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

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-24113

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** October 8, 2009
- **Citation:** 74 FR 52066

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2009-0013] [92210-1117-0000-B4]
RIN 1018-AW45

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose to revise designated critical habitat for the Preble's meadow jumping mouse (
Zapus hudsonius preblei
) in Colorado, where it is listed as threatened in a significant portion of the range (SPR) under the Endangered Species Act of 1973, as amended (Act). The proposed revised critical habitat is located in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer and Teller Counties in Colorado. Approximately 418 miles (mi) (674 kilometers (km)) of rivers and streams and 39,142 acres (ac) (15,840 hectares (ha)) fall within the boundaries of the proposed revised designation. The proposed revised designation would therefore add 184 mi (298 km) of rivers and streams and 18,462 ac (7,472 ha) to the existing critical habitat designation of 234 mi (376 km) and 20,680 ac (8,368 ha).

DATES:

To ensure that we are able to consider your comments and information, we request that you provide them to us by December 7, 2009. We must receive requests for public hearings, in writing, at the address shown in the
FOR FURTHER INFORMATION CONTACT
section by November 23, 2009.

ADDRESSES:

You may submit comments by one of the following methods:

• Electronically: Go to the
Federal eRulemaking Portal
at
http://www.regulations.govto
comment on FWS-R6-ES-2009-0013, which is the docket number for this rulemaking.

• U.S. mail or hand-delivery: Public Comments Processing, Attn: [FWS-R6-ES-2009-0013]; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

We will post all comments on
http://www.regulations.gov
. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT:

Susan Linner, Field Supervisor, Colorado Ecological Services Office; mailing address P.O. Box 25486, DFC (MS 65412), Denver, CO 80225; telephone 303-236-4773; located at 134 Union Boulevard, Suite 670, Lakewood, CO. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:

(1) The reasons why we should or should not revise the designation of specific habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
et seq.
).

(2) Specific information on:

• The amount and distribution of Preble's meadow jumping mouse (PMJM) habitat in Colorado,

• Areas occupied at the time of listing and that contain features essential for the conservation of the species that we should include in the revised designation and why,

• Areas not containing features essential for the conservation of the species and why,

• Areas not occupied at the time of listing that are essential to the conservation of the species and why, and

• Areas that require special management consideration and protection and why.

(3) Comments or information that may assist us with identifying or clarifying the primary constituent elements (see section below on
Primary Constituent Elements
).

(4) Land use designations and current or planned activities in the areas proposed as revised critical habitat and their possible impacts on revised critical habitat.

(5) How the proposed boundaries of the revised critical habitat could be refined to more closely circumscribe the riparian and adjacent upland habitats occupied by the Preble's meadow jumping mouse.

(6) Whether our proposed revised designation should be altered in any way to account for the effects of climate change and why.

(7) Whether any specific areas being proposed as revised critical habitat should be excluded under section 4(b)(2) of the Act from the final designation, and whether the benefits of potentially excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act. We are specifically seeking comments from the public on the following lands: those covered by the Douglas County Habitat Conservation Plan (HCP) (Service 2006a) and the potential modification of outward boundaries of proposed critical habitat to conform to Douglas County's Riparian Conservation Zones (RCZs) (streams, adjacent floodplains, and nearby uplands likely to be used as habitat by the PMJM) as mapped for the Douglas County HCP; lands within the Livermore Area HCP (Service 2006b), the Larimer County's Eagle's Nest Open Space HCP (Service 2004b), the Denver Water HCP (Service 2003b), the Struther's Ranch HCP (Service 2003c), and other HCPs; lands within El Paso County (because the county is currently developing a countywide HCP); lands within the proposed Seaman Reservoir expansion footprint; and, lands within the Rocky Flats National Wildlife Refuge (NWR).

(8) Any foreseeable economic, national security, or other potential impacts resulting from the proposed revised designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.

(9) Whether we could improve or modify our approach to designating revised critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

We will revise the economic analysis and environmental assessment that were prepared for the previous designation, and we will provide drafts of the new economic analysis and environmental assessment to the public for review and comment before finalizing this proposal.

Based on the public comments, we may find, during the development of the final rule, that areas proposed are not essential to the conservation of the species, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. In all of these cases, this information will be incorporated into the final revised designation. Further, we may find, as a result of public comments, that areas not proposed also should be designated as revised critical habitat. Final management plans that address the conservation of the PMJM must be submitted to us during the public comment period so that we can take

them into consideration when making our final critical habitat determination.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
ADDRESSES
section.

If you submit a comment via
http://www.regulations.gov
, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on
http://www.regulations.gov
.

Background

We intend to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For additional information on the biology of this subspecies, see the May 13, 1998, final rule to list the PMJM as threatened (63 FR 26517); the June 23, 2003, final rule designating critical habitat for the PMJM (68 FR 37275); and the July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789).

Species Description

The PMJM is recognized as 1 of 12 subspecies of meadow jumping mouse (
Zapus hudsonius
), a species that ranges from the Pacific Coast of Alaska to the Atlantic Coast and from the northern limit of forests south to New Mexico, Oklahoma, and Georgia (Hafner
et al.
1981, p. 501; Hall 1981, p. 843; Krutzsch 1954, pp. 420-421). Meadow jumping mice are small rodents with long tails, large hind feet, and long hind legs. Total length of an adult is approximately 7 to 10 inches (187 to 255 millimeters), with the tail comprising 4 to 6 inches (108 to 155 millimeters) of that length (Krutzsch 1954, p. 420; Fitzgerald
et al.
1994, p. 291). The large hind feet can be one-third again as large as those of other mice of similar size. The PMJM has a distinct, dark, broad stripe on its back that runs from head to tail and is bordered on either side by gray to orange-brown fur. The hair on the back of all jumping mice appears coarse compared to other mice. The underside hair is white and much finer in texture. The tail is bicolored and sparsely furred.

Geographic Range

The PMJM is found along the foothills in southeastern Wyoming, southward along the eastern edge of the Front Range of Colorado to Colorado Springs in El Paso County (Hall 1981, p. 844; Clark and Stromberg 1987, pp. 184-188; Fitzgerald
et al.
1994, pp. 291-293; Clippenger 2002, pp. 14-15, 20). Knowledge about the current distribution of the PMJM comes from collected specimens and live-trapping locations from both range-wide survey efforts and numerous site-specific survey efforts conducted in Wyoming and Colorado since the mid-1990s.

In Colorado, the distribution of the PMJM forms a band along the Front Range from Wyoming southward to Colorado Springs, with eastern marginal captures in western Weld County, western Elbert County, and north-central El Paso County.

The semi-arid climate in eastern Colorado limits the extent of riparian corridors and restricts the range of the PMJM in this region. The PMJM has not been found on the extreme eastern plains in Colorado. The eastern boundary for the subspecies is likely defined by the dry shortgrass prairie, which may present a barrier to eastward expansion (Beauvais 2001, p. 3).

The western boundary of the PMJM's range in Colorado appears related to elevation along the Front Range. We use 7,600 feet (ft) (2,317 meters (m)) in elevation as the general upper limit of the PMJM's habitat in Colorado (Service 2004a, p. 5). The western jumping mouse (
Zapus princeps
), a separate species from the PMJM, is similar in appearance and can easily be confused with the PMJM. The range of the western jumping mouse in Colorado is generally west of, and at higher elevations than, the range of the PMJM. However, the two species appear to coexist over portions of their range in the Front Range of Colorado (Bohan
et al.
2005; Schorr
et al.
, 2007). Recent morphological examination of specimens has confirmed the PMJM to an elevation of approximately 7,600 ft (2,317 m) in Colorado (Bohan
et al
., 2005) and to 7,750 ft (2,360 m) in southeastern Wyoming (Service 2009). For a discussion of the difficulties of differentiating between the PMJM and the western jumping mouse see our July 10, 2008, final rule to amend the listing for the PMJM (73 FR 39789).

Although there is little information on past distribution or abundance of the PMJM, surveys identified various locations where the subspecies was historically present but is now absent (Ryon 1996, pp. 25-26). Since at least 1991, the PMJM has not been found in Denver, Adams, or Arapahoe Counties in Colorado. Its absence in these counties is likely due to urban development, which has altered, reduced, or eliminated riparian habitat (Compton and Hugie 1993, p. 22; Ryon 1996, pp. 29-30).

Ecology and Life History

Much of the current knowledge regarding life history of the meadow jumping mouse comes from studies of the species in the eastern and midwestern United States. The meadow jumping mouse usually has two litters per year, with an average of five young born per litter (Quimby 1951, p. 67; Whitaker 1963, p. 244). Research has not been conducted on the number or size of PMJM litters, but we assume that they are comparable to other subspecies of the meadow jumping mouse. The PMJM is a true hibernator, usually entering hibernation in September or October and emerging the following May, after a potential hibernation period of 7 or 8 months (Whitaker 1963, p. 5; Meaney
et al
. 2003, pp. 618-619). Similar to other subspecies of meadow jumping mouse, the PMJM does not store food, but survives on fat stores accumulated prior to hibernation (Whitaker 1963, p. 241).

Meadow jumping mice are primarily nocturnal or crepuscular (active during twilight), but also may be active during the day. Little is known about social interactions and their significance in the PMJM. While the PMJM's dispersal capabilities are thought to be limited, in one case a PMJM was documented moving as far as 0.7 mi (1.1 km) in 24 hours (Ryon 1999, p. 12), and the PMJM is able to move miles along stream corridors over its lifetime (Schorr 2003, pp. 9-10).

While fecal analyses have provided the best data on the PMJM's diet to date, they overestimate the components of the diet that are less digestible. Based on fecal analyses, the PMJM eats insects; fungus; moss; pollen;
Salix
(willow);
Chenopodium sp
. (lamb's quarters);
Salsola sp
. (Russian thistle);
Helianthus spp
. (sunflower);
Carex spp
. (sedge);
Verbascum sp
. (mullein);
Bromus, Festuca, Poa, Sporobolus,
and
Agropyron spp
. (grasses);
Lesquerella sp
. (bladderpod);
Equisetum spp
. (horsetail); and assorted seeds (Shenk and Eussen 1999, pp. 9, 11; Shenk and Sivert 1999a, pp. 10-11). The diet shifts seasonally; it consists primarily of insects and fungi after emerging from hibernation, shifts to fungi, moss, and pollen during mid-summer (July and August), with insects again added in September (Shenk and Sivert 1999a, pp. 12-13). The shift in di
et al
ong with shifts in mouse movements suggests that the PMJM may require specific seasonal diets, perhaps related to the physiological constraints imposed by

hibernation (Shenk and Sivert 1999a, p. 14).

The PMJM has a host of known predators, including the garter snake (
Thamnophis
spp.), prairie rattlesnake (
Crotalus viridus
), bullfrog (
Rana catesbiana
), fox (
Vulpes vulpes
and
Urocyon cinereoargenteus
), house cat (
Felis catus
), long-tailed weasel (
Mustela frenata
), and red-tailed hawk (
Buteo jamaicensis
) (Shenk and Sivert 1999a, p. 13; Schorr 2001, p. 29). Other potential predators include coyote (
Canis latrans
), barn owl (
Tyto alba
), great horned owl (
Bubo virginianus
), screech owl (
Otus spp.
), long-eared owl (
Asio otus
), northern harrier (Circus
cyaneus
), and large predatory fish. Mortality factors of the PMJM include drowning and being hit by vehicles (Schorr 2001, p. 29; Shenk and Sivert 1999a, p. 13). Introduced fauna that occupy riparian habitats may displace or compete with the PMJM. House mice (
Mus musculus
) were common in and adjacent to historic capture sites where the PMJM was no longer found (Ryon 1996, p. 26). Mortality factors known for the meadow jumping mouse, such as starvation, exposure, disease, and insufficient fat stores for hibernation (Whitaker 1963, pp. 225-228) also are likely causes of death in the PMJM subspecies.

Preble's Meadow Jumping Mouse Habitat

Typical habitat for the PMJM is comprised of well-developed riparian vegetation with adjacent, relatively undisturbed grassland communities and a nearby water source (Bakeman 1997, pp. 22-31, 47-48). The PMJM is typically captured in areas with multi-storied cover with an understory of grasses or forbs or a mixture thereof (Bakeman 1997, pp. 22-31, 28-30; Meaney
et al
. 1997, pp. 15-16; Shenk and Eussen 1999, pp. 9-11; Schorr 2001, pp. 23-24). The shrub canopy is often
Salix
spp., although other shrub species may occur (Shenk and Eussen 1999, pp. 9-11).

Although the PMJM commonly uses riparian vegetation immediately adjacent to a stream, other features that provide habitat for the subspecies include seasonal streams (Bakeman 1997, p. 76), low moist areas and dry gulches (Shenk 2004), agricultural ditches (Meaney
et al
. 2003, p. 620), and wet meadows and seeps near streams (Ryon 1996, p. 29).

White and Shenk (2000, pp. 7-8) determined that riparian shrub cover, tree cover, and the amount of open water nearby are good predictors of PMJM densities. Trainor
et al
. (2007, pp. 471-472) found that high-use areas for the PMJM tended to be close to creeks and were positively associated with the percentage of shrubs, grasses, and woody debris. Hydrologic regimes that support PMJM habitat range from large perennial rivers, such as the South Platte River, to small drainages only 3 to 10 ft (1 to 3 m) wide.

Clippenger (2002, pp. 44-45) found that, in Colorado, subshrub cover and plant species richness are higher at most sites where meadow jumping mice are present when compared to sites where they are absent, particularly at distances of 49 to 82 ft (15 to 25 m) from streams. In a study comparing habitats at PMJM capture locations on the Rocky Flats NWR (formerly the Department of Energy's (DOE's) Rocky Flats Environmental Technology Site), Jefferson County, and the U.S. Air Force Academy (Academy) in El Paso County, the Academy sites had lower plant species richness at capture locations but considerably greater numbers of the PMJM (Schorr 2001, p. 26). However, the Academy sites had higher densities of both grasses and shrubs. It is likely that PMJM abundance is not driven by the diversity of plant species alone, but by the density and abundance of riparian vegetation (Schorr 2001, p. 26).

The PMJM has rarely been trapped in uplands adjacent to riparian areas (Dharman 2001, pp. 19-20). However, in detailed studies of PMJM movement patterns using radio-telemetry, the PMJM has been found feeding and resting in adjacent uplands (Shenk and Sivert 1999a, pp. 11-12; Ryon 1999, p. 12; Schorr 2001, pp. 14-15). These studies suggest that the PMJM uses uplands at least as far out as 330 ft (100 m) beyond the 100-year floodplain (Shenk and Sivert 1999b, p. 11; Ryon 1999, p. 12; Schorr 2001, p. 14; Service 2003a, p. 26; Shenk 2004). These upland habitats also assist in maintaining the integrity of riparian habitats by protecting them from disturbance and supporting normal hydrological functions of rivers, streams, and floodplains.

The PMJM constructs day nests composed of grasses, forbs, sedges, rushes, and other available plant material. They may be globular in shape or simply raised mats of litter and are most commonly above ground but also can be below ground. They are typically found under debris at the base of shrubs and trees or in open grasslands (Ryon 2001, p. 377). An individual mouse can have multiple day nests in both riparian and grassland communities (Shenk and Sivert 1999a, pp. 10-12) and may abandon a nest after approximately a week of use (Ryon 2001, p. 377).

Apparent hibernacula (hibernation nests) of the PMJM have been located both within and outside of the 100-year floodplain of streams (Shenk and Sivert 1999a, pp. 12-13; Schorr 2001, pp. 14-15). Those hibernating outside of the 100-year floodplain would likely be less vulnerable to flood-related mortality. Fifteen apparent PMJM hibernacula have been located through radio-telemetry, all within 335 ft (102 m) of a perennial stream bed or intermittent tributary (Shenk and Sivert 1999a, p. 12; Schorr 2001, p. 28; Ruggles
et al
. 2003, p. 19). Apparent hibernacula have been located under
Salix
shrubs,
Prunus virginiana
(chokecherry),
Symphoricarpos albus
(snowberry),
Rhus trilobata
(skunkbrush),
Rhus
spp. (sumac),
Clematis
spp. (clematis),
Populus
spp. (cottonwood),
Quercus gambelii
(Gambel's oak),
Cirsium
spp. (thistle), and
Alyssum
spp. (alyssum) (Shenk and Sivert 1999a, pp. 12-13). At the Academy, four of six apparent hibernacula found by radio-telemetry were located in close proximity to
Salix exigua
(coyote willow) (Schorr 2001, p. 28).

Flooding is a common and natural event in the riparian systems in southeastern Wyoming and along the Front Range of Colorado. This periodic flooding helps create a dense vegetative community by stimulating resprouting from
Salix
shrubs, and allows herbs and grasses to take advantage of newly deposited soil. Fire is also a natural component of the Colorado Front Range, and PMJM habitat naturally waxes and wanes with fire events. Within shrubland and forest, intensive fire may result in adverse impacts to PMJM populations. However, in a review of the effects of grassland fires on small mammals, Kaufman
et al
. (1990, p. 55) found a positive effect of fire on the meadow jumping mouse in one study and no effect of fire on the species in another study.

The tolerance of the PMJM for invasive exotic plant species is not well understood. Whether or not exotic plant species reduce PMJM persistence at a site may be due in large part to whether plants create a monoculture and replace native species. The Preble's Meadow Jumping Mouse Recovery Team (Recovery Team) was particularly concerned about nonnative species such as
Euphorbia esula
(leafy spurge) that may form a monoculture, displacing native vegetation and thus reducing available habitat (Service 2003a, p. 13).

Previous Federal Actions

For information on previous Federal actions concerning the PMJM, refer to the final listing rule published in the
Federal Register
on May 13, 1998 (63 FR 26517), the final rule designating

critical habitat for the PMJM in portions of Colorado and Wyoming published in the
Federal Register
on June 23, 2003 (68 FR 37275), and the final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened, published in the
Federal Register
on July 10, 2008 (73 FR 39789).

On July 17, 2002, we proposed critical (67 FR 47154) and on June 23, 2003, we published a final rule designating critical habitat for the PMJM. On August 22, 2003, the City of Greeley filed a complaint in the U.S. District Court for the District of Colorado challenging our designation of critical habitat for the PMJM (
City of Greeley, Colorado
v.
United States Fish and Wildlife Service et al.,
Case No. 03-CV-01607-AP). On December 9, 2003, the Mountain States Legal Foundation filed a complaint in the U.S. District Court for the District of Wyoming challenging our 1998 listing of the PMJM and designation of critical habitat for the PMJM (
Mountain States Legal Foundation
v.
Gale E. Norton et al.
, Case No. 03-cv-250-J) that was later expanded that complaint to include our 2008 final determination on the PMJM and transferred it to the U.S. District Court for the District of Colorado (
Mountain States Legal Foundation
v.
Ken Salazar et al.,
Case No. 1:08-cv-2775-JLK). These lawsuits challenged the validity of the information and reasoning we used to designate critical habitat for the PMJM.

On July 20, 2007, we announced that we would review the June 23, 2003, final rule designating critical habitat after questions were raised about the integrity of scientific information we used and whether the decision we made was consistent with the appropriate legal standards (Service 2007a). Based on our review of the previous critical habitat designation, we have determined that it is necessary to revise critical habitat, and this rule proposes those revisions.

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

On April 16, 2009, we reached a settlement agreement with the City of Greeley in which we agreed to reconsider our critical habitat designation for the PMJM. The settlement stipulated that we submit to the
Federal Register
a proposed rule for revised critical habitat by September 30, 2009, and a final rule for revised critical habitat by September 30, 2010 (U.S. District Court, District of Colorado 2009a). On June 16, 2009, an order was issued granting Mountain States Legal Foundation a motion to dismiss their claims on the 1998 listing and 2008 final determination without prejudice, and stayed their challenge to the 2003 critical habitat designation pursuant to the City of Greeley settlement (U.S. District Court, District of Colorado 2009b).

Recovery Planning

Restoring an endangered or threatened species to the point where it is recovered is a primary goal of our endangered species program. To help guide the recovery effort, we prepare recovery plans for listed species native to the United States. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for downlisting or delisting the species, and estimate time and cost for implementing the recovery measures needed.

In early 2000, we established the Recovery Team under section 4(f)(2) of the Act and our cooperative policy on recovery plan participation, a policy intended to involve stakeholders in recovery planning (59 FR 34272, July 1, 1994). Stakeholder involvement in the development of recovery plans helps minimize the social and economic impacts that could be associated with recovery of endangered species. Various stakeholders were represented on the Recovery Team, and other public participation (including oral comments at Recovery Team meetings and written comments on the early drafts of the recovery plan) took place. The Recovery Team prepared a series of drafts of a recovery plan for the PMJM. They identify the criteria for reaching recovery and delisting of the PMJM. Our June 23, 2003, final rule to designate critical habitat (68 FR 37275) cited the draft recovery plan dated March 11, 2003, which we refer to as the Working Draft (Prebles Recovery Team 2003). The 2003 rule and the conservation strategy that supported it were developed incorporating information from the Working Draft. We revised this Working Draft in November 2003 and released it to the public (
http://www.fws.gov/mountain-prairie/species/mammals/preble/Nov2003DraftRecoveryPlan.pdf
). This version is hereafter referred to as the Preliminary Draft Recovery Plan (or Plan) (Service 2003a).

For various reasons, primarily the prolonged evaluation undertaken in response to 2003 petitions to delist the PMJM, a draft recovery plan for the PMJM has not yet been finalized or issued for public comment. However, after inactivity from 2004 to 2009, the Recovery Team was reconvened and has initiated a review and update of the Preliminary Draft Recovery Plan. Recent Recovery Team review has largely reaffirmed the conservation strategies that were the basis of the Preliminary Draft Recovery Plan and that review is considered in this proposal. A draft recovery plan, once completed, will be published in the
Federal Register
, will be available for public comments, and will provide an additional venue for stakeholder and public participation.

However, a final recovery plan is not a regulatory document (recovery plans are advisory documents because there are no specific protections, prohibitions, or requirements afforded to a species solely on the basis of a recovery plan) and does not obligate or commit parties to the actions or determination of the plans. Total disclosure and open communication with the public of our thoughts regarding possible future recovery scenarios are essential parts of recovery planning. Public review, peer review, and stakeholder involvement are also essential aspects of recovery planning, and are required by the Act and by Service policy. For these reasons, decisions we make in designation of critical habitat will not preclude determination or decisions in any aspect of recovery planning. Therefore, determinations of recovery strategies, criteria, or tasks within the recovery plan will not be limited by this proposed revision of critical habitat.

Summary of Proposed Changes to Previously Designated Critical Habitat

The areas identified in this proposed rule constitute a proposed revision from the areas we designated as critical habitat for the PMJM on June 23, 2003 (68 FR 37275) and amended on July 10, 2008 (73 FR 39789). This proposed rule addresses only the PMJM in the SPR in Colorado. The differences include the following:

(1) We propose to include in critical habitat specific areas that were excluded under section 4(b)(2) of the ESA and that were identified in our 2003 critical habitat designation. The 2003 designation of critical habitat for the PMJM in the SPR in Colorado comprises 5 units totaling 234 mi (377 km) of stream corridors. This proposed revision includes 11 units comprising a total of 418 mi (674 km) of stream corridors currently considered essential to the

conservation of the PMJM. The six additional units (Cedar Creek, South Boulder Creek, Rocky Flats NWR, Cherry Creek, West Plum Creek, and Monument Creek) were all proposed as critical habitat in the same or similar form on July 17, 2002 (67 FR 47154), but were not included in the 2003 final designation.

(2) We propose as critical habitat lands addressed in the Denver Water HCP (Service 2003b) that were excluded under section 4(b)(2) of the Act in our 2003 final designation.

(3) In Table 1, we provide a comparison between our 2003 final critical habitat designation and this proposed revised critical habitat rule.

TABLE 1. Existing and Proposed Critical Habitat for the Preble's Meadow Jumping Mouse
by Stream Miles (Kilometers) and Acres (Hectares) per Unit.

UNIT
EXISTING
PROPOSED

1. N. Fork, Cache la Poudre River

88 mi (142 km)

8,206 ac (3,321 ha)
*

88 mi (142 km)
8,619 ac (3,488 ha)

2. Cache la Poudre River

51 mi (82 km)

4,725 ac (1,912 ha)
*

51mi (82 km)
4,944 ac (2,001 ha)

3. Buckhorn Creek

43 mi (69 km)
*

3,798 ac (1,537 ha)
*

46 mi (73 km)
3,995 ac (1,617 ha)

4. Cedar Creek
0

8 mi (12 km)
668 ac (270 ha)

5. South Boulder Creek
0

8 mi (12 km)
856 ac (347 ha)

6. Rocky Flats NWR
0

13 mi (20 km)
1,108 ac (449 ha)

7. Ralston Creek

8 mi (13 km)
*

686 ac (277 ha)
*

9 mi (14 km)
809 ac (328 ha)

8. Cherry Creek
0

30 mi (48 km)
2,647 ac (1,071 ha)

9. West Plum Creek
0

94 mi (151 km)
8,724 ac (3,530 ha)

10. Upper South Platte River

44 mi (71 km)
**

3,265 ac (1,321 ha)
*

35 mi (57 km)
3,353 ac ( 1,357 ha)

11. Monument Creek
0

39 mi. (62 km)
3,419 ac (1,383 ha)

Total

234 mi (377 km)

20,680 ac (8,368 ha)

418 mi (674 km)

39,142 ac (15,840 ha)

*
Changes from existing to proposed result only from corrected errors (imprecise measurements) from 2003 designated critical habitat totals.

** Changes from existing to proposed due to a significant error in 2003 designated critical habitat totals.

(4) The following is a list of the areas added or enlarged in this proposed revision to critical habitat designation as compared to our 2003 critical habitat designation, and an explanation of why these areas are being considered.

Unit 4: We proposed the Cedar Creek Unit as critical habitat in 2002 based on presence of jumping mice thought to be the PMJM, but excluded it from final designation in 2003 due to lack of confirmed identification to species of those jumping mice captured. We now consider this unit occupied by the PMJM and are proposing it as critical habitat. This determination is based on the elevation (lower than 6,000 ft (1,829 m)) of jumping mouse captures and confirmation of the PMJM elsewhere in this subdrainage (Service 2009). It is consistent with our July 10, 2008, final rule to amend the listing for the PMJM (73 FR 39789).

Units 5, 8, 9, and 11: We proposed these units as critical habitat in 2002 but excluded them from final designation in 2003 based on HCPs under development in Boulder, Douglas, and El Paso Counties. We propose these units as critical habitat in this rule and will review them for possible exclusion, where appropriate, under section 4(b)(2) of the Act for our final designation. This proposal includes small changes from the 2002 proposal to Units 9 and 11, and a more substantial change to Unit 8 based on reevaluation of certain stream reaches.

Unit 6: We proposed this unit on Rocky Flats National Wildlife Refuge (NWR) as critical habitat in 2002 but excluded it from final designation in 2003 based on Federal ownership by the Department of Energy (DOE) and pending transfer of the site to the Service as Rocky Flats NWR. We propose this unit as critical habitat in this rule and will consider it for possible exclusion from our final designation under section 4(b)(2) of the Act.

Units 7 and 10: In our 2003 designation, we excluded small portions of these Units from critical habitat based on the Denver Water HCP under section 4(b)(2) of the Act. The portions we previously excluded we again propose as critical habitat. We will review these specific areas, along with other lands we proposed as critical habitat included in the Denver Water HCP, under section 4(b)(2) of the Act prior to our final designation.

Critical Habitat

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

(1) 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:

(a) essential to the conservation of the species and

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

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

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

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

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species). Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed as critical habitat only when we determine that those areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (Service 2007b) provide criteria, establish procedures, and guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

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

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all habitat areas that we may eventually determine are necessary for the recovery of the species, based on scientific data not now available. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not promote the recovery of the species.

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

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12(b), in determining which areas occupied at the time of listing to propose as critical habitat, we consider the physical and biological features that are essential to the conservation of the species to be the PCEs laid out in the appropriate quantity and spatial arrangement for conservation of the species. In general, PCEs include, but are not limited to:

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

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

(3) Cover or shelter;

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

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

We derive the PCEs required for the PMJM from its biological needs. The area proposed for designation as revised critical habitat provides riparian and adjacent upland habitat for the PMJM, including those habitat components essential for the biological needs of reproduction, rearing of young, foraging, sheltering, hibernation, dispersal, and genetic exchange. The PMJM is able to live and reproduce in and near riparian areas located within grassland, shrubland, forest, and mixed vegetation

types where dense herbaceous or woody vegetation occurs near the ground level, where available open water normally exists during their active season, and where there are ample upland habitats of sufficient width and quality for foraging, hibernation, and refugia from catastrophic flooding events. While
Salix
(willow) in shrub form is a dominant component in many riparian habitats occupied by the PMJM, the structure of the vegetation appears more important to the PMJM than species composition (Schorr 2001, p. 26).

The PCEs associated with the biological needs of dispersal and genetic exchange also are found in areas that provide connectivity or linkage between or within PMJM populations. These areas may not include the habitat components listed above and may have experienced substantial human alteration or disturbance.

The dynamic ecological processes that create and maintain PMJM habitat also are important PCEs. Habitat components essential to the PMJM are found in and near those areas where past and present geomorphological and hydrological processes have shaped streams, rivers, and floodplains, and have created conditions that support appropriate vegetative communities. PMJM habitat is maintained over time along rivers and streams by a natural flooding regime (or one sufficiently corresponding to a natural regime) that periodically scours riparian vegetation; reworks stream channels, floodplains, and benches; and redistributes sediments such that a pattern of appropriate vegetation is present along river and stream edges, and throughout their floodplains. Periodic disturbance of riparian areas sets back succession and promotes dense, low-growing shrubs and lush herbaceous vegetation favorable to the PMJM. Where flows are controlled to preclude a natural pattern and other disturbance is limited, a less favorable mature successional stage of vegetation dominated by cottonwoods or other trees may develop. The long-term availability of habitat components favored by the PMJM also depends on plant succession and impacts of drought, fires, windstorms, herbivory, and other natural events. In some cases, these naturally occurring ecological processes are modified or are supplanted by human land uses that include manipulation of water flow and of vegetation.

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

(1) Riparian corridors:

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

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

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

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

Existing human-created features and structures within the boundaries of the mapped units, such as buildings, roads, parking lots, other paved areas, manicured lawns, other urban and suburban landscaped areas, regularly plowed or disked agricultural areas, and other features not containing any of the PCEs would not be considered critical habitat if this proposal is adopted.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the occupied areas contain the physical and biological features that are essential to the conservation of the species, and whether these features may require special management considerations or protection.

The area proposed for designation as revised critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the PMJM. In all proposed units, special management considerations or protection of the essential features may be required to provide for the sustained function of the riparian corridors on which the PMJM depends.

The PMJM is closely associated with riparian ecosystems that are relatively narrow and represent a small percentage of the landscape. We consider the decline in the extent and quality of PMJM habitat to be the main factor threatening the subspecies (63 FR 26517, May 13, 1998; Hafner
et al
. 1998, pp. 121-123; Shenk 1998, pp. 24-27). Special management considerations and protection may be required to address the threats of habitat alteration, degradation, loss, and fragmentation resulting from urban development, flood control, water development, agriculture, and other human land uses that have adversely impacted PMJM populations. Habitat destruction may affect the PMJM directly or by destroying nest sites, food resources, and hibernation sites; by disrupting behavior; or by forming a barrier to movement.

Criteria Used To Identify Critical Habitat

In this proposed designation of revised critical habitat we have identified specific areas that include only river and stream reaches, and their adjacent floodplains and uplands, that are within the known geographic and elevational range of the PMJM, that contain the features essential to the conservation of the PMJM. Further, the areas included in proposed critical habitat contain at least one of the requisite PCEs, and are currently occupied by the PMJM or provide crucial opportunities for connectivity to facilitate dispersal and genetic exchange.

This proposed critical habitat designation identifies only the appropriate quantity and spatial arrangement of the requisite PCEs that we have determined to be essential to the conservation of the subspecies. We determined that there are more areas currently occupied by the PMJM than are necessary to conserve the subspecies within the SPR in Colorado. We base this on the known occurrence and distribution of the PMJM (Service 2009) and upon the conservation strategy in the Preliminary Draft Recovery Plan, which indicates that when specified criteria are met for a subset of existing populations throughout the range of the PMJM, the subspecies can be delisted (Service 2003a, p. 19). To recover the PMJM to the point where it can be delisted, the Preliminary Draft Recovery Plan identifies the need for a specified number, size, and distribution of wild, self-sustaining PMJM populations across the known range of the PMJM. On the basis of the above criteria, we have chosen a subset of the areas occupied by the PMJM within the SPR in Colorado

that have the physical and biological features essential to the PMJM for inclusion in the proposed critical habitat.

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

In selecting areas of proposed critical habitat, we made an effort to avoid developed areas that are not likely to contribute to PMJM conservation. Our mapping incorporates the best scientific information available, but is limited in scale by our technical capabilities and the time available to us in under our settlement agreement with the City of Greeley (U.S. District Court, District of Colorado 2009a).

Available Information

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

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

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

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

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

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

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

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

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

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

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

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One issue recently reviewed by the Recovery Team was whether the conservation strategy that specified the number, size, and distribution of PMJM recovery populations in Colorado remained valid despite the removal of the Wyoming portion of PMJM's range from listing. In Colorado, the strategy is to establish at least three large populations and three medium populations spread over six subdrainages. Recovery of the PMJM would require these populations to be protected from threats. Additionally, the Plan suggests establishing at least three small populations or one medium population in seven other subdrainages, if the PMJM is present. Another issue raised was whether the strategy required modification based on DNA testing that revealed that the PMJM in northern and southern areas of the subspecies' range (Wyoming and Larimer County in Colorado vs. Douglas and El Paso Counties in Colorado) exhibited significant genetic differences (King
et al
. 2006, pp. 4337-4338). The Recovery Team concluded that the previous strategy adequately addresses recovery across the PMJM's range in Colorado (Jackson 2009). The Recovery Team noted that recovery populations were appropriately spread north and south of the Denver metropolitan area, which lies between northern and southern populations examined in the King
et al
. (2006) study (Jackson 2009).

Biological Factors

Presence of the PMJM was determined based largely on the results of trapping surveys, the vast majority of which were conducted in the 11 years since listing under the Act. Consistent with our July 10, 2008, final rule to amend the listing for the PMJM (73 FR 39789), subdrainages judged to be occupied by the PMJM in Colorado include those that: (1) Have recently been documented to support jumping mice identified by genetic or morphological examination as the PMJM; or (2) have recently been documented to support jumping mice not identified to species but occurring at elevations below 6,700 ft (2,050 m), where western jumping mice have infrequently been documented. In our July 17, 2002, proposal (67 FR 47154) and our June 23, 2003, designation of critical habitat (68 FR 37275), we summarized trapping results and means of positive identification for each unit. We have limited discussion in this proposal. See our 2003 rule designating critical habitat and our 2008 final rule to amend the listing for the PMJM for more information on our determinations regarding presence of the PMJM in various subdrainages.

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

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

Additional Factors Considered

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

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

This proposed designation of revised critical habitat in Colorado includes six units designed to support three large and three medium PMJM recovery populations, corresponding to those designated in the Preliminary Draft Recovery Plan. While the Preliminary Draft Recovery Plan designates the approximate location of these large and medium recovery populations, it does not delineate specific boundaries. In addition, the Plan identifies seven other HUCs within the PMJM's range in Colorado, where a large or medium recovery population is not designated. In these seven additional HUCs, the Plan suggests establishing three small recovery populations (including at least 3 mi (5 km) of rivers or streams) or one medium recovery population in each, except for those HUCs which, when adequately surveyed, are without an existing PMJM population. The Plan does not identify the locations of recovery populations within these remaining seven HUCs. In this proposed designation of revised critical habitat, we are not proposing critical habitat units corresponding to Plan requirements in all of these remaining seven HUCs. In some, occurrence or distribution of PMJM populations is largely unknown; in others the quality, continuity, and extent of physical and biological features essential to the PMJM are lacking. Designating critical habitat in each of these remaining HUCs is not necessary to provide for the conservation of the subspecies.

The Preliminary Draft Recovery Plan anticipates that, in the future, the locations of these remaining recovery populations will be designated and

specific boundaries of all recovery populations (large, medium, and small) will be delineated by State and local governments, and other interested parties, working in coordination with us. In contrast to the Preliminary Draft Recovery Plan, this proposed revised designation of critical habitat must delineate specific boundaries for all critical habitat areas proposed in order to meet the requirements of the Act and our implementing regulations. As a result, any future recovery plan developed for the PMJM may designate recovery populations or delineate their boundaries in a manner inconsistent with the critical habitat units we propose. This is likely to occur if future information changes our understanding of the distribution of PMJM populations.

In some HUCs identified in the Preliminary Draft Recovery Plan, little is known regarding the status of the PMJM. For example, PMJM has not been confirmed to occur in the Crow Creek, Lone Tree, and Bijou HUCs within the South Platte River drainage in Colorado or the Big Sandy HUC in the Arkansas River drainage. If the PMJM is not present, designation of recovery populations in these HUCs may not be warranted, and these HUCS may be deleted from any future recovery plan. We do not believe that these areas contain features that are essential to the conservation of the species, so we are not proposing critical habitat within these four HUCs. We have determined that we can meet the statutory requirements of critical habitat by proposing a subset of lands that contain the PCEs essential to the conservation of the PMJM.

The conservation strategy employed in the Preliminary Draft Recovery Plan emphasizes the importance of protecting additional PMJM populations beyond those designated as recovery populations, to provide insurance for the PMJM in the event that designated recovery populations cannot be effectively managed or protected as envisioned, or are decimated by rare but uncontrollable events such as catastrophic fires or flooding. The Plan recommends directing recovery efforts toward public lands rather than private lands where possible, and calls upon all Federal agencies to protect and manage for the PMJM wherever it occurs on Federal lands. For this reason, we prioritized inclusion of Federal lands where possible. However, Federal lands alone cannot fully provide for the conservation of the species. Therefore, we included some non-Federal lands when we found those lands contained the PCEs in the appropriate quantity and spatial arrangement to provide the physical and biological features essential to the conservation of the species. We believe that the designation of areas of critical habitat outside of those areas identified for recovery populations on Federal land is essential for the conservation of the PMJM. Should unforeseen events cause the continued decline of PMJM populations throughout its range, PMJM populations and the PCEs on which they depend are more likely to persist and remain viable on Federal lands, where consistent and effective land management strategies can be more easily employed. These additional PMJM populations on Federal lands could serve as substitute recovery populations should designated recovery populations decline or fail to meet recovery goals. In addition, some PMJM populations on Federal lands have been the subject of ongoing research that could prove vital to the conservation of the PMJM. Therefore, in addition to proposing critical habitat for sites consistent with those listed in the Preliminary Draft Recovery Plan, we reviewed other sites of PMJM occurrence, especially Federal lands, and are proposing certain additional units for designation as critical habitat that include the requisite PCEs and are known to support the PMJM.

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

Revisions to the critical habitat designation may be necessary in the future to accommodate shifts in the occupied range of the PMJM. For example, there is potential for impacts to the PMJM and its habitat from currently predicted future climate changes. While specific effects to PMJM are somewhat uncertain, a trend of climate change in the mountains of western North America is expected to decrease snowpack, hasten spring runoff, and reduce summer flows (Intergovernmental Panel on Climate Change 2007, p. 11). Resultant changes to vegetative communities may compel PMJM distribution to shift to higher elevations not currently occupied, but still within the designated boundary of the SPR in Colorado. While effects from climate change may result in an increased PMJM dependence on these areas in the future if lower elevation areas become less habitable, elevations above 7,600 ft (2,317 m) are not known to support the PMJM at this time. The preponderance of lands above 7,600 ft (2,317 m) within subdrainages supporting the PMJM are in Federal ownership.

South Platte River Drainage North of Denver

In the Cache la Poudre HUC, stream reaches that contain requisite PCEs are widespread. We are proposing critical habitat along the lower portions of the North Fork of the Cache la Poudre River and its tributaries, to provide for the large recovery population specified in the Preliminary Draft Recovery Plan. We are also proposing a second area further south in this subdrainage on National Forest System lands along the main stem of the Cache la Poudre River and on selected tributaries. The two proposed units in the lower reaches and subdrainage contain the appropriate spatial arrangement of the requisite PCEs to ensure the conservation of the PMJM. While additional stream reaches that support requisite PCEs are present in the upper reaches of the North Fork of the Cache la Poudre and its tributaries, including Bull Creek, Willow Creek, Mill Creek, and Trail Creek, the PCEs in these reaches are of limited quantity. As a consequence, we are not proposing critical habitat in the upper reaches because we have determined that they do not contain the features essential for the conservation of the species. Therefore, we propose no critical habitat in the upper reaches of the North Fork.

The Preliminary Draft Recovery Plan specifies a medium recovery population on South Boulder Creek within the St. Vrain HUC. Consistent with our 2002 proposal of critical habitat (67 FR 47153), we are including portions of the South Boulder Creek and Spring Creek as proposed critical habitat. Previously, we considered designating critical habitat along the St. Vrain River and adjacent tributaries and ditches between the towns of Hygiene and Lyons. However, we find that the areas along South Boulder Creek that contain the requisite PCEs are preferable to the St. Vrain River area because they are of higher habitat quality, while some of the areas and features along the St. Vrain River are being impacted by aggregate mining and other human development.

We also find only one unit within this general area is necessary to the conservation of the PMJM as outlined in the Preliminary Draft Recovery Plan. Therefore, we are selecting the areas along South Boulder Creek for inclusion in proposed ciritcal habitat instead of the St. Vrain River, due to the quality, quantity, and spatial arrangement of the PCEs and subsequent essential features..

We also considered proposing critical habitat for the PMJM on higher elevations along the North St. Vrain Creek and the Middle St. Vrain Creek. However, since limited trapping efforts targeted at the PMJM have been conducted in these areas and occupancy by the PMJM appears uncertain, we are not proposing critical habitat along these creeks. The lack of presence of the mouse would mean that we would need to determine that these lands are essential to the conservation of the mouse in order to include them in the proposed designation. As stated previously, we determined that we could meet the statutory requirements of critical habitat by designating a subset of the known occupied lands.

Rocky Flats NWR spans portions of the St. Vrain HUC and the Middle South Platte-Cherry Creek HUC. Requisite PCEs are present and the site supports small streams largely unimpacted by human development. Rocky Flats NWR has been a focus of research on the PMJM and monitoring of populations took place for several years when the site was owned by the Department of Energy (DOE) (PTI 1998). We proposed the site as critical habitat in 2002, but excluded in our 2003 final designation of critical habitat based on our section 4(b)(2) analysis that concluded the area did not require special management efforts. We propose the site again as critical habitat and we will again evaluate whether it is appropriate to exclude the site from critical habitat designation under section 4(b)(2) of the Act.

As in our 2003 final designation of critical habitat (68 FR 37275), we are proposing critical habitat in the Big Thompson HUC on Buckhorn Creek and its tributaries consistent to provide for the medium recovery population as advised in the Preliminary Draft Recovery Plan. We are also proposing one additional area as critical habitat that is a tributary to the Big Thompson River, centered on National Forest System lands on portions of Dry Creek and its tributaries. We excluded this area from our 2003 designation of critical habitat in part due to uncertainty regarding identity of the jumping mice present. We know that the area both supports the PMJM and contains the PCEs essential to the conservation of the species.

We also assessed National Forest System lands along the Big Thompson River and Little Thompson River for possible inclusion as critical habitat. Areas along the Big Thompson River and the North Fork of the Big Thompson River that contain the PCEs essential to the conservation of the PMJM are largely in private ownership that are impacted by substantial human development. The remaining protected lands (i.e., USFS holdings) are highly fragmented or are present only as stream reaches near the 7,600 ft (2,317 m) elevation. Requisite PCEs are generally not in the appropriate spatial arrangement and quantity to provide for the conservation of the PMJM. Therefore, we propose no critical habitat on the Big Thompson River, the North Fork of the Big Thompson River, or the Little Thompson River.

The Lone Tree-Owl HUC provides requisite PCEs along limited stream reaches in Colorado. While the Preliminary Draft Recovery Plan (Service 2003a) suggests three small or one medium recovery population in the Lone Tree-Owl HUC if PMJM are present, it is questionable whether the PMJM occurs within this HUC. On July 17, 2002, we proposed two small areas of critical habitat along Lone Tree Creek, one in Wyoming and one in Colorado (67 FR 47154). However, we omitted critical habitat along Lone Tree Creek from our June 23, 2003, designation (68 FR 37275) because, despite the relatively low elevation of the stream, to date the only jumping mice verified to species from Lone Tree Creek are western jumping mice (Service 2009). This corresponds to the pattern in southern Wyoming where, unlike in most of Colorado, western jumping mice are found regularly below 6,700 ft (2,043 m). No further captures of jumping mice have occurred in the Colorado portion of this HUC since our 2003 designation. The lack of presence of PMJM would mean that we would need to determine that these lands are essential to the conservation of the mouse in order to include them in the proposed designation. As stated previously, we determined that we could meet the statutory requirements of critical habitat by designating a subset of the known occupied lands. Therefore, we are not proposing critical habitat in the Lone Tree-Owl HUC.

The Preliminary Draft Recovery Plan suggests three small recovery populations or one medium recovery population in the Crow Creek HUC, if PMJM are present. The Crow Creek HUC has few stream reaches that support requisite PCEs in the appropriate spatial arrangement and quantity to be essential to the conservation of the PMJM within the SPR in Colorado. Further, trapping within this HUC in Colorado has not resulted in captures of jumping mice (Service 2009). The lack of presence of the mouse would mean that we would need to determine that these lands are essential to the conservation of the mouse in order to include them in the proposed designation. As stated previously, we determined that we could meet the statutory requirements of critical habitat by designating a subset of the known occupied lands. Therefore, we are proposing no critical habitat within this HUC.

The Preliminary Draft Recovery Plan suggests three small recovery populations or one medium recovery population in the Clear Creek HUC, if PMJM are present. The PMJM has been confirmed along a segment of Ralston Creek above Ralston Reservoir (Service 2009). We propose critical habitat on this reach similar to that in our 2003 designation of critical habitat. Based on limited occurrence of stream reaches that contain the requisite PCEs and existing human development patterns, we are limiting our proposed designation of critical habitat within the Clear Creek HUC to this single reach.

South Platte River Drainage South of Denver

Within the Upper South Platte HUC, we propose critical habitat along West Plum Creek and its tributaries consistent with the large recovery population called for in the Preliminary Draft Recovery Plan. Based on public comments and information received in 2002, some small changes have been made to the tributaries previously proposed as critical habitat. We are not including portions of one unnamed tributary to West Plum Creek and the upper portion of Metz Canyon because they do not support the features essential to the PMJM.

Consistent with our 2003 final designation of critical habitat within the Upper South Platte HUC, we propose critical habitat on Army Corps of Engineers' lands upstream of Chatfield Reservoir along the South Platte River and on three areas centered on National Forest System land in the Pike-San Isabel National Forest within the South Platte River watershed. The four areas of proposed critical habitat should ensure that a population of the PMJM sufficient for its conservation is maintained in the portion of this HUC upstream of Chatfield Reservoir on the South Platte River and its tributaries. However, we are not proposing to include some

National Forest System lands on some major tributaries of the South Platte River, because the habitat components required by the PMJMdo not contain features essential to the subspecies conservation since they have been degraded by catastrophic fire, flooding, or both. The Buffalo Creek watershed has been highly degraded by fire, followed by flooding, accompanying erosion, and sedimentation. While there is evidence of recovery of the habitat occurring, we conclude that, in the foreseeable future, this area will not develop the essential physical or biological features in the appropriate quantity and spatial arrangement to provide for the conservation of the PMJM; therefore, we are not proposing critical habitat in the Buffalo Creek watershed. The Wigwam Creek area, proposed as a critical habitat subunit in 2002, was not designated as critical habitat in 2003 following intense burning by the 2002 Hayman Fire, and is not being included in this proposal. The area remains degraded, and minimally supports PCEs necessary for the conservation of the PMJM, and we conclude that it is not appropriate to propose critical habitat in the area.

The Preliminary Draft Recovery Plan (Service 2003a) specifies a medium recovery population along Cherry Creek in the Middle South Platte-Cherry Creek HUC. PCEs essential to the conservation of the PMJM in the upper reaches of the Cherry Creek basin appear widespread and there are multiple options as to where we could designate critical habitat for a medium recovery population. Similar to our July 17, 2002, proposal of critical habitat (67 FR 47154), we include portions of Cherry Creek, Lake Gulch, and Upper Lake Gulch as proposed critical habitat because it contains the best spatial arrangement and quanity of requisite PCEs within the HUC. After additional review of the quality, continuity and extent of requisite PCEs; PMJM distribution; conservation potential; and conservation efforts within upper reaches of Cherry Creek and its tributaries, including East Cherry Creek and West Cherry Creek, we are proposing a second subunit of critical habitat on portions of Antelope Creek and Haskel Creek. We believe that this area contains the features essential to the conservation of the PMJM and could serve as an alternate or additional medium recovery population consistent with our recovery strategy.

The Preliminary Draft Recovery Plan suggests either three small populations or one medium population in the Kiowa HUC if PMJM are present. No confirmation of the PMJM existed at the time of 2003 critical habitat designation for this subdrainage, and no critical habitat was designated. Since 2003, PMJM were captured at two sites within the Kiowa (Service 2009). Various stream reaches throughout southern portions of the HUC support some of the PCEs and may support the PMJM. However, we do not believe that the areas contain the PCEs in the appropriate quantity and spatial arrangement. As a consequence, we are not proposing any critical habitat within the HUC.

The Preliminary Draft Recovery Plan suggests either three small populations or one medium population in the Bijou HUC if PMJM are present. While requisite PCEs are present in the Bijou HUC, the limited trapping efforts that have occurred have not resulted in captures of jumping mice (Service 2009); therefore, consistent with our determination that areas not known to be occupied by the PMJM are not essential to its conservation, we are not proposing critical habitat in this HUC.

Arkansas River Drainage

Within the Fountain Creek HUC, the Preliminary Draft Recovery Plan (Service 2003a) specifies a large recovery population along Monument Creek and its tributaries including lands within the U.S. Air Force Academy (Academy). While the Academy lands support the requisite PCEs, a significant PMJM population, and are essential to maintaining this recovery population, we determined that the Academy land merits exemption pursuant to section 4(a)(3) of the Act. We propose critical habitat east and north of the Academy similar to the area we proposed on July 17, 2002 (67 FR 47154), with the addition of one stream reach. In determining boundaries of critical habitat we considered whether documented PMJM populations on some stream reaches remained connected to the larger population present along Monument Creek and its tributaries on the Academy or whether, due to fragmentation caused by past development, they have become permanently isolated.

A significant barrier to PMJM movement is present on Kettle Creek in the form of a large detention basin on the Academy just east of Interstate Highway 25 and accompanying outflow structure that channels creek flow under the highway. We have had discussions with the Academy regarding possible means of improving connectivity between upstream and downstream PMJM populations along this reach. Since improved connectivity may be possible and could prove essential in meeting the recovery criteria in this HUC, we are proposing critical habitat upstream of this reach of Kettle Creek.

Along the upper reaches of Monument Creek, Monument Lake and the dam that forms it create at least a partial barrier to PMJM movement upstream and downstream. Mitigation associated with a project that modified Monument Lake Dam was intended to enhance connectivity for the PMJM through this reach of Monument Creek (Service 2002a). However, the mitigation has thus far not been completed. In addition some reaches upstream from Monument Lake have been significantly altered by human activity. We have not included these upper reaches in our proposed designation because they do not contain the requisite PCEs in an appropriate quantity and spatial arrangement.

The Preliminary Draft Recovery Plan suggests either three small recovery populations or one medium recovery population to meet recovery criteria in both the Chico and the Big Sandy HUCs, if PMJM are present. We did not propose critical habitat in either of these HUCs in 2002 or designate it in 2003. We are not proposing critical habitat in the Chico HUC because the PCEs appear very limited in quantity and spatial arrangement within the subdrainage and, therefore, the area does not contain the features essential to the conservation of the PMJM. Additionally, the PMJM has been found at two locations within the Chico HUC, in apparently marginal habitat along an unnamed tributary of Black Squirrel Creek and at a site in the upper reaches of Black Squirrel Creek that is under development pressure (Service 2009). Subsequent trapping could not relocate the PMJM at the former site. In the Big Sandy HUC, requisite PCEs are limited to a few short reaches and, therefore, the area does not contain the features essential to the conservation of the PMJM. For this reason we are not proposing critical habitat in the Big Sandy HUC. In this location, limited trapping efforts targeted at the PMJM have not confirmed the presence of the PMJM (Service 2009).

Delineation of Critical Habitat Boundaries

We propose revised critical habitat for the PMJM based on the interpretation of multiple sources used during our June 23, 2003, designation of critical habitat (68 FR 37275) and using new information in the preparation of this revised proposed rule. For this proposed rule, we used GIS-based mapping using ESRI ArcGIS software incorporating USGS National Hydrography Dataset

streams along with stream order (by Strahler code), Colorado Department of Transportation roads, U.S. Census Bureau cities, USGS topographic maps, 2005 Farm Service Agency, National Agricultural Inventory Program 1m color imagery, and the COMaP dataset (Theobald
et al
. 2008). We divided lands we are proposing as critical habitat into specific mapping units, i.e., critical habitat units, often corresponding to individual HUCs. For the purposes of this proposed rule, these units are described primarily by latitude and longitude, and by Public Land Survey, Township, Section, and Range, to mark the upstream and the downstream extent of proposed critical habitat along rivers and streams.

As in 2003, we are faced with a decision concerning the outward extent of critical habitat into uplands. Studies suggest that the PMJM uses uplands at least as far out as 330 ft (100 m) beyond the 100-year floodplain (Shenk and Sivert 1999a, p. 11; Ryon 1999, p. 12; Schorr 2001, p. 14; Shenk 2004; Service 2003a, p. 26). Apparent hibernacula have ranged outward to 335 ft (102 m) of a perennial stream bed or intermittent tributary (Ruggles
et al
. 2003, p. 19). We have typically described potential PMJM habitat as extending outward 300 ft (90 m) from the 100-year floodplain of rivers and streams (Service 2004a, p. 5). The Preliminary Draft Recovery Plan (Service 2003a) defines PMJM habitat as the 100-year floodplain plus 330 ft (100 m) outward on both sides, but allows for alternative delineations that provide for all the needs of the PMJM and include the alluvial floodplain, transition slopes, and appropriate upland habitat.

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

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

For this proposed revised designation, we maintain consistency with our 2003 designation of critical habitat in delineating the upland extent of critical habitat boundaries as a set distance outward from the river or stream edge (as defined by the ordinary high water mark) varying with the size (order) of a river or stream. We compared known floodplain widths to stream order over a series of sites and approximated average floodplain width for various orders of streams. To that average we added 328 ft (100 m) outward on each side. For example, this analysis determined the average flood plain for streams of order 1 and 2 (the smallest streams) is 33 feet (10 m). Based on this calculation, for streams of order 1 and 2, we propose critical habitat as 361 ft (110 m) outward from the stream edge; for streams of order 3 and 4, we propose critical habitat as 394 ft (120 m) outward from the stream edge; and for stream orders 5 and above (the largest streams and rivers), we propose critical habitat as 459 ft (140 m) outward from the stream edge. While proposed critical habitat will not extend outward to all areas used by individual mice over time, we believe that these corridors of critical habitat ranging from 722 ft (220 m) to 918 ft (280 m) in width (plus the river or stream width) will support the full range of PCEs essential for conservation of PMJM populations in these reaches and should help protect the PMJM and their habitats from secondary impacts of nearby disturbance. Following our July 17, 2002, proposal of critical habitat (67 FR 47154), we received a number of public comments regarding the appropriate outward limits of critical habitat and means of establishing them. However, most comments suggested either standardizing a single outward distance for all rivers and streams, site specific mapping of critical habitat for each reach, or relying on alternative mapping created for HCPs as a surrogate for site-specific mapping of critical habitat. We determined that none of these alternatives were both feasible with the resources available to us and more accurate rangewide than the methodology employed above.

Proposed Revised Critical Habitat Designation

The proposed critical habitat contained within units discussed below constitutes our best evaluation of areas necessary to conserve the PMJM. Table 1 above provides a summary of the length of stream reach with habitat in each unit that is proposed as revised critical habitat. Proposed critical habitat for the PMJM includes approximately 426 mi (686 km) of rivers and streams and 39,835 ac (16,121 ha) of lands in Colorado. Lands proposed as critical habitat are under Federal, State, local government, and private ownership (Table 2). No lands proposed as critical habitat are under tribal ownership. Estimates reflect the total river or stream length and area of lands within critical habitat unit boundaries. Limited areas within these boundaries may not include any of the requisite PCEs. Therefore, excluding certain developed areas or other areas not supporting any of the requisite PCEs, the areas proposed be less than that indicated in Table 2.

TABLE 2. Proposed Critical Habitat Acreage for the Preble's Meadow Jumping Mouse in Colorado Counties.
by Land Ownership

COUNTY
FEDERAL
STATE
LOCAL GVT
OTHER
TOTAL

Boulder

6 ac
(2 ha)

515 ac
(208 ha)

351 ac
(142 ha)

871 ac
(352 ha)

Douglas

3,024 ac
(1,224 ha)

762 ac
(308 ha)

512 ac
(207 ha)

9,599 ac
(3,885 ha)

13,896 ac
(5,624 ha)

El Paso

59 ac
(24 ha)

0

160 ac
(65 ha)

3,199 ac
(1,285 ha)

3,419 ac
(1,383 ha)

Jefferson/Broomfield
*

1,564 ac
(633 ha)

195 ac
(79 ha)

311 ac
(126 ha)

584 ac
(236 ha)

2,654 ac
(1,074 ha)

Larimer

7,867 ac
(3,184 ha)

2,363 ac
(956 ha)

187 ac
(76 ha)

7,809 ac
(3,160 ha)

18,226 ac
(7,376 ha)

Teller

77 ac
(31 ha)

0
0
0

77 ac
(31 ha)

Total

12,596 ac
(5,097 ha)

3,319 ac
(1,343 ha)

1,685 ac
(682 ha)

21,542 ac
(8,718 ha)

39,142 ac
(15,840 ha)

*
Broomfield County extends minimally on to Rock Flats NWR (Unit 7).

Lands proposed as revised critical habitat are divided into 11 critical habitat units containing all of those PCEs necessary to meet the primary biological needs of the PMJM throughout Colorado where it is listed. Each unit has all of the requisite PCEs present, and, based on the best scientific data available, all are believed to currently support the PMJM. Individual stream reaches designated within each unit contain at least one of the PCEs, and are either believed to be occupied by the PMJM or provide crucial opportunities for connectivity to facilitate dispersal and genetic exchange within the unit.

In proposing critical habitat, we did not include all areas currently occupied by the PMJM. A brief description of each PMJM critical habitat unit is provided below. The units are generally based on geographically distinct river drainages and subdrainages. These units have been subject to, or are threatened by, varying degrees of degradation from human use and development. For these reasons, the essential features within each of the specific areas we are proposing as critical habitat may require special management considerations or protection. Management may include additional measures in addition to those that may already be in place to preserve such areas; to avoid, reduce, or offset human-induced and natural impacts; and to restore such areas following unavoidable adverse impacts, including fire or flooding.

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

Unit 1 encompasses approximately 8,619 ac (3,488 ha) on 88 mi (142 km) of streams within the North Fork of the Cache la Poudre River watershed. It includes the North Fork of the Cache la Poudre River from Seaman Reservoir upstream to Halligan Reservoir. Major tributaries within the unit include Stonewall Creek, Rabbit Creek (including its North Fork, Middle Fork, and South Fork), and Lone Pine Creek. The unit includes both public and private lands. It includes portions of the Arapaho-Roosevelt National Forest, as well as Lone Pine State Wildlife Area.

The unit is located in the Cache la Poudre HUC and is proposed to address the large recovery population designated for this area in the Preliminary Draft Recovery Plan (Service 2003a). The area remains rural and agricultural with habitat components likely to support relatively high densities of the PMJM. Pressure for expanded development is increasing within the area.

Unit 2: Cache la Poudre River, Larimer County.

Unit 2 encompasses approximately 4,944 ac (2,001 ha) on 51 mi (82 km) of streams within the Cache la Poudre River watershed. It includes the Cache la Poudre River from Poudre Park upstream to the 7,600 ft (2,317 m) elevation (below Rustic). Major tributaries within the unit include Hewlett Gulch, Young Gulch, Skin Gulch, Poverty Gulch, Elkhorn Creek, Pendergrass Creek, and Bennett Creek. The unit is primarily composed of Federal lands of the Arapaho-Roosevelt National Forest, including portions of the Cache la Poudre Wilderness, but includes limited non-Federal lands.

Since this unit is located in the same Cache la Poudre HUC as Unit 1, it is unlikely to serve as an initial recovery population. However, it encompasses a significant area of habitat likely to support a sizeable population of the PMJM. Due to Federal ownership, development pressure is minimal; however, the area is subject to substantial recreational use (rafting, kayaking, fishing) in the Cache la Poudre River corridor. Non-Federal lands include existing development that may limit the habitat components present. Some such reaches may serve the PMJM mostly as connectors between areas containing all necessary PCEs.

Unit 3: Buckhorn Creek, Larimer County.

Unit 3 encompasses approximately 3,995 ac (1,617 ha) on 46 mi (73 km) of streams within the Buckhorn Creek watershed. It includes Buckhorn Creek from just west of Masonville, upstream to the 7,600 ft (2,317 m) elevation. Major tributaries within the unit include Little Bear Gulch, Bear Gulch, Stringtown Gulch, Fish Creek, and Stove Prairie Creek. The unit includes both public and private lands and portions of the Arapaho-Roosevelt National Forest.

The unit is located in the Big Thompson HUC and is proposed to address the medium recovery population called for this area in the Preliminary Draft Recovery Plan (Service 2003a). Pressure for expanded rural development exists on non-Federal lands within the unit.

Unit 4: Cedar Creek, Larimer County.

Unit 4 encompasses approximately 668 ac (270 ha) on 8 mi (12 km) of streams within the Cedar Creek watershed, including Dry Creek and Jug Gulch. Cedar Creek is a tributary of the Big Thompson River and enters the Big Thompson River at Cedar Cove. The unit is centered on Federal lands of the Arapaho-Roosevelt National Forest, but includes some stream reaches on non-Federal lands.

This unit is located in the Big Thompson HUC and, while unlikely to serve as an initial recovery population, it supports a population on mostly Federal lands of the upper Big Thompson River. It is isolated, at least in terms of riparian connection, from the PMJM population on nearby Buckhorn Creek. This site is upstream of The Narrows of the Big Thompson Canyon, a barrier to PMJM movement, while the confluence of the Big Thompson River and Buckhorn Creek is downstream from The Narrows. However, the close proximity of the headwaters of Jug Gulch within this unit to the headwaters of Bear Gulch within the Buckhorn Creek unit suggests that some individual mice may pass between the two populations and thus between the two significant watersheds within this HUC.

Unit 5: South Boulder Creek, Boulder County.

Unit 5 encompasses approximately 856 ac (347 ha) on 8 mi (12 km) of streams within the South Boulder Creek watershed. It includes South Boulder Creek from Baseline Road upstream to Eldorado Springs, and includes the Spring Brook tributary. The unit includes both public and private lands. It includes substantial lands owned by the City of Boulder Open Space and Mountain Parks.

This unit is located in the St. Vrain HUC and is proposed to address the medium recovery population designated for this area in the Preliminary Draft Recovery Plan (Service 2003a). Portions of the area have been the subject of PMJM research funded by the City of Boulder and, in places, high densities of the PMJM have been documented (Meaney
et al
. 2003, pp. 616 - 617). A wide floodplain, complex ditch system, and the irrigation of pastures make habitat within the lower portions of this unit unique. In places, the outward extent of PCEs surpasses the standard distance outward from the stream used to define critical habitat in this designation. Pressure for expanded development is occurring on private lands within the unit. Recreational use of the City of Boulder lands is considerable and may adversely impact the PMJM.

Unit 6: Rocky Flats NWR, Jefferson and Broomfield Counties..

Unit 6 encompasses approximately 1,108 ac (449 ha) on 13 mi (20 km) of streams on the subunits corresponding to the Rock Creek, Woman Creek, and Walnut Creek watersheds. The unit includes only Federal lands on the Rocky Flats NWR.

The Rock Creek subunit is located in the St. Vrain HUC and the Woman Creek and Walnut Creek subunits are in the Middle South Platte-Cherry Creek HUC. Since the unit extends to two HUCs, both of which have designated recovery population elsewhere, this unit is unlikely to serve as an initial recovery population. However, this unit is unique because it is limited entirely to Federal lands and populations on the site have been the subject of the longest continuing research on the PMJM. After cleanup and closure of the DOE's Rocky Flats Environmental Technology Site, the property was transferred to the Service to become part of our National Wildlife Refuge System. Streams within the unit are small and habitat components present do not support a high density of the PMJM. The site presents an opportunity to study small populations and their viability over time.

Unit 7: Ralston Creek, Jefferson County.

Unit 7 encompasses approximately 809 ac (328 ha) on 9 mi (14 km) of streams within the Ralston Creek watershed. It includes Ralston Creek from Ralston Reservoir upstream to the 7,600 ft (2,317 m) elevation. The unit includes both public and private lands including lands in Golden Gate Canyon State Park and White Ranch County Park.

This unit is located in the Clear Creek HUC and we are proposing to designate it as critical habitat to partially address the criteria of three small recovery populations or one medium recovery population called for in this area in the Preliminary Draft Recovery Plan (Service 2003a). The segment of Ralston Creek that passes through the Cotter Corporation's existing Schwartzwalder Mine serves as a connector between areas supporting all PCEs required by the PMJM located upstream and downstream.

Unit 8: Cherry Creek, Douglas County.

Unit 8 encompasses approximately 2,647 ac (1,071 ha) on 30 mi (48 km) of streams within the Cherry Creek watershed. It includes two subunits. The first includes Cherry Creek from the downstream boundary of the Castlewood Canyon State Recreation Area, upstream to its confluence with Lake Gulch. Tributaries within the unit include Lake Gulch and Upper Lake Gulch. It includes portions of the Castlewood Canyon State Recreation Area, as well as Douglas County's recently acquired Green Mountain Ranch property. The second subunit includes Antelope Creek from its confluence with West Cherry Creek upstream and a tributary, Haskel Creek. Both subunits include both public and private lands. These subunits are located in the Middle South Platte-Cherry Creek HUC and address the medium recovery population designated for this area in the Preliminary Draft Recovery Plan (Service 2003a). Some development pressure is occurring from expanding rural development on private lands within these areas.

Unit 9: West Plum Creek, Douglas County.

Unit 9 encompasses approximately 8,724 ac (3,530 ha) on 94 mi (151 km) of streams within the Plum Creek watershed. It includes Plum Creek from Chatfield Reservoir upstream to the confluence with West Plum Creek then continues upstream on West Plum Creek to its headwaters. Major tributaries within the unit include Indian Creek, Jarre Creek, Garber Creek (including North, Middle, and South Garber Creek), Jackson Creek, Spring Creek, Dry Gulch, Bear Creek, Starr Canyon, Gove Creek, and Metz Canyon. The unit is a combination of public and private lands. It includes portions of the Pike-San Isabel National Forest, as well as Chatfield State Recreation Area (Army Corps of Engineers' property), and Colorado Division of Wildlife's Woodhouse Ranch property.

This unit is located in the Upper South Platte HUC, and we propose to designate it as critical habitat to address the large recovery population designated for this area in the Preliminary Draft Recovery Plan (Service 2003a). Aside from a portion of Plum Creek, the area remains rather rural and includes habitat components likely to support relatively high densities of the PMJM. Pressure for expanded suburban and rural development is occurring within the area.

Unit 10: Upper South Platte River, Douglas, Jefferson, and Teller Counties.

Unit 10 encompasses approximately 3,353 ac (1,357 ha) on 35 mi (57 km) of streams within the Platte River watershed. It includes four subunits. The Chatfield Subunit includes a section of the South Platte River upstream of Chatfield Reservoir within Chatfield State Recreation Area (Army Corps of Engineers' property). The Bear Creek Subunit includes Bear Creek and West Bear Creek, tributaries to the South Platte River on National Forest System lands. The South Platte Subunit includes a segment of the South Platte River upstream from Nighthawk, including the tributaries Gunbarrel Creek and Sugar Creek. This subunit is

centered on Federal lands of the Pike-San Isabel National Forest but includes some intervening non-Federal lands. The Trout Creek Subunit includes portions of Trout Creek, a tributary to Horse Creek, and also portions of Eagle Creek, Long Hollow, Fern Creek, Illinois Gulch, and Missouri Gulch. This subunit is centered on Federal lands of the Pike-San Isabel National Forest but includes some intervening non-Federal lands along Trout Creek.

This unit is located in the same Upper South Platte HUC as West Plum Creek, where a large recovery population has been designated and, therefore, is unlikely to serve as an initial recovery population. The unit encompasses four areas of primarily Federal land spread through the drainage, three within the Pike-San Isabel National Forest boundary. Habitat components present and the likely density of PMJM populations vary. The Trout Creek Subunit appears to have high quality PMJM habitat and may provide a continued opportunity to research relationships between the PMJM and the western jumping mouse, both of which have been verified from the same trapping effort in the subunit (Schorr
et al
. 2007).

Unit 11: Monument Creek, El Paso County.

Unit 11 is located in the Arkansas River drainage. It encompasses approximately 3,419 ac (1,383 ha) on 39 mi (62 km) of streams within the Monument Creek watershed. It includes Monument Creek from the confluence of Cottonwood Creek upstream to the southern boundary of the U.S. Air Force Academy and from the northern boundary of the Academy upstream to the dam at Monument Lake. Major tributaries within the unit include Kettle Creek, Black Squirrel Creek, Monument Branch, Middle Tributary, Smith Creek, Jackson Creek, Beaver Creek, Teachout Creek, and Dirty Woman Creek. The unit is primarily on private lands. It includes a small portion of the Pike-San Isabel National Forest.

This unit is located in the Fountain Creek HUC and we are proposing it as critical habitat to address the large recovery population designated for this area in the Preliminary Draft Recovery Plan (Service 2003a). The area is unique in that it represents the only known PMJM population of significant size within the Arkansas River drainage and the southernmost known occurrence of the PMJM. Development pressure is extremely high on some private lands within the unit. Development has resulted in changes in flows from increased stormwater runoff and has affected stream channels and associated riparian systems (Mihlbachler 2007).

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see
Gifford Pinchot Task Force
v.
U.S. Fish and Wildlife Service
, 378 F. 3d 1059 (9th Cir 2004) and
Sierra Club
v.
U.S. Fish and Wildlife Service et al.
, 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if we had designated critical habitat. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). The conservation recommendations in a conference report or opinion are advisory.

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us in most cases. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or designated critical habitat; or (2) A biological opinion for Federal actions that are likely to adversely affect listed species or designated critical habitat.

An exception to the concurrence process referred to in (1) above occurs in consultations involving National Fire Plan projects. In 2004, the USFS and the Bureau of Land Management (BLM) reached agreements with us to streamline a portion of the section 7 consultation process (BLM 2004, pp. 1-8; USFS 2004, pp. 1-8). The agreements allow the USFS and the BLM the opportunity to make “not likely to adversely affect” determinations for projects implementing the National Fire Plan. Such projects include prescribed fire, mechanical fuels treatments (thinning and removal of fuels to prescribed objectives), emergency stabilization, burned area rehabilitation, road maintenance and operation activities, ecosystem restoration, and culvert replacement actions. The USFS and the BLM must ensure staff are properly trained, and both agencies must submit monitoring reports to us to determine if the procedures are being implemented properly and that effects on endangered species and their habitats are being properly evaluated.

If we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define ‘‘Reasonable and prudent alternatives'' at 50 CFR 402.02 as alternative actions identified during consultation that:

• Can be implemented in a manner consistent with the intended purpose of the action,

• Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

• Are economically and technologically feasible, and

• Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying its critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or

relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

When we issue a biological opinion concluding that a project is not likely to jeopardize a listed species or adversely modify its critical habitat but may result in incidental take of listed animals, we provide an incidental take statement that specifies the impact of such incidental taking on the species. We then define “reasonable and prudent measures” considered necessary or appropriate to minimize the impact of such taking. Reasonable and prudent measures are binding measures the action agency must implement to receive an exemption to the prohibition against take contained in section 9 of the Act. These reasonable and prudent measures are implemented through specific “terms and conditions” that must be followed by the action agency or passed along by the action agency as binding conditions to an applicant. Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action under consultation and may involve only minor changes (50 CFR 402.14). We may provide the action agency with additional conservation recommendations, which are advisory and not intended to carry binding legal force.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Federal activities that may affect the PMJM or its designated critical habitat will require section 7 consultation under the Act. Activities on State, tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.
) or a permit from us under section 10(a)(1)(B) of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) also will be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7 consultations.

The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of the PMJM. Federal actions that may affect areas outside of critical habitat, such as development, agricultural activities, and road construction, are still subject to review under section 7 of the Act if they may affect the PMJM, because Federal agencies must consider both effects to the species and effects to critical habitat independently. The prohibitions of section 9 of the Act applicable to the PMJM under 50 CFR 17.31 also continue to apply both inside and outside of designated critical habitat.

Application of the “Adverse Modification” Standard

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or would retain its current ability for the primary constituent element(s) to be functionally established. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for the PMJM. Generally, the conservation role of the proposed revised PMJM critical habitat units is to support viable populations.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that, when carried out, funded, or authorized by a Federal agency, may adversely affect critical habitat and, therefore, should result in consultation for the PMJM include, but are not limited to, the following:

(1) Any activity that results in development or alteration of the landscape within a unit, including: land clearing; activities associated with construction for urban and industrial development, roads, bridges, pipelines, or bank stabilization; agricultural activities such as plowing, disking, haying, or intensive grazing; off-road vehicle activity; and mining or drilling of wells.

(2) Any activity that results in changes in the hydrology of the unit, including: construction, operation, and maintenance of levees, dams, berms, and channels; activities associated with flow control, such as releases, diversions, and related operations; irrigation; sediment, sand, or gravel removal; and other activities resulting in the draining or inundation of a unit.

(3) Any sale, exchange, or lease of Federal land that is likely to result in the habitat in a unit being destroyed or appreciably degraded.

(4) Any activity that detrimentally alters natural processes in a unit including the changes to inputs of water, sediment and nutrients, or that significantly and detrimentally alters water quantity in the unit.

(5) Any activity that could lead to the introduction, expansion, or increased density of an exotic plant or animal species that is detrimental to the PMJM and to its habitat.

Federal actions not affecting listed species or critical habitat and actions on non-Federal lands that are not federally funded or permitted do not require section 7 consultation.

Note that the scale of these activities would be a crucial factor in determining whether, in any instance, they would directly or indirectly alter critical habitat to the extent that the value of the critical habitat for the survival and recovery of the PMJM would be appreciably diminished.

Application of Section 4(a)(3) of the Endangered Species Act

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

The Sikes Act of 1997 required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an Integrated Natural Resources Management Plan (INRMP)

by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:

(1) An assessment of the ecological needs on the installation, including the need to provide for the conservati

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-24113. Public record. Not legal advice.