[Federal Register Volume 69, Number 36 (Tuesday, February 24, 2004)]
[Proposed Rules]
[Pages 8359-8364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4025]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ26
Endangered and Threatened Wildlife and Plants; Extension of
Amended Special Regulations for the Preble's Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: On May 22, 2001, the Fish and Wildlife Service (Service)
adopted special regulations governing take of the threatened Preble's
meadow jumping mouse (Zapus hudsonius preblei). The special regulations
provide exemption from take provisions under section 9 of the
Endangered Species Act for certain activities related to rodent
control, ongoing agricultural activities, landscape maintenance, and
existing uses of water. On October 1, 2002, the Service amended those
regulations to provide exemptions for certain activities related to
noxious weed control and ongoing ditch maintenance activities. This
action proposes to extend the special regulations permanently.
DATES: Comments must be received on or before March 25, 2004, to
receive consideration. Public hearing requests must be received by
March 10, 2004.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the Fish
and Wildlife Service's Colorado Field Office, Ecological Services,
Suite 361, Lakewood, CO 80215. Comments and public hearing requests
should be submitted to the same address.
FOR FURTHER INFORMATION CONTACT: In Colorado, contact Susan Linner,
Field Supervisor, at the above address, or telephone (303) 275-2370. In
Wyoming, contact Brian Kelly, Field Supervisor, Cheyenne, WY, at
telephone (307) 772-2374.
SUPPLEMENTARY INFORMATION:
[[Page 8360]]
Background
The final rule listing the Preble's meadow jumping mouse (Zapus
hudsonius preblei) (Preble's) as a threatened species under the
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et
seq.), was published in the Federal Register on May 13, 1998 (63 FR
26517). Section 9 of the Act prohibits take of endangered wildlife. The
Act defines take to mean harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect or to attempt to engage in any such
conduct. However, the Act also provides for the authorization of take
and exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth
in section 10 of the Act. For federally funded or permitted activities,
take of listed species may be allowed through the consultation process
of section 7 of the Act. While section 9 of the Act establishes
prohibitions applicable to endangered species, the Service has issued
regulations (50 CFR 17.31) applying those same prohibitions to
threatened wildlife. These regulations may be tailored for a particular
threatened species through promulgation of a special rule under section
4(d) of the Act. When a special rule has been established for a
threatened species, the general regulations for some section 9
prohibitions do not apply to that species, and the special rule
contains the prohibitions, and exemptions, necessary and advisable to
conserve that species.
On May 22, 2001 (66 FR 28125), we adopted a final section 4(d)
special rule that provided exemptions from section 9 take prohibitions
for certain rodent control activities, ongoing agricultural activities,
maintenance and replacement of existing landscaping, and existing uses
of water. On October 1, 2002 (67 FR 61531), we amended this rule to
provide exemptions for certain noxious weed control and ongoing ditch
maintenance activities. The final special rule, as amended, is
effective until May 22, 2004. We are now proposing to extend the
amended special rule permanently.
We believe that the special rule, as amended, is necessary and
advisable to provide for the conservation of the Preble's. The special
rule has been shown to provide for the conservation of the Preble's
mouse by allowing activities that help to maintain the habitat
characteristics needed by the species. Although such activities,
including ditch maintenance and noxious weed control, may result in
negligible levels of take, they support the continued presence of
occupied habitat that might otherwise be lost to succession or invasive
species. Also, by offering flexibility to private landowners for
ongoing activities that will not impede the conservation of the
species, the special rule also provides an incentive for landowners to
pursue voluntary conservation efforts and advance our understanding of
the species. The rule has garnered support of State and local
governments, private landowners, and other interested parties, and we
believe that the proposed permanent extension of the special rule it
will contribute to a lasting, cooperative approach for the recovery of
the species.
The special 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, section 10(a)(1)(B) of the Act
allows the public to obtain from us, in appropriate circumstances,
permits allowing take of Preble's, providing that the take is
incidental to, and not the purpose of, each action or project. One of
the purposes of the special rule is to make, in advance, general
decisions that certain types of activities are consistent with the
conservation of the Preble's without requiring people to seek
additional section 10 permits authorizing those activities. This
purpose will be continued by the proposed permanent extension.
Additional activities that result in take of Preble's that are not
exempted by the special rule may still be permitted by the Service
under section 10 of the Act.
Currently, the State of Colorado, the Service, and various local
governments in Colorado and Wyoming are working together to develop
plans to conserve the Preble's and its habitat. This collaborative
approach is expected to result in the development of Habitat
Conservation Plans (HCPs) and applications to the Service for
incidental take permits under section 10 of the Act. These HCPs will
provide an important component of a lasting, effective, and efficient
recovery program for the Preble's.
Second, section 7 of the Act requires Federal agencies, in
consultation with and with the assistance of the Service, to use their
authorities to conserve listed species and ensure that actions
authorized, funded, or carried out by the agency are not likely to
jeopardize the Preble's. On private land, Federal actions in Preble's
habitat that may require consultation include the issuance of section
404 permits by the Army Corps of Engineers for dredge and fill
activities regulated under the Clean Water Act. A section 7
consultation was conducted on the current special rule, and the ensuing
biological opinion addressed a wide array of potential take from
private actions, some of which have unknown timeframes, some of which
occur sporadically, and some of which occur on a regular schedule. The
biological opinion for the special rule found that the level of take
anticipated to occur from a 36-month period was not considered to be
biologically significant to the recovery of the Preble's. Because the
consultation applied to take that could occur at any time and making
the special rule permanent does not affect the Preble's or its critical
habitat not previously considered, we have determined that it is not
necessary to re-initiate consultation on the proposed permanent
extension of the special rule.
Third, a variety of Federal, State, and local programs are
available to help preserve the Preble's through the acquisition,
preservation, and management 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 wetlands and
riparian habitats.
Fourth, we are committed to development of a recovery program for
the Preble's that achieves recovery of the species and provides
solutions to conflicts between the species' recovery and economic
activities, including agriculture. We believe that a recovery program
that integrates both biological and social factors will have the
highest chance of success. The Service has established a Recovery Team
for the Preble's, and a draft recovery plan will be available for
public review in the near future.
The May 22, 2001, special rule and the October 1, 2002, amendment
recognized that the take exemptions provided by the rule would support
the development of meaningful conservation efforts for the Preble's by
State and local governments, agricultural interests, and the general
public. The rule and the amendments identified the following
conservation benefits to the Preble's: (1) Exemptions
[[Page 8361]]
regarding rodent control and landscaping would elicit support from
landowners for Preble's conservation and recovery; (2) exemptions for
ongoing agricultural practices and the exercise of existing water
rights would provide a positive incentive for agricultural interests to
participate in voluntary conservation activities and advance our
understanding of species biology and ecology; (3) exemptions for
noxious weed control would facilitate maintaining desirable natural
vegetation on which the Preble's depends for survival; and (4)
exemptions for ditch maintenance would help assure that currently
existing Preble's habitat along ditches remains functionally viable.
Provisions of the Rule
The special rule for the Preble's meadow jumping mouse found at 50
CFR 17.40(l) will expire on May 22, 2004. We wish to extend the amended
rule permanently to continue the benefits it provides. We recognize
that additional information on the Preble's will become available in
forthcoming years. We will evaluate this information regarding possible
impacts from exempted activities to determine whether any changes, up
to and including discontinuance, should be made to the special rule.
Additionally, we are making a correction to the entry for the
Preble's meadow jumping mouse on the List of Endangered and Threatened
Wildlife in 50 CFR 17.11(h). When the special rule for the Preble's was
added to 50 CFR 17.40(l) on May 22, 2001 (66 FR 28125), we failed to
amend the table in 50 CFR 17.11(h) to reflect the existence of the new
special rule. We are, therefore, making the correction to the table in
50 CFR 17.11(h) in this rulemaking action.
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. Our practice is to make comments,
including names and home addresses of respondents, available for public
review during regular business hours. In some circumstances, we will
withhold a respondent's identity from the rulemaking record, as
allowable by law. If you wish for us to withhold your name or address,
you must state this request prominently at the beginning of your
comment. We will not consider anonymous comments. We will make all
submissions from organizations or businesses available for public
inspection in their entirety (see ADDRESSES section).
In promulgating a final regulation on this species, we will take
into consideration the comments and additional information we receive.
Such communications may lead to a final regulation that differs from
this proposal.
Public Hearing
The Act provides for a public hearing on this proposal, if
requested. Requests must be filed by the date specified in the DATES
section above. Such requests must be made in writing and addressed to
the Field Supervisor (see ADDRESSES section).
Required Determinations
We prepared a Record of Compliance for the May 22, 2001, final rule
that exempted the four activities of rodent control, ongoing
agricultural activities, landscaping, and ongoing use of existing water
rights from the take prohibitions listed in section 9 of the Act. A
Record of Compliance certifies that a rulemaking action complies with
the various statutory, Executive Order, and Department Manual
requirements applicable to rulemaking. Amendment of the May 22, 2001,
rule to include the two additional exemptions (noxious weed control and
ditch maintenance activities) did not add any significant elements to
this Record of Compliance. Permanent extension of the amended special
rule also does not add any significant elements to this Record of
Compliance.
Without this extension, activities included in the special rule, as
amended, would no longer be exempted from the take prohibitions. This
proposed rule would continue the exemptions and allow landowners to
engage in certain activities, as identified in the rule, that may
result in take of Preble's. Without this extension, anyone engaging in
those activities would need to seek an authorization from us through an
incidental take permit under section 10(a)(1)(b) or an incidental take
statement under section 7(a)(2) of the Act. This process takes time and
can involve an economic cost. This rule allows these landowners to
avoid the costs associated with abstaining from conducting any such
activities that may result in take, modifying these activities to
prevent take from occurring, or seeking an incidental take permit from
us.
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget (OMB) has determined that this rule is
a significant regulatory action. This rule will not have an annual
economic impact of more than $100 million, or significantly affect any
economic sector, productivity, jobs, the environment, or other units of
government. This rule reduces the regulatory burden of the listing of
the Preble's meadow jumping mouse under the Act as a threatened species
by continuing certain exemptions to the section 9 take prohibitions
that would otherwise apply throughout the Preble's range. However, OMA
has determined that this proposed rule raises novel legal or policy
issues.
Preble's habitat, which overlaps farming and ranching businesses,
primarily affects four southeast Wyoming counties: (1) Converse; (2)
Laramie; (3) Platte; and (4) Albany. This four-county area contains
1,739 farms and ranches covering 8.9 million acres. The average size of
an agricultural operation is about 5,100 acres, although individual
operations vary greatly in size. The total marketing value of livestock
and crops, measured as cash receipts, is about $182.5 million.
As previously discussed, the Service has adopted special
regulations pursuant to section 4(d) of the Act for Preble's, and these
regulations are currently set to expire on May 22, 2004. Specifically,
these regulations provide exemption from take provisions under section
9 for certain activities related to rodent control, ongoing
agricultural activities, landscape maintenance, perfected water rights,
certain noxious weed control, and ditch maintenance activities. Should
this regulation expire, such activities could result in the incidental
take of Preble's, which is prohibited under section 9 of the Act.
However, section 10 of the Act does allow landowners to obtain a permit
to conduct otherwise lawful activities that may result in incidental
take of a listed species. The incidental take permit requires the
applicant to prepare, and the Service approve, a habitat conservation
plan (HCP). The HCP may include certain restrictions to agricultural
activities to minimize incidental take of Preble's.
The types of restrictions the Service might impose on agricultural
activities to minimize take are expected to vary significantly from one
application to another, depending on the specific situation. However,
Service guidelines call for mitigating the take of Preble's to the
maximum extent practicable. Examples of mitigation conditions include
fencing, planting willows, or other measures intended to create a
buffer zone along waterways in riparian
[[Page 8362]]
areas. The Service may also impose restrictions on the methods or
timing of activities associated with irrigation ditch maintenance.
The primary economic impacts to landowners associated with
enforcement of the Act, should this 4(d) rule expire, are the costs of
preparing HCPs for the Preble's and the costs associated with any
activity restrictions imposed by the Service to minimize take of the
Preble's. These impacts would potentially affect agricultural
operations in southeast Wyoming. The primary land use activities likely
to be impacted by sections 9 and 10 of the Act are haying and grazing,
and irrigation ditch maintenance. A short discussion follows of the
impacts farmers and ranchers could incur should this regulation lapse.
Irrigation Canal and Ditch Maintenance Activities
The three commonly used methods of ditch maintenance are burning,
flushing (flowing water through a ditch to clear blockages), and
dipping (mechanically clearing blockages). Of these three options, the
most cost effective is burning, which may also be the most likely to
result in incidental take of Preble's. Because of this, some landowners
are concerned that the burning will be prohibited, or severely
restricted, after the expiration of the special rule. This would have
significant impacts on their irrigation activities.
Although irrigation ditch maintenance is not a major cost item for
most individual agriculture producers under current conditions,
restrictions on the burning of ditches could force some producers to
acquire new mechanical cleaning equipment or hire the use of such
equipment on a custom basis. Both of these options would increase a
producer's costs.
An example of the potential impacts to irrigation canal and ditch
maintenance is illustrated using estimates developed by the Wheatland
Irrigation District (WID). WID estimates that its annual irrigation
ditch maintenance costs would increase by approximately 250 percent if
burning is reduced by 50 percent. If all burning were prohibited,
irrigation ditch maintenance costs could increase by approximately 400
percent annually.
Haying and Grazing Activities
Haying and grazing activities would also be subject to sections 9
and 10 of the Act to minimize take of the Preble's. To avoid violating
this provision, landowners would have to either cease activities that
might result in incidental take, or submit to the Service an
application for an incidental take permit, including an HCP. As with
irrigation canal and ditch maintenance activities, landowners could
expect some restrictions or conditions on haying and grazing activities
as mitigation for the incidental take of Preble's.
The types of restrictions or conditions would vary depending upon
the situation. In situations where riparian areas have been degraded by
intensive grazing activity, mitigation measures for an incidental take
permit may include restrictions on the number of animal unit months or
AUM's (an AUM is the amount of forage needed to sustain one cow and her
calf, one horse, or five sheep or goats for a month) within riparian
areas, the construction of fencing with water gaps to keep herds out of
riparian areas, and planting willows along stream banks. In situations
where riparian areas are not degraded, mitigation measures may be
minimal. The economic impacts of sections 9 and 10 of the Act on haying
and grazing activities should this regulation expire can thus be
expected to vary widely from landowner to landowner.
By permanently extending this 4(d) rule, farm and ranch operators
will avoid future costs associated with ensuring that their otherwise
legal activities avoid incidentally taking Preble's. Consequently, the
economic effect of the rule benefits landowners and the economy. This
effect does not rise to the level of ``significant'' under Executive
Order 12866.
This rule should not create inconsistencies with other Federal
agencies' actions. Other Federal agencies are mostly unaffected by this
proposed rule.
This rule should not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Because this proposed rule would allow landowners to continue otherwise
prohibited activities without first obtaining individual authorization,
the proposed rule's impacts on affected landowners is positive.
We have previously promulgated section 4(d) special rules for this
and other species, including the amended special rule for the Preble's
pertaining to rodent control, ongoing agricultural activities,
landscaping, existing uses of water, noxious weed control, and ongoing
ditch maintenance activities. This rule simply proposes to permanently
extend the effective period of the amended special rule for the
Preble's. However, OMB has determined that this proposed rule raises
novel legal or policy issues. Therefore, in accordance with E.O. 12866,
OMB has reviewed this proposed rule.
Regulatory Flexibility Act
We have determined that this proposed rule will not have a
significant economic effect on a substantial number of small entities
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
An initial regulatory flexibility analysis is not required, and a Small
Entity Compliance Guide is not required. This rule reduces the
regulatory burden of the listing of the Preble's as a threatened
species. Without an extension of the amended special rule, all of the
take prohibitions listed in section 9 of the Act would apply throughout
the range of the Preble's. This rule allows certain affected landowners
to continue to engage in certain activities that may result in take of
Preble's, and to avoid the costs associated with abstaining from
conducting these activities to avoid take of Preble's or seeking
incidental take permits from us.
As previously discussed, this rulemaking will primarily affect farm
and ranch operations within four counties in southeastern Wyoming.
Although the precise numbers of affected operations are not known, the
total number of farms and ranches in the area is estimated to be 1,739.
The 2002 total cash receipts for these operations were approximately
$182.5 million, which represents about 25 percent of the State total.
Based on the State ratio of net farm income to animal and crop cash
receipts (12 percent), the estimated average net farm income in this
area would be $21,900.
The Office of Advocacy for the Small Business Administration
defines small entities in the farm and ranch sector as those each
having less than $750,000 in annual receipts. This qualifies most of
the farms and ranches in the area as small businesses, according to
data published in 1998 by the U.S. Department of Agriculture.
The permanent extension of the 4(d) rule will allow these small
entities to avoid incurring costs associated with the development of an
HCP and the administrative costs that would reflect the effort to
obtain an incidental take permit. Administrative costs alone could cost
between $3,000 and $4,000, according to a recent economic analysis
conducted by the Service as part of the critical habitat designation
for the Preble's. Depending on how such costs are expensed, the cost to
obtain a permit could be relatively significant.
[[Page 8363]]
This rulemaking avoids such impacts by providing an exemption from
the take provisions under section 9 for certain activities related to
rodent control, ongoing agricultural activities, landscape maintenance,
perfected water rights, certain noxious weed control, and ditch
maintenance activities. Consequently, we are certifying that this
rulemaking will not have a significant economic effect on a substantial
number of small entities.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule will not
have an annual effect on the economy of $100 million or more; will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises. As described above, this proposed rule would continue to
reduce regulatory burdens on affected entities, who are mostly
agricultural producers.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), this rule will not impose an unfunded mandate on State,
local, or tribal governments, or the private sector, of more than $100
million per year. This rule will not have a significant or unique
effect on State, local, or tribal governments, or the private sector. A
Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. By continuing reductions in the
regulatory burden placed on affected landowners resulting from the
listing of the Preble's as a threatened species, this rule reduces the
likelihood of potential takings. Affected landowners will continue to
have more freedom to pursue certain activities that may result in take
of Preble's without first obtaining individual authorization.
Federalism
In accordance with Executive Order 13132, this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. Currently, the State of Colorado, the Service,
and various local governmental entities in Colorado and Wyoming are
working together to develop plans to conserve the Preble's and its
habitat. This collaborative approach is expected to result in the
development of HCPs that should support a lasting, effective, and
efficient conservation program for the Preble's. To support such
efforts, we wish to permanently extend the special rule. The current
amended special rule would otherwise expire on May 22, 2004.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Executive Order.
Paperwork Reduction Act
We have examined this rule under the Paperwork Reduction Act of
1995 and found it to contain no requests for information. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid Office
of Management and Budget control number.
National Environmental Policy Act
The National Environmental Policy Act analysis has been conducted.
An Environmental Assessment was prepared for the May 22, 2001, final
special rule, and for the additional exemptions covered in the amended
rule. The extension of the October 1, 2002, amended special rule does
not alter the analyses made in the Environmental Assessment. The
Environmental Assessment discussed impacts to the mouse that are not
specific to any time period, that is, they apply equally to both the
short term and the long term. This is due to the fact that any possible
take from year to year is not cumulative, because the species has a
short life span, and the types of activities allowed under the special
rule are not related to any particular timeframe. Therefore, no
modification of the Environmental Assessment is needed.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951) and Executive Order 13175, we have
evaluated possible effects on federally recognized Indian Tribes. We
have determined that, because no Indian trust resources occur within
the range of the Preble's, this rule has no effects on federally
recognized Indian Tribes.
Executive Order 13211
We have evaluated this rule in accordance with Executive Order
13211 and have determined that this rule has no effects on energy
supply, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service proposes to amend 50 CFR part 17, as set
forth below:
PART 17--[AMENDED]
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. Section 17.11(h) is amended by revising the entry for Preble's
meadow jumping mouse, under ``Mammals,'' on the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 8364]]
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Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
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MAMMALS
* * * * * * *
Mouse, Preble's meadow jumping... Zapus hudsonius U.S.A. (CO, WY).... ......do........... T 636 17.95(a) 17.40(l)
preblei.
* * * * * * *
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Sec. 17.40 [Amended]
3. Amend paragraph (l) of Sec. 17.40 by removing paragraph (l)(4)
and redesignating paragraph (l)(5) as paragraph (l)(4).
Dated: January 21, 2004.
Julie MacDonald,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-4025 Filed 2-19-04; 4:21 pm]
BILLING CODE 4310-55-P