Endangered and Threatened Wildlife and Plants; Endangered Status for Gunnison Sage-Grouse

Federal Register, Volume 78 Issue 8 (Friday, January 11, 2013)

Federal Register Volume 78, Number 8 (Friday, January 11, 2013)

Proposed Rules

Pages 2485-2538

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2012-31667

Page 2485

Vol. 78

Friday,

No. 8

January 11, 2013

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Endangered Status for Gunnison Sage-Grouse; Proposed Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Docket No. FWS-R6-ES-2012-0108; 4500030113

RIN 1018-AZ20

Endangered and Threatened Wildlife and Plants; Endangered Status for Gunnison Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act of 1973, as amended (Act). The effect of this regulation would be to add the Gunnison sage-grouse to the Lists of Endangered and Threatened Wildlife under the Act.

DATES: We will accept comments received or postmarked on or before March 12, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by February 25, 2013.

ADDRESSES: You may submit comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R6-ES-

2012-0108, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, check on the Proposed Rules link to locate this document. You may submit a comment by clicking on ``Comment Now!''

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2012-0108; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information).

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Western Colorado Supervisor, U.S. Fish and Wildlife Service, Western Colorado Field Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946; telephone 970-243-2778; facsimile 970-245-6933. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Listing a species as an endangered or threatened species can only be completed by issuing a rule. In this case, we are required by a judicially approved settlement agreement to make a final determination on this proposal regarding the Gunnison sage-grouse by no later than September 30, 2013.

This rule proposes the listing of the Gunnison sage-grouse as endangered.

We are proposing to list the Gunnison sage-grouse as endangered under the Endangered Species Act.

The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on one or more any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

Based on the best available scientific and commercial data, we have determined that the principal threat to Gunnison sage-grouse is habitat loss, degradation, and fragmentation due to residential, exurban, and commercial development and associated infrastructure such as roads and power lines. The human population is increasing throughout much of the range of Gunnison sage-grouse, and data indicate this trend will continue. With this growth, we expect an increase in human development, further contributing to loss and fragmentation of Gunnison sage-grouse habitats. Other threats to the species include improper grazing management; predation (often facilitated by human development or disturbance); genetic risks in the declining, smaller populations; and inadequate local, State, and Federal regulatory mechanisms (e.g., laws, regulations, zoning) to conserve the species. Other factors that may not individually threaten the continued existence of Gunnison sage-

grouse but, collectively, have the potential to threaten the species, include invasive plants, fire, and climate change, and the interaction of these three factors; fences; renewable and non-renewable energy development; pintildeon-juniper encroachment; water development; disease;, drought; and recreation.

We will seek peer review. We are seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available science and application of that science and to provide any additional scientific information to improve this proposed rule. Because we will consider all comments and information received during the comment period, our final determination may differ from this proposal.

Information Requested

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

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(e) Other natural or manmade factors affecting its continued existence.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Any information on the biological or ecological requirements of the species and ongoing conservation measures for the species and its habitat.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made ``solely on the basis of the best scientific and commercial data available,''.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit information via http://www.regulations.gov, your entire submission--including any personal identifying information--will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Western Colorado Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On January 18, 2000, we designated the Gunnison sage-grouse as a candidate species under the Act, with a listing priority number of 5. However, a Federal Register notice regarding this decision was not published until December 28, 2000 (65 FR 82310). Candidate species are plants and animals for which the Service has sufficient information on their biological status and threats to propose them as endangered or threatened under the Act, but for which the development of a proposed listing regulation is precluded by other higher priority listing activities. A listing priority of 5 is assigned to species with high-

magnitude threats that are nonimminent.

On January 26, 2000, American Lands Alliance, Biodiversity Legal Foundation, and others petitioned the Service to list the Gunnison sage-grouse (Webb 2000, pp. 94-95). In 2003, the U.S. District Court for the District of Columbia ruled that the species was designated as a candidate by the Service prior to receipt of the petition, and that the determination that a species should be on the candidate list is equivalent to a 12-month finding (American Lands Alliance v. Gale A. Norton, C.A. No. 00-2339, D. DC). Therefore, we did not need to respond to the petition.

In annual documents that we call Candidate Notices of Review (CNOR), we summarize the status and threats that we evaluated in order to determine that species qualify as candidates and to assign a listing priority number (LPN) to each species or to determine that species should be removed from candidate status. In the 2003 Candidate Notice of Review (CNOR), we elevated the listing priority number for Gunnison sage-grouse from 5 to 2 (69 FR 24876; May 4, 2004), as the imminence of the threats had increased. In the subsequent CNOR (70 FR 24870; May 11, 2005), we maintained the LPN for Gunnison sage-grouse as a 2. A LPN of 2 is assigned to species with high-magnitude threats that are imminent.

Plaintiffs amended their complaint in the DC district court in May 2004, to allege that the Service's warranted-but-precluded finding and decision not to emergency list the Gunnison sage-grouse were in violation of the Act. The parties filed a stipulated settlement agreement with the court on November 14, 2005, which included a provision that the Service would make a proposed listing determination by March 31, 2006. On March 28, 2006, the plaintiffs agreed to a one-

week extension (April 7, 2006) for this determination.

In April 2005, the Colorado Division of Wildlife (CDOW) (hereafter, Colorado Parks and Wildlife (CPW), pursuant to the agency's reorganization on July 1, 2011) applied to the Service for an Enhancement of Survival Permit for the Gunnison sage-grouse pursuant to section 10(a)(1)(A) of the Act. The permit application included a proposed Candidate Conservation Agreement with Assurances (CCAA) between CPW and the Service. The standard that a CCAA must meet is that the ``benefits of the conservation measures implemented by a property owner under a CCAA, when combined with those benefits that would be achieved if it is assumed that conservation measures were also to be implemented on other necessary properties, would preclude or remove any need to list the species'' (64 FR 32726, June 17, 1999). The CCAA, the permit application, and the environmental assessment were made available for public comment on July 6, 2005 (70 FR 38977). The CCAA and environmental assessment were finalized in October 2006, and the associated permit was issued on October 23, 2006. Landowners with eligible property in southwestern Colorado who wish to participate can voluntarily sign up under the CCAA and associated permit through a Certificate of Inclusion by providing habitat protection or enhancement measures on their lands. If the Gunnison sage-grouse is listed under the Act, the CCAA remains in place and the permit authorizes incidental take of Gunnison sage-grouse due to otherwise lawful activities specified in the CCAA, when performed in accordance with the terms of the CCAA (e.g., crop cultivation, crop harvesting, livestock grazing, farm equipment operation, commercial/residential development, etc.), as long as the participating landowner is performing conservation measures voluntarily agreed to in the Certificate of Inclusion. Fourteen Certificates of Inclusion have been issued by the CPW and Service to private landowners to date (CPW 2012b, p. 11).

On April 11, 2006, the Service determined that listing the Gunnison sage-grouse as an endangered or threatened species was not warranted and published the final listing determination in the Federal Register on April 18, 2006 (71 FR 19954). As a result of this determination, we also removed Gunnison sage-grouse from the candidate species list.

On November 14, 2006, the County of San Miguel, Colorado; Center for Biological Diversity; WildEarth Guardians; Public Employees for Environmental Responsibility; National Audubon Society; The Larch Company; Center for Native Ecosystems; Sinapu; Sagebrush Sea Campaign; Black Canyon Audubon Society; and Sheep Mountain

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Alliance filed a complaint for declaratory and injunctive relief, pursuant to the Act, and on October 24, 2007, filed an amended complaint for declaratory and injunctive relief, alleging that our determination on the Gunnison sage-grouse violated the Act. On August 18, 2009, a stipulated settlement agreement and Order was filed with the court, with a June 30, 2010, date by which the Service was to submit to the Federal Register a 12-month finding, pursuant to 16 U.S.C. 1533(b)(3)(B), that listing the Gunnison sage-grouse under the Act is (a) Warranted; (b) not warranted; or (c) warranted but precluded by higher priority listing actions. We then published a notice of intent to conduct a status review of Gunnison sage-grouse on November 23, 2009 (74 FR 61100). Later, the Court approved an extension of the June 30, 2010, deadline for the 12-month finding to September 15, 2010.

On September 15, 2010, we determined that listing the Gunnison sage-grouse as an endangered or threatened species was warranted but precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. This finding was published in the Federal Register on September 28, 2010 (75 FR 59804). The finding also reported that the species was added to the candidate species list and assigned a listing priority of 2 based on the Service's determination that threats to the species were of high magnitude and immediacy, as well as the taxonomic classification of Gunnison sage-grouse as a full species.

On September 9, 2011, the U.S. District Court for the District of Columbia approved a settlement agreement laying out a multi-year listing work plan for addressing candidate species, including the Gunnison sage-grouse. As part of this agreement, the Service agreed to publish a proposed rule in the Federal Register on whether to list Gunnison sage-grouse and designate critical habitat by September 30, 2012. On August 13, 2012, in response to a motion from the Service, the U.S. District Court for the District of Columbia modified the settlement agreement to extend this original deadline by 3 months, to December 30, 2012. The deadline for the final rule did not change and remains September 30, 2013. The request for an extension was made to allow more time to complete the proposed rule and more opportunity to engage with State and local governments, landowner groups, and other entities to discuss the conservation needs of the species.

Background

Gunnison sage-grouse and greater sage-grouse (a similar, closely related species) have similar life histories and habitat requirements (Young 1994, p. 44). In this proposed rule, we use information specific to the Gunnison sage-grouse where available but still apply scientific management principles for greater sage-grouse (C. urophasianus) that are relevant to Gunnison sage-grouse management needs and strategies, a practice followed by the wildlife and land management agencies that have responsibility for management of both species and their habitat.

Species Information

A detailed discussion of Gunnison sage-grouse taxonomy, the species description, historical distribution, habitat, and life-history characteristics can be found in the 12-month finding published September 28, 2010 (75 FR 59804).

Current Distribution and Population Estimates

Gunnison sage-grouse currently occur in seven widely scattered and isolated populations in Colorado and Utah, occupying 3,795 square kilometers (km\2\) (1,511 square miles mi\2\) (Gunnison Sage-grouse Rangewide Steering Committee) GSRSC 2005, pp. 36-37; CDOW 2009a, p. 1). The seven populations are Gunnison Basin, San Miguel Basin, Monticello-Dove Creek, Pintildeon Mesa, Crawford, Cerro Summit-

Cimarron-Sims Mesa, and Poncha Pass (Figure 1). A comparative summary of the land ownership and recent population estimates among these seven populations is presented in Table 1, and Figures 2 and 3, respectively. Population trends over the last 12 years indicate that six of the populations are in decline. The largest population, the Gunnison Basin population, while showing variation over the years, has been relatively stable through the period (CDOW 2010a, p. 2; CPW 2012a, pp.1-4). Six of the populations are very small and fragmented (all with less than 40,500 hectares (ha) (100,000 acres ac) of habitat likely used by grouse and, with the exception of the San Miguel population, less than 50 males counted on leks (communal breeding areas)) (CDOW 2009b, p. 5; CPW 2012a, p. 3). The San Miguel population, the second largest, comprises six fragmented subpopulations.

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Table 1--Percent Surface Ownership of Gunnison Sage-Grouse Occupied a Habitat

GSRSC \b\ 2005, pp. D-3-D-6; CDOW \c\ 2009a, p. 1

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Gunnison sage-grouse occupied habitat management and ownership

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Population Hectares Acres CO state

BLM \d\ NPS \e\ USFS \f\ CPW land State of Private

board UT

......... ......... % % % % % % %

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Gunnison Basin....................................... 239,953 592,936 51 2 14 3