portion of the Mouse Protection Area that

occurs in their jurisdiction.

Some projects outside (i.e., upstream) of a Mouse Protection Area

may adversely impact a Mouse Protection Area or Potential Mouse

Protection Area. This may occur when stream flows are altered (for

example by an increase in stormwater runoff) or when there is an

increase in sedimentation. Projects outside of a Mouse Protection Area

or Potential Mouse Protection Area which do not appreciably alter

stream flows or sedimentation or otherwise impact a Mouse Protection

Area or Potential Mouse Protection Area would be exempted from section

9 incidental take prohibitions. New projects which do result in a

significant modification of stream flow or sedimentation or otherwise

impact a Mouse Protection Area or Potential Mouse Protection Area would

be subject to the section 9 incidental take prohibitions of the Act,

unless the activity is otherwise exempt in this proposed rule.

State and local authorities have the option to implement Preble's

protection standards for Mouse Protection Areas, or for both Mouse

Protection Areas and Potential Mouse Protection Areas. Where the

respective governmental entity elects to accept responsibility for

enforcing Preble's protection standards for Potential Mouse Protection

Areas, these areas will be treated the same as Mouse Protection Areas

until and unless a Service-approved Preble's survey of the area occurs.

Where the governmental entity does not elect to accept responsibility

for enforcing Preble's protection standards for Potential Mouse

Protection Areas, the Service nonetheless strongly encourages the

performance of surveys in accordance with Service protocol before

habitat modification occurs to avoid potential liability for an action

that does result in a prohibited take of a Preble's.

If a Preble's is trapped during a survey in any Potential Mouse

Protection Area, it will be reclassified as a Mouse Protection Area and

treated accordingly. If a new survey is conducted and no Preble's are

trapped, the area surveyed will no longer be considered a potential

mouse protection area. Projects may commence if they do not appreciably

alter stream flows or sedimentation or otherwise impact a Mouse

Protection Area or Potential Mouse Protection Area. The project

proponent must receive Service concurrence with the results of the

survey.

The Service recognizes that the Preble's protection standards may

be adjusted based on new information. We will work cooperatively with

local governmental entities to apply these standards in a reasonable

manner.

Mitigation Guidelines

Mouse Protection Areas encompass both the specific habitats that

the Preble's is known to frequent, and adjacent habitats that have both

direct value to the Preble's and provide an essential buffer from

adjacent development and human activity. Armstrong et al. (1997, p. 77)

described typical Preble's meadow jumping mouse habitat as ``well-

developed plains riparian vegetation with relatively undisturbed

grassland and a water source in close proximity.'' Also noted is a

preference for ``dense herbaceous vegetation consisting of a variety of

grasses, forbs and thick shrubs.'' Moving outward from streams and

riparian corridors there generally exists a transition from habitat

regularly used by the Preble's to habitat of value largely as a buffer.

The goal of all mitigation is to offset impacts to the diverse habitat

types required by the Preble's, including essential buffer areas.

Mitigation must be accomplished in a manner that does not adversely

impact important biological resources, other federally-threatened or

endangered species, proposed species, or candidate species. This

includes Spiranthes diluvialis (the Ute ladies'-tresses orchid) and

Gaura neomexicana ssp. coloradensis (the Colorado butterflyplant).

Identification of practicable alternatives to a proposed project or

action which avoids or minimizes impacts to Preble's habitat is a first

step in assessing proposed project impacts. Avoidance and minimization

of impacts is preferable to compensatory mitigation. Compensatory

mitigation is required to offset unavoidable impacts that remain after

all appropriate and practicable avoidance and minimization measures are

applied. The goal of compensatory mitigation is to assure that no net

loss of habitat value to the Preble's occurs. Thus, while up to four

percent of land within any one Mouse Protection Area may be impacted

within the tenure of this rule, overall loss of habitat value to the

Preble's is not anticipated.

[[Page 66781]]

Compensatory mitigation may include restoration, enhancement, or

creation of habitat. Restoration entails returning the functions of a

disturbed, degraded, or totally altered site to its original status

before it was damaged by a permitted project or action. For example,

installation of an underground pipeline through Preble's habitat may

entail removal of vegetation and soil disruption. Regrading and

planting of appropriate vegetation could restore habitat value of the

area for the Preble's. In general, restoration yields the greatest

amount of benefit with the least amount of risk and is the preferable

form of mitigation. Restoration will generally require a mitigation

ratio of 1.5 to 1 (i.e., 1.5 acre restored for every 1 acre lost).

We have evaluated restoration and other mitigation techniques. This

includes review of the habitat types likely to be mitigated, the

potential for failure to meet compensatory mitigation goals, and the

temporary loss of habitat that occurs until the full value of

mitigation conducted concurrently with impacts is achieved. Ratios that

are cited are based on this evaluation and are intended to assure that,

at minimum, Preble's habitat values are maintained over the long term.

Enhancement is the process of improving one or more functions of

existing habitat to meet certain goals. For example, altering grazing

practices to allow recovery of riparian vegetation could yield

substantial benefit to the Preble's. In some cases, supplemental

planting of preferred plant species may be appropriate. While this type

of mitigation is usually successful, its actual value to the Preble's

may be difficult to assess. Depending on the techniques used,

enhancement may require a mitigation ratio of 1.5 to 1, or up to 3 to

1.

Creation entails converting unsuitable habitat types to Preble's

habitat. For example, a dry upland could be graded down or subirrigated

to provide hydrology that would support establishment of preferred

Preble's habitat. This form of mitigation may have a higher chance of

failure and should be used only when restoration opportunities are

absent. Creation of habitat will generally require a mitigation ratio

of 3 to 1.

A component of mitigation through restoration, enhancement, or

creation is the preservation in perpetuity of these habitat areas.

However, for the purposes of this rule, preservation of habitat alone

will generally not be credited as compensatory mitigation. Preservation

may be effectively used in cases where Preble's habitat would certainly

be lost without such measures. We will evaluate the acceptability of

preservation as compensatory mitigation on a case by case basis.

In general, acceptable compensatory mitigation will entail in-kind

mitigation (the restoration, creation, or enhancement of similar

habitat to that being impacted) within the same protection area where

impacts occur. Loss of habitat within a Mouse Protection Area will be

mitigated by restoring, enhancing, or creating similar habitat nearby.

Proposed exceptions, such as mitigating losses to buffer areas by

restoring Preble's habitat (out-of-kind mitigation), will be reviewed

and approved by the Service as we deem appropriate.

Local governmental entities will assure development of mitigation

that is consistent with these mitigation guidelines and that sufficient

funds are available to accomplish the proposed mitigation. Review of

the proposed mitigation activities will be a significant aspect of

quarterly meetings held with local governmental entities. We anticipate

that within the State of Colorado the development of mitigation plans

consistent with these guidelines will be accomplished by project

proponents in coordination with the local governmental entity and the

Colorado Division of Wildlife, with technical assistance provided by

the Service.

Preble's Surveys

Potential Preble's habitat on private lands has not been thoroughly

surveyed. Surveys for the Preble's on private lands will occur only

with landowner permission. The conditions contained in this rule should

remove some of the existing barriers to conducting Preble's surveys on

these lands. Surveys of the Potential Mouse Protection Areas conducted

on private lands will provide a conservation benefit to the species.

This is particularly true if the survey results are used for developing

management plans or habitat conservation plans for the Preble's and

prioritizing conservation areas for the mouse.

Summary of Conservation Benefits

The proposed prohibitions and exemptions in this rule provide both

for short-term conservation of the Preble's and an avenue for the

development of meaningful long-term conservation efforts for the

Preble's by State and local governments, agricultural interests,

developers, and the general public.

Certain provisions of the rule define protection areas and provide

for a significant role by State and local governments as partners in

implementing the Act. This is designed to guide development activities

during the interim period while comprehensive conservation plans are

being developed. These comprehensive plans will provide a basis for

habitat conservation plans for the Preble's. By employing existing

local development review and land use controls, these provisions

greatly increase participation by stakeholders and the level of review

that proposed development activities receive. Standards set forth in

the proposed rule limit impacts to Mouse Protection Areas and require

mitigation that will prevent loss of Preble's habitat value. This level

of local development review far surpasses that which we can directly

provide. Projects or actions within the jurisdiction of local

governmental entities that elect not to enforce these standards are

subject to all the prohibitions of section 9 of the Act, unless the

activity is otherwise exempt in this proposed rule.

Future Section 7 Consultations

This special rule does not change the obligation of Federal

agencies to consult with the Service concerning actions they authorize,

fund, or carry out which may affect listed species, including the

Preble's. This rule is intended to supplement and not replace the

Section 7 form of incidental take authorization. Therefore, Federal

actions requiring incidental take authorization will receive that

authorization through Section 7 and not this special rule. Only habitat

loss authorized through this special rule will be counted against the

four percent maximum. Habitat impacts authorized through Section 7 (or

Section 10) will not be counted as part of the four percent authorized

by this rule and will instead be tracked separately. All Section 7

consultations initiated after promulgation of this special rule will

assume, as part of the environmental baseline against which projects

are measured, that the maximum potential impact under this rule will

occur (i.e., that there will be disruption of four percent of the

habitat within each Mouse Protection Area, with appropriate

mitigation).

Before the publication of a final rule for the Preble's, we must

carry out an internal or intra-service consultation on the action of

adopting this rule. A biological opinion will be prepared by the

Service analyzing the proposed rule and any adverse, as well as

beneficial effects, for the Preble's. This biological opinion will also

discuss and analyze the effects of the implementation of this rule on

listed species other than the Preble's.

[[Page 66782]]

The Service anticipates that the ongoing planning process in both

Colorado and Wyoming will lead to habitat conservation plans and

section 10 permits that will be the subject of future section 7 intra-

service consultations.

Comments Solicited

The Service invites comments on the proposed rule. In particular,

we are seeking comments on:

1. The desirability and practicality of establishing partnerships

with local governmental entities to use their land use planning and

regulatory powers to enforce the Mouse Protection Standards for Mouse

Protection Areas, or for both Mouse Protection Areas and Potential

Mouse Protection Areas;

2. The adequacy of the proposed mitigation guidelines including any

options that may be available for mitigating impacts of development

activities on Preble's habitat;

3. The adequacy of the Mouse Protection Standards and/or

information that would lead to the development of more appropriate

standards;

4. The types of agricultural practices, including grazing

practices, that are compatible with maintenance of Preble's habitat

within riparian zones; and

5. Any additional information on the locations and boundaries of

designated Mouse Protection Areas and Potential Mouse Protection Areas.

To facilitate public comment, the Service will conduct public

meetings in various locations in Colorado and Wyoming to explain the

rule in more detail and address questions.

Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this rule easier to understand, including answers to questions such as

the following: (1) Are the requirements in the rule clearly stated? (2)

Does the rule contain technical language or jargon that interferes with

its clarity? (3) Does the format of the rule (grouping or order of

sections, use of headings, paragraphing, etc.) aid or reduce its

clarity? (4) Would the rule be easier to understand if it were divided

into more (but shorter) sections? (5) Is the description of the rule in

the Supplementary Information section of the preamble helpful in

understanding the proposed rule? What else could we do to make the rule

easier to understand?

Send a copy of any comments that concern how we could make this

rule easier to understand to: Office of Regulatory Affairs, Department

of Interior, Room 7229, 1849 C Street NW, DC 20240. You may also e-mail

the comments to this address: E[email protected]

Literature Cited

Armstrong, D.M., M.E. Bakeman, A. Deans, C.A. Meaney, and T.R.

Ryan. 1997. Report on habitat findings of the Preble's meadow jumping

mouse. Boulder (CO); Report to the U.S. Fish and Wildlife Service and

Colorado Division of Wildlife. 91 pp.

Required Determinations

The Service invites comments on the anticipated direct and indirect

costs and benefits or cost savings associated with the special rule for

the Preble's. In particular, the Service is interested in obtaining

information on any significant economic impacts of the proposed rule on

small public and private entities. Once we have reviewed the available

information, we will determine whether we need to prepare an initial

regulatory flexibility analysis for the special rule. We will make any

such analysis or determination available for public review. Then, we

will revise, as appropriate, and incorporate the information in the

final rule preamble and in the record of compliance (ROC) certifying

that the special rule complies with the various applicable statutory,

Executive Order, and Departmental Manual requirements. Under the

criteria in Executive Order 12866, the special rule does not need to be

reviewed by the Office of Management and Budget.

Paperwork Reduction Act

The Service has examined this proposed rule under the Paperwork

Reduction Act of 1995 and found it to contain no requests for

additional information or increase in the collection requirements

associated with the Preble's meadow jumping mouse (Zapus hudsonius

preblei) other than those already approved for Federal Fish and

Wildlife license permits with OMB approval 1018-0094, which has an

expiration date of February 28, 2001. For more information concerning

these permits, see 50 CFR 17.32.

National Environmental Policy Act

The Service will review this proposed rule under the requirements

of the National Environmental Policy Act before finalization.

Section 7 Consultation

The Service will review this proposed rule under the requirements

of section 7 of the Act before finalization.

Government-to-Government Relationship With Tribes

This proposed rule does not directly affect Tribal resources.

List of Subjects in 50 CFR Part 17

Endangered and threatened species. Export, Import, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

PART 17--[AMENDED]

Accordingly, the Service proposes to amend 50 CFR part 17, as set

forth below:

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.40 by adding a new paragraph (k) to read as

follows:

17.40 Special rules-mammals.

* * * * *

(k) Preble's meadow jumping mouse (Zapus hudsonius preblei). (1)

All of the prohibitions of 50 CFR 17.31 (a) and (b) and exemptions of

50 CFR 17.32 are applicable to the Preble's except where identified

below. These prohibitions, in part, make it illegal for any person

subject to the jurisdiction of the United States to take any federally-

listed wildlife species. Prohibitions for threatened wildlife under

section 17.31 include take (harass, harm, pursue, hunt, shoot, wound,

trap, kill, or collect; or attempt any of these), import or export,

ship in interstate commerce in the course of commercial activity, or

sell or offer for sale in interstate or foreign commerce any listed

wildlife species. It is also illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that has been taken illegally.

(2) This rule is effective until (18 months from the effective date

of the final rule).

(3) We will likely adjust Mouse Protection Areas and Potential

Mouse Protection Areas based on new information as provided in

paragraph (k)(12) of this section. We will maintain updated geographic

locations of these areas. Direct inquiries concerning whether specific

lands fall within a Mouse Protection Area or Potential Mouse Protection

Area to the Service offices listed in paragraph (k)(12)(ii) of this

section and/or to a participating local governmental entity. Priority

areas for conservation of the Preble's are:

(i) Mouse Protection Areas, the reach of any stream that is located

within 1 linear mile upstream and 1 linear mile

[[Page 66783]]

downstream of any known location of Preble's that has been reported to

the Service since 1992. In instances where two Mouse Protection Areas

on the same stream are separated by 1 linear mile or less, one

continuous Mouse Protection Area will be established. A Mouse

Protection Area extends 300 feet on each side of the stream measured

from the centerline, or 300 feet from the exterior boundary of any

wetland contiguous with the stream, whichever is further.

(ii) Potential Mouse Protection Areas, the reach of a stream that

the Service has determined contains suitable habitat conditions for the

Preble's. Potential Mouse Protection Areas extend 300 feet on each side

of the stream measured from the centerline, or 300 feet from the

exterior boundary of any wetland contiguous with the stream, whichever

is further.

(4) Except as provided in paragraph (k)(8) of this section, the

take prohibitions of Sec. 17.31 will not apply to incidental take

outside of a Mouse Protection Area or Potential Mouse Protection Area.

Any actions that significantly modify Preble's habitat within a Mouse

Protection Area or Potential Mouse Protection Area must comply with

Sec. 17.31, except as otherwise exempted in this proposed rule. In

addition, we require permits for trapping surveys to determine the

presence or absence of the Preble's in Mouse Protection Areas or

Potential Mouse Protection Areas, for education purposes, scientific

purposes, the enhancement or propagation for survival of the Preble's,

zoological exhibition, and other conservation purposes in accordance

with 50 CFR 17.32 and under a section 6 (16 U.S.C. section 1535)

cooperation agreement with a State, if applicable.

(5) The following activities, which may result in incidental take

of the Preble's, are exempted by this rule from the Sec. 17.31 take

prohibitions, within the entire range of the Preble's:

(i) Rodent control within 10 feet of or inside any structure

(``rodent control'' includes control of mice and rats by trapping,

capturing, or otherwise physically capturing or killing rodents, or

poisoning by any substance registered with the Environmental Protection

Agency as required by the Federal Insecticide, Fungicide, and

Rodenticide Act (7 U.S.C. Section 136) and applied consistent with its

labeling. ``Structure'' means any manmade or other artificially

constructed object which includes but is not limited to any building,

stable, grain silo, corral, barn, shed, water or sewage treatment

equipment or facility, enclosed parking structure, shelter, gazebo,

bandshell, or restroom complex;

(ii) Ongoing agricultural activities including grazing, plowing,

seeding, cultivating, minor drainage, burning, mowing and harvesting,

as long as these activities are currently conducted and do not increase

impacts to or further encroach upon Preble's habitat;

(iii) Maintenance and replacement of existing landscaping and

related structures and improvements, with no increase in impervious

surfaces; and

(iv) Existing uses of water associated with the exercise of

perfected water rights under State law and interstate compacts and

decrees. (A ``perfected water right'' is a right that has been put to

beneficial use and has been permitted, decreed, or adjudicated under

State law.)

(6) Actions within a Mouse Protection Area which may result in up

to four percent cumulative modification of Preble's habitat within the

Mouse Protection Area will be exempted from the Sec. 17.31 take

prohibitions provided that:

(i) The governmental entity (State, county, or municipality) where

the action is to take place has elected to enforce the Preble's

protection standards listed in paragraph (k)(7) of this section;

(ii) The governmental entity has provided the Service with written

assurances that they have the legal authority and ability to enforce

the standards (This means a written affirmation of the present

authority and ability of the local governmental entity to implement and

enforce its existing local regulations, incentives, and programs to

enforce the Preble's protection standards in paragraph (k)(7) of this

section. Existing regulations may include, but need not be limited to:

floodplain regulations, subdivision regulations, zoning regulations,

site planning requirements, standards for identifying and protecting

ecologically sensitive lands, wildlife habitat protection regulations,

drainage design standards, road and bridge construction standards, and

grading standards. This may also mean an agreement of any State agency

or instrumentality to implement its existing regulations and programs,

and to exercise its legal authorities in furtherance of the purpose of

this rule and the protection and recovery of the Preble's);

(iii) The Service has concurred in writing with the written

assurances from the State or local entity; and

(iv) The governmental entity has reviewed and approved the action

consistent with the Mouse Protection Standards in paragraph (k)(7) of

this section.

(7) State, local, or municipal entities which elect to adopt the

procedures in paragraph (k)(6) of this section and have received

concurrence from the Service can approve new actions that significantly

modify a cumulative total of four percent or less of each Mouse

Protection Area. The applicant must ensure that the Preble's can move

freely up or down the stream corridor. The applicant must also fully

restore or replace the Preble's habitat values with restoration

activities to be completed in a timely manner. Any replacement or

restoration of habitat outside a Mouse Protection Area requires the

concurrence of the Service.

(8) New actions proposed to take place outside of a Mouse

Protection Area or Potential Mouse Protection Area which will

significantly modify stream flows or sedimentation, or otherwise

significantly modify the Preble's habitat inside a Mouse Protection

Area or Potential Mouse Protection Area, will be subject to the

Sec. 17.31 take prohibitions unless otherwise exempted in this proposed

rule.

(9) Local governmental entities may elect to accept responsibility

for protecting a Potential Mouse Protection Area within its

jurisdiction or may accept responsibility for protecting all or part of

a Potential Mouse Protection Area in response to a request by a project

proponent/landowner. The local governmental entity can only accept this

responsibility under paragraph (k)(6) of this section. In these cases,

the local governmental entity will treat the Potential Mouse Protection

Area as a Mouse Protection Area under paragraph (k)(7) of this section.

(10) If a local governmental entity has not assumed responsibility

for protection of any Potential Mouse Protection Area, the take

prohibitions of Sec. 17.31 apply to any actions, unless the activity is

otherwise exempt in this proposed rule, that would result in a direct

or indirect taking of the Preble's. However, a project proponent will

be exempt from the take provisions of Sec. 17.31 if:

(i) A presence/absence survey for the Preble's has been conducted

in accordance with current Service survey guidelines;

(ii) The survey report concludes that the Preble's is not present

on the site to be impacted and the Service concurs with the survey

report's conclusion. (If a presence/absence survey documents the

existence of the Preble's, the area surveyed will be designated as a

Mouse Protection Area and will be treated

[[Page 66784]]

accordingly by the provisions of this rule).

(11) Each government entity which has received written concurrence

from the Service concerning its present authority and ability to

protect the Preble's under paragraph (k)(6) of this section will meet

quarterly with the Service to evaluate implementation of this special

rule. At least 2 weeks before the meetings, public notice of the

meetings will be provided. As more site-specific information about

Mouse Protection Areas and Potential Mouse Protection Areas becomes

available, governmental entities authorized under the provisions of

paragraph (k)(6) of this section must provide all new information to

the Service so that necessary changes can be made with respect to the

delineation of Mouse Protection Areas and Potential Mouse Protection

Areas. If we determine that the governmental entity is not adequately

enforcing the Preble's habitat protection standards contained in this

special rule, we will provide written notice describing the

deficiencies to that governmental entity with suggested corrective

action. If corrective actions are not implemented, we may then withdraw

our concurrence with the governmental entity's program. If we withdraw

our concurrence, all of the Sec. 17.31 take prohibitions will apply to

lands within the jurisdiction of that governmental entity unless the

activity is otherwise exempted in this rule.

(12)(i) Geographic locations of Mouse Protection Areas and

Potential Mouse Protection Areas based on the best scientific

information that is currently available are maintained by the Service

at addresses provided below. Lists of these areas have also been

provided to State and county offices and to selected municipalities

within the Preble's range. We recognize that more site-specific

information about each of the stream reaches may result in changes to

delineated Mouse Protection Areas and Potential Mouse Protection Areas.

The most current refinements to Mouse Protection Areas and Potential

Mouse Protection Areas are available from the Service offices listed

below and from counties, and selected municipalities. Lists of these

areas are also available on our home page on the internet

(www.r6.fws.gov/preble). Inquiries concerning whether or not specific

lands fall within protection areas should be directed to the Service

offices listed below or to a participating local governmental entity.

(ii) These geographic locations can be viewed at the U.S. Fish and

Wildlife Service, Colorado Field Office, P.O. Box 25486, Denver Federal

Center, Denver, Colorado 80225-0207, telephone (303) 275-2370 or at the

U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Morrie

Avenue, Cheyenne, Wyoming 82001, telephone (307) 722-2374.

Dated: November 25, 1998.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-32145 Filed 12-2-98; 8:45 am]

BILLING CODE 4310-55-P