[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Proposed Rules]
[Pages 66777-66784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32145]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018--AF30
Endangered and Threatened Wildlife and Plants; Proposed Special
Regulations for the Preble's Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Preble's Meadow Jumping Mouse (Zapus hudsonius preblei)
(Preble's) was listed as a threatened species under the Endangered
Species Act (Act) of 1973 (16 U.S.C. sections 1531 to 1544) on May 13,
1998. At the time the Preble's was listed, a special rule for the
conservation of Preble's was not promulgated and therefore virtually
all of the restrictions of the Act became applicable to the species.
This proposed rule would establish special standards for the
conservation of the Preble's over the next 18 months, long enough to
devise a more comprehensive and lasting approach for preserving the
species.
DATES: Your comments on the proposed rule must be received by February
1, 1999 to receive consideration by the Service.
ADDRESSES: You should send your comments concerning this proposal to
LeRoy Carlson, Field Supervisor, Colorado Field Office, Ecological
Services, P.O. Box 25486, Denver Federal Center, Denver, Colorado
80225-0207. Comments and materials received are available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service's Colorado Field Office, 755 Parfet Street,
Suite 361, Lakewood, Colorado.
FOR FURTHER INFORMATION CONTACT: LeRoy W. Carlson, Field Supervisor,
Colorado Field Office (see ADDRESSES section), telephone 303/275-2370.
SUPPLEMENTARY INFORMATION:
Background
The Preble's meadow jumping mouse (Zapus hudsonius preblei), a
subspecies of the meadow jumping mouse (Zapus hudsonius) is known to
occur only in portions of Colorado and Wyoming. The final rule listing
Preble's as a threatened species under the Endangered Species Act was
published in the Federal Register on May 13, 1998 (63 FR 26517).
Section 4(d) of the Act (16 U.S.C. section 1533) provides that whenever
a species is listed as a threatened species, the Secretary of the
Interior will issue regulations deemed necessary and advisable to
provide for the conservation of the species. This is done in either of
two ways.
First, the Fish and Wildlife Service (Service) has issued
regulations that generally apply to threatened wildlife virtually all
the prohibitions that section 9 of the Act (16 U.S.C. section 1538)
establishes with respect to endangered wildlife. These prohibitions, in
part, make it illegal for any person subject to the jurisdiction of the
United States to ``take'' any listed wildlife species; i.e., to harass,
harm, pursue, hunt, shoot, wound, kill, trap, or collect any threatened
or endangered species or to attempt to engage in any such conduct [16
U.S.C. section 1532 (19)].
The Service's regulations for threatened wildlife, however, also
provide that a ``special rule'' under section 4(d) of the Act can be
tailored for a particular threatened species. In that case, the general
regulations applying most section 9 prohibitions to threatened species
do not apply to that species, and the special rule is to contain the
prohibitions (and exemptions) necessary and appropriate to conserve
that species.
At the time Preble's was listed, we did not promulgate a special
section 4(d) rule and, therefore, the section 9 prohibitions, including
the take prohibitions, became applicable to the species. We are now
proposing to issue this special rule for the Preble's to replace those
general prohibitions with special measures tailored to the conservation
of this species.
We anticipate that this proposed rule will prohibit actions that
threaten the Preble's, to the extent necessary to provide for the
conservation of the Preble's. It also provides flexibility to private
landowners for ongoing activities that will not jeopardize the species.
We also believe that this rule would garner the support of State and
local governments, private landowners, and other interested parties for
a lasting, cooperative approach for the long-term conservation of the
species.
This proposed rule is best understood in the context of other
regulations and actions, already in place or in development, to provide
for conservation of the Preble's.
First, it is important to understand that an activity now
prohibited under the general regulations or that would be prohibited
under this special rule may still be allowed under section 10 of the
Act. That section provides for a person to obtain from us in
appropriate
[[Page 66778]]
circumstances a permit allowing the ``incidental'' taking of Preble's.
One of the purposes of this proposed rule is to enable us to make, in
advance, general decisions that certain types of activities are
consistent with the conservation of Preble's, without requiring people
to seek individual Section 10 permits authorizing those activities.
Additional activities that would result in the take of Preble's still
could be permitted by us under section 10 of the Act.
Currently, the State of Colorado, the Service, and various local
governmental entities are working together to develop one or more plans
to conserve the Preble's and its habitat. This collaborative approach
is expected to result in the development of one or more habitat
conservation plans and applications to the Service for incidental take
permits under section 10 of the Act. These habitat conservation plans
will provide the foundation upon which to build a lasting, effective,
and efficient recovery program for the Preble's.
Under this planning process, we have held three rounds of public
meetings in each of the five geographic subareas that comprise the
known range of the Preble's in Colorado. Key riparian areas important
to Preble's that require protection have been identified, threats to
the Preble's have been ranked in importance, and preliminary strategies
to minimize or mitigate adverse impacts to the Preble's have been
discussed by stakeholders. Nine Colorado counties and five Colorado
cities have passed resolutions supporting this planning process and
have indicated that they will consider using their regulations,
incentives, and ordinances to protect the Preble's. We are also working
with local governments in Wyoming on similar conservation planning
efforts.
Both this long-term cooperative approach and this short-term
special rule are consistent with the spirit and intent of the November
29, 1995, Memorandum of Agreement between the Secretary of the Interior
and the Governor of Colorado. This agreement commits the Service and
the State to use the flexibility in State and Federal laws and
regulations and promotes participation of a broad spectrum of partners
to achieve long-term conservation and development solutions. By
involving and taking advantage of the land use planning and other
authorities and resources of State and local governments, we believe
that we can more effectively provide for the long-term conservation of
the Preble's than relying just on our own authorities and resources.
One of the purposes of this special rule is to begin allowing for that
cooperation among us, the States, and local governments.
The second important component of the context for this special rule
is that Federal agencies are required under section 7 of the Act to
consult with us to ensure that their actions are not likely to
jeopardize the Preble's. For consultations that involve the use of
Federal land, we expect that those lands will be managed to contribute
to the conservation of the species to the maximum extent possible,
lessening the burden on others. Other types of consultations involve
actions similar to those that are considered under the section 10
process. For example, many of the activities likely to affect the
Preble's will be undertaken wholly or partly in riparian areas, and
will be subject to permitting requirements of the Clean Water Act, such
as Sec. 404 dredge-and-fill permits to be issued by the Army Corps of
Engineers. We expect to apply the same type of approach reflected in
this proposed rule, when appropriate, to those consultations.
Third, a variety of Federal, State, and local programs are
available to help conserve the Preble's through the acquisition and
preservation of its habitat. These include the Service's Partners for
Fish and Wildlife Program, the Natural Resource Conservation Service's
wetland/riparian habitat protection programs, grant programs
administered by Great Outdoors Colorado, city and county open space
programs, and activities of local land trusts. In particular, our
Partners for Fish and Wildlife Program has proven to be an especially
effective approach for wildlife conservation on agricultural lands by
providing funding for restoration of wetland and riparian habitats. We
intend to dedicate additional funds to our Partners for Fish and
Wildlife Program for the conservation of the Preble's on private lands.
Provisions of the Rule
Term of the Rule
We are proposing the conditions contained in this rule to be
enforced for a period of 18 months. It is expected that during this
time period, comprehensive habitat conservation plans for the Preble's
will be developed.
Take Prohibitions
We are proposing that virtually all of the prohibitions under
section 9 of the Act that apply to endangered species continue to apply
to the Preble's, to the same extent as they apply to other threatened
species under our general regulations, except that certain activities
would be exempted. This would make it illegal for any person subject to
the jurisdiction of the United States to take any Preble's; i.e., to
harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect them
or to attempt any of these actions. It would also make it illegal to
import or export, ship in interstate commerce in the course of
commercial activity, or sell or offer for sale in interstate or foreign
commerce any Preble's, or to possess, sell, deliver, carry, transport,
or ship any Preble's that have been taken illegally.
Exempted Activities
We are proposing to include in this rule the following exemptions,
provided that the activities resulting in such take are conducted in
accordance with the requirements identified in this special rule.
1. Activities Outside of Mouse Protection Areas and Potential Mouse
Protection Areas
In this rule, we are proposing to exempt all incidental take
outside of specified Mouse Protection Areas and Potential Mouse
Protection Areas (which are further explained below). As with many
other listed species, the Service maintains records of known occurrence
of the Preble's, as well as information on high potential habitat areas
throughout its range. Mouse Protection Areas are areas where mice have
been documented since 1992 and reported to the Service. Potential Mouse
Protection Areas are areas that have a high potential to support the
Preble's based on habitat conditions. Together these areas include more
than 1,000 linear miles of streams and constitute the known locations
and potential Preble's habitat in Colorado and Wyoming.
We believe that these areas include sufficient habitat to achieve
recovery of the Preble's and that incidental take outside of these
areas will be unlikely and would not compromise Preble's conservation
efforts. These areas may be amended or adjusted based on new
information.
2. Rangewide Exemptions
We are proposing to exempt four types of existing activities from
the take prohibitions anywhere within the Preble's range (including
within Mouse Protection Areas and Potential Mouse Protection Areas).
a. Rodent control within 10 feet of or inside any structure. The
Preble's is generally not found in association with structures such as
barns, houses, and other buildings. We believe that any Preble's
mortality associated with
[[Page 66779]]
trapping near these structures would be insignificant and that this
exemption will promote public support for Preble's conservation
efforts.
b. Ongoing agricultural activities. This exemption provides for a
continuation of existing agricultural practices but does not allow an
increase of impacts to, or further encroachment upon, Preble's habitat.
For example, it does not allow for an increase in grazing intensity in
Preble's habitat or mowing closer to a stream supporting the Preble's.
Situations where Preble's populations coexist with ongoing agriculture
may provide valuable insight into habitat conditions required by the
Preble's and the specific types of grazing and farming practices that
are compatible with the Preble's.
We believe that the exemption for agricultural practices will
provide a positive incentive for agricultural interests to engage in
voluntary conservation activities and will remove much of the existing
reluctance by private landowners to allow Preble's surveys to be
conducted on their lands. These surveys may lead to a more complete
understanding of the status and distribution of the species. With this
knowledge, our ability to develop an effective long-term recovery
program will be enhanced.
c. Maintenance and replacement of existing landscaping and related
structures and improvements, with no increase in impervious surfaces.
Some existing landscaping activities, such as lawn mowing and gardening
associated with residential or commercial development, golf courses,
and parks have disrupted Preble's habitat in certain areas. However,
allowing these activities to continue in ways that do not lead to any
increases in impervious surfaces within Mouse Protection Areas and
Potential Mouse Protection Areas is not expected to adversely affect
Preble's conservation and recovery efforts.
d. Existing uses of water associated with the exercise of perfected
water rights under State law, and interstate compacts and decrees. The
cumulative effect of the development and exercise of water rights has
impacted riparian communities and the Preble's in some areas. However,
the exercise of certain water rights and water development may have
beneficial effects in riparian communities and to the Preble's. Persons
with perfected water rights are encouraged to engage in conservation
planning efforts to provide voluntarily the flows that may be
determined to be important to protect Preble's habitat. Take associated
with new water development would be prohibited.
The Service considered a possible rangewide exemption pertaining to
periodic maintenance of existing water supply ditches. Periodic
maintenance of ditches includes activities such as burning or clearing
vegetation that may impact Preble's habitat. We have concluded,
however, that because some water supply ditches may, in fact, provide
suitable habitat and dispersal routes for the Preble's, take relating
to periodic maintenance of these ditches should be prohibited. We
intend to assess the value of water supply ditches to the conservation
and recovery of the Preble's, both in specific areas where use of these
ditches by Preble's has been documented, and in areas that may contain
suitable habitat to determine if these areas should be classified as
Mouse Protection Areas or Potential Mouse Protection Areas. The
conclusions from this assessment will be used in conservation and
recovery planning for the Preble's. Coordination with the Service is
required when activities are planned in areas potentially significant
for the Preble's.
3. New Development in Mouse Protection Areas and Potential Mouse
Protection Areas
Under this proposed rule, States, counties, and/or municipalities
which manage land use at the local level may, at their option and upon
concurrence by the Service, adopt and enforce necessary protective
standards for the Preble's, as follows:
1. State or local authorities will identify to us their legal
authorities to protect Preble's habitat. They will also commit to use
those authorities to enforce the Preble's protection standards
described below;
2. We will review these authorities and provide concurrence that
the authorities are adequate to protect Preble's habitat; and
3. Upon receiving our concurrence, State/local authorities may
approve development or actions that are consistent with the mouse
protection standards and mitigation guidelines described below.
The Service will closely monitor implementation of this rule by
State and local governments and provide assistance as required. We will
meet quarterly with each governmental entity which has received written
concurrence from us recognizing its present authority and ability to
protect the Preble's.
Projects or actions within the jurisdiction of local governmental
entities that elect not to enforce these standards would be subject to
all the prohibitions on take in this proposed rule, unless the activity
is otherwise exempt in this proposed rule. However, if you are
undertaking an action that may take the Preble's, including
significantly modifying its habitat within an area where the local
government has chosen not to use the provisions in this rule, we will
work directly with you to develop a habitat conservation plan and an
incidental take permit under section 10. If there is Federal approval
or funding involved, we will review the action under section 7 of the
Act (16 U.S.C. section 1536).
In cases where an individual habitat conservation plan is required
for a specific property, the applicant will be responsible for the
costs of developing and implementing the habitat conservation plan.
Habitat conservation plans will be consistent with provisions of this
rule, including the mouse protection standards and associated
mitigation guidelines. However, it may be necessary and desirable to
modify these standards and guidelines to address site specific
conditions of a project.
Mouse Protection Standards
We have developed standards for the Preble's to ensure adequate
protection of important habitats known as Mouse Protection Areas and
Potential Mouse Protection Areas. For the purposes of this rule, a
Mouse Protection Area is the reach of any stream that is located within
1 linear mile upstream and 1 linear mile downstream of any known
location of the Preble's that has been reported to the Service since
1992. Major Preble's surveying efforts began in this year and surveys
since 1992 represent the known occupied habitat of the Preble's. In
instances where two designated Mouse Protection Areas on the same
stream are separated by one linear mile or less, one continuous Mouse
Protection Area will be established. Biological research shows that
there is a high likelihood that these areas will be used by the
Preble's on a year-round basis or as a movement corridor.
A Mouse Protection Area (MPA) also extends 300 feet on each side of
the stream measured from the centerline, or 300 feet from the exterior
boundary of any contiguous wetlands, whichever is further. The basis
for the 300-foot standard is that mice have been documented to
regularly move up to 150 feet from streams and wetlands. The remaining
150-foot zone serves as a buffer zone to avoid disturbance of Preble's
habitat associated with human activities. We believe that this zone
will encompass the normal home range of the Preble's and will provide
an
[[Page 66780]]
adequate buffer from adjoining development.
The Service recognizes that it may be desirable to modify the
boundaries of a Mouse Protection Area to reflect the actual extent of
Preble's habitat along a stream or a wetland. The Service may make
these changes when biologically justified. In addition, local entities
that have agreed to enforce the mouse protection standards may also
propose changes to a Mouse Protection Area based on new biological
information. We would need to approve any changes.
There are many areas within the historic range of the Preble's that
contain suitable Preble's habitat that have not been surveyed, or if
previously surveyed, in which no mice have been captured. These areas,
known as Potential Mouse Protection Areas, have high potential of
supporting a Preble's population based on the presence of suitable
riparian habitat such as willow or shrub vegetation, and/or the
proximity to known locations of the Preble's or other suitable habitat.
These areas require careful scrutiny because the Preble's may actually
live in these locations and they may be important for the recovery and
eventual delisting of the Preble's.
The Service evaluated the potential for new impacts to Mouse
Protection Areas from trails, road and utility line crossings, and
other development, and determined that Preble's persists along some
streams despite the presence of trails, road crossings, limited
residential and commercial development, and other habitat disruption.
Based on this, we have concluded that new projects or actions will be
allowed to modify a cumulative total of up to four percent of the
habitat within a Mouse Protection Area under the following conditions:
1. A State or local government has received Service approval and is
willing to adopt and enforce protection standards for the Preble's;
2. All habitat losses will be fully compensated through mitigation;
and
3. The action will not impede movement of mice up or down riparian
corridors.
A Mouse Protection Area 2 miles long and 600 feet wide encompasses
about 145 acres of habitat. This rule would allow less than 6 acres of
that habitat in a Mouse Protection Area to be modified without further
advance review by us. We believe that exempting this amount of habitat
loss, in conjunction with the mitigation, is biologically sound and
consistent with the conservation of the Preble's. We are soliciting
comment on this point and will conduct a Section 7 consultation.
Existing roads, structures, and other impervious surfaces would not
be considered Preble's habitat for the purposes of computing the four
percent.
Each jurisdiction that elects to implement the mouse protection
standards must ensure that the four percent habitat modification limit
is not exceeded. Where a Mouse Protection Area crosses jurisdictional
boundaries, each jurisdiction would be allowed to modify up to four
percent of the habitat in the portion of the Mouse Protection Area that
occurs in their jurisdiction.
Some projects outside (i.e., upstream) of a Mouse Protection Area
may adversely impact a Mouse Protection Area or Potential Mouse
Protection Area. This may occur when stream flows are altered (for
example by an increase in stormwater runoff) or when there is an
increase in sedimentation. Projects outside of a Mouse Protection Area
or Potential Mouse Protection Area which do not appreciably alter
stream flows or sedimentation or otherwise impact a Mouse Protection
Area or Potential Mouse Protection Area would be exempted from section
9 incidental take prohibitions. New projects which do result in a
significant modification of stream flow or sedimentation or otherwise
impact a Mouse Protection Area or Potential Mouse Protection Area would
be subject to the section 9 incidental take prohibitions of the Act,
unless the activity is otherwise exempt in this proposed rule.
State and local authorities have the option to implement Preble's
protection standards for Mouse Protection Areas, or for both Mouse
Protection Areas and Potential Mouse Protection Areas. Where the
respective governmental entity elects to accept responsibility for
enforcing Preble's protection standards for Potential Mouse Protection
Areas, these areas will be treated the same as Mouse Protection Areas
until and unless a Service-approved Preble's survey of the area occurs.
Where the governmental entity does not elect to accept responsibility
for enforcing Preble's protection standards for Potential Mouse
Protection Areas, the Service nonetheless strongly encourages the
performance of surveys in accordance with Service protocol before
habitat modification occurs to avoid potential liability for an action
that does result in a prohibited take of a Preble's.
If a Preble's is trapped during a survey in any Potential Mouse
Protection Area, it will be reclassified as a Mouse Protection Area and
treated accordingly. If a new survey is conducted and no Preble's are
trapped, the area surveyed will no longer be considered a potential
mouse protection area. Projects may commence if they do not appreciably
alter stream flows or sedimentation or otherwise impact a Mouse
Protection Area or Potential Mouse Protection Area. The project
proponent must receive Service concurrence with the results of the
survey.
The Service recognizes that the Preble's protection standards may
be adjusted based on new information. We will work cooperatively with
local governmental entities to apply these standards in a reasonable
manner.
Mitigation Guidelines
Mouse Protection Areas encompass both the specific habitats that
the Preble's is known to frequent, and adjacent habitats that have both
direct value to the Preble's and provide an essential buffer from
adjacent development and human activity. Armstrong et al. (1997, p. 77)
described typical Preble's meadow jumping mouse habitat as ``well-
developed plains riparian vegetation with relatively undisturbed
grassland and a water source in close proximity.'' Also noted is a
preference for ``dense herbaceous vegetation consisting of a variety of
grasses, forbs and thick shrubs.'' Moving outward from streams and
riparian corridors there generally exists a transition from habitat
regularly used by the Preble's to habitat of value largely as a buffer.
The goal of all mitigation is to offset impacts to the diverse habitat
types required by the Preble's, including essential buffer areas.
Mitigation must be accomplished in a manner that does not adversely
impact important biological resources, other federally-threatened or
endangered species, proposed species, or candidate species. This
includes Spiranthes diluvialis (the Ute ladies'-tresses orchid) and
Gaura neomexicana ssp. coloradensis (the Colorado butterflyplant).
Identification of practicable alternatives to a proposed project or
action which avoids or minimizes impacts to Preble's habitat is a first
step in assessing proposed project impacts. Avoidance and minimization
of impacts is preferable to compensatory mitigation. Compensatory
mitigation is required to offset unavoidable impacts that remain after
all appropriate and practicable avoidance and minimization measures are
applied. The goal of compensatory mitigation is to assure that no net
loss of habitat value to the Preble's occurs. Thus, while up to four
percent of land within any one Mouse Protection Area may be impacted
within the tenure of this rule, overall loss of habitat value to the
Preble's is not anticipated.
[[Page 66781]]
Compensatory mitigation may include restoration, enhancement, or
creation of habitat. Restoration entails returning the functions of a
disturbed, degraded, or totally altered site to its original status
before it was damaged by a permitted project or action. For example,
installation of an underground pipeline through Preble's habitat may
entail removal of vegetation and soil disruption. Regrading and
planting of appropriate vegetation could restore habitat value of the
area for the Preble's. In general, restoration yields the greatest
amount of benefit with the least amount of risk and is the preferable
form of mitigation. Restoration will generally require a mitigation
ratio of 1.5 to 1 (i.e., 1.5 acre restored for every 1 acre lost).
We have evaluated restoration and other mitigation techniques. This
includes review of the habitat types likely to be mitigated, the
potential for failure to meet compensatory mitigation goals, and the
temporary loss of habitat that occurs until the full value of
mitigation conducted concurrently with impacts is achieved. Ratios that
are cited are based on this evaluation and are intended to assure that,
at minimum, Preble's habitat values are maintained over the long term.
Enhancement is the process of improving one or more functions of
existing habitat to meet certain goals. For example, altering grazing
practices to allow recovery of riparian vegetation could yield
substantial benefit to the Preble's. In some cases, supplemental
planting of preferred plant species may be appropriate. While this type
of mitigation is usually successful, its actual value to the Preble's
may be difficult to assess. Depending on the techniques used,
enhancement may require a mitigation ratio of 1.5 to 1, or up to 3 to
1.
Creation entails converting unsuitable habitat types to Preble's
habitat. For example, a dry upland could be graded down or subirrigated
to provide hydrology that would support establishment of preferred
Preble's habitat. This form of mitigation may have a higher chance of
failure and should be used only when restoration opportunities are
absent. Creation of habitat will generally require a mitigation ratio
of 3 to 1.
A component of mitigation through restoration, enhancement, or
creation is the preservation in perpetuity of these habitat areas.
However, for the purposes of this rule, preservation of habitat alone
will generally not be credited as compensatory mitigation. Preservation
may be effectively used in cases where Preble's habitat would certainly
be lost without such measures. We will evaluate the acceptability of
preservation as compensatory mitigation on a case by case basis.
In general, acceptable compensatory mitigation will entail in-kind
mitigation (the restoration, creation, or enhancement of similar
habitat to that being impacted) within the same protection area where
impacts occur. Loss of habitat within a Mouse Protection Area will be
mitigated by restoring, enhancing, or creating similar habitat nearby.
Proposed exceptions, such as mitigating losses to buffer areas by
restoring Preble's habitat (out-of-kind mitigation), will be reviewed
and approved by the Service as we deem appropriate.
Local governmental entities will assure development of mitigation
that is consistent with these mitigation guidelines and that sufficient
funds are available to accomplish the proposed mitigation. Review of
the proposed mitigation activities will be a significant aspect of
quarterly meetings held with local governmental entities. We anticipate
that within the State of Colorado the development of mitigation plans
consistent with these guidelines will be accomplished by project
proponents in coordination with the local governmental entity and the
Colorado Division of Wildlife, with technical assistance provided by
the Service.
Preble's Surveys
Potential Preble's habitat on private lands has not been thoroughly
surveyed. Surveys for the Preble's on private lands will occur only
with landowner permission. The conditions contained in this rule should
remove some of the existing barriers to conducting Preble's surveys on
these lands. Surveys of the Potential Mouse Protection Areas conducted
on private lands will provide a conservation benefit to the species.
This is particularly true if the survey results are used for developing
management plans or habitat conservation plans for the Preble's and
prioritizing conservation areas for the mouse.
Summary of Conservation Benefits
The proposed prohibitions and exemptions in this rule provide both
for short-term conservation of the Preble's and an avenue for the
development of meaningful long-term conservation efforts for the
Preble's by State and local governments, agricultural interests,
developers, and the general public.
Certain provisions of the rule define protection areas and provide
for a significant role by State and local governments as partners in
implementing the Act. This is designed to guide development activities
during the interim period while comprehensive conservation plans are
being developed. These comprehensive plans will provide a basis for
habitat conservation plans for the Preble's. By employing existing
local development review and land use controls, these provisions
greatly increase participation by stakeholders and the level of review
that proposed development activities receive. Standards set forth in
the proposed rule limit impacts to Mouse Protection Areas and require
mitigation that will prevent loss of Preble's habitat value. This level
of local development review far surpasses that which we can directly
provide. Projects or actions within the jurisdiction of local
governmental entities that elect not to enforce these standards are
subject to all the prohibitions of section 9 of the Act, unless the
activity is otherwise exempt in this proposed rule.
Future Section 7 Consultations
This special rule does not change the obligation of Federal
agencies to consult with the Service concerning actions they authorize,
fund, or carry out which may affect listed species, including the
Preble's. This rule is intended to supplement and not replace the
Section 7 form of incidental take authorization. Therefore, Federal
actions requiring incidental take authorization will receive that
authorization through Section 7 and not this special rule. Only habitat
loss authorized through this special rule will be counted against the
four percent maximum. Habitat impacts authorized through Section 7 (or
Section 10) will not be counted as part of the four percent authorized
by this rule and will instead be tracked separately. All Section 7
consultations initiated after promulgation of this special rule will
assume, as part of the environmental baseline against which projects
are measured, that the maximum potential impact under this rule will
occur (i.e., that there will be disruption of four percent of the
habitat within each Mouse Protection Area, with appropriate
mitigation).
Before the publication of a final rule for the Preble's, we must
carry out an internal or intra-service consultation on the action of
adopting this rule. A biological opinion will be prepared by the
Service analyzing the proposed rule and any adverse, as well as
beneficial effects, for the Preble's. This biological opinion will also
discuss and analyze the effects of the implementation of this rule on
listed species other than the Preble's.
[[Page 66782]]
The Service anticipates that the ongoing planning process in both
Colorado and Wyoming will lead to habitat conservation plans and
section 10 permits that will be the subject of future section 7 intra-
service consultations.
Comments Solicited
The Service invites comments on the proposed rule. In particular,
we are seeking comments on:
1. The desirability and practicality of establishing partnerships
with local governmental entities to use their land use planning and
regulatory powers to enforce the Mouse Protection Standards for Mouse
Protection Areas, or for both Mouse Protection Areas and Potential
Mouse Protection Areas;
2. The adequacy of the proposed mitigation guidelines including any
options that may be available for mitigating impacts of development
activities on Preble's habitat;
3. The adequacy of the Mouse Protection Standards and/or
information that would lead to the development of more appropriate
standards;
4. The types of agricultural practices, including grazing
practices, that are compatible with maintenance of Preble's habitat
within riparian zones; and
5. Any additional information on the locations and boundaries of
designated Mouse Protection Areas and Potential Mouse Protection Areas.
To facilitate public comment, the Service will conduct public
meetings in various locations in Colorado and Wyoming to explain the
rule in more detail and address questions.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping or order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Is the description of the rule in
the Supplementary Information section of the preamble helpful in
understanding the proposed rule? What else could we do to make the rule
easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of Interior, Room 7229, 1849 C Street NW, DC 20240. You may also e-mail
the comments to this address: Exsec@ios.doi.gov
Literature Cited
Armstrong, D.M., M.E. Bakeman, A. Deans, C.A. Meaney, and T.R.
Ryan. 1997. Report on habitat findings of the Preble's meadow jumping
mouse. Boulder (CO); Report to the U.S. Fish and Wildlife Service and
Colorado Division of Wildlife. 91 pp.
Required Determinations
The Service invites comments on the anticipated direct and indirect
costs and benefits or cost savings associated with the special rule for
the Preble's. In particular, the Service is interested in obtaining
information on any significant economic impacts of the proposed rule on
small public and private entities. Once we have reviewed the available
information, we will determine whether we need to prepare an initial
regulatory flexibility analysis for the special rule. We will make any
such analysis or determination available for public review. Then, we
will revise, as appropriate, and incorporate the information in the
final rule preamble and in the record of compliance (ROC) certifying
that the special rule complies with the various applicable statutory,
Executive Order, and Departmental Manual requirements. Under the
criteria in Executive Order 12866, the special rule does not need to be
reviewed by the Office of Management and Budget.
Paperwork Reduction Act
The Service has examined this proposed rule under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirements
associated with the Preble's meadow jumping mouse (Zapus hudsonius
preblei) other than those already approved for Federal Fish and
Wildlife license permits with OMB approval 1018-0094, which has an
expiration date of February 28, 2001. For more information concerning
these permits, see 50 CFR 17.32.
National Environmental Policy Act
The Service will review this proposed rule under the requirements
of the National Environmental Policy Act before finalization.
Section 7 Consultation
The Service will review this proposed rule under the requirements
of section 7 of the Act before finalization.
Government-to-Government Relationship With Tribes
This proposed rule does not directly affect Tribal resources.
List of Subjects in 50 CFR Part 17
Endangered and threatened species. Export, Import, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
PART 17--[AMENDED]
Accordingly, the Service proposes to amend 50 CFR part 17, as set
forth below:
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.40 by adding a new paragraph (k) to read as
follows:
17.40 Special rules-mammals.
* * * * *
(k) Preble's meadow jumping mouse (Zapus hudsonius preblei). (1)
All of the prohibitions of 50 CFR 17.31 (a) and (b) and exemptions of
50 CFR 17.32 are applicable to the Preble's except where identified
below. These prohibitions, in part, make it illegal for any person
subject to the jurisdiction of the United States to take any federally-
listed wildlife species. Prohibitions for threatened wildlife under
section 17.31 include take (harass, harm, pursue, hunt, shoot, wound,
trap, kill, or collect; or attempt any of these), import or export,
ship in interstate commerce in the course of commercial activity, or
sell or offer for sale in interstate or foreign commerce any listed
wildlife species. It is also illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that has been taken illegally.
(2) This rule is effective until (18 months from the effective date
of the final rule).
(3) We will likely adjust Mouse Protection Areas and Potential
Mouse Protection Areas based on new information as provided in
paragraph (k)(12) of this section. We will maintain updated geographic
locations of these areas. Direct inquiries concerning whether specific
lands fall within a Mouse Protection Area or Potential Mouse Protection
Area to the Service offices listed in paragraph (k)(12)(ii) of this
section and/or to a participating local governmental entity. Priority
areas for conservation of the Preble's are:
(i) Mouse Protection Areas, the reach of any stream that is located
within 1 linear mile upstream and 1 linear mile
[[Page 66783]]
downstream of any known location of Preble's that has been reported to
the Service since 1992. In instances where two Mouse Protection Areas
on the same stream are separated by 1 linear mile or less, one
continuous Mouse Protection Area will be established. A Mouse
Protection Area extends 300 feet on each side of the stream measured
from the centerline, or 300 feet from the exterior boundary of any
wetland contiguous with the stream, whichever is further.
(ii) Potential Mouse Protection Areas, the reach of a stream that
the Service has determined contains suitable habitat conditions for the
Preble's. Potential Mouse Protection Areas extend 300 feet on each side
of the stream measured from the centerline, or 300 feet from the
exterior boundary of any wetland contiguous with the stream, whichever
is further.
(4) Except as provided in paragraph (k)(8) of this section, the
take prohibitions of Sec. 17.31 will not apply to incidental take
outside of a Mouse Protection Area or Potential Mouse Protection Area.
Any actions that significantly modify Preble's habitat within a Mouse
Protection Area or Potential Mouse Protection Area must comply with
Sec. 17.31, except as otherwise exempted in this proposed rule. In
addition, we require permits for trapping surveys to determine the
presence or absence of the Preble's in Mouse Protection Areas or
Potential Mouse Protection Areas, for education purposes, scientific
purposes, the enhancement or propagation for survival of the Preble's,
zoological exhibition, and other conservation purposes in accordance
with 50 CFR 17.32 and under a section 6 (16 U.S.C. section 1535)
cooperation agreement with a State, if applicable.
(5) The following activities, which may result in incidental take
of the Preble's, are exempted by this rule from the Sec. 17.31 take
prohibitions, within the entire range of the Preble's:
(i) Rodent control within 10 feet of or inside any structure
(``rodent control'' includes control of mice and rats by trapping,
capturing, or otherwise physically capturing or killing rodents, or
poisoning by any substance registered with the Environmental Protection
Agency as required by the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 136) and applied consistent with its
labeling. ``Structure'' means any manmade or other artificially
constructed object which includes but is not limited to any building,
stable, grain silo, corral, barn, shed, water or sewage treatment
equipment or facility, enclosed parking structure, shelter, gazebo,
bandshell, or restroom complex;
(ii) Ongoing agricultural activities including grazing, plowing,
seeding, cultivating, minor drainage, burning, mowing and harvesting,
as long as these activities are currently conducted and do not increase
impacts to or further encroach upon Preble's habitat;
(iii) Maintenance and replacement of existing landscaping and
related structures and improvements, with no increase in impervious
surfaces; and
(iv) Existing uses of water associated with the exercise of
perfected water rights under State law and interstate compacts and
decrees. (A ``perfected water right'' is a right that has been put to
beneficial use and has been permitted, decreed, or adjudicated under
State law.)
(6) Actions within a Mouse Protection Area which may result in up
to four percent cumulative modification of Preble's habitat within the
Mouse Protection Area will be exempted from the Sec. 17.31 take
prohibitions provided that:
(i) The governmental entity (State, county, or municipality) where
the action is to take place has elected to enforce the Preble's
protection standards listed in paragraph (k)(7) of this section;
(ii) The governmental entity has provided the Service with written
assurances that they have the legal authority and ability to enforce
the standards (This means a written affirmation of the present
authority and ability of the local governmental entity to implement and
enforce its existing local regulations, incentives, and programs to
enforce the Preble's protection standards in paragraph (k)(7) of this
section. Existing regulations may include, but need not be limited to:
floodplain regulations, subdivision regulations, zoning regulations,
site planning requirements, standards for identifying and protecting
ecologically sensitive lands, wildlife habitat protection regulations,
drainage design standards, road and bridge construction standards, and
grading standards. This may also mean an agreement of any State agency
or instrumentality to implement its existing regulations and programs,
and to exercise its legal authorities in furtherance of the purpose of
this rule and the protection and recovery of the Preble's);
(iii) The Service has concurred in writing with the written
assurances from the State or local entity; and
(iv) The governmental entity has reviewed and approved the action
consistent with the Mouse Protection Standards in paragraph (k)(7) of
this section.
(7) State, local, or municipal entities which elect to adopt the
procedures in paragraph (k)(6) of this section and have received
concurrence from the Service can approve new actions that significantly
modify a cumulative total of four percent or less of each Mouse
Protection Area. The applicant must ensure that the Preble's can move
freely up or down the stream corridor. The applicant must also fully
restore or replace the Preble's habitat values with restoration
activities to be completed in a timely manner. Any replacement or
restoration of habitat outside a Mouse Protection Area requires the
concurrence of the Service.
(8) New actions proposed to take place outside of a Mouse
Protection Area or Potential Mouse Protection Area which will
significantly modify stream flows or sedimentation, or otherwise
significantly modify the Preble's habitat inside a Mouse Protection
Area or Potential Mouse Protection Area, will be subject to the
Sec. 17.31 take prohibitions unless otherwise exempted in this proposed
rule.
(9) Local governmental entities may elect to accept responsibility
for protecting a Potential Mouse Protection Area within its
jurisdiction or may accept responsibility for protecting all or part of
a Potential Mouse Protection Area in response to a request by a project
proponent/landowner. The local governmental entity can only accept this
responsibility under paragraph (k)(6) of this section. In these cases,
the local governmental entity will treat the Potential Mouse Protection
Area as a Mouse Protection Area under paragraph (k)(7) of this section.
(10) If a local governmental entity has not assumed responsibility
for protection of any Potential Mouse Protection Area, the take
prohibitions of Sec. 17.31 apply to any actions, unless the activity is
otherwise exempt in this proposed rule, that would result in a direct
or indirect taking of the Preble's. However, a project proponent will
be exempt from the take provisions of Sec. 17.31 if:
(i) A presence/absence survey for the Preble's has been conducted
in accordance with current Service survey guidelines;
(ii) The survey report concludes that the Preble's is not present
on the site to be impacted and the Service concurs with the survey
report's conclusion. (If a presence/absence survey documents the
existence of the Preble's, the area surveyed will be designated as a
Mouse Protection Area and will be treated
[[Page 66784]]
accordingly by the provisions of this rule).
(11) Each government entity which has received written concurrence
from the Service concerning its present authority and ability to
protect the Preble's under paragraph (k)(6) of this section will meet
quarterly with the Service to evaluate implementation of this special
rule. At least 2 weeks before the meetings, public notice of the
meetings will be provided. As more site-specific information about
Mouse Protection Areas and Potential Mouse Protection Areas becomes
available, governmental entities authorized under the provisions of
paragraph (k)(6) of this section must provide all new information to
the Service so that necessary changes can be made with respect to the
delineation of Mouse Protection Areas and Potential Mouse Protection
Areas. If we determine that the governmental entity is not adequately
enforcing the Preble's habitat protection standards contained in this
special rule, we will provide written notice describing the
deficiencies to that governmental entity with suggested corrective
action. If corrective actions are not implemented, we may then withdraw
our concurrence with the governmental entity's program. If we withdraw
our concurrence, all of the Sec. 17.31 take prohibitions will apply to
lands within the jurisdiction of that governmental entity unless the
activity is otherwise exempted in this rule.
(12)(i) Geographic locations of Mouse Protection Areas and
Potential Mouse Protection Areas based on the best scientific
information that is currently available are maintained by the Service
at addresses provided below. Lists of these areas have also been
provided to State and county offices and to selected municipalities
within the Preble's range. We recognize that more site-specific
information about each of the stream reaches may result in changes to
delineated Mouse Protection Areas and Potential Mouse Protection Areas.
The most current refinements to Mouse Protection Areas and Potential
Mouse Protection Areas are available from the Service offices listed
below and from counties, and selected municipalities. Lists of these
areas are also available on our home page on the internet
(www.r6.fws.gov/preble). Inquiries concerning whether or not specific
lands fall within protection areas should be directed to the Service
offices listed below or to a participating local governmental entity.
(ii) These geographic locations can be viewed at the U.S. Fish and
Wildlife Service, Colorado Field Office, P.O. Box 25486, Denver Federal
Center, Denver, Colorado 80225-0207, telephone (303) 275-2370 or at the
U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Morrie
Avenue, Cheyenne, Wyoming 82001, telephone (307) 722-2374.
Dated: November 25, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-32145 Filed 12-2-98; 8:45 am]
BILLING CODE 4310-55-P
