Endangered and threatened species: Preble's meadow jumping mouse,

[Federal Register: December 3, 1998 (Volume 63, Number 232)]

[Proposed Rules]

[Page 66777-66784]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03de98-30]

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AF30

Endangered and Threatened Wildlife and Plants; Proposed Special Regulations for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

SUMMARY: The Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) (Preble's) was listed as a threatened species under the Endangered Species Act (Act) of 1973 (16 U.S.C. sections 1531 to 1544) on May 13, 1998. At the time the Preble's was listed, a special rule for the conservation of Preble's was not promulgated and therefore virtually all of the restrictions of the Act became applicable to the species. This proposed rule would establish special standards for the conservation of the Preble's over the next 18 months, long enough to devise a more comprehensive and lasting approach for preserving the species.

DATES: Your comments on the proposed rule must be received by February 1, 1999 to receive consideration by the Service.

ADDRESSES: You should send your comments concerning this proposal to LeRoy Carlson, Field Supervisor, Colorado Field Office, Ecological Services, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0207. Comments and materials received are available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service's Colorado Field Office, 755 Parfet Street, Suite 361, Lakewood, Colorado.

FOR FURTHER INFORMATION CONTACT: LeRoy W. Carlson, Field Supervisor, Colorado Field Office (see ADDRESSES section), telephone 303/275-2370.

SUPPLEMENTARY INFORMATION:

Background

The Preble's meadow jumping mouse (Zapus hudsonius preblei), a subspecies of the meadow jumping mouse (Zapus hudsonius) is known to occur only in portions of Colorado and Wyoming. The final rule listing Preble's as a threatened species under the Endangered Species Act was published in the Federal Register on May 13, 1998 (63 FR 26517). Section 4(d) of the Act (16 U.S.C. section 1533) provides that whenever a species is listed as a threatened species, the Secretary of the Interior will issue regulations deemed necessary and advisable to provide for the conservation of the species. This is done in either of two ways.

First, the Fish and Wildlife Service (Service) has issued regulations that generally apply to threatened wildlife virtually all the prohibitions that section 9 of the Act (16 U.S.C. section 1538) establishes with respect to endangered wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to ``take'' any listed wildlife species; i.e., to harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect any threatened or endangered species or to attempt to engage in any such conduct [16 U.S.C. section 1532 (19)].

The Service's regulations for threatened wildlife, however, also provide that a ``special rule'' under section 4(d) of the Act can be tailored for a particular threatened species. In that case, the general regulations applying most section 9 prohibitions to threatened species do not apply to that species, and the special rule is to contain the prohibitions (and exemptions) necessary and appropriate to conserve that species.

At the time Preble's was listed, we did not promulgate a special section 4(d) rule and, therefore, the section 9 prohibitions, including the take prohibitions, became applicable to the species. We are now proposing to issue this special rule for the Preble's to replace those general prohibitions with special measures tailored to the conservation of this species.

We anticipate that this proposed rule will prohibit actions that threaten the Preble's, to the extent necessary to provide for the conservation of the Preble's. It also provides flexibility to private landowners for ongoing activities that will not jeopardize the species. We also believe that this rule would garner the support of State and local governments, private landowners, and other interested parties for a lasting, cooperative approach for the long-term conservation of the species.

This proposed rule is best understood in the context of other regulations and actions, already in place or in development, to provide for conservation of the Preble's.

First, it is important to understand that an activity now prohibited under the general regulations or that would be prohibited under this special rule may still be allowed under section 10 of the Act. That section provides for a person to obtain from us in appropriate

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circumstances a permit allowing the ``incidental'' taking of Preble's. One of the purposes of this proposed rule is to enable us to make, in advance, general decisions that certain types of activities are consistent with the conservation of Preble's, without requiring people to seek individual Section 10 permits authorizing those activities. Additional activities that would result in the take of Preble's still could be permitted by us under section 10 of the Act.

Currently, the State of Colorado, the Service, and various local governmental entities are working together to develop one or more plans to conserve the Preble's and its habitat. This collaborative approach is expected to result in the development of one or more habitat conservation plans and applications to the Service for incidental take permits under section 10 of the Act. These habitat conservation plans will provide the foundation upon which to build a lasting, effective, and efficient recovery program for the Preble's.

Under this planning process, we have held three rounds of public meetings in each of the five geographic subareas that comprise the known range of the Preble's in Colorado. Key riparian areas important to Preble's that require protection have been identified, threats to the Preble's have been ranked in importance, and preliminary strategies to minimize or mitigate adverse impacts to the Preble's have been discussed by stakeholders. Nine Colorado counties and five Colorado cities have passed resolutions supporting this planning process and have indicated that they will consider using their regulations, incentives, and ordinances to protect the Preble's. We are also working with local governments in Wyoming on similar conservation planning efforts.

Both this long-term cooperative approach and this short-term special rule are consistent with the spirit and intent of the November 29, 1995, Memorandum of Agreement between the Secretary of the Interior and the Governor of Colorado. This agreement commits the Service and the State to use the flexibility in State and Federal laws and regulations and promotes participation of a broad spectrum of partners to achieve long-term conservation and development solutions. By involving and taking advantage of the land use planning and other authorities and resources of State and local governments, we believe that we can more effectively provide for the long-term conservation of the Preble's than relying just on our own authorities and resources. One of the purposes of this special rule is to begin allowing for that cooperation among us, the States, and local governments.

The second important component of the context for this special rule is that Federal agencies are required under section 7 of the Act to consult with us to ensure that their actions are not likely to jeopardize the Preble's. For consultations that involve the use of Federal land, we expect that those lands will be managed to contribute to the conservation of the species to the maximum extent possible, lessening the burden on others. Other types of consultations involve actions similar to those that are considered under the section 10 process. For example, many of the activities likely to affect the Preble's will be undertaken wholly or partly in riparian areas, and will be subject to permitting requirements of the Clean Water Act, such as Sec. 404 dredge-and-fill permits to be issued by the Army Corps of Engineers. We expect to apply the same type of approach reflected in this proposed rule, when appropriate, to those consultations.

Third, a variety of Federal, State, and local programs are available to help conserve the Preble's through the acquisition and preservation of its habitat. These include the Service's Partners for Fish and Wildlife Program, the Natural Resource Conservation Service's wetland/riparian habitat protection programs, grant programs administered by Great Outdoors Colorado, city and county open space programs, and activities of local land trusts. In particular, our Partners for Fish and Wildlife Program has proven to be an especially effective approach for wildlife conservation on agricultural lands by providing funding for restoration of wetland and riparian habitats. We intend to dedicate additional funds to our Partners for Fish and Wildlife Program for the conservation of the Preble's on private lands.

Provisions of the Rule

Term of the Rule

We are proposing the conditions contained in this rule to be enforced for a period of 18 months. It is expected that during this time period, comprehensive habitat conservation plans for the Preble's will be developed.

Take Prohibitions

We are proposing that virtually all of the prohibitions under section 9 of the Act that apply to endangered species continue to apply to the Preble's, to the same extent as they apply to other threatened species under our general regulations, except that certain activities would be exempted. This would make it illegal for any person subject to the jurisdiction of the United States to take any Preble's; i.e., to harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect them or to attempt any of these actions. It would also make it illegal to import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any Preble's, or to possess, sell, deliver, carry, transport, or ship any Preble's that have been taken illegally.

Exempted Activities

We are proposing to include in this rule the following exemptions, provided that the activities resulting in such take are conducted in accordance with the requirements identified in this special rule. 1. Activities Outside of Mouse Protection Areas and Potential Mouse Protection Areas

In this rule, we are proposing to exempt all incidental take outside of specified Mouse Protection Areas and Potential Mouse Protection Areas (which are further explained below). As with many other listed species, the Service maintains records of known occurrence of the Preble's, as well as information on high potential habitat areas throughout its range. Mouse Protection Areas are areas where mice have been documented since 1992 and reported to the Service. Potential Mouse Protection Areas are areas that have a high potential to support the Preble's based on habitat conditions. Together these areas include more than 1,000 linear miles of streams and constitute the known locations and potential Preble's habitat in Colorado and Wyoming.

We believe that these areas include sufficient habitat to achieve recovery of the Preble's and that incidental take outside of these areas will be unlikely and would not compromise Preble's conservation efforts. These areas may be amended or adjusted based on new information. 2. Rangewide Exemptions

We are proposing to exempt four types of existing activities from the take prohibitions anywhere within the Preble's range (including within Mouse Protection Areas and Potential Mouse Protection Areas).

1. Rodent control within 10 feet of or inside any structure. The Preble's is generally not found in association with structures such as barns, houses, and other buildings. We believe that any Preble's mortality associated with

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   trapping near these structures would be insignificant and that this exemption will promote public support for Preble's conservation efforts.

2. Ongoing agricultural activities. This exemption provides for a continuation of existing agricultural practices but does not allow an increase of impacts to, or further encroachment upon, Preble's habitat. For example, it does not allow for an increase in grazing intensity in Preble's habitat or mowing closer to a stream supporting the Preble's. Situations where Preble's populations coexist with ongoing agriculture may provide valuable insight into habitat conditions required by the Preble's and the specific types of grazing and farming practices that are compatible with the Preble's.

   We believe that the exemption for agricultural practices will provide a positive incentive for agricultural interests to engage in voluntary conservation activities and will remove much of the existing reluctance by private landowners to allow Preble's surveys to be conducted on their lands. These surveys may lead to a more complete understanding of the status and distribution of the species. With this knowledge, our ability to develop an effective long-term recovery program will be enhanced.

3. Maintenance and replacement of existing landscaping and related structures and improvements, with no increase in impervious surfaces. Some existing landscaping activities, such as lawn mowing and gardening associated with residential or commercial development, golf courses, and parks have disrupted Preble's habitat in certain areas. However, allowing these activities to continue in ways that do not lead to any increases in impervious surfaces within Mouse Protection Areas and Potential Mouse Protection Areas is not expected to adversely affect Preble's conservation and recovery efforts.

4. Existing uses of water associated with the exercise of perfected water rights under State law, and interstate compacts and decrees. The cumulative effect of the development and exercise of water rights has impacted riparian communities and the Preble's in some areas. However, the exercise of certain water rights and water development may have beneficial effects in riparian communities and to the Preble's. Persons with perfected water rights are encouraged to engage in conservation planning efforts to provide voluntarily the flows that may be determined to be important to protect Preble's habitat. Take associated with new water development would be prohibited.

   The Service considered a possible rangewide exemption pertaining to periodic maintenance of existing water supply ditches. Periodic maintenance of ditches includes activities such as burning or clearing vegetation that may impact Preble's habitat. We have concluded, however, that because some water supply ditches may, in fact, provide suitable habitat and dispersal routes for the Preble's, take relating to periodic maintenance of these ditches should be prohibited. We intend to assess the value of water supply ditches to the conservation and recovery of the Preble's, both in specific areas where use of these ditches by Preble's has been documented, and in areas that may contain suitable habitat to determine if these areas should be classified as Mouse Protection Areas or Potential Mouse Protection Areas. The conclusions from this assessment will be used in conservation and recovery planning for the Preble's. Coordination with the Service is required when activities are planned in areas potentially significant for the Preble's. 3. New Development in Mouse Protection Areas and Potential Mouse Protection Areas

   Under this proposed rule, States, counties, and/or municipalities which manage land use at the local level may, at their option and upon concurrence by the Service, adopt and enforce necessary protective standards for the Preble's, as follows:

   1. State or local authorities will identify to us their legal authorities to protect Preble's habitat. They will also commit to use those authorities to enforce the Preble's protection standards described below;

   2. We will review these authorities and provide concurrence that the authorities are adequate to protect Preble's habitat; and

   3. Upon receiving our concurrence, State/local authorities may approve development or actions that are consistent with the mouse protection standards and mitigation guidelines described below.

      The Service will closely monitor implementation of this rule by State and local governments and provide assistance as required. We will meet quarterly with each governmental entity which has received written concurrence from us recognizing its present authority and ability to protect the Preble's.

      Projects or actions within the jurisdiction of local governmental entities that elect not to enforce these standards would be subject to all the prohibitions on take in this proposed rule, unless the activity is otherwise exempt in this proposed rule. However, if you are undertaking an action that may take the Preble's, including significantly modifying its habitat within an area where the local government has chosen not to use the provisions in this rule, we will work directly with you to develop a habitat conservation plan and an incidental take permit under section 10. If there is Federal approval or funding involved, we will review the action under section 7 of the Act (16 U.S.C. section 1536).

      In cases where an individual habitat conservation plan is required for a specific property, the applicant will be responsible for the costs of developing and implementing the habitat conservation plan. Habitat conservation plans will be consistent with provisions of this rule, including the mouse protection standards and associated mitigation guidelines. However, it may be necessary and desirable to modify these standards and guidelines to address site specific conditions of a project.

      Mouse Protection Standards

      We have developed standards for the Preble's to ensure adequate protection of important habitats known as Mouse Protection Areas and Potential Mouse Protection Areas. For the purposes of this rule, a Mouse Protection Area is the reach of any stream that is located within 1 linear mile upstream and 1 linear mile downstream of any known location of the Preble's that has been reported to the Service since 1992. Major Preble's surveying efforts began in this year and surveys since 1992 represent the known occupied habitat of the Preble's. In instances where two designated Mouse Protection Areas on the same stream are separated by one linear mile or less, one continuous Mouse Protection Area will be established. Biological research shows that there is a high likelihood that these areas will be used by the Preble's on a year-round basis or as a movement corridor.

      A Mouse Protection Area (MPA) also extends 300 feet on each side of the stream measured from the centerline, or 300 feet from the exterior boundary of any contiguous wetlands, whichever is further. The basis for the 300-foot standard is that mice have been documented to regularly move up to 150 feet from streams and wetlands. The remaining 150-foot zone serves as a buffer zone to avoid disturbance of Preble's habitat associated with human activities. We believe that this zone will encompass the normal home range of the Preble's and will provide an

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      adequate buffer from adjoining development.

      The Service recognizes that it may be desirable to modify the boundaries of a Mouse Protection Area to reflect the actual extent of Preble's habitat along a stream or a wetland. The Service may make these changes when biologically justified. In addition, local entities that have agreed to enforce the mouse protection standards may also propose changes to a Mouse Protection Area based on new biological information. We would need to approve any changes.

      There are many areas within the historic range of the Preble's that contain suitable Preble's habitat that have not been surveyed, or if previously surveyed, in which no mice have been captured. These areas, known as Potential Mouse Protection Areas, have high potential of supporting a Preble's population based on the presence of suitable riparian habitat such as willow or shrub vegetation, and/or the proximity to known locations of the Preble's or other suitable habitat. These areas require careful scrutiny because the Preble's may actually live in these locations and they may be important for the recovery and eventual delisting of the Preble's.

      The Service evaluated the potential for new impacts to Mouse Protection Areas from trails, road and utility line crossings, and other development, and determined that Preble's persists along some streams despite the presence of trails, road crossings, limited residential and commercial development, and other habitat disruption. Based on this, we have concluded that new projects or actions will be allowed to modify a cumulative total of up to four percent of the habitat within a Mouse Protection Area under the following conditions:

   1. A State or local government has received Service approval and is willing to adopt and enforce protection standards for the Preble's;

   2. All habitat losses will be fully compensated through mitigation; and

   3. The action will not impede movement of mice up or down riparian corridors.

      A Mouse Protection Area 2 miles long and 600 feet wide encompasses about 145 acres of habitat. This rule would allow less than 6 acres of that habitat in a Mouse Protection Area to be modified without further advance review by us. We believe that exempting this amount of habitat loss, in conjunction with the mitigation, is biologically sound and consistent with the conservation of the Preble's. We are soliciting comment on this point and will conduct a Section 7 consultation.

      Existing roads, structures, and other impervious surfaces would not be considered Preble's habitat for the purposes of computing the four percent.

      Each jurisdiction that elects to implement the mouse protection standards must ensure that the four percent habitat modification limit is not exceeded. Where a Mouse Protection Area crosses jurisdictional boundaries, each jurisdiction would be allowed to modify up to four percent of the habitat in the portion of the Mouse Protection Area that occurs in their jurisdiction.

      Some projects outside (i.e., upstream) of a Mouse Protection Area may adversely impact a Mouse Protection Area or Potential Mouse Protection Area. This may occur when stream flows are altered (for example by an increase in stormwater runoff) or when there is an increase in sedimentation. Projects outside of a Mouse Protection Area or Potential Mouse Protection Area which do not appreciably alter stream flows or sedimentation or otherwise impact a Mouse Protection Area or Potential Mouse Protection Area would be exempted from section 9 incidental take prohibitions. New projects which do result in a significant modification of stream flow or sedimentation or otherwise impact a Mouse Protection Area or Potential Mouse Protection Area would be subject to the section 9 incidental take prohibitions of the Act, unless the activity is otherwise exempt in this proposed rule.

      State and local authorities have the option to implement Preble's protection standards for Mouse Protection Areas, or for both Mouse Protection Areas and Potential Mouse Protection Areas. Where the respective governmental entity elects to accept responsibility for enforcing Preble's protection standards for Potential Mouse Protection Areas, these areas will be treated the same as Mouse Protection Areas until and unless a Service-approved Preble's survey of the area occurs. Where the governmental entity does not elect to accept responsibility for enforcing Preble's protection standards for Potential Mouse Protection Areas, the Service nonetheless strongly encourages the performance of surveys in accordance with Service protocol before habitat modification occurs to avoid potential liability for an action that does result in a prohibited take of a Preble's.

      If a Preble's is trapped during a survey in any Potential Mouse Protection Area, it will be reclassified as a Mouse Protection Area and treated accordingly. If a new survey is conducted and no Preble's are trapped, the area surveyed will no longer be considered a potential mouse protection area. Projects may commence if they do not appreciably alter stream flows or sedimentation or otherwise impact a Mouse Protection Area or Potential Mouse Protection Area. The project proponent must receive Service concurrence with the results of the survey.

      The Service recognizes that the Preble's protection standards may be adjusted based on new information. We will work cooperatively with local governmental entities to apply these standards in a reasonable manner.

      Mitigation Guidelines

      Mouse Protection Areas encompass both the specific habitats that the Preble's is known to frequent, and adjacent habitats that have both direct value to the Preble's and provide an essential buffer from adjacent development and human activity. Armstrong et al. (1997, p. 77) described typical Preble's meadow jumping mouse habitat as ``well- developed plains riparian vegetation with relatively undisturbed grassland and a water source in close proximity.'' Also noted is a preference for ``dense herbaceous vegetation consisting of a variety of grasses, forbs and thick shrubs.'' Moving outward from streams and riparian corridors there generally exists a transition from habitat regularly used by the Preble's to habitat of value largely as a buffer. The goal of all mitigation is to offset impacts to the diverse habitat types required by the Preble's, including essential buffer areas. Mitigation must be accomplished in a manner that does not adversely impact important biological resources, other federally-threatened or endangered species, proposed species, or candidate species. This includes Spiranthes diluvialis (the Ute ladies'-tresses orchid) and Gaura neomexicana ssp. coloradensis (the Colorado butterflyplant).

      Identification of practicable alternatives to a proposed project or action which avoids or minimizes impacts to Preble's habitat is a first step in assessing proposed project impacts. Avoidance and minimization of impacts is preferable to compensatory mitigation. Compensatory mitigation is required to offset unavoidable impacts that remain after all appropriate and practicable avoidance and minimization measures are applied. The goal of compensatory mitigation is to assure that no net loss of habitat value to the Preble's occurs. Thus, while up to four percent of land within any one Mouse Protection Area may be impacted within the tenure of this rule, overall loss of habitat value to the Preble's is not anticipated.

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      Compensatory mitigation may include restoration, enhancement, or creation of habitat. Restoration entails returning the functions of a disturbed, degraded, or totally altered site to its original status before it was damaged by a permitted project or action. For example, installation of an underground pipeline through Preble's habitat may entail removal of vegetation and soil disruption. Regrading and planting of appropriate vegetation could restore habitat value of the area for the Preble's. In general, restoration yields the greatest amount of benefit with the least amount of risk and is the preferable form of mitigation. Restoration will generally require a mitigation ratio of 1.5 to 1 (i.e., 1.5 acre restored for every 1 acre lost).

      We have evaluated restoration and other mitigation techniques. This includes review of the habitat types likely to be mitigated, the potential for failure to meet compensatory mitigation goals, and the temporary loss of habitat that occurs until the full value of mitigation conducted concurrently with impacts is achieved. Ratios that are cited are based on this evaluation and are intended to assure that, at minimum, Preble's habitat values are maintained over the long term.

      Enhancement is the process of improving one or more functions of existing habitat to meet certain goals. For example, altering grazing practices to allow recovery of riparian vegetation could yield substantial benefit to the Preble's. In some cases, supplemental planting of preferred plant species may be appropriate. While this type of mitigation is usually successful, its actual value to the Preble's may be difficult to assess. Depending on the techniques used, enhancement may require a mitigation ratio of 1.5 to 1, or up to 3 to 1.

      Creation entails converting unsuitable habitat types to Preble's habitat. For example, a dry upland could be graded down or subirrigated to provide hydrology that would support establishment of preferred Preble's habitat. This form of mitigation may have a higher chance of failure and should be used only when restoration opportunities are absent. Creation of habitat will generally require a mitigation ratio of 3 to 1.

      A component of mitigation through restoration, enhancement, or creation is the preservation in perpetuity of these habitat areas. However, for the purposes of this rule, preservation of habitat alone will generally not be credited as compensatory mitigation. Preservation may be effectively used in cases where Preble's habitat would certainly be lost without such measures. We will evaluate the acceptability of preservation as compensatory mitigation on a case by case basis.

      In general, acceptable compensatory mitigation will entail in-kind mitigation (the restoration, creation, or enhancement of similar habitat to that being impacted) within the same protection area where impacts occur. Loss of habitat within a Mouse Protection Area will be mitigated by restoring, enhancing, or creating similar habitat nearby. Proposed exceptions, such as mitigating losses to buffer areas by restoring Preble's habitat (out-of-kind mitigation), will be reviewed and approved by the Service as we deem appropriate.

      Local governmental entities will assure development of mitigation that is consistent with these mitigation guidelines and that sufficient funds are available to accomplish the proposed mitigation. Review of the proposed mitigation activities will be a significant aspect of quarterly meetings held with local governmental entities. We anticipate that within the State of Colorado the development of mitigation plans consistent with these guidelines will be accomplished by project proponents in coordination with the local governmental entity and the Colorado Division of Wildlife, with technical assistance provided by the Service.

      Preble's Surveys

      Potential Preble's habitat on private lands has not been thoroughly surveyed. Surveys for the Preble's on private lands will occur only with landowner permission. The conditions contained in this rule should remove some of the existing barriers to conducting Preble's surveys on these lands. Surveys of the Potential Mouse Protection Areas conducted on private lands will provide a conservation benefit to the species. This is particularly true if the survey results are used for developing management plans or habitat conservation plans for the Preble's and prioritizing conservation areas for the mouse.

      Summary of Conservation Benefits

      The proposed prohibitions and exemptions in this rule provide both for short-term conservation of the Preble's and an avenue for the development of meaningful long-term conservation efforts for the Preble's by State and local governments, agricultural interests, developers, and the general public.

      Certain provisions of the rule define protection areas and provide for a significant role by State and local governments as partners in implementing the Act. This is designed to guide development activities during the interim period while comprehensive conservation plans are being developed. These comprehensive plans will provide a basis for habitat conservation plans for the Preble's. By employing existing local development review and land use controls, these provisions greatly increase participation by stakeholders and the level of review that proposed development activities receive. Standards set forth in the proposed rule limit impacts to Mouse Protection Areas and require mitigation that will prevent loss of Preble's habitat value. This level of local development review far surpasses that which we can directly provide. Projects or actions within the jurisdiction of local governmental entities that elect not to enforce these standards are subject to all the prohibitions of section 9 of the Act, unless the activity is otherwise exempt in this proposed rule.

      Future Section 7 Consultations

      This special rule does not change the obligation of Federal agencies to consult with the Service concerning actions they authorize, fund, or carry out which may affect listed species, including the Preble's. This rule is intended to supplement and not replace the Section 7 form of incidental take authorization. Therefore, Federal actions requiring incidental take authorization will receive that authorization through Section 7 and not this special rule. Only habitat loss authorized through this special rule will be counted against the four percent maximum. Habitat impacts authorized through Section 7 (or Section 10) will not be counted as part of the four percent authorized by this rule and will instead be tracked separately. All Section 7 consultations initiated after promulgation of this special rule will assume, as part of the environmental baseline against which projects are measured, that the maximum potential impact under this rule will occur (i.e., that there will be disruption of four percent of the habitat within each Mouse Protection Area, with appropriate mitigation).

      Before the publication of a final rule for the Preble's, we must carry out an internal or intra-service consultation on the action of adopting this rule. A biological opinion will be prepared by the Service analyzing the proposed rule and any adverse, as well as beneficial effects, for the Preble's. This biological opinion will also discuss and analyze the effects of the implementation of this rule on listed species other than the Preble's.

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      The Service anticipates that the ongoing planning process in both Colorado and Wyoming will lead to habitat conservation plans and section 10 permits that will be the subject of future section 7 intra- service consultations.

      Comments Solicited

      The Service invites comments on the proposed rule. In particular, we are seeking comments on:

   1. The desirability and practicality of establishing partnerships with local governmental entities to use their land use planning and regulatory powers to enforce the Mouse Protection Standards for Mouse Protection Areas, or for both Mouse Protection Areas and Potential Mouse Protection Areas;

   2. The adequacy of the proposed mitigation guidelines including any options that may be available for mitigating impacts of development activities on Preble's habitat;

   3. The adequacy of the Mouse Protection Standards and/or information that would lead to the development of more appropriate standards;

   4. The types of agricultural practices, including grazing practices, that are compatible with maintenance of Preble's habitat within riparian zones; and

   5. Any additional information on the locations and boundaries of designated Mouse Protection Areas and Potential Mouse Protection Areas.

      To facilitate public comment, the Service will conduct public meetings in various locations in Colorado and Wyoming to explain the rule in more detail and address questions.

      Clarity of This Regulation

      Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping or order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

      Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of Interior, Room 7229, 1849 C Street NW, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov

      Literature Cited

      Armstrong, D.M., M.E. Bakeman, A. Deans, C.A. Meaney, and T.R. Ryan. 1997. Report on habitat findings of the Preble's meadow jumping mouse. Boulder (CO); Report to the U.S. Fish and Wildlife Service and Colorado Division of Wildlife. 91 pp.

      Required Determinations

      The Service invites comments on the anticipated direct and indirect costs and benefits or cost savings associated with the special rule for the Preble's. In particular, the Service is interested in obtaining information on any significant economic impacts of the proposed rule on small public and private entities. Once we have reviewed the available information, we will determine whether we need to prepare an initial regulatory flexibility analysis for the special rule. We will make any such analysis or determination available for public review. Then, we will revise, as appropriate, and incorporate the information in the final rule preamble and in the record of compliance (ROC) certifying that the special rule complies with the various applicable statutory, Executive Order, and Departmental Manual requirements. Under the criteria in Executive Order 12866, the special rule does not need to be reviewed by the Office of Management and Budget.

      Paperwork Reduction Act

      The Service has examined this proposed rule under the Paperwork Reduction Act of 1995 and found it to contain no requests for additional information or increase in the collection requirements associated with the Preble's meadow jumping mouse (Zapus hudsonius preblei) other than those already approved for Federal Fish and Wildlife license permits with OMB approval 1018-0094, which has an expiration date of February 28, 2001. For more information concerning these permits, see 50 CFR 17.32.

      National Environmental Policy Act

      The Service will review this proposed rule under the requirements of the National Environmental Policy Act before finalization.

      Section 7 Consultation

      The Service will review this proposed rule under the requirements of section 7 of the Act before finalization.

      Government-to-Government Relationship With Tribes

      This proposed rule does not directly affect Tribal resources.

      List of Subjects in 50 CFR Part 17

      Endangered and threatened species. Export, Import, Reporting and recordkeeping requirements, Transportation.

      Regulation Promulgation

      PART 17--[AMENDED]

      Accordingly, the Service proposes to amend 50 CFR part 17, as set forth below:

   1. The authority citation for part 17 continues to read as follows:

      Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

   2. Amend Sec. 17.40 by adding a new paragraph (k) to read as follows:

      17.40 Special rules-mammals.

      * * * * *

      (k) Preble's meadow jumping mouse (Zapus hudsonius preblei). (1) All of the prohibitions of 50 CFR 17.31 (a) and (b) and exemptions of 50 CFR 17.32 are applicable to the Preble's except where identified below. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take any federally- listed wildlife species. Prohibitions for threatened wildlife under section 17.31 include take (harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect; or attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally.

      (2) This rule is effective until (18 months from the effective date of the final rule).

      (3) We will likely adjust Mouse Protection Areas and Potential Mouse Protection Areas based on new information as provided in paragraph (k)(12) of this section. We will maintain updated geographic locations of these areas. Direct inquiries concerning whether specific lands fall within a Mouse Protection Area or Potential Mouse Protection Area to the Service offices listed in paragraph (k)(12)(ii) of this section and/or to a participating local governmental entity. Priority areas for conservation of the Preble's are:

      (i) Mouse Protection Areas, the reach of any stream that is located within 1 linear mile upstream and 1 linear mile

      [[Page 66783]]

      downstream of any known location of Preble's that has been reported to the Service since 1992. In instances where two Mouse Protection Areas on the same stream are separated by 1 linear mile or less, one continuous Mouse Protection Area will be established. A Mouse Protection Area extends 300 feet on each side of the stream measured from the centerline, or 300 feet from the exterior boundary of any wetland contiguous with the stream, whichever is further.

      (ii) Potential Mouse Protection Areas, the reach of a stream that the Service has determined contains suitable habitat conditions for the Preble's. Potential Mouse Protection Areas extend 300 feet on each side of the stream measured from the centerline, or 300 feet from the exterior boundary of any wetland contiguous with the stream, whichever is further.

      (4) Except as provided in paragraph (k)(8) of this section, the take prohibitions of Sec. 17.31 will not apply to incidental take outside of a Mouse Protection Area or Potential Mouse Protection Area. Any actions that significantly modify Preble's habitat within a Mouse Protection Area or Potential Mouse Protection Area must comply with Sec. 17.31, except as otherwise exempted in this proposed rule. In addition, we require permits for trapping surveys to determine the presence or absence of the Preble's in Mouse Protection Areas or Potential Mouse Protection Areas, for education purposes, scientific purposes, the enhancement or propagation for survival of the Preble's, zoological exhibition, and other conservation purposes in accordance with 50 CFR 17.32 and under a section 6 (16 U.S.C. section 1535) cooperation agreement with a State, if applicable.

      (5) The following activities, which may result in incidental take of the Preble's, are exempted by this rule from the Sec. 17.31 take prohibitions, within the entire range of the Preble's:

      (i) Rodent control within 10 feet of or inside any structure (``rodent control'' includes control of mice and rats by trapping, capturing, or otherwise physically capturing or killing rodents, or poisoning by any substance registered with the Environmental Protection Agency as required by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136) and applied consistent with its labeling. ``Structure'' means any manmade or other artificially constructed object which includes but is not limited to any building, stable, grain silo, corral, barn, shed, water or sewage treatment equipment or facility, enclosed parking structure, shelter, gazebo, bandshell, or restroom complex;

      (ii) Ongoing agricultural activities including grazing, plowing, seeding, cultivating, minor drainage, burning, mowing and harvesting, as long as these activities are currently conducted and do not increase impacts to or further encroach upon Preble's habitat;

      (iii) Maintenance and replacement of existing landscaping and related structures and improvements, with no increase in impervious surfaces; and

      (iv) Existing uses of water associated with the exercise of perfected water rights under State law and interstate compacts and decrees. (A ``perfected water right'' is a right that has been put to beneficial use and has been permitted, decreed, or adjudicated under State law.)

      (6) Actions within a Mouse Protection Area which may result in up to four percent cumulative modification of Preble's habitat within the Mouse Protection Area will be exempted from the Sec. 17.31 take prohibitions provided that:

      (i) The governmental entity (State, county, or municipality) where the action is to take place has elected to enforce the Preble's protection standards listed in paragraph (k)(7) of this section;

      (ii) The governmental entity has provided the Service with written assurances that they have the legal authority and ability to enforce the standards (This means a written affirmation of the present authority and ability of the local governmental entity to implement and enforce its existing local regulations, incentives, and programs to enforce the Preble's protection standards in paragraph (k)(7) of this section. Existing regulations may include, but need not be limited to: floodplain regulations, subdivision regulations, zoning regulations, site planning requirements, standards for identifying and protecting ecologically sensitive lands, wildlife habitat protection regulations, drainage design standards, road and bridge construction standards, and grading standards. This may also mean an agreement of any State agency or instrumentality to implement its existing regulations and programs, and to exercise its legal authorities in furtherance of the purpose of this rule and the protection and recovery of the Preble's);

      (iii) The Service has concurred in writing with the written assurances from the State or local entity; and

      (iv) The governmental entity has reviewed and approved the action consistent with the Mouse Protection Standards in paragraph (k)(7) of this section.

      (7) State, local, or municipal entities which elect to adopt the procedures in paragraph (k)(6) of this section and have received concurrence from the Service can approve new actions that significantly modify a cumulative total of four percent or less of each Mouse Protection Area. The applicant must ensure that the Preble's can move freely up or down the stream corridor. The applicant must also fully restore or replace the Preble's habitat values with restoration activities to be completed in a timely manner. Any replacement or restoration of habitat outside a Mouse Protection Area requires the concurrence of the Service.

      (8) New actions proposed to take place outside of a Mouse Protection Area or Potential Mouse Protection Area which will significantly modify stream flows or sedimentation, or otherwise significantly modify the Preble's habitat inside a Mouse Protection Area or Potential Mouse Protection Area, will be subject to the Sec. 17.31 take prohibitions unless otherwise exempted in this proposed rule.

      (9) Local governmental entities may elect to accept responsibility for protecting a Potential Mouse Protection Area within its jurisdiction or may accept responsibility for protecting all or part of a Potential Mouse Protection Area in response to a request by a project proponent/landowner. The local governmental entity can only accept this responsibility under paragraph (k)(6) of this section. In these cases, the local governmental entity will treat the Potential Mouse Protection Area as a Mouse Protection Area under paragraph (k)(7) of this section.

      (10) If a local governmental entity has not assumed responsibility for protection of any Potential Mouse Protection Area, the take prohibitions of Sec. 17.31 apply to any actions, unless the activity is otherwise exempt in this proposed rule, that would result in a direct or indirect taking of the Preble's. However, a project proponent will be exempt from the take provisions of Sec. 17.31 if:

      (i) A presence/absence survey for the Preble's has been conducted in accordance with current Service survey guidelines;

      (ii) The survey report concludes that the Preble's is not present on the site to be impacted and the Service concurs with the survey report's conclusion. (If a presence/absence survey documents the existence of the Preble's, the area surveyed will be designated as a Mouse Protection Area and will be treated

      [[Page 66784]]

      accordingly by the provisions of this rule).

      (11) Each government entity which has received written concurrence from the Service concerning its present authority and ability to protect the Preble's under paragraph (k)(6) of this section will meet quarterly with the Service to evaluate implementation of this special rule. At least 2 weeks before the meetings, public notice of the meetings will be provided. As more site-specific information about Mouse Protection Areas and Potential Mouse Protection Areas becomes available, governmental entities authorized under the provisions of paragraph (k)(6) of this section must provide all new information to the Service so that necessary changes can be made with respect to the delineation of Mouse Protection Areas and Potential Mouse Protection Areas. If we determine that the governmental entity is not adequately enforcing the Preble's habitat protection standards contained in this special rule, we will provide written notice describing the deficiencies to that governmental entity with suggested corrective action. If corrective actions are not implemented, we may then withdraw our concurrence with the governmental entity's program. If we withdraw our concurrence, all of the Sec. 17.31 take prohibitions will apply to lands within the jurisdiction of that governmental entity unless the activity is otherwise exempted in this rule.

      (12)(i) Geographic locations of Mouse Protection Areas and Potential Mouse Protection Areas based on the best scientific information that is currently available are maintained by the Service at addresses provided below. Lists of these areas have also been provided to State and county offices and to selected municipalities within the Preble's range. We recognize that more site-specific information about each of the stream reaches may result in changes to delineated Mouse Protection Areas and Potential Mouse Protection Areas. The most current refinements to Mouse Protection Areas and Potential Mouse Protection Areas are available from the Service offices listed below and from counties, and selected municipalities. Lists of these areas are also available on our home page on the internet (www.r6.fws.gov/preble). Inquiries concerning whether or not specific lands fall within protection areas should be directed to the Service offices listed below or to a participating local governmental entity.

      (ii) These geographic locations can be viewed at the U.S. Fish and Wildlife Service, Colorado Field Office, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0207, telephone (303) 275-2370 or at the U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Morrie Avenue, Cheyenne, Wyoming 82001, telephone (307) 722-2374.

      Dated: November 25, 1998. Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 98-32145Filed12-2-98; 8:45 am]

      BILLING CODE 4310-55-P