[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Proposed Rules]
[Pages 66777-66784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32145]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AF30


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

    The Preble's meadow jumping mouse (Zapus hudsonius preblei), a 
subspecies of the meadow jumping mouse (Zapus hudsonius) is known to 
occur only in portions of Colorado and Wyoming. The final rule listing 
Preble's as a threatened species under the Endangered Species Act was 
published in the Federal Register on May 13, 1998 (63 FR 26517). 
Section 4(d) of the Act (16 U.S.C. section 1533) provides that whenever 
a species is listed as a threatened species, the Secretary of the 
Interior will issue regulations deemed necessary and advisable to 
provide for the conservation of the species. This is done in either of 
two ways.
    First, the Fish and Wildlife Service (Service) has issued 
regulations that generally apply to threatened wildlife virtually all 
the prohibitions that section 9 of the Act (16 U.S.C. section 1538) 
establishes with respect to endangered wildlife. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to ``take'' any listed wildlife species; i.e., to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, or collect any threatened 
or endangered species or to attempt to engage in any such conduct [16 
U.S.C. section 1532 (19)].
    The Service's regulations for threatened wildlife, however, also 
provide that a ``special rule'' under section 4(d) of the Act can be 
tailored for a particular threatened species. In that case, the general 
regulations applying most section 9 prohibitions to threatened species 
do not apply to that species, and the special rule is to contain the 
prohibitions (and exemptions) necessary and appropriate to conserve 
that species.
    At the time Preble's was listed, we did not promulgate a special 
section 4(d) rule and, therefore, the section 9 prohibitions, including 
the take prohibitions, became applicable to the species. We are now 
proposing to issue this special rule for the Preble's to replace those 
general prohibitions with special measures tailored to the conservation 
of this species.
    We anticipate that this proposed rule will prohibit actions that 
threaten the Preble's, to the extent necessary to provide for the 
conservation of the Preble's. It also provides flexibility to private 
landowners for ongoing activities that will not jeopardize the species. 
We also believe that this rule would garner the support of State and 
local governments, private landowners, and other interested parties for 
a lasting, cooperative approach for the long-term conservation of the 
species.
    This proposed rule is best understood in the context of other 
regulations and actions, already in place or in development, to provide 
for conservation of the Preble's.
    First, it is important to understand that an activity now 
prohibited under the general regulations or that would be prohibited 
under this special rule may still be allowed under section 10 of the 
Act. That section provides for a person to obtain from us in 
appropriate

[[Page 66778]]

circumstances a permit allowing the ``incidental'' taking of Preble's. 
One of the purposes of this proposed rule is to enable us to make, in 
advance, general decisions that certain types of activities are 
consistent with the conservation of Preble's, without requiring people 
to seek individual Section 10 permits authorizing those activities. 
Additional activities that would result in the take of Preble's still 
could be permitted by us under section 10 of the Act.
    Currently, the State of Colorado, the Service, and various local 
governmental entities are working together to develop one or more plans 
to conserve the Preble's and its habitat. This collaborative approach 
is expected to result in the development of one or more habitat 
conservation plans and applications to the Service for incidental take 
permits under section 10 of the Act. These habitat conservation plans 
will provide the foundation upon which to build a lasting, effective, 
and efficient recovery program for the Preble's.
    Under this planning process, we have held three rounds of public 
meetings in each of the five geographic subareas that comprise the 
known range of the Preble's in Colorado. Key riparian areas important 
to Preble's that require protection have been identified, threats to 
the Preble's have been ranked in importance, and preliminary strategies 
to minimize or mitigate adverse impacts to the Preble's have been 
discussed by stakeholders. Nine Colorado counties and five Colorado 
cities have passed resolutions supporting this planning process and 
have indicated that they will consider using their regulations, 
incentives, and ordinances to protect the Preble's. We are also working 
with local governments in Wyoming on similar conservation planning 
efforts.
    Both this long-term cooperative approach and this short-term 
special rule are consistent with the spirit and intent of the November 
29, 1995, Memorandum of Agreement between the Secretary of the Interior 
and the Governor of Colorado. This agreement commits the Service and 
the State to use the flexibility in State and Federal laws and 
regulations and promotes participation of a broad spectrum of partners 
to achieve long-term conservation and development solutions. By 
involving and taking advantage of the land use planning and other 
authorities and resources of State and local governments, we believe 
that we can more effectively provide for the long-term conservation of 
the Preble's than relying just on our own authorities and resources. 
One of the purposes of this special rule is to begin allowing for that 
cooperation among us, the States, and local governments.
    The second important component of the context for this special rule 
is that Federal agencies are required under section 7 of the Act to 
consult with us to ensure that their actions are not likely to 
jeopardize the Preble's. For consultations that involve the use of 
Federal land, we expect that those lands will be managed to contribute 
to the conservation of the species to the maximum extent possible, 
lessening the burden on others. Other types of consultations involve 
actions similar to those that are considered under the section 10 
process. For example, many of the activities likely to affect the 
Preble's will be undertaken wholly or partly in riparian areas, and 
will be subject to permitting requirements of the Clean Water Act, such 
as Sec. 404 dredge-and-fill permits to be issued by the Army Corps of 
Engineers. We expect to apply the same type of approach reflected in 
this proposed rule, when appropriate, to those consultations.
    Third, a variety of Federal, State, and local programs are 
available to help conserve the Preble's through the acquisition and 
preservation of its habitat. These include the Service's Partners for 
Fish and Wildlife Program, the Natural Resource Conservation Service's 
wetland/riparian habitat protection programs, grant programs 
administered by Great Outdoors Colorado, city and county open space 
programs, and activities of local land trusts. In particular, our 
Partners for Fish and Wildlife Program has proven to be an especially 
effective approach for wildlife conservation on agricultural lands by 
providing funding for restoration of wetland and riparian habitats. We 
intend to dedicate additional funds to our Partners for Fish and 
Wildlife Program for the conservation of the Preble's on private lands.

Provisions of the Rule

Term of the Rule

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

Take Prohibitions

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

Exempted Activities

    We are proposing to include in this rule the following exemptions, 
provided that the activities resulting in such take are conducted in 
accordance with the requirements identified in this special rule.
1. Activities Outside of Mouse Protection Areas and Potential Mouse 
Protection Areas
    In this rule, we are proposing to exempt all incidental take 
outside of specified Mouse Protection Areas and Potential Mouse 
Protection Areas (which are further explained below). As with many 
other listed species, the Service maintains records of known occurrence 
of the Preble's, as well as information on high potential habitat areas 
throughout its range. Mouse Protection Areas are areas where mice have 
been documented since 1992 and reported to the Service. Potential Mouse 
Protection Areas are areas that have a high potential to support the 
Preble's based on habitat conditions. Together these areas include more 
than 1,000 linear miles of streams and constitute the known locations 
and potential Preble's habitat in Colorado and Wyoming.
    We believe that these areas include sufficient habitat to achieve 
recovery of the Preble's and that incidental take outside of these 
areas will be unlikely and would not compromise Preble's conservation 
efforts. These areas may be amended or adjusted based on new 
information.
2. Rangewide Exemptions
    We are proposing to exempt four types of existing activities from 
the take prohibitions anywhere within the Preble's range (including 
within Mouse Protection Areas and Potential Mouse Protection Areas).
    a. Rodent control within 10 feet of or inside any structure. The 
Preble's is generally not found in association with structures such as 
barns, houses, and other buildings. We believe that any Preble's 
mortality associated with

[[Page 66779]]

trapping near these structures would be insignificant and that this 
exemption will promote public support for Preble's conservation 
efforts.
    b. Ongoing agricultural activities. This exemption provides for a 
continuation of existing agricultural practices but does not allow an 
increase of impacts to, or further encroachment upon, Preble's habitat. 
For example, it does not allow for an increase in grazing intensity in 
Preble's habitat or mowing closer to a stream supporting the Preble's. 
Situations where Preble's populations coexist with ongoing agriculture 
may provide valuable insight into habitat conditions required by the 
Preble's and the specific types of grazing and farming practices that 
are compatible with the Preble's.
    We believe that the exemption for agricultural practices will 
provide a positive incentive for agricultural interests to engage in 
voluntary conservation activities and will remove much of the existing 
reluctance by private landowners to allow Preble's surveys to be 
conducted on their lands. These surveys may lead to a more complete 
understanding of the status and distribution of the species. With this 
knowledge, our ability to develop an effective long-term recovery 
program will be enhanced.
    c. Maintenance and replacement of existing landscaping and related 
structures and improvements, with no increase in impervious surfaces. 
Some existing landscaping activities, such as lawn mowing and gardening 
associated with residential or commercial development, golf courses, 
and parks have disrupted Preble's habitat in certain areas. However, 
allowing these activities to continue in ways that do not lead to any 
increases in impervious surfaces within Mouse Protection Areas and 
Potential Mouse Protection Areas is not expected to adversely affect 
Preble's conservation and recovery efforts.
    d. Existing uses of water associated with the exercise of perfected 
water rights under State law, and interstate compacts and decrees. The 
cumulative effect of the development and exercise of water rights has 
impacted riparian communities and the Preble's in some areas. However, 
the exercise of certain water rights and water development may have 
beneficial effects in riparian communities and to the Preble's. Persons 
with perfected water rights are encouraged to engage in conservation 
planning efforts to provide voluntarily the flows that may be 
determined to be important to protect Preble's habitat. Take associated 
with new water development would be prohibited.
    The Service considered a possible rangewide exemption pertaining to 
periodic maintenance of existing water supply ditches. Periodic 
maintenance of ditches includes activities such as burning or clearing 
vegetation that may impact Preble's habitat. We have concluded, 
however, that because some water supply ditches may, in fact, provide 
suitable habitat and dispersal routes for the Preble's, take relating 
to periodic maintenance of these ditches should be prohibited. We 
intend to assess the value of water supply ditches to the conservation 
and recovery of the Preble's, both in specific areas where use of these 
ditches by Preble's has been documented, and in areas that may contain 
suitable habitat to determine if these areas should be classified as 
Mouse Protection Areas or Potential Mouse Protection Areas. The 
conclusions from this assessment will be used in conservation and 
recovery planning for the Preble's. Coordination with the Service is 
required when activities are planned in areas potentially significant 
for the Preble's.
3. New Development in Mouse Protection Areas and Potential Mouse 
Protection Areas
    Under this proposed rule, States, counties, and/or municipalities 
which manage land use at the local level may, at their option and upon 
concurrence by the Service, adopt and enforce necessary protective 
standards for the Preble's, as follows:
    1. State or local authorities will identify to us their legal 
authorities to protect Preble's habitat. They will also commit to use 
those authorities to enforce the Preble's protection standards 
described below;
    2. We will review these authorities and provide concurrence that 
the authorities are adequate to protect Preble's habitat; and
    3. Upon receiving our concurrence, State/local authorities may 
approve development or actions that are consistent with the mouse 
protection standards and mitigation guidelines described below.
    The Service will closely monitor implementation of this rule by 
State and local governments and provide assistance as required. We will 
meet quarterly with each governmental entity which has received written 
concurrence from us recognizing its present authority and ability to 
protect the Preble's.
    Projects or actions within the jurisdiction of local governmental 
entities that elect not to enforce these standards would be subject to 
all the prohibitions on take in this proposed rule, unless the activity 
is otherwise exempt in this proposed rule. However, if you are 
undertaking an action that may take the Preble's, including 
significantly modifying its habitat within an area where the local 
government has chosen not to use the provisions in this rule, we will 
work directly with you to develop a habitat conservation plan and an 
incidental take permit under section 10. If there is Federal approval 
or funding involved, we will review the action under section 7 of the 
Act (16 U.S.C. section 1536).
    In cases where an individual habitat conservation plan is required 
for a specific property, the applicant will be responsible for the 
costs of developing and implementing the habitat conservation plan. 
Habitat conservation plans will be consistent with provisions of this 
rule, including the mouse protection standards and associated 
mitigation guidelines. However, it may be necessary and desirable to 
modify these standards and guidelines to address site specific 
conditions of a project.

Mouse Protection Standards

    We have developed standards for the Preble's to ensure adequate 
protection of important habitats known as Mouse Protection Areas and 
Potential Mouse Protection Areas. For the purposes of this rule, a 
Mouse Protection Area is the reach of any stream that is located within 
1 linear mile upstream and 1 linear mile downstream of any known 
location of the Preble's that has been reported to the Service since 
1992. Major Preble's surveying efforts began in this year and surveys 
since 1992 represent the known occupied habitat of the Preble's. In 
instances where two designated Mouse Protection Areas on the same 
stream are separated by one linear mile or less, one continuous Mouse 
Protection Area will be established. Biological research shows that 
there is a high likelihood that these areas will be used by the 
Preble's on a year-round basis or as a movement corridor.
    A Mouse Protection Area (MPA) also extends 300 feet on each side of 
the stream measured from the centerline, or 300 feet from the exterior 
boundary of any contiguous wetlands, whichever is further. The basis 
for the 300-foot standard is that mice have been documented to 
regularly move up to 150 feet from streams and wetlands. The remaining 
150-foot zone serves as a buffer zone to avoid disturbance of Preble's 
habitat associated with human activities. We believe that this zone 
will encompass the normal home range of the Preble's and will provide 
an

[[Page 66780]]

adequate buffer from adjoining development.
    The Service recognizes that it may be desirable to modify the 
boundaries of a Mouse Protection Area to reflect the actual extent of 
Preble's habitat along a stream or a wetland. The Service may make 
these changes when biologically justified. In addition, local entities 
that have agreed to enforce the mouse protection standards may also 
propose changes to a Mouse Protection Area based on new biological 
information. We would need to approve any changes.
    There are many areas within the historic range of the Preble's that 
contain suitable Preble's habitat that have not been surveyed, or if 
previously surveyed, in which no mice have been captured. These areas, 
known as Potential Mouse Protection Areas, have high potential of 
supporting a Preble's population based on the presence of suitable 
riparian habitat such as willow or shrub vegetation, and/or the 
proximity to known locations of the Preble's or other suitable habitat. 
These areas require careful scrutiny because the Preble's may actually 
live in these locations and they may be important for the recovery and 
eventual delisting of the Preble's.
    The Service evaluated the potential for new impacts to Mouse 
Protection Areas from trails, road and utility line crossings, and 
other development, and determined that Preble's persists along some 
streams despite the presence of trails, road crossings, limited 
residential and commercial development, and other habitat disruption. 
Based on this, we have concluded that new projects or actions will be 
allowed to modify a cumulative total of up to four percent of the 
habitat within a Mouse Protection Area under the following conditions:
    1. A State or local government has received Service approval and is 
willing to adopt and enforce protection standards for the Preble's;
    2. All habitat losses will be fully compensated through mitigation; 
and
    3. The action will not impede movement of mice up or down riparian 
corridors.
    A Mouse Protection Area 2 miles long and 600 feet wide encompasses 
about 145 acres of habitat. This rule would allow less than 6 acres of 
that habitat in a Mouse Protection Area to be modified without further 
advance review by us. We believe that exempting this amount of habitat 
loss, in conjunction with the mitigation, is biologically sound and 
consistent with the conservation of the Preble's. We are soliciting 
comment on this point and will conduct a Section 7 consultation.
    Existing roads, structures, and other impervious surfaces would not 
be considered Preble's habitat for the purposes of computing the four 
percent.
    Each jurisdiction that elects to implement the mouse protection 
standards must ensure that the four percent habitat modification limit 
is not exceeded. Where a Mouse Protection Area crosses jurisdictional 
boundaries, each jurisdiction would be allowed to modify up to four 
percent of the habitat in the portion of the Mouse Protection Area that 
occurs in their jurisdiction.
    Some projects outside (i.e., upstream) of a Mouse Protection Area 
may adversely impact a Mouse Protection Area or Potential Mouse 
Protection Area. This may occur when stream flows are altered (for 
example by an increase in stormwater runoff) or when there is an 
increase in sedimentation. Projects outside of a Mouse Protection Area 
or Potential Mouse Protection Area which do not appreciably alter 
stream flows or sedimentation or otherwise impact a Mouse Protection 
Area or Potential Mouse Protection Area would be exempted from section 
9 incidental take prohibitions. New projects which do result in a 
significant modification of stream flow or sedimentation or otherwise 
impact a Mouse Protection Area or Potential Mouse Protection Area would 
be subject to the section 9 incidental take prohibitions of the Act, 
unless the activity is otherwise exempt in this proposed rule.
    State and local authorities have the option to implement Preble's 
protection standards for Mouse Protection Areas, or for both Mouse 
Protection Areas and Potential Mouse Protection Areas. Where the 
respective governmental entity elects to accept responsibility for 
enforcing Preble's protection standards for Potential Mouse Protection 
Areas, these areas will be treated the same as Mouse Protection Areas 
until and unless a Service-approved Preble's survey of the area occurs. 
Where the governmental entity does not elect to accept responsibility 
for enforcing Preble's protection standards for Potential Mouse 
Protection Areas, the Service nonetheless strongly encourages the 
performance of surveys in accordance with Service protocol before 
habitat modification occurs to avoid potential liability for an action 
that does result in a prohibited take of a Preble's.
    If a Preble's is trapped during a survey in any Potential Mouse 
Protection Area, it will be reclassified as a Mouse Protection Area and 
treated accordingly. If a new survey is conducted and no Preble's are 
trapped, the area surveyed will no longer be considered a potential 
mouse protection area. Projects may commence if they do not appreciably 
alter stream flows or sedimentation or otherwise impact a Mouse 
Protection Area or Potential Mouse Protection Area. The project 
proponent must receive Service concurrence with the results of the 
survey.
    The Service recognizes that the Preble's protection standards may 
be adjusted based on new information. We will work cooperatively with 
local governmental entities to apply these standards in a reasonable 
manner.

Mitigation Guidelines

    Mouse Protection Areas encompass both the specific habitats that 
the Preble's is known to frequent, and adjacent habitats that have both 
direct value to the Preble's and provide an essential buffer from 
adjacent development and human activity. Armstrong et al. (1997, p. 77) 
described typical Preble's meadow jumping mouse habitat as ``well-
developed plains riparian vegetation with relatively undisturbed 
grassland and a water source in close proximity.'' Also noted is a 
preference for ``dense herbaceous vegetation consisting of a variety of 
grasses, forbs and thick shrubs.'' Moving outward from streams and 
riparian corridors there generally exists a transition from habitat 
regularly used by the Preble's to habitat of value largely as a buffer. 
The goal of all mitigation is to offset impacts to the diverse habitat 
types required by the Preble's, including essential buffer areas. 
Mitigation must be accomplished in a manner that does not adversely 
impact important biological resources, other federally-threatened or 
endangered species, proposed species, or candidate species. This 
includes Spiranthes diluvialis (the Ute ladies'-tresses orchid) and 
Gaura neomexicana ssp. coloradensis (the Colorado butterflyplant).
    Identification of practicable alternatives to a proposed project or 
action which avoids or minimizes impacts to Preble's habitat is a first 
step in assessing proposed project impacts. Avoidance and minimization 
of impacts is preferable to compensatory mitigation. Compensatory 
mitigation is required to offset unavoidable impacts that remain after 
all appropriate and practicable avoidance and minimization measures are 
applied. The goal of compensatory mitigation is to assure that no net 
loss of habitat value to the Preble's occurs. Thus, while up to four 
percent of land within any one Mouse Protection Area may be impacted 
within the tenure of this rule, overall loss of habitat value to the 
Preble's is not anticipated.

[[Page 66781]]

    Compensatory mitigation may include restoration, enhancement, or 
creation of habitat. Restoration entails returning the functions of a 
disturbed, degraded, or totally altered site to its original status 
before it was damaged by a permitted project or action. For example, 
installation of an underground pipeline through Preble's habitat may 
entail removal of vegetation and soil disruption. Regrading and 
planting of appropriate vegetation could restore habitat value of the 
area for the Preble's. In general, restoration yields the greatest 
amount of benefit with the least amount of risk and is the preferable 
form of mitigation. Restoration will generally require a mitigation 
ratio of 1.5 to 1 (i.e., 1.5 acre restored for every 1 acre lost).
    We have evaluated restoration and other mitigation techniques. This 
includes review of the habitat types likely to be mitigated, the 
potential for failure to meet compensatory mitigation goals, and the 
temporary loss of habitat that occurs until the full value of 
mitigation conducted concurrently with impacts is achieved. Ratios that 
are cited are based on this evaluation and are intended to assure that, 
at minimum, Preble's habitat values are maintained over the long term.
    Enhancement is the process of improving one or more functions of 
existing habitat to meet certain goals. For example, altering grazing 
practices to allow recovery of riparian vegetation could yield 
substantial benefit to the Preble's. In some cases, supplemental 
planting of preferred plant species may be appropriate. While this type 
of mitigation is usually successful, its actual value to the Preble's 
may be difficult to assess. Depending on the techniques used, 
enhancement may require a mitigation ratio of 1.5 to 1, or up to 3 to 
1.
    Creation entails converting unsuitable habitat types to Preble's 
habitat. For example, a dry upland could be graded down or subirrigated 
to provide hydrology that would support establishment of preferred 
Preble's habitat. This form of mitigation may have a higher chance of 
failure and should be used only when restoration opportunities are 
absent. Creation of habitat will generally require a mitigation ratio 
of 3 to 1.
    A component of mitigation through restoration, enhancement, or 
creation is the preservation in perpetuity of these habitat areas. 
However, for the purposes of this rule, preservation of habitat alone 
will generally not be credited as compensatory mitigation. Preservation 
may be effectively used in cases where Preble's habitat would certainly 
be lost without such measures. We will evaluate the acceptability of 
preservation as compensatory mitigation on a case by case basis.
    In general, acceptable compensatory mitigation will entail in-kind 
mitigation (the restoration, creation, or enhancement of similar 
habitat to that being impacted) within the same protection area where 
impacts occur. Loss of habitat within a Mouse Protection Area will be 
mitigated by restoring, enhancing, or creating similar habitat nearby. 
Proposed exceptions, such as mitigating losses to buffer areas by 
restoring Preble's habitat (out-of-kind mitigation), will be reviewed 
and approved by the Service as we deem appropriate.
    Local governmental entities will assure development of mitigation 
that is consistent with these mitigation guidelines and that sufficient 
funds are available to accomplish the proposed mitigation. Review of 
the proposed mitigation activities will be a significant aspect of 
quarterly meetings held with local governmental entities. We anticipate 
that within the State of Colorado the development of mitigation plans 
consistent with these guidelines will be accomplished by project 
proponents in coordination with the local governmental entity and the 
Colorado Division of Wildlife, with technical assistance provided by 
the Service.

Preble's Surveys

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

Summary of Conservation Benefits

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

Future Section 7 Consultations

    This special rule does not change the obligation of Federal 
agencies to consult with the Service concerning actions they authorize, 
fund, or carry out which may affect listed species, including the 
Preble's. This rule is intended to supplement and not replace the 
Section 7 form of incidental take authorization. Therefore, Federal 
actions requiring incidental take authorization will receive that 
authorization through Section 7 and not this special rule. Only habitat 
loss authorized through this special rule will be counted against the 
four percent maximum. Habitat impacts authorized through Section 7 (or 
Section 10) will not be counted as part of the four percent authorized 
by this rule and will instead be tracked separately. All Section 7 
consultations initiated after promulgation of this special rule will 
assume, as part of the environmental baseline against which projects 
are measured, that the maximum potential impact under this rule will 
occur (i.e., that there will be disruption of four percent of the 
habitat within each Mouse Protection Area, with appropriate 
mitigation).
    Before the publication of a final rule for the Preble's, we must 
carry out an internal or intra-service consultation on the action of 
adopting this rule. A biological opinion will be prepared by the 
Service analyzing the proposed rule and any adverse, as well as 
beneficial effects, for the Preble's. This biological opinion will also 
discuss and analyze the effects of the implementation of this rule on 
listed species other than the Preble's.

[[Page 66782]]

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

Comments Solicited

    The Service invites comments on the proposed rule. In particular, 
we are seeking comments on:
    1. The desirability and practicality of establishing partnerships 
with local governmental entities to use their land use planning and 
regulatory powers to enforce the Mouse Protection Standards for Mouse 
Protection Areas, or for both Mouse Protection Areas and Potential 
Mouse Protection Areas;
    2. The adequacy of the proposed mitigation guidelines including any 
options that may be available for mitigating impacts of development 
activities on Preble's habitat;
    3. The adequacy of the Mouse Protection Standards and/or 
information that would lead to the development of more appropriate 
standards;
    4. The types of agricultural practices, including grazing 
practices, that are compatible with maintenance of Preble's habitat 
within riparian zones; and
    5. Any additional information on the locations and boundaries of 
designated Mouse Protection Areas and Potential Mouse Protection Areas.
    To facilitate public comment, the Service will conduct public 
meetings in various locations in Colorado and Wyoming to explain the 
rule in more detail and address questions.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping or order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the Supplementary Information section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of Interior, Room 7229, 1849 C Street NW, DC 20240. You may also e-mail 
the comments to this address: E[email protected]

Literature Cited

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

Required Determinations

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Section 7 Consultation

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

Government-to-Government Relationship With Tribes

    This proposed rule does not directly affect Tribal resources.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

PART 17--[AMENDED]

    Accordingly, the Service proposes to amend 50 CFR part 17, as set 
forth below:
    1. The authority citation for part 17 continues to read as follows:

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

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


17.40  Special rules-mammals.

* * * * *
    (k) Preble's meadow jumping mouse (Zapus hudsonius preblei). (1) 
All of the prohibitions of 50 CFR 17.31 (a) and (b) and exemptions of 
50 CFR 17.32 are applicable to the Preble's except where identified 
below. These prohibitions, in part, make it illegal for any person 
subject to the jurisdiction of the United States to take any federally-
listed wildlife species. Prohibitions for threatened wildlife under 
section 17.31 include take (harass, harm, pursue, hunt, shoot, wound, 
trap, kill, or collect; or attempt any of these), import or export, 
ship in interstate commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any listed 
wildlife species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally.
    (2) This rule is effective until (18 months from the effective date 
of the final rule).
    (3) We will likely adjust Mouse Protection Areas and Potential 
Mouse Protection Areas based on new information as provided in 
paragraph (k)(12) of this section. We will maintain updated geographic 
locations of these areas. Direct inquiries concerning whether specific 
lands fall within a Mouse Protection Area or Potential Mouse Protection 
Area to the Service offices listed in paragraph (k)(12)(ii) of this 
section and/or to a participating local governmental entity. Priority 
areas for conservation of the Preble's are:
    (i) Mouse Protection Areas, the reach of any stream that is located 
within 1 linear mile upstream and 1 linear mile

[[Page 66783]]

downstream of any known location of Preble's that has been reported to 
the Service since 1992. In instances where two Mouse Protection Areas 
on the same stream are separated by 1 linear mile or less, one 
continuous Mouse Protection Area will be established. A Mouse 
Protection Area extends 300 feet on each side of the stream measured 
from the centerline, or 300 feet from the exterior boundary of any 
wetland contiguous with the stream, whichever is further.
    (ii) Potential Mouse Protection Areas, the reach of a stream that 
the Service has determined contains suitable habitat conditions for the 
Preble's. Potential Mouse Protection Areas extend 300 feet on each side 
of the stream measured from the centerline, or 300 feet from the 
exterior boundary of any wetland contiguous with the stream, whichever 
is further.
    (4) Except as provided in paragraph (k)(8) of this section, the 
take prohibitions of Sec. 17.31 will not apply to incidental take 
outside of a Mouse Protection Area or Potential Mouse Protection Area. 
Any actions that significantly modify Preble's habitat within a Mouse 
Protection Area or Potential Mouse Protection Area must comply with 
Sec. 17.31, except as otherwise exempted in this proposed rule. In 
addition, we require permits for trapping surveys to determine the 
presence or absence of the Preble's in Mouse Protection Areas or 
Potential Mouse Protection Areas, for education purposes, scientific 
purposes, the enhancement or propagation for survival of the Preble's, 
zoological exhibition, and other conservation purposes in accordance 
with 50 CFR 17.32 and under a section 6 (16 U.S.C. section 1535) 
cooperation agreement with a State, if applicable.
    (5) The following activities, which may result in incidental take 
of the Preble's, are exempted by this rule from the Sec. 17.31 take 
prohibitions, within the entire range of the Preble's:
    (i) Rodent control within 10 feet of or inside any structure 
(``rodent control'' includes control of mice and rats by trapping, 
capturing, or otherwise physically capturing or killing rodents, or 
poisoning by any substance registered with the Environmental Protection 
Agency as required by the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. Section 136) and applied consistent with its 
labeling. ``Structure'' means any manmade or other artificially 
constructed object which includes but is not limited to any building, 
stable, grain silo, corral, barn, shed, water or sewage treatment 
equipment or facility, enclosed parking structure, shelter, gazebo, 
bandshell, or restroom complex;
    (ii) Ongoing agricultural activities including grazing, plowing, 
seeding, cultivating, minor drainage, burning, mowing and harvesting, 
as long as these activities are currently conducted and do not increase 
impacts to or further encroach upon Preble's habitat;
    (iii) Maintenance and replacement of existing landscaping and 
related structures and improvements, with no increase in impervious 
surfaces; and
    (iv) Existing uses of water associated with the exercise of 
perfected water rights under State law and interstate compacts and 
decrees. (A ``perfected water right'' is a right that has been put to 
beneficial use and has been permitted, decreed, or adjudicated under 
State law.)
    (6) Actions within a Mouse Protection Area which may result in up 
to four percent cumulative modification of Preble's habitat within the 
Mouse Protection Area will be exempted from the Sec. 17.31 take 
prohibitions provided that:
    (i) The governmental entity (State, county, or municipality) where 
the action is to take place has elected to enforce the Preble's 
protection standards listed in paragraph (k)(7) of this section;
    (ii) The governmental entity has provided the Service with written 
assurances that they have the legal authority and ability to enforce 
the standards (This means a written affirmation of the present 
authority and ability of the local governmental entity to implement and 
enforce its existing local regulations, incentives, and programs to 
enforce the Preble's protection standards in paragraph (k)(7) of this 
section. Existing regulations may include, but need not be limited to: 
floodplain regulations, subdivision regulations, zoning regulations, 
site planning requirements, standards for identifying and protecting 
ecologically sensitive lands, wildlife habitat protection regulations, 
drainage design standards, road and bridge construction standards, and 
grading standards. This may also mean an agreement of any State agency 
or instrumentality to implement its existing regulations and programs, 
and to exercise its legal authorities in furtherance of the purpose of 
this rule and the protection and recovery of the Preble's);
    (iii) The Service has concurred in writing with the written 
assurances from the State or local entity; and
    (iv) The governmental entity has reviewed and approved the action 
consistent with the Mouse Protection Standards in paragraph (k)(7) of 
this section.
    (7) State, local, or municipal entities which elect to adopt the 
procedures in paragraph (k)(6) of this section and have received 
concurrence from the Service can approve new actions that significantly 
modify a cumulative total of four percent or less of each Mouse 
Protection Area. The applicant must ensure that the Preble's can move 
freely up or down the stream corridor. The applicant must also fully 
restore or replace the Preble's habitat values with restoration 
activities to be completed in a timely manner. Any replacement or 
restoration of habitat outside a Mouse Protection Area requires the 
concurrence of the Service.
    (8) New actions proposed to take place outside of a Mouse 
Protection Area or Potential Mouse Protection Area which will 
significantly modify stream flows or sedimentation, or otherwise 
significantly modify the Preble's habitat inside a Mouse Protection 
Area or Potential Mouse Protection Area, will be subject to the 
Sec. 17.31 take prohibitions unless otherwise exempted in this proposed 
rule.
    (9) Local governmental entities may elect to accept responsibility 
for protecting a Potential Mouse Protection Area within its 
jurisdiction or may accept responsibility for protecting all or part of 
a Potential Mouse Protection Area in response to a request by a project 
proponent/landowner. The local governmental entity can only accept this 
responsibility under paragraph (k)(6) of this section. In these cases, 
the local governmental entity will treat the Potential Mouse Protection 
Area as a Mouse Protection Area under paragraph (k)(7) of this section.
    (10) If a local governmental entity has not assumed responsibility 
for protection of any Potential Mouse Protection Area, the take 
prohibitions of Sec. 17.31 apply to any actions, unless the activity is 
otherwise exempt in this proposed rule, that would result in a direct 
or indirect taking of the Preble's. However, a project proponent will 
be exempt from the take provisions of Sec. 17.31 if:
    (i) A presence/absence survey for the Preble's has been conducted 
in accordance with current Service survey guidelines;
    (ii) The survey report concludes that the Preble's is not present 
on the site to be impacted and the Service concurs with the survey 
report's conclusion. (If a presence/absence survey documents the 
existence of the Preble's, the area surveyed will be designated as a 
Mouse Protection Area and will be treated

[[Page 66784]]

accordingly by the provisions of this rule).
    (11) Each government entity which has received written concurrence 
from the Service concerning its present authority and ability to 
protect the Preble's under paragraph (k)(6) of this section will meet 
quarterly with the Service to evaluate implementation of this special 
rule. At least 2 weeks before the meetings, public notice of the 
meetings will be provided. As more site-specific information about 
Mouse Protection Areas and Potential Mouse Protection Areas becomes 
available, governmental entities authorized under the provisions of 
paragraph (k)(6) of this section must provide all new information to 
the Service so that necessary changes can be made with respect to the 
delineation of Mouse Protection Areas and Potential Mouse Protection 
Areas. If we determine that the governmental entity is not adequately 
enforcing the Preble's habitat protection standards contained in this 
special rule, we will provide written notice describing the 
deficiencies to that governmental entity with suggested corrective 
action. If corrective actions are not implemented, we may then withdraw 
our concurrence with the governmental entity's program. If we withdraw 
our concurrence, all of the Sec. 17.31 take prohibitions will apply to 
lands within the jurisdiction of that governmental entity unless the 
activity is otherwise exempted in this rule.
    (12)(i) Geographic locations of Mouse Protection Areas and 
Potential Mouse Protection Areas based on the best scientific 
information that is currently available are maintained by the Service 
at addresses provided below. Lists of these areas have also been 
provided to State and county offices and to selected municipalities 
within the Preble's range. We recognize that more site-specific 
information about each of the stream reaches may result in changes to 
delineated Mouse Protection Areas and Potential Mouse Protection Areas. 
The most current refinements to Mouse Protection Areas and Potential 
Mouse Protection Areas are available from the Service offices listed 
below and from counties, and selected municipalities. Lists of these 
areas are also available on our home page on the internet 
(www.r6.fws.gov/preble). Inquiries concerning whether or not specific 
lands fall within protection areas should be directed to the Service 
offices listed below or to a participating local governmental entity.
    (ii) These geographic locations can be viewed at the U.S. Fish and 
Wildlife Service, Colorado Field Office, P.O. Box 25486, Denver Federal 
Center, Denver, Colorado 80225-0207, telephone (303) 275-2370 or at the 
U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Morrie 
Avenue, Cheyenne, Wyoming 82001, telephone (307) 722-2374.

    Dated: November 25, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-32145 Filed 12-2-98; 8:45 am]
BILLING CODE 4310-55-P