Federal Register: December 15, 2010 (Volume 75, Number 240)
DOCID: fr15de10-15 FR Doc 2010-30571
DEPARTMENT OF THE INTERIOR
Workers Compensation Programs Office
CFR Citation: 50 CFR Part 17
Docket ID: [Docket No. FWS-R6-ES-2009-0013; MO 92210-0-0009]
RIN ID: RIN 1018-AW45
NOTICE: Part III
DOCUMENT ACTION: Final rule.
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse in Colorado
DATES: This rule becomes effective on January 14, 2011.
We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the Preble's meadow jumping mouse (Zapus hudsonius preblei) (PMJM) in Colorado, where it is listed as threatened in a Significant Portion of the Range (SPR) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 411 miles (mi) (662 kilometers (km)) of rivers and streams and 34,935 acres (ac) (14,138 hectares (ha)) fall within the boundaries of revised critical habitat in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer, and Teller Counties.
Interior Department, Fish and Wildlife Service
It is our intent to discuss only those topics relevant to the designation of revised critical habitat in this final rule. For additional information on the biology of this subspecies, see our October 8, 2009, proposed rule to revise the designation of critical habitat for the PMJM (74 FR 52066); our July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789); and our May 13, 1998, final rule to list the PMJM as threatened (63 FR 26517).
Previous Federal Actions
On August 22, 2003, the City of Greeley filed a complaint in the U.S. District Court for the District of Colorado challenging our June 23, 2003, designation of critical habitat for the PMJM (68 FR 37275) (City of Greeley, Colorado v. United States Fish and Wildlife Service et al., Case No. 03CV01607AP). 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. 03cv250J). That complaint was later expanded to include our July 10, 2008, final rule to amend the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789) and transferred to the U.S. District Court for the District of Colorado (Mountain States Legal Foundation v. Ken Salazar et al., Case No. 1:08cv2775JLK). These lawsuits challenged the validity of the information and reasoning we used to designate critical habitat for the PMJM.
On July 20, 2007, we announced that we would review our June 23, 2003, designation of critical habitat for the PMJM (68 FR 37275) after questions were raised about the integrity of scientific information we used and whether the decision we made was consistent with the appropriate legal standards (Service 2007a). Based on our review of the previous critical habitat designation, we determined that it was necessary to revise critical habitat. This rule incorporates those revisions that we found appropriate.
On July 10, 2008, we amended the listing for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789), and determined that the listing of the PMJM is limited to the SPR in Colorado. Upon that determination, all critical habitat designated in 2003 within the State of Wyoming was removed from the regulations at 50 CFR 17.95 for this species.
On April 16, 2009, we reached a settlement agreement with the City of Greeley in which we agreed to reconsider our critical habitat designation for the PMJM. The settlement stipulated that we submit to the Federal Register a proposed rule for revised critical habitat by September 30, 2009, and a final rule for revised critical habitat by September 30, 2010 (U.S. District Court, District of Colorado 2009a). On June 16, 2009, an order was issued granting Mountain States Legal Foundation a motion to dismiss their claims on the 1998 listing and 2008 final determination without prejudice, and stayed their challenge to the 2003 critical habitat designation pursuant to the City of Greeley settlement (U.S. District Court, District of Colorado 2009b).
On October 8, 2009, we published a proposed rule in the Federal Register to revise the designation of critical habitat for the PMJM (74 FR 52066), and accepted public comments for 60 days (from October 8 to December 7, 2009). On May 27, 2010, we opened a second comment period of 30 days (from May 27 to June 28, 2010) and requested comments on our draft economic analysis (DEA) (Industrial Economics 2010a), draft environmental assessment, amended Required Determinations section of the proposed rule, and any other part of our proposed revised critical habitat designation (75 FR 29700). On August 9, 2010, an agreement with the City of Greeley extended the date for submission of the final rule for revised critical habitat to the Federal Register to December 1, 2010 (U.S. District Court, District of Colorado 2010).
For additional information about previous Federal actions concerning the PMJM, see our July 10, 2008, rule for the PMJM to specify over what portion of its range the subspecies is threatened (73 FR 39789).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of revised critical habitat for the PMJM during the two
comment periods. The first comment period, associated with the
publication of the proposed rule to revise the designation of critical
habitat for the PMJM (74 FR 52066) opened on October 8, 2009, and
closed on December 7, 2009. We opened a second comment period on our
DEA, draft environmental assessment, amended Required Determinations
section of the proposed rule, and any other part of our proposed
revised critical habitat designation (75 FR 29700) on May 27, 2010, and
closed it on June 28, 2010. We also contacted peer reviewers;
appropriate Federal, State, and local agencies; scientific organizations; and other interested parties, and invited
them to comment on the proposed rule and supporting documents.
We received 45 comments in response to the proposed rule. Comments were received from 2 peer reviewers, 1 Federal agency, 1 State agency, and 8 local governmental entities, 7 nongovernment organizations, and 18 private individuals (including 14 via similar post cards). Thirty seven comments were received during the October 8 to December 7, 2009, comment period. Eight comments were received during the May 27 to June 28, 2010, comment period, all but one from entities that had commented previously. We received no requests for public hearings. All substantive comments have been either incorporated into the final determination or are addressed below.
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we solicited expert opinions from three
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles. We received
responses from two of the peer reviewers that we contacted. The peer
reviewers generally agreed that we relied on the best scientific
information available, accurately described the species and its habitat
requirements, and concurred that our critical habitat proposal was well
supported. The peer reviewers provided additional suggestions to
improve the final critical habitat rule. Recommended editorial
revisions and clarifications have been incorporated into the final rule
as appropriate. We respond to all substantive comments below. Comments From Peer Reviewers
(1) Comment: One peer reviewer commented that upstream and adjacent habitat, beyond designated critical habitat, requires management to decrease potential for catastrophic wildfire and flooding, and to maintain appropriate stream flow and channel integrity.
Our Response: We agree. Federal agencies are directed, under
section 7(a)(1) of the Act (16 U.S.C. 1531 et seq.), to utilize their
authorities to carry out programs for the conservation of endangered
and threatened species. Proactive management on U.S. Forest Service
(USFS) and other Federal lands upstream or outward from designated
critical habitat should consider implications to the PMJM and its
critical habitat. In addition, section 7(a)(2) of the Act requires
every Federal agency to insure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
designated critical habitat. The activity does not have to take place
within PMJM habitat or critical habitat to be subject to section 7
consultation. In considering the effects of a proposed action, the
Federal agency looks at both the direct and indirect effects of an
action on the species or critical habitat. Indirect effects are caused
by the proposed action, are later in time, and are reasonably certain
to occur. If, for example, management activities on Federal land, or a
Federal permit or Federal funding for an activity upstream of critical
habitat, may result in increased runoff, sedimentation, or channel
alteration within critical habitat, those effects must be considered by
the Federal agency. Outside of Federal lands and when no Federal nexus
is present, cooperative conservation efforts with State and local
government, and private property owners are the most effective means of addressing appropriate land management.
(2) Comment: One peer reviewer commented that we should have emphasized the relationship of ``subshrub cover'' (lowgrowing woody shrubs or perennial plants with a woody base) and plant species richness with the presence of PMJM.
Our Response: We agree that these concepts are important to PMJM
habitat. Low shrub cover and species richness are correlated with
occupancy of riparian corridors by the PMJM. These relationships may be
significant and are described in Clippinger (2002, p. 73). The primary
constituent elements (PCEs) of critical habitat for the PMJM are
described more broadly and include riparian corridors, in part,
``containing dense, riparian vegetation consisting of grasses, forbs,
or shrubs, or any combination thereof.'' We believe that this final
rule appropriately captures the importance of the low, diverse vegetative cover essential to the conservation of PMJM.
(3) Comment: One peer reviewer maintained that our explanation of why Buffalo Creek and Wigwam Creek (Jefferson County) were not included as proposed critical habitat should be better supported.
Our Response: Areas along both Buffalo Creek and Wigwam Creek have
been subject to catastrophic fires. These events caused subsequent
flooding and increased sedimentation of these streams. Trapping efforts
targeting PMJM have not been conducted in these areas since the fires;
however, it is unlikely that severely burned areas are currently
occupied by the PMJM. The areas remain degraded and for at least the
near future will not support the PCEs necessary for the conservation of
the PMJM in the appropriate quantity and spatial arrangement to support
inclusion as critical habitat. Given the extent of critical habitat
proposed elsewhere in this subdrainage, we conclude that it is not
necessary or appropriate to designate critical habitat in these degraded stream reaches.
(4) Comment: One peer reviewer suggested that our failure to propose critical habitat on the Big Thompson River, North Fork of the Big Thompson River, and Little Thompson River was based more on issues of land ownership than on science.
Our Response: All three of these rivers are within the Big Thompson
River subdrainage (subdrainages equate to U.S. Geological Survey 8
digit hydrological unit boundaries and are hereafter referred to as
HUCs). Within this HUC we are designating Buckhorn Creek (Unit 3) and
Cedar Creek (Unit 4) as critical habitat, but we identified no other
areas that merited designation. Public lands, especially undeveloped
Federal lands and other public lands currently devoted to conservation,
are more likely to support viable PMJM populations, both currently and
in the future. We made our determinations after examining both quality
of existing habitat and land ownership, and prioritized designation of Federal lands within this HUC.
Biological Concerns and Methodology
(5) Comment: One commenter stated that proposed critical habitat should be expanded to reflect understanding of genetic diversity within the PMJM.
Our Response: Our designation of revised critical habitat
incorporates current knowledge of genetic diversity in the PMJM.
Genetic analysis has revealed significant differences between PMJM
populations in northern and southern portions of the range (King et al.
2006, pp. 43374338). The Preble's Meadow Jumping Mouse Recovery Team
(Jackson 2009, pers. comm.) concluded that recovery populations
outlined in the Working Draft of a Recovery Plan (PMJM Recovery Team
2003), and included in the Preliminary Draft Recovery Plan (Draft Plan)
(Service 2003a), were spread north and south to provide adequate representation of the genetic differences in northern and
southern portions of the range examined in King et al. (2006). This same approximate distribution in populations north and south is reflected in this revised critical habitat designation.
(6) Comment: One commenter urged the Service to consider the value of expanding proposed critical habitat to provide habitat linkage for PMJM populations north and south of Denver, and among other drainages where critical habitat was proposed.
Our Response: Potential connectivity of critical habitat was
considered consistent with our conservation strategy and that proposed
in the Draft Plan. In most cases, revised critical habitat units exceed
minimum reach lengths for large, medium, and small populations proposed
in the Draft Plan. All designated critical habitat units and subunits
exceed 3 mi (5 km) in stream length, the minimum length of stream the
Draft Plan prescribes for a small recovery population. In some cases,
we chose not to link stream reaches through the designation of marginal
habitat, or not to substantially extend critical habitat to encompass a
larger PMJM population, where multiple smaller recovery populations are consistent with our conservation strategy.
(7) Comment: One commenter requested that, before designating revised critical habitat, the Service should consult with scientists regarding how climate change may affect PMJM movement, habitat needs, and habitat connectivity. For example, it was suggested that we should consider potential effects of changes in precipitation and earlier spring runoff.
Our Response: Variability in existing climate models suggests
uncertainty as to future climate change and potential effects in
Colorado, where the PMJM is listed. We have considered the potential
impact of future climate change on the PMJM, and we believe that our
revised designation adequately addresses likely climate change
scenarios by designating critical habitat areas throughout the north
south range of the PMJM in Colorado that vary in elevation and in
stream size (see Climate Change, below). In the Big Thompson River and
Upper South Platte River drainages, we are designating critical habitat
units in excess of those recovery populations called for in the Draft
Plan to provide resilience, should climate change reduce the value of
lower elevation habitats currently occupied by the PMJM. These units,
the Cache La Poudre Unit (Unit 2) and the Upper South Platte Unit (Unit
11), are centered on Federal lands and include reaches extending to the
highest elevation the PMJM is currently known to occupy in Colorado.
If, in the future, a clearer picture of the effects of climate change
on the PMJM is developed, further revision of critical habitat may be appropriate (see also Climate Change, below).
(8) Comment: One commenter stated that both sites where trapping has documented PMJM presence since 2003, and sites of earlier captures, should be included in designated critical habitat.
Our Response: Not all areas where the PMJM is known to occur in
Colorado are being designated as revised critical habitat. See our
response to comment 44. We incorporated the best scientific and
commercial information available into this final rule, including
information regarding all locations where PMJM have been trapped since
our 2003 final rule. These more recent capture locations did not
significantly expand the known distribution of the PMJM in Colorado.
However, we did consider each new capture location and its potential
significance prior to our proposing revised critical habitat for the PMJM.
(9) Comment: One commenter stated that the Draft Plan for the PMJM, which was cited as a basis for the Service's conservation strategy and certain decisions regarding proposed designation of revised critical habitat, is 6 years old and does not include current data.
Our Response: The 2003 Draft Plan (Service 2003a) provides a
conservation strategy for the PMJM. It was developed primarily by the
PMJM Recovery Team and refined through comments and additional
information we received. Information on range, occupancy, populations,
and habitat characteristics were used in developing the Draft Plan.
Recent review by the current PMJM Recovery Team has verified that
concepts and strategies incorporated into the Draft Plan remain
appropriate (Jackson 2010, pers. comm.). However, we also incorporated
new data, as appropriate, in developing our proposal and this final
rule, including trapping results, genetic and morphometric confirmation of species identification, and changes to habitat.
(10) Comment: One commenter pointed out that the Service has not proposed critical habitat to address all recovery populations called for in the Draft Plan, including HUCs where the PMJM is known to occur.
Our Response: While the conservation strategy underlying our
proposed revision of critical habitat was informed by the Draft Plan
and the ongoing recovery planning process, areas we are designating as
revised critical habitat in this rule will not be identical to areas
ultimately designated as recovery populations. The Draft Plan
designated location of certain recovery populations in HUCs where PMJM
are known to be present. However, in some HUCs within the likely range
of the PMJM, there is little or no available information on the
existence of PMJM populations or the extent of occupied habitat. In
these cases, the Draft Plan only applied standard criteria to achieve
recovery of the species. For example, the Draft Plan required, at
minimum, three small recovery populations or one medium recovery
population in several HUCs, but only if the HUC was found to be
occupied by the PMJM. Since we have determined that the conservation of
the PMJM can be achieved by designating critical habitat in areas that
are known to support the species, rather than in areas with no
confirmed occupancy by the species, we are designating no critical
habitat in HUCs where occupancy has not been confirmed. In other cases,
such as the Kiowa HUC in Elbert County, trapping efforts have been
limited to sites of human development, and, while there is confirmed
occurrence of the PMJM, it is not sufficient to inform us of
distribution or abundance within the HUC. We exercised our professional
judgment and determined that those limited areas of confirmed
occurrence of the PMJM in and near human development are not essential
to the conservation of the PMJM. We are not designating such sites as critical habitat.
(11) Comment: One commenter stated that areas of critical habitat should be designated in excess of recovery goals suggested in the Draft Plan.
Our Response: In two HUCs, we are designating critical habitat
units beyond those recovery populations that the Draft Plan specifies.
We are designating critical habitat capable of supporting a large PMJM
population independent of, and in addition to, the large recovery
populations proposed in the Draft Plan along the Cache la Poudre River
(Unit 2) in the Cache La Poudre River HUC and designated reaches of the
Upper South Platte River and its tributaries (Unit 10) in excess of
recovery goals for the Upper South Platte River HUC. In other HUCs, we
did not identify or designate additional areas that met the definition
of critical habitat in excess of recovery goals stated in the Draft Plan.
(12) Comment: Multiple commenters stated that the outward extent of proposed critical habitat did not accurately reflect limits of PMJM habitat. One commenter stated that distance outward from riparian vegetation is a much better predictor of PMJM habitat than is our use of distance
from the stream edge, based on stream order (a classification of streams by relative size). Another commenter stated that floodplain plus 100 meters should be used as the outward boundary of critical habitat on reaches where floodplain mapping is available.
Our Response: We believe that the outward extent of critical
habitat we are designating includes all PCEs required by the PMJM and
effectively protects habitat essential to the conservation of the PMJM.
We agree that sitespecific assessment of habitat components, including
extent of riparian vegetation, is a more precise method of designating
critical habitat (see our response to comment 14 below). However, site
specific mapping of PMJM habitat in Colorado is not generally
available. Land use and recent site history complicate efforts to
accurately assess and map riparian habitat limits. Floodplain mapping
is not available for most foothill streams designated as PMJM critical
habitat. Where limits of the designated 100year floodplain have been
mapped, floodplain limits are often revised, especially in the Colorado
Front Range development corridor, where filling of the floodplain may
occur and flood levels are altered by development. We used the best
available scientific and commercial information with respect to determining the outward extent of PMJM critical habitat.
(13) Comment: One commenter suggested that the Service should provide detail on the development of the average floodplain widths used to designate outward limits of critical habitat for streams of different order and stated that the calculation needs to be based on a sufficient sample of sites across PMJM range to be meaningful.
Our Response: The estimates of average floodplain width based on
stream order that we use in this designation of critical habitat were
previously developed in conjunction with our June 23, 2003, designation
of critical habitat for the PMJM (68 FR 37275). We believe that a
sufficient number of representative streams were examined to provide an
appropriate estimation of average floodplain width as related to stream order.
(14) Comment: One commenter stated that the Riparian Conservation Zone (RCZ) mapping, developed as part of the approved Douglas County Habitat Conservation Plan (HCP), corresponds better to appropriate outward limits of critical habitat than do the boundaries that the Service proposed for revised critical habitat, and that critical habitat boundaries should align with countywide HCP boundaries for consistency and to avoid confusion.
Our Response: We agree that it is preferable that critical habitat
boundaries match HCP boundaries where HCP boundaries accurately reflect
limits of habitat essential to the conservation of the PMJM. RCZ
boundaries in the Douglas County HCP were developed based on
conservation strategies for the PMJM provided in the Draft Plan. After
consideration, we are designating the outward boundaries of revised
critical habitat on nonFederal lands in Douglas County to correspond
to the boundaries developed for RCZ (see the Delineation of Critical Habitat Boundaries section).
Procedural and Legal Issues
(15) Comment: Two commenters stated that the Service cannot propose a critical habitat revision prior to analysis of alternatives under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), a draft economic analysis (DEA), and a Regulatory Flexibility Act (5 U.S.C. 601 et seq.) analysis. They stated that the environmental and economic impacts of the proposed action must be considered prior to the proposal.
Our Response: By Service policy, we draft and circulate the NEPA,
DEA, and Regulatory Flexibility Act analyses between the proposed and
final critical habitat designation. Comments on the entire proposal,
including the draft environmental assessment, DEA, and Regulatory
Flexibility Act analysis, were accepted for 30 days following the May
27, 2010, publication making available these documents (75 FR 29700).
The information provided in these documents and comments regarding them
were fully considered prior to this final rule, in accordance with applicable regulations and statutes.
(16) Comment: Two commenters stated that the Service
inappropriately proposed critical habitat in areas where the PMJM was not known to exist at the time of listing.
Our Response: Section 3(5)(A) of the Act defines critical habitat, in part, as those specific areas within the geographic area occupied by the species at the time of listing, and specific areas outside the geographic area occupied by the species at the time of listing upon determination that such areas are essential for the conservation of the species. Our designation constitutes our best assessment of areas determined to be within the geographical area occupied at the time of listing that contain the physical and biological features essential to the conservation of the PMJM that may require special management, and those additional areas not occupied at the time of listing, but that have been determined to be essential to the conservation of the PMJM. Management and protection of all the areas is necessary to achieve the conservation of PMJM. Therefore, we are also designating areas that were not known to be occupied at the time of listing, but which were subsequently identified as being occupied, and which we have determined to be essential to the conservation of the PMJM in our Preliminary Draft Recovery Plan (Service 2003a). We have based our critical habitat designation on the best currently available scientific information. (17) Comment: One commenter stated that only areas ``indispensible and absolutely necessary'' to the PMJM should be designated as critical habitat and that the Service should include only the ``minimum amount of habitat needed to avoid shortterm jeopardy'' (citing Middle Rio Grande Conservancy District v. Babbitt). Based on this reasoning, they asserted that we could not tie critical habitat to the Draft Plan, which addresses longterm recovery.
Our Response: Within the range of the listed species, critical
habitat is defined to include areas occupied at the time of listing on
which are found those physical or biological features essential to the
conservation of the species, and which may require special management
considerations or protection, and those additional areas not occupied
at the time of listing but that have been determined to be essential to
the conservation of the species. Conservation is defined in the Act as
the use of all methods and procedures which are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Limiting designation of
critical habitat to avoiding ``shortterm jeopardy'' would not meet the
Act's intent that critical habitat provide for the conservation (e.g., recovery) of the species.
(18) Comment: One commenter expressed the concern that details of all existing HCPs involving the PMJM were not readily available for public review and that all HCPs should be available on the Service's ``ECOS'' Web site and the Service's MountainPrairie Region Web site.
Our Response: Most HCPs that address the PMJM have been available
to the public on our ECOS Web site. When we were made aware that
certain HCPs were not posted, we provided the commenter the requested materials as expeditiously as possible.
(19) Comment: One commenter stated that Geographic Information System (GIS) data depicting proposed critical habitat boundaries should have been made available for public review.
Our Response: We provided GIS depictions of proposed critical
habitat when requested. Additionally, we believe that the legal
description of stream reaches and outward distances from streams that
we provided in our proposal to revise the designation of critical habitat were adequate to identify the areas proposed.
(20) Comment: One commenter recommended that we incorporate a provision in our critical habitat designation that would exclude from critical habitat areas covered by future HCPs, when completed.
Our Response: The basis for exclusions from critical habitat under section 4(b)(2) of the Act is explained in ``Exclusions'' below. We cannot make a determination now to exclude areas covered by HCPs that may be developed sometime in the future, because we have no way to evaluate the effectiveness, and determine whether the benefits of exclusion outweigh the benefits of inclusion, of plans that do not yet exist and have not been implemented. If, in the future, we determine that changes in designated critical habitat for the PMJM are appropriate, we have the option to revise critical habitat. (21) Comment: One commenter asked us to confirm that the existing special 4(d) rule, which exempts take of PMJM under section 9 of the Act for specified activities, including ditch maintenance and any continued use of perfected water rights, is not affected by the designation of critical habitat.
Our Response: The 4(d) rule for the PMJM (see 50 CFR 17.40 (l))
provides certain exemptions from the take prohibitions found in section
9 of the Act. Take prohibitions under section 9 are not affected by the
designation of critical habitat. The primary regulatory effects of a
critical habitat designation under the Act are triggered through the
provisions of section 7 of the Act, which applies only to activities
conducted, authorized, or funded by a Federal agency. In limited cases,
an activity that is excluded from take provisions under the 4(d) rule
may require a Federal permit or involve Federal funding. In these
cases, while take would be exempted under the 4(d) rule, section 7
consultation would still occur to ensure that Federal actions would not
jeopardize the PMJM or result in destruction or adverse modification of its critical habitat.
(22) Comment: One commenter stated that under the Act, the Service must reconsult on any projects within newly designated critical habitat that previously underwent section 7 consultation.
Our Response: For Federal actions, the lead Federal agency
determines whether their action may affect designated PMJM critical
habitat. This applies to projects previously consulted on under section
7 where the Federal agency has retained discretionary involvement or
control over the action. Federal agencies may sometimes need to request
reinitiation of consultation on actions for which formal consultation has been completed (see 50 CFR 402.16).
Comments on Specific Units
(23) Comment: One commenter requested us to connect critical habitat Units 1 (North Fork of the Cache la Poudre River) and 2 (Cache la Poudre River) in Larimer County.
Our Response: The Milton Seaman Reservoir at the downstream extent
of Unit 1 is a barrier to PMJM movement and effectively prevents
linking of the two units. We do not believe that it is biologically
necessary or possible to link these two units. See also our response to Comment 6.
(24) Comment: One commenter called for us to exclude the area proposed as critical habitat in Unit 1 (North Fork of the Cache la Poudre River) on the mainstem of the North Fork of the Cache la Poudre River upstream of the Milton Seaman Reservoir and within the footprint of the proposed reservoir expansion.
Our Response: We have not excluded this reach from designated critical habitat. This area includes Federal and State property that would potentially be inundated by the City of Greeley's proposed expansion of the Milton Seaman Reservoir. Expansion under the currently proposed plan would inundate about 3 mi (5 km) of the river. In 2002, the City of Greeley contended that the reach in question supported only patches of willow shrub, had little habitat for the PMJM, and did not meet the definition of critical habitat (Kolanz 2003). In our on June 23, 2003, designation of critical habitat (68 FR 37275), we concluded the area in question supported those physical or biological features essential to the conservation of the species, and may require special management considerations or protection. We stated that, within the reach in question, some habitat components appeared discontinuous, and PMJM habitat was, at that time, of lower quality than habitat upstream of this reach, due to heavy grazing. However, we concluded that the area in question did include the requisite PCEs to support the PMJM, and its designation as critical habitat was essential for the conservation of the large PMJM population along the North Fork of the Cache la Poudre River. The Service chose not to exclude this reach from critical habitat in 2003. This prompted the legal actions by the City of Greeley addressed in ``Previous Federal Actions'' above.
The City of Greeley, in a letter dated May 20, 2009, outlined its concerns regarding designation of critical habitat in this area, and requested exclusion of the area from revised critical habitat under section 4(b)(2) of the Act (Kolanz 2009a). The City of Greeley also submitted a report by ERO Resources Corporation (ERO) assessing the area to be inundated by the proposed reservoir expansion (ERO 2008). ERO concluded that of the approximately 165 ac (66.8 ha) of designated critical habitat that would be inundated, only about 26 acres were of moderate to high quality for the PMJM. Nonhabitat and lowquality habitat were attributed to the dominant upland vegetation and steep slopes, while the moderate to highquality habitat was associated with the narrow riparian corridor (ERO 2008, pp. 1112). In our October 8, 2009, proposal to revise the designation of critical habitat for the PMJM (74 FR 52066), we again determined that the area met the definition of critical habitat, that it included physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection. Three other letters from the City of Greeley followed, two within public comment periods for the proposed revised critical habitat, expanding on the City of Greeley's concerns (Kolanz, 2009b, 2009c, 2010).
Consistent with previously stated concerns over habitat quality,
the City of Greeley contended that the area in question is not
essential to the conservation of the PMJM. The City of Greeley pointed
out that it was not mapped as PMJM habitat in our proposal to establish
special regulations for the conservation of the PMJM (December 3, 1998,
63 FR 66777), and was not shown to be ``occupied'' by PMJM in a recent
Colorado Division of Wildlife (CDOW) database. The reach in question is
part of the USFS Greyrock Grazing Allotment, which extends from Milton
Seaman Reservoir, approximately 3 mi (5 km) upstream, and includes
lands owned primarily by the USFS (about 2 mi (3 km) of the stream), as
well as State lands, City of Greeley lands, and private lands (USFS [[Page 78435]]
2008). The USFS 2008 Biological Assessment for management of the Greyrock Grazing Allotment explains the history of the site and past habitat limitations (USFS 2008). Heavy livestock grazing for many decades drastically reduced riparian shrubs and trees. In the last 7 years, riparian habitat quality has significantly improved in the reach. Following removal of grazing along the North Fork of the Cache la Poudre River, a notable increase in willow growth and a tall, dense herbaceous component of the plant community was observed in the riparian zone in 2007. With no further livestock grazing in the reach through 2010, a lush riparian community has developed that provides PCEs essential to the support of the PMJM, in quantity and spatial arrangement that suggests riparian habitat is now of high quality. Upland habitat in the reach has been slower to recover following heavy grazing, and weed control efforts are needed. While the PMJM had been documented upstream in this drainage, the reach above Milton Seaman Reservoir had not been trapped to establish whether the PMJM was present until 2010, when a limited trapping effort by the USFS captured a jumping mouse within the proposed reservoir expansion area (USFS 2010). The CDOW database will be updated accordingly. Restoration of habitat in this reach has advanced to the point where grazing will again take place on the allotment. Carefully managed grazing will maintain or improve PMJM habitat in this allotment into the future. The USFS has informally consulted with the Service over management of this allotment and we have concluded that carefully managed grazing will maintain or improve PMJM habitat on the allotment into the future.
The City of Greeley also stated that designation of critical habitat in this area would create significant financial burden on the City. Our DEA (section 5.3) assigns a low incremental cost ($20,000 to $38,000) to the designation of critical habitat for the Halligan Reservoir and Milton Seaman Reservoir projects. However, additional costs could be incurred should designation of critical habitat affect regulatory approval of the proposed project, and cause the City of Greeley to pursue a more costly alternative. Because of their speculative nature, these costs were not included in the DEA (see our response to Comment 56), but we discuss them in the FEA and here. Under section 7 of the Act, the Service will evaluate whether any proposed alternative for Milton Seaman Reservoir expansion under permit review by the U.S. Army Corps of Engineers (Corps) will jeopardize the PMJM or result in destruction or adverse modification of its designated critical habitat. Under the City of Greeley's worst case scenario, our designation of critical habitat and subsequent consultation regarding the reservoir project could result in a finding of ``destruction or adverse modification of critical habitat'' by the Service, or could result in the Corps denying a permit under the Clean Water Act (33 U.S.C. 1251 et seq.), based on the proposed project not being the ``least damaging practicable alternative.'' To be attributable to our designation of critical habitat, an outcome and any resultant costs would have to differ from the results of regulatory review of the same project with no critical habitat designation. For example, the outcome would have to differ from the result of Service consultation in the absence of critical habitat that results in a jeopardy determination, or in the absence of critical habitat, the Corps denying a permit based on the presence of the PMJM, combined with an array of other considerations. The question of whether regulatory review under scenarios with or without critical habitat would produce different results contributes to the speculative nature of costs attributable to critical habitat designation. Factors relevant to possible future Service and Corps regulatory determinations follow.
Substantial planning has taken place between the City of Greeley, the Service, The Nature Conservancy, and other entities, to address potential impacts to the PMJM and its habitat from the planned reservoir expansion. The City of Greeley has expressed an interest in implementing conservation measures to offset impact of the proposed project to the PMJM prior to project construction. Conservation measures have been identified that could serve to offset project impacts to the PMJM, should the planned project move forward. These conservation measures are targeted at PMJM populations and supporting ecological processes in critical habitat Unit 1, which includes the reservoir expansion area. Further development of conservation measures and their incorporation into plans for proposed reservoir expansion could help maintain the value of this critical habitat unit to the recovery of the PMJM and reduce or eliminate the possibility of a jeopardy or adverse modification determination by the Service.
Our designation of critical habitat for the PMJM should be considered by the Corps as indicative of the high natural resource value of the lands designated. A decision that the area does not meet the definition of critical habitat would imply a lesser resource value. However, if the Service were to exclude the reach in question from critical habitat for reasons of relevant nonbiological factors (economic, social, etc.), it would not change our determination that the area meets the definition of critical habitat, nor would it change the inherent resource value of the reach or its contribution to the conservation and recovery of the PMJM. Therefore, from a resource perspective, the Corps' assessment of the value of this reach and its role in their consideration of issuing a permit to the City of Greeley may not differ between the cases of critical habitat designation and exclusion from designation based on nonbiological factors.
Any future Milton Seaman Reservoir expansion may differ from the project currently proposed. The City of Greeley is an active participant in the HalliganSeaman Water Management Project. To efficiently manage their supplies, the cities of Fort Collins and Greeley have proposed the HalliganSeaman Water Management Project as a regional water storage and management project on the North Fork of the Cache la Poudre River. Both cities and their partners are working together to increase water storage capacity for their communities through coordinated enlargements of Halligan and Milton Seaman reservoirs. The participants are using an innovative Shared Vision Planning process, which brings together stakeholders in a collaborative planning and model building exercise. The Service is supportive of this process, has participated as resources allow, and anticipates that its results will inform the HalliganSeaman Water Management Project. The eventual proposal for Milton Seaman Reservoir expansion may vary from the proposal currently envisioned, to facilitate coordinated management of these reservoirs.
Onsite alternatives to the project currently proposed by the City of Greeley may result from the HalliganSeaman Water Management Project. Such alternatives could reduce the probability of a Service determination of adverse modification of critical habitat, or Corps permit denial based on presence of critical habitat. Any such alternatives could, however, also result in less water storage or storage at a higher cost.
The most costly possible result of our designation of critical
habitat would be a case where the City of Greeley would have to abandon
expansion plans for the Milton Seaman Reservoir, and develop [[Page 78436]]
storage options at one or more alternate sites. Assuming a current estimated cost of $116 million for the proposed project (Kolanz 2010, p. 4) and the Corps' estimated costs of alternate storage cited in the DEA (up to 8 times the cost of storage through Milton Seaman Reservoir expansion), additional cost due to designation of critical habitat could range to $812 million. The Corps' estimates relate to comparative costs incurred by other Front Range Colorado water projects (Peter, pers. comm. 2010).
Under the scenarios above, the additional cost to the City of Greeley associated with critical habitat designation upstream of the Milton Seaman Reservoir could range from $20,000 to as high as $812 million. We have considered both the potential costs due to designation of critical habitat, and the relative likelihood of their occurrence, when evaluating the City of Greeley's request for exclusion.
The reach of river above the Milton Seaman Reservoir is part of critical habitat Unit 1, established to be consistent with a large recovery population along the North Fork of the Cache La Poudre River and its tributaries, as designated in the Draft Plan. The entire reach of the North Fork between the Halligan Reservoir to the north and Milton Seaman Reservoir to the south is within this unit. The two reservoirs create barriers to PMJM movement along the river, and the population of PMJM between the reservoirs and on adjoining tributaries is thought to be relatively isolated from populations elsewhere. The City of Greeley contends that loss of up to 3 mi (5 km) of the approximately 88 mi (140 km) in this critical habitat unit will have little relative impact on the unit's ability to conserve and recover the PMJM. We do not know the extent of habitat needed to support a large recovery population as described in the Draft Plan. At a minimum, a total of 50 mi (80 km) of connected streams and tributaries is suggested for a large PMJM population in the Draft Plan. But the Draft Plan bases size of PMJM recovery populations on the numbers of PMJM present, not the extent of habitat. Until such time as population estimates for the area are developed, we will not know whether 50 mi (80 km), or even 88 mi (140 km), of streams will be sufficient. In this context, loss of 3 of the 88 mi (5 of the 140 km) may significantly impact the ability of the critical habitat unit to support a large population and meet the recovery goal outlined in the Draft Plan.
The City of Greeley suggested that an exclusion would support ongoing Federal and local cooperation in the development of water resources in the drainage. Water use and storage issues continue to generate close scrutiny in Colorado. The Milton Seaman Reservoir expansion, Halligan Reservoir expansion, and other proposed projects have both their proponents and critics. While an exclusion could lead to the continuation and strengthening of partnerships between the City of Greeley, certain other public and private entities, and the Service, it would likely alienate others. Despite our decision not to exclude the area above Milton Seaman Reservoir from critical habitat designation, we anticipate a continued working relationship with the City of Greeley to address both their needs and those of the PMJM.
If approved, the proposed reservoir expansion would occur well in the future. The required review under NEPA and the permit issuance by the Corps under the section 404 of the Clean Water Act, necessary for reconstruction of the reservoir's dam, are likely to take years. Because of this, considerable uncertainty exists regarding when and in what form an expansion of Milton Seaman Reservoir might occur. Given the uncertainties regarding timing, design, and future conservation commitments associated with reservoir expansion, exclusion of the area, even if it should be determined to be appropriate someday in the future, is premature.
Exclusion of this reach from critical habitat would do little to relieve the costs of regulatory review and associated permitting (delays, administrative costs, consulting costs, and cost of developing additional conservation measures) for the City of Greeley. The area of the proposed expansion includes Federal land owned by the USFS. All alternatives impacting this land will involve USFS approval. In addition, any dam replacement or reconstruction would require a permit from the Corps under the Clean Water Act. Even without critical habitat, section 7 review appears unavoidable. Exclusion from critical habitat would not alleviate the need for section 7 consultation, or appreciably increase the administrative costs involved.
Designation of critical habitat (the identification of lands that are necessary for the conservation of the species) is beneficial in the recovery planning for a species. In this case, the Draft Plan has helped inform critical habitat designation by designating a large recovery population in this area. This final rule may, in turn, contribute to the development of a final recovery plan for the North Fork of the Cache La Poudre River.
We have determined that this portion of the North Fork of the Cache
la Poudre River contains the physical and biological features essential
to the conservation of the PMJM in accordance with 4(a)(3) of the Act.
We conclude that it is inappropriate to exclude this reach from critical habitat under section 4(b)(2) of the Act.
(25) Comment: Two commenters pointed out that critical habitat proposed along Spring Brook and South Boulder Creek in Unit 5 (South Boulder Creek), Boulder County, is discontinuous as mapped.
Our Response: PMJM have been found on both Spring Brook and South
Boulder Creek. Spring Brook has been diverted into a canal; therefore,
it does not follow its historical course directly into South Boulder
Creek. The limits of critical habitat we are designating for the two
reaches are separated by approximately 100 ft (30 m) through a rural
residential upland area which may not contain the physical and
biological features essential for the conservation of PMJM, as defined.
However, we do not believe that this discontinuity significantly
affects the species' ability to move between these portions of this critical habitat unit.
(26) Comment: The City of Boulder requested that we coordinate with the City to ``fine tune'' the boundaries of Unit 5 (South Boulder Creek) to expedite regulatory review of future projects with a Federal nexus.
Our Response: As in other units, based on the scale of our mapping,
there may be some areas within the general boundaries of designated
critical habitat in Unit 5 that do not support PCEs required by the
PMJM. For example, specific areas that support existing buildings,
roads, and parking lots are not considered critical habitat. These
areas are excluded by text in this rule. We will continue to be
available to work with the City of Boulder to determine boundaries of areas that do not meet the definition of critical habitat.
(27) Comment: The U.S. Department of Energy (DOE) commented that it controls much of the ``Rocky Flats Site,'' described by the Service as the Rocky Flats National Wildlife Refuge (NWR) (Unit 6), in Jefferson and Broomfield Counties, and noted that proposed critical habitat would include portions of DOE's Central Operable Unit (COU) of 1,300 ac (530 ha), where a former facility processed and manufactured nuclear weapons. Many DOE operational maintenance and monitoring activities continue to take place within the COU under closure and cleanup agreements. The DOE urged the Service to exclude the COU from [[Page 78437]]
designation of critical habitat within this unit because designation could adversely impact actions required under these agreements.
Our Response: We have modified this final rule to more accurately reflect DOE presence on the Rocky Flats Site. The Rocky Flats Site (Unit 6) is managed by the Service (Rocky Flats NWR) and DOE (the Central Operating Unit and certain other lands). Buildings and other structures at the site have been decommissioned and demolished, and the disturbed areas have been restored, or are undergoing restoration. Cleanup and closure of the COU was completed in 2005. Many operational maintenance and monitoring activities continue to take place in the COU, to maintain the CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, 42 U.S.C. 9601 et seq.) and RCRA (Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.) remedies implemented in accordance with the Rocky Flats Management Agreement.
The final Rocky Flats NWR Comprehensive Conservation Plan (CCP) was announced in the Federal Register on April 18, 2005 (70 FR 20164). The CCP outlines the management direction and strategies for NWR operations, habitat restoration, and visitor services, for a period of 15 years. The CCP provides a vision for the NWR; guidance for management decisions; and the goals, objectives, and strategies to achieve the NWR's vision and purpose. One objective of the CCP is to protect, maintain, and improve approximately 1,000 ac (400 ha) of PMJM habitat on the NWR. A programmatic section 7 consultation with DOE for their cleanup and maintenance activities was completed in 2004 (Service 2004c). This consultation addressed removal of manmade structures in and adjacent to PMJM habitat, and ongoing operations in the COU in support of the CERCLA/RCRA remedy.
We invited information and comments on potential exclusion of the
Rocky Flats Site in part because of the previous exclusion of the site
from critical habitat in our June 23, 2003, final rule (68 FR 37275).
That exclusion appeared at odds with the recent interpretation of
critical habitat designation on Federal lands. Federal agencies have an
affirmative conservation mandate under section 7(a)(1) of the Act to
contribute to the conservation of listed species. On the Rocky Flats
Site, as with other Federal lands, we anticipate that effective land
management strategies can and will be employed by Federal agencies to
conserve PMJM populations. We have determined that lands on the Rocky
Flats Site are essential to the conservation of the species.
Designation of critical habitat on the Rocky Flats Site highlights the
importance of the area to the PMJM, while encouraging the NWR and DOE
to provide a consistent and effective approach to conserve the PMJM.
These lands require special management considerations or protection, as
evidenced by and incorporated in management plans and the programmatic
consultation referenced above. Potential effects to habitat on the site
that may be addressed under programs, practices, and activities within
the authority and jurisdiction of Federal land management agencies
include, but are not limited to, weed management, wildland fire
management, recreation, construction and maintenance of roads and
trails, and operational maintenance and monitoring activities within
the COU. For the above reasons, we conclude that the entire Rocky Flats
site, including the COU, contains the physical and biological features
essential to the conservation of the PMJM and merits designation as critical habitat.
(28) Comment: One commenter requested that the easternmost portion of the Rocky Flats Site (Unit 6) in Jefferson and Broomfield Counties, the site of proposed roadway expansion along Indiana Street, be excluded from critical habitat, because it is planned for development. They cited the Rocky Flats National Wildlife Refuge Act of 2001, and Rocky Flats National Wildlife Refuge Comprehensive Conservation Plan and Environmental Impact Statement (CCP/EIS) as addressing the roadway expansion and anticipating its future construction in spite of potential PMJM presence. Two other commenters urged that the specific area in question be included in designated critical habitat.
Our Response: The areas in question contain the physical and
biological features essential to conservation of the PMJM and have not
been excluded from critical habitat. Should project plans for the road
expansion go forward, the Service has concluded that subsequent
environmental review, including compliance with the Act, will be
required of any future project proponent to address any impacts to the
PMJM, its habitat, and designated critical habitat. The Service has
made no conclusions as to how any transfer of Federal land or roadway
expansion would affect the PMJM. The Service only found that transfer
of a corridor up to 300ft (92m) wide would not adversely affect management of the NWR (Service 2004, p. 191).
(29) Comment: Denver Water requested exclusion of their properties covered under the Denver Water HCP, provided maps of their properties, and pointed out apparent Service mapping errors.
Our Response: The eight properties in question include a total of approximately 250 ac (113 ha) in 4 critical habitat units (Units 5, 7, 9, and 10). We have excluded these properties from critical habitat designation under section 4(b)(2) of the Act (see the Exclusions section below), and corrected maps and acreages as appropriate. (30) Comment: Douglas County requested exclusion of nonFederal lands within Douglas County based on their 2006 HCP.
Our Response: We have not excluded the nonFederal lands in Douglas County. On May 11, 2006, we issued a section 10 incidental take permit that covers the PMJM for the Douglas County HCP (Service 2006a). The Douglas County HCP addresses only specified activities conducted by Douglas County and the towns of Castle Rock and Parker, within Douglas County, Colorado, on private and other nonFederal lands within the RCZ, as mapped by Douglas County. Impacts to the RCZ associated with the covered activities are mitigated by the permanent protection of portions of the RCZ and the restoration of habitat from temporary impacts. Stream segments totaling 15 mi (24 km) in length and 1,132 ac (458 ha) of the RCZ have been permanently protected as part of the Douglas County HCP. Management plans exist or are in development for these protected properties (Dougherty 2009). The majority of proposed critical habitat in Units 8 and 9, and a small amount of nonFederal property in Unit 10 are within the boundaries of the Douglas County HCP.
While the Douglas County HCP includes the extensive mapped RCZ that
encompasses areas believed to support the PMJM, the plan does not
provide a means by which habitat within these zones will be effectively
managed into the future. Only about 5 percent of the lands within the
RCZ are set aside for conservation under the plan. The vast majority of
lands in the RCZ receive no specific protection under the HCP.
Potential impacts to physical and biological features essential to the
PMJM from entities other than Douglas County and the cities of Parker
and Castle Rock, including those by private landowners, are not addressed in the plan.
(31) Comment: One commenter proposed that we link the two subunits proposed in Unit 8 (Cherry Creek), Douglas County.
Our Response: The Draft Plan calls for a medium recovery population
in Lower South PlatteCherry Creek HUC. Each of the two subunits
appears large enough to support a medium recovery population. We
determined that linking them was not appropriate, after considering the
variable quality of intervening habitat on private lands and
determining that a much larger critical habitat unit with more reaches
in lowquality habitat would not provide additional benefit to the PMJM.
(32) Comment: One commenter stated that we should limit the downstream extent of designated critical habitat along Plum Creek in Unit 9 (West Plum Creek), Douglas County, to the point of maximum reservoir storage under the U.S. Army Corps of Engineers' (Corps') Chatfield Reservoir Reauthorization Project preferred alternative (maximum storage at 5,444 feet (ft) (1,660 meters (m)) in elevation).
Our Response: The reach in question is federally owned, has been
documented to support the PMJM, and has PCEs of appropriate quantity
and spatial arrangement to qualify as critical habitat. We have
determined that Plum Creek downstream to Chatfield Reservoir contains
the physical and biological features essential to the conservation of
the PMJM, and we have identified no basis to exclude this area from
critical habitat under section 4(b)(2) of the Act. Substantial planning
has taken place to address potential impacts to the PMJM should the
reservoir expansion proceed, in part because proposed expansion of
reservoir storage capacity would impact existing critical habitat on
the Upper South Platte River (Unit 10). While designation of critical
habitat along Plum Creek will provide additional regulatory protection
to PMJM habitat in the area, the project sponsors are developing
alternatives to address impacts to designated critical habitat on Plum Creek should the planned project move forward.
(33) Comment: One commenter stated that we should exclude the Penley Ranch property along Indian Creek, Unit 9 (West Plum Creek) from critical habitat, on the basis that trapping conducted in 2007 did not document the PMJM on the property and the Service agreed at the time the PMJM was ``not likely to be present'' on the site. The commenter further stated that if the property was not excluded, we should develop more appropriate (less extensive) sitespecific boundaries of critical habitat on the site.
Our Response: While the PMJM was not captured during the 2007
trapping effort, habitat on the site appeared to support the physical
and biological features essential to the conservation of the PMJM. We
concurred in 2007 that the PMJM was not likely present and that a
proposed rural residential development on the property would not be
likely to adversely affect the PMJM. We stated that our concurrence was
valid only for one year. The residential development proposed did not
take place. Captures of the PMJM have occurred in areas of comparable
or lower quality habitat downstream on Indian Creek. PCEs are present
along this reach of Indian Creek. While no further trapping efforts
have taken place, we believe that the PMJM likely uses the reach, at a
minimum as a movement corridor, and may occupy portions of the
property. We therefore conclude that this reach of Indian Creek is
occupied and merits designation as critical habitat. Indian Creek on
the Penley Ranch is within the RCZ established under the Douglas County
HCP. Outward extent of critical habitat on the property is being
designated consistent with the boundaries of the Douglas County RCZ
(see the Delineation of Critical Habitat Boundaries section below). See also related comment 61 and our response.
(34) Comment: One commenter stated that the upstream extent of critical habitat along Bear Creek in Unit 9 (West Plum Creek) should terminate at the Lake Waconda Dam, as the lake and Perry Park Golf Course create a barrier to PMJM movement, and any PMJM population upstream from the golf course is isolated.
Our Response: After we considered the extent to which the dam,
lake, adjacent golf course, and associated development form a barrier
to PMJM movement up and down stream, and assessed the quantity and
spatial arrangement of PCEs on the reach upstream of the lake, we
elected to limit the upstream extent of designated critical habitat
along Bear Creek to the base of the Lake Waconda Dam (see the Summary
of Changes from the Proposed Rule section below). Based on review of
aerial photographs, we determined that the area upstream of the dam
does not contain the physical and biological features essential to the
conservation of the PMJM in the necessary spatial arrangement and distribution.
(35) Comment: One commenter suggested that we designate critical habitat to link all four proposed subunits of Unit 10 (Upper South Platte River), Jefferson and Douglas Counties, and also designate their tributaries as critical habitat.
Our Response: The Service has determined that connecting these subunits to form one very large critical habitat unit is not necessary. Land ownership and land uses vary along the South Platte River and its tributaries. While areas designated as critical habitat largely consist of National Forest System lands, many of the intervening reaches do not. Quality of PMJM habitat is not consistent. Reaches of lesser quality that are not being designated as critical habitat generally correspond to those that are not federally owned. In addition, the large West Plum Creek Unit (Unit 9), which corresponds to a large recovery population required in the Draft Plan, is also being designated in the same HUC. Tributaries have been examined, and we are designating only those that we determined meet the definition of critical habitat based on occurrence of physical and biological features essential to the conservation of the PMJM and proximity to known PMJM occurrence. (See also our response to comment 6.) (36) Comment: One commenter requested that we exclude critical habitat in Teller County because no PMJM have been documented there.
Our Response: The PMJM has been documented on Trout Creek, Unit 10
(South Platte River), at or very near the Douglas CountyTeller County
line (Service 2010). Based on contiguous habitat along Trout Creek in
Teller County, we are designating critical habitat upstream to 7,600 ft
(2,300 m) in elevation. We believe that this elevation provides a
reasonable estimate of the upstream extent of habitat likely to be occupied by the PMJM in this reach.
(37) Comment: Two commenters requested exclusion of Unit 11 (Monument Creek), El Paso County, from critical habitat based on potential economic impacts and because protections for the PMJM are already in place as a result of the 1998 listing and local limits on development.
Our Response: Our DEA addressed the extent of
FOR FURTHER INFORMATION CONTACT
Susan Linner, Field Supervisor, U.S. Fish and Wildlife Service, Colorado Ecological Services Office (see ADDRESSES). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 8008778339.