[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Rules and Regulations]
[Pages 1940-1970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-239]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Colorado Butterfly Plant; Final Rule

  Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ07


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Colorado Butterfly Plant

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Colorado butterfly plant (Gaura neomexicana 
ssp. coloradensis) under the Endangered Species Act of 1973, as amended 
(Act). In total, approximately 1,432 hectares (ha) (3,538 acres (ac)) 
along approximately 82 kilometers (km) (51 stream miles (mi)) fall 
within the boundaries of the critical habitat designation located in 
Laramie and Platte Counties in Wyoming. The designation excludes 30% of 
private and municipality lands through Wildlife Extension Agreements. 
Military lands as well as other areas within its range in Nebraska and 
Colorado are not included.

DATES: This final rule is effective February 10, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Wyoming Field Office, U.S. Fish and Wildlife Service, 4000 Airport 
Parkway, Cheyenne, WY 82001.

FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, Field Supervisor, 
Wyoming Field Office (see ADDRESSES section) (telephone (307) 772-2374; 
facsimile (307) 772-2358).

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
Section 6 funding to the States, and the Section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result of 
this consequence, listing petition responses, the Service's own 
proposals to list critically imperiled species, and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This situation in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
costs of preparation and publication of the designation, the analysis 
of the economic effects and the costs of requesting and responding to 
public comments, and, in some cases, the costs of compliance with 
National Environmental Policy Act. None of these costs result in any 
benefit to the species that is not already afforded by the protections 
of the Act enumerated earlier, and these associated costs directly 
reduce the scarce funds available for direct and tangible conservation 
actions.

Background

    For more information on G. n. ssp. coloradensis, refer to the 
proposed critical habitat rule (August 6, 2004, 69 FR 47834).

Previous Federal Actions

    On August 6, 2004, we published the proposed rule to designate 
critical habitat for G. n. ssp. coloradensis (69 FR 47834) with a 60-
day comment period. In that proposed rule (beginning on page 47837), we 
included a summary of the previous Federal actions completed prior to 
publication of the proposal. On September 24, 2004, the Service 
announced the availability of the Draft Economic Analysis of Critical 
Habitat Designation for the Colorado Butterfly

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Plant (Draft Economic Analysis) and the Draft Environmental Assessment 
for Proposal of Critical Habitat for the Colorado Butterfly Plant 
(Draft EA) (69 FR 57250), and extended the comment period on all three 
documents through October 25, 2004. No requests for public hearings 
were received.

Summary of Comments and Recommendations

    During the comment period, we contacted appropriate Federal, State, 
and local agencies and other interested parties and invited them to 
comment on the proposed critical habitat rule. We contacted interested 
parties (including elected officials, media outlets, local 
jurisdictions, and interest groups) through a press release and related 
faxes, mailed announcements, telephone calls, and e-mails. On September 
24, 2004, the Service reopened a 30-day comment period on the draft 
economic analysis, draft EA, and proposed rule (69 FR 57250). We 
received a total of 13 comments. One comment letter was received from 
the State of Wyoming, five comment letters from peer reviewers, four 
comments from individual landowners, two comments representing four 
environmental groups, and one comment letter from the Wyoming 
Stockgrowers Association (WSA). Of the public comments, four comments 
opposed designation or favored reduced designation, and one comment 
supported designation and favored expanding the designation.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited review from at least three independent 
specialists/experts regarding proposed rules. The purpose of such 
review is to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses.
    We solicited opinions from six independent experts to peer review 
the proposed critical habitat designation. The individuals were asked 
to review and comment on the specific assumptions and conclusions 
regarding the proposed designation of critical habitat. Five of the six 
peer reviewers provided comments, and we considered all comments. All 
peer reviewers supported the approach we used in our proposal that 
emphasized the importance of conserving riparian habitat in the context 
of upland habitat within stream reaches where Gaura neomexicana ssp. 
coloradensis occurs. The reviewers generally agreed that our methods 
and conclusions were appropriate and necessary for the conservation of 
the G. n. ssp. coloradensis, and that the information we used was 
reasonably complete and appropriate regarding the best scientific 
information available for this species. We grouped the comments by 
issue.

Peer Review Comments

    Comment 1 (Peer): One reviewer suggested that the Service consider 
including drainages downstream for the purpose of linking proposed 
Units 2 and 3, 2 and 4, and 5 and 6, allowing for potential 
colonization and expansion of populations via seed dispersal.
    Our Response: In preparation of this designation, we considered the 
need for connectivity among subpopulations and habitat for this 
species, made a substantial effort to provide for linkage of individual 
subpopulations, and provide for colonization downstream via seed 
dispersal. We believe that the current extent of contiguous critical 
habitat provides for the conservation needs of the species and allows 
for colonization of new habitats and expansion of populations. We agree 
that preserving connectivity between known subpopulations and occupied 
habitat is valuable for the conservation of G. n. ssp. coloradensis.
    We note that if new information regarding suitability of habitat 
occurring downstream and PCEs becomes available, we will consider this 
information for future recovery efforts. However, this information is 
not available at this time.
    Comment 2 (Peer): One reviewer suggested that the criteria used to 
identify critical habitat adequately circumscribes areas that fulfill 
many of the PCEs of the species and that these criteria focus on 
ecological processes operating in small patch and large patch 
communities. Uncertainty about some aspects of the species' life 
history and habitat requirements (e.g., pollinators, population 
dynamics, seed viability) suggests that another criterion might be 
useful to address some of the landscape-scale factors (drought, fire, 
windstorms, and herbivory) operating on individuals, metapopulations, 
and populations in the communities.
    Our Response: We agree with the reviewer that additional 
information on the species life history, ecology, and habitat 
requirements would be useful in preparing this designation. However, 
this designation is based on the best available information available 
to us, and we are doing our best to finalize the designation within the 
time frame of the court order and within our budgetary constraints. If, 
at any time, additional information becomes available to guide us, we 
well consider the information as appropriate. We believe that this is 
useful in the recovery planning process and should be explored by a 
recovery team in the near future.
    Comment 3 (Peer): One reviewer suggested that it would be useful to 
obtain some measure of landscape ``intactness'' for each known 
population. Such analysis might provide a more optimal configuration 
for circumscription of sites designated as critical, suggest areas with 
the highest or lowest potential of providing the PCEs, and identify 
management strategies that would be most beneficial to the species as a 
whole.
    Our Response: We agree with the general approach and analysis 
provided by the reviewer. As stated in the response to Comment 2, we 
believe that such an analysis and approach is beyond the scope of this 
critical habitat designation, given the deadlines we face to completing 
the designation process, and would be appropriate to the recovery 
planning process in the future. Information derived from such an 
analysis may provide valuable information to be used in the long-term 
conservation of the species and may facilitate its delisting in the 
future.
    Comment 4 (Peer): One reviewer expressed question and concern 
regarding the impact of groundwater withdrawal and water development 
projects within suitable habitat. Recognizing the need for periodic 
disturbance, including flooding, as necessary to control competing 
vegetation, this reviewer asked if all the sites proposed as critical 
habitat support hydrologic conditions of creating and maintaining 
habitat for the species.
    Our Response: All sites included in this final critical habitat 
designation support hydrological conditions necessary to create and 
maintain habitat for the species (i.e., they contain PCE 4 as described 
in this rule). Based on surveys conducted during the summer of 2004, we 
found that some portions of the proposed critical habitat did not 
contain necessary hydrological conditions--these areas have been 
dropped from the final critical habitat designation. While we believe 
that water development and flood control has, generally, curtailed the 
level of disturbance associated with creation of suitable habitat for 
colonization, our observations during surveys of 2004 (including over 
80 percent of species' extant range of occurrence) revealed that such 
hydrological conditions are present within all critical habitat units.
    Comment 5 (Peer): One reviewer stated that the language used in the 
proposed rule that critical habitat provides little additional 
protection to

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most species while consuming significant amounts of conservation 
resources was inappropriate. The reviewer pointed out that the Act 
requires designation of critical habitat, and that if the Service had 
not been so slow to designate, the agency would not be overrun by 
lawsuits.
    Our Response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, 
conservation mechanisms provided through section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, the 
section 10 incidental take permit process, and cooperative programs 
with private and public landholders and tribal nations provide greater 
incentives and conservation benefits than does the designation of 
critical habitat. This is true irrespective of the amount of litigation 
which may be occurring at any given time.
    Comment 6 (Peer): One reviewer stated that the most important 
factor for the conservation of the G. n. ssp. coloradensis is 
preservation and management of habitat. The reviewer agreed that 
designation of critical habitat on private land does not necessarily 
benefit the species. Similarly, another reviewer stated that in 
Wyoming, section 7 consultations are the primary plant conservation 
mechanism, and that there are no incentives provided by this mechanism 
for conservation on private lands. Most of the threats to the G. n. 
ssp. coloradensis on private lands, including weed invasion, 
indiscriminate herbicide application, habitat fragmentation, some water 
development, and/or particular grazing or haying practices, involve no 
Federal funds (or other Federal nexus) resulting in no requirement for 
section 7 consultation under the Act.
    Our Response: We agree. This is why we have chosen to pursue 
Wildlife Extension Agreements with landowners in lieu of designating 
critical habitat on those properties. These agreements provide for 
implementation of on the ground conservation actions for G. n. ssp. 
coloradensis (for a more detailed discussion of these agreements, see 
``Exclusions Under Section 4(b)(2) of the Act'' section).
    Comment 7 (Peer): One reviewer noted that the critical habitat 
proposal states that excessive grazing can change essential habitat 
conditions but can be used as a tool to maintain open habitat. The 
reviewer also notes that excessive grazing can directly and adversely 
affect G. n. ssp. coloradensis plants, particularly their ability to 
set seed. Similarly, another reviewer stated that it was appropriate to 
point out that grazing and haying provide important management tools 
with which to maintain open habitat for the species, and that the 
species has historically occupied, and currently continues to occupy, 
rangelands.
    Our Response: We agree that while grazing can be an important land 
management tool, overgrazing or grazing at critical times can adversely 
affect the plant. Grazing management and the maintenance of suitable 
rangeland production and health are key components to the 11 WEAs the 
Service has secured with landowners to provide for conservation of G. 
n. ssp. coloradensis. To address this issue, we have included 
established, annual monitoring guidelines and methodology (Natural 
Resources Conservation Service, 2001) to evaluate rangeland health, in 
each WEA. In one WEA, currently in place, the Service paid for the 
construction of a fence exclosure to protect a population from 
overgrazing.
    Comment 8 (Peer): One reviewer pointed out that there is no 
specific mention of weed control in the discussion of the Integrated 
Natural Resources Management Plan (INRMP) for Warren Air Force Base 
(WAFB), and that this is a major threat to G. n. ssp. coloradensis 
there.
    Our Response: We summarized the goals and objectives as identified 
in the INRMP, which tend to be general in nature (see ``Exclusions From 
Critical Habitat, Lands Under U.S. Air Force Jurisdiction'' section). 
However, as pointed out by another reviewer, WAFB has demonstrated a 
clear commitment to wise land stewardship for this species over the 
past several years, and the Environmental Management Office of WAFB has 
cooperated with the Wyoming Natural Diversity Database (WNDD) staff to 
monitor populations as well as fund G. n. ssp. coloradensis 
conservation research on weed control, competition with other plants, 
and population genetic variation (e.g., Mountain West Environmental 
Services 1985, Fertig 2001, Munk et al. 2002, Tuthill and Brown 2002, 
Heidel 2004a and 2004b). Weed control, in particular, is an important 
part of ongoing discussions and land management efforts between the 
Service and WAFB, and is included in the ``Conservation and Management 
Plan for the Colorado Butterfly Plant and Preble's Meadow Jumping Mouse 
on F.E. Warren Air Force Base,'' a management plan prepared by the 
Colorado Natural Heritage Program (CNHP) for WAFB, in cooperation with 
the WNDD and the Service (Grunau et al. 2004).

State Agencies

    We received one comment letter from the Wyoming Department of 
Agriculture (WDA), and issues raised by WDA are addressed below.
    Comment 9 (State): The WDA had significant concerns about the 
potential economic impact to agricultural producers. Specific concerns 
included: (1) The cost share program between Partners for Fish and 
Wildlife (PFW) and ranchers for fencing core subpopulations, (2) costs 
incurred from delay of haying and herbicide application, (3) livestock 
grazing management changes recommended by the Service, and (4) WEA 
participation by ranchers in Laramie County.
    Our Response: It appears as if the WDA is referring to an early 
draft form of a WEA that was made available to the Wyoming Stockgrowers 
Association and landowners early in the process for discussion and 
comments. Since that time, WEAs have been modified considerably based 
on extensive discussion and cooperation between individual landowners 
and the Service. Eleven WEAs were ultimately secured between landowners 
and the Service, providing protection to, and enabling the Service to 
exclude from final critical habitat designation, up to 2,564 ac (1,038 
ha) along 37 mi (59 km) of riparian habitat. In only one of these 
agreements did the Service recommend building a fence to enclose a 
population of G. n. ssp. coloradensis. While the PFW Program does 
typically involve a 50 percent cost share, in this particular case the 
PFW paid 100 percent of cost for both materials and construction. In 
the future, if the Service determines that similar fencing surrounding 
a subpopulation of G. n. ssp. coloradensis would be helpful to meet the 
conservation needs of the plant on a particular property, the Service 
would use a similar cost structure.
    Regarding the second part of the comment about delay of haying, the 
WEAs secured with landowners whose properties are managed, at least in 
part, for hay production, outline an approach whereby the landowner 
cooperates and communicates with the Service on an annual basis to 
facilitate our understanding of how the timing of harvest may impact 
the plant. At this time, more information is needed about this issue. 
The WEAs provide an

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opportunity for the landowners and the Service to coordinate efforts of 
hay production and population data collection, respectively, to 
facilitate the conservation needs of the plant without imposing undue 
burden on the landowner. It is important to emphasize that these 
agreements were arrived at through discussions between the Service and 
each individual landowner to ensure the particular needs of the 
landowner were met. If future data collection on a particular 
landowner's parcel were to suggest that delay of hay cutting would be 
beneficial to the plant, then similar discussion would ensue toward 
reaching an agreement regarding how to meet the needs of the plant and, 
at the same time, meet the needs of the landowner. Such discussion also 
would consider whether the landowner would need monetary compensation. 
Thus, each agreement is individualized based on the unique situation of 
the landowner and the needs of the plant on that property. There are no 
set requirements of the Service that will cause undue burden, financial 
or otherwise, on the landowner.
    Regarding the second part of the comment, need for herbicide 
application, the Service is fully aware of, and supports, the need to 
control noxious weeds on private and public property. Within all WEAs, 
the Service has recommended a manner in which herbicide may be applied 
in order to control species such as Canada thistle (Cirsium arvense) 
and leafy spurge (Euphorbia esula), at the same time as protecting 
populations of G. n. ssp. coloradensis. Again, such voluntary 
agreements involve the individual landowner working with the Service to 
address the landowner's needs while providing protection to the plant. 
Indeed, the Service has recognized for years that these two weed 
species in particular will, if left uncontrolled, lead to the 
elimination of habitat for G. n. ssp. coloradensis.
    Regarding the third part of the comment, grazing management, the 
WEA outlines a method through which the landowner and the Service can 
work together to evaluate how rangeland production (according to NRCS 
standard methodology and guidelines, 2001), livestock grazing intensity 
and timing, and the maintenance of suitable habitat for G. n. ssp. 
coloradensis affect each other. On an annual basis, the Service and the 
landowner have an opportunity to evaluate these interacting factors, 
take into consideration the individual needs of the landowner and the 
conservation needs of the plant, and go forward with a mutually-agreed 
upon plan for the next year. Thus, through cooperation and coordination 
between each landowner and the Service annually, the needs of both 
parties are met through this mutually participatory agreement.
    As stated above in Comment 6 (Peer), the WEA provides a unique 
approach to protecting the conservation needs of G. n. ssp. 
coloradensis above and beyond that afforded by designation of critical 
habitat. Importantly, these voluntary agreements are based on mutual 
coordination and participation between the individual landowners and 
the Service. They provide a mechanism to meet the needs of both parties 
involved, with flexibility to manage adaptively each year as conditions 
on the ground may change, with little or no expense to the landowner 
(see ``Exclusions Under Section 4(b)(2) of the Act'' section for a more 
detailed discussion).

Public Comments

    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and G. n. ssp. coloradensis, the draft 
economic analysis, and the draft EA. In the following summary of issues 
we address comments received on all documents during the public comment 
periods. Comments of a similar nature are grouped into issues.
    Comment 10: The Wyoming Stockgrowers Association (WSA) provided 
strong support for the use of Wildlife Extension Agreements as key to 
conservation of G. n. ssp. coloradensis on private lands. However, they 
noted that time constraints associated with critical habitat 
designation prohibited what would have been a greater success since 
more landowners would have participated if time had permitted. WSA 
suggested that the final designation of critical habitat for G. n. ssp. 
coloradensis include a provision allowing for development of future 
WEAs and the concomitant removal of critical habitat for those lands.
    Our Response: The Service acknowledges that time constraints may 
have been a significant factor limiting the number of agreements with 
landowners. Modifying the final critical habitat for a federally listed 
species would require a revised rulemaking. While such revisions are 
not typical, the Service would consider a revision if a significant 
number of landowners are willing to participate in agreements.
    Comment 11: The WSA also identified two concerns associated with 
the economic analysis--(1) For those ranchers who enter into WEAs, 
indirect costs that were not examined include reduced hay production 
and/or weight gain of livestock associated with land management 
changes; and (2) for those landowners whose property receive the 
critical habitat designation, there is no analysis of lost opportunity 
costs resulting from their inability to participate in a number of 
Federal programs that provide expertise and dollars for resource 
improvement. The need for section 7 consultation will tend to 
discourage participation in these programs even in those cases where 
critical habitat is not a direct impediment to participation.
    Our Response: Indirect costs to ranches entering into WEAs were 
examined. The comment correctly identifies the two potential avenues 
for weight loss, one related to haying activities and the other to 
grazing activities, both of which were included in the economic 
analysis. As described in Section 4.2.1.2 of that document, both 
quality and quantity losses in hay production are quantified. As for 
grazing, the economic analysis assumes the impacts on weight gain from 
excluding grazing on 0.08 ha (0.2 ac) during the period G. n. ssp. 
coloradensis produced and set seed are negligible. The enclosure could 
be grazed in May without any loss in nutritional value. The regrowth 
could then be grazed in September following the exclusion period, but 
the impact of the reduced weight gain from the regrowth should have a 
negligible impact on the overall weight gain of the livestock being 
grazed as it represents a minimal amount of forage. During the 3 months 
when grazing is not allowed in the enclosure, the analysis assumes that 
grazing could occur in the surrounding pasture.
    Regarding the second part of the comment, while this may be an 
issue for some individual landowners, overall use of operational and 
conservation funding within the region is not expected to change as a 
result of the designation. As detailed in Section 4.1 of the economic 
analysis, the NRCS has not consulted with the Service in the past for 
G. n. ssp. coloradensis. Furthermore, as discussed in Section 4.2.1, 
the agency expects future demand for its programs in the southeastern 
portion of Wyoming (Laramie and Platte County) will continue to be 
light and that future consultations with the Service for G. n. ssp. 
coloradensis are unlikely. The NRCS also does not anticipate changes in 
conservation program participation due to G. n. ssp. neomexicana.
    Comment 12: One commenter expressed confusion over having received 
several different drafts of the WEA, with a primary concern of the 
Service's ability to enter property covered by an agreement to look for 
other federally-listed species.

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    Our Response: In an effort to address landowners concerns during 
early WEA development stages, the Service made several revisions to the 
draft agreement and provided copies to all interested landowners. As 
explicitly stated in the WEAs, the sole purpose of these agreements was 
for the Service and the landowner to work cooperatively to provide 
protection for G. n. ssp. coloradensis. The WEA explicitly states that 
the Service must coordinate a date and time for annual monitoring with 
the landowner in question. Further, an offer was made to several 
landowners to allow the landowner, or a representative of Wyoming 
(e.g., Department of Agriculture), to accompany Service personnel 
during each field visit in order to provide assurance that the Service 
was carrying out only those monitoring activities as agreed to within 
the WEA. The Service worked diligently to negotiate in good faith the 
specific terms of the agreement with all of the landowners.
    Comment 13: A landowner questioned the long-term validity of 
``special management considerations'' found in WEAs, and the 
possibility that environmental groups may sue in the future to change 
land management taking place on the landowner's private property.
    Our Response: The WEAs are based on measurable and repeatable 
monitoring criteria using sound scientific principles and methods to 
evaluate habitat management success. These methods have been adopted 
and used widely by the NRCS and other agencies for many years (NRCS 
2001). The scientific foundation of these agreements is solid and 
defensible (see ``Exclusions Under Section 4(b)(2) of the Act'' section 
for a more detailed discussion). In addition, there is nothing in the 
critical habitat provisions of the ESA that could mandate changes to or 
control of private actions on private property. Critical habitat 
designations affect only Federally conducted, funded, or permitted 
actions.
    Comment 14: One landowner expressed concern that ``the Act seems to 
have turned into a single agency that seems to want an end to entire 
lifestyles and industries while not using common sense in 
designation.''
    Our Response: We believe that our approach to this critical habitat 
designation is a common sense approach that provides many opportunities 
for the landowner and the Service to work cooperatively to protect this 
species in a manner that is economically viable to the individual 
landowners. The Service has reduced the proposed designation by 1,038 
ha (2,564 ac) along 59 stream km (37 mi) based on the development of 
Wildlife Extension Agreements alone, and by 964 ha (2,384 ac) along 
approximately 41 km (25 mi) of stream based on surveys conducted this 
year that showed that primary constituent elements were not present. We 
agree that many landowners are excellent stewards of their lands and 
provide benefits to fish, wildlife, plants and their habitats, and we 
look forward to continuing to work with landowners in the future (see 
``Exclusions Under Section 4(b)(2) of the Act'' section as well as our 
Response to Comment 19).
    Comment 15: One landowner expressed strong support for using 
Wildlife Extensions Agreements to protect G. n. ssp. coloradensis and 
its habitat on private lands instead of critical habitat. In this 
landowner's view, there is no doubt that greater benefit is afforded to 
the species by protecting occupied lands with WEAs rather than 
designating those lands as critical habitat. This landowner further 
states that given that the majority of known G. n. ssp. coloradensis 
populations occur on private land, and that critical habitat will not 
change land management on these lands, therefore designating critical 
habitat on private land is of no benefit to the plant.
    In contrast, one comment, representing the views of four different 
environmental groups, strongly opposed using Wildlife Extension 
Agreements instead of designating critical habitat. The groups state 
that such voluntary agreements as WEAs, which expire after 15 years, 
cannot be considered adequate mechanisms to exclude critical habitat. 
They claim that there is no evidence that, such agreements meet the 
Service's own criteria needed for such a conservation/management plan 
to provide adequate management protection; the agreements will increase 
G. n. ssp. coloradensis population sizes or restore its habitat; 
funding will be secured to implement such agreements; biological goals 
are central to the agreements; or the 15-year time span will be 
sufficient to realize goals. They state that exempting any populations 
from designation of critical habitat makes no sense biologically 
because the Service has stated that all proposed units are necessary to 
account for demographic uncertainty, low genetic variation, and limited 
opportunity to colonize new habitats. They conclude by stating that 
they support such agreements in addition to (not in place of) critical 
habitat, and suggest that the high level of landowner participation in 
G. n. ssp. coloradensis conservation by allowing the Service to conduct 
surveys during the summer of 2004 indicates a willingness of landowners 
to continue to do so in the future.
    Our Response: We believe that the WEAs provide benefits to this 
species that outweigh the benefits of designating critical habitat (see 
``Exclusions Under Section 4(b)(2) of the Act'' section for a more 
detailed discussion).
    Comment 16: One commenter disagreed with the Service using 
historical records and extrapolations thereof for designating critical 
habitat rather than recent field surveys.
    Our Response: The Service must use the best scientific and 
commercial data available for such designations. Because we agree with 
the comment that recent data should be used, the Service conducted 
field surveys during the summer of 2004 in order to update its records 
on which to base the final critical habitat designation. After 
conducting these surveys and updating records on presence of PCEs, 
suitable habitat, and species occurrence, the Service eliminated 964 ha 
(2,384 ac) along 41 km (25 mi) of stream from the final critical 
habitat designation. These are in addition to the 1,038 ha (2,564 ac), 
along 59 km (37 mi) of stream, eliminated due to WEAs.
    Comment 17: One landowner requested to be dropped from critical 
habitat based on the following reasoning. The proposed rule states that 
``critical habitat identifies specific areas, both occupied and 
unoccupied, that are essential to the conservation of a listed species 
that may require special management consideration and protection. 
Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species.'' The landowner claimed that 
because special management was not necessary on the private property in 
question, the property should not be included in critical habitat.
    Our Response: During discussions with the commenting landowner, the 
Service stated that the current management in terms of livestock 
grazing and hay production appeared to be meeting the conservation 
needs of G. n. ssp. coloradensis as evidenced by the presence of 
thousands of plants and many subpopulations. Indeed, the habitat 
appeared to meet the needs of the species based on surveys conducted 
during 2004. By acknowledging that the private property in question is 
providing for the conservation needs of G. n. ssp. coloradensis and 
that no changes are needed at this time, we are stating that the 
current management

[[Page 1945]]

provides the special management and protection that critical habitat 
requires. Therefore, without an agreement to guarantee that this 
special management and protection will continue (i.e., a WEA), this 
management and protection could disappear. Therefore, we commend the 
landowner on the excellent land stewardship currently in place that 
provides for the conservation needs of this species, but must note that 
the statutory considerations for special management apply to the future 
as well as the present.
    Comment 18: One comment, representing four environmental 
organizations, expressed concern that the environmental organizations 
were not provided a report of the 2004 surveys conducted by the 
Service. They stated that, consequently, they could not evaluate the 
adequacy of the proposed critical habitat.
    Our Response: The ``report'' requested by the commenters has not 
yet been completed. Early drafts of the report did exist during the 
open comment period, but we determined that it was neither necessary 
nor appropriate to make the text of the drafts to be available to the 
commenters as it was not complete. Instead, we made a summary of the 
data collected in 2004 available to the public during the open comment 
period, and we provided that data to these commenters well before the 
close of the comment period. We did not rely on the draft report in 
making our final determination of critical habitat for G. n. spp. 
coloradensis, but we did rely on the data that was released to 
commenters.
    Comment 19: While the Service discusses the importance of 
maintaining connectivity within and between populations to facilitate 
pollen flow and population expansion, it excludes the importance of 
seed dispersal and the importance of protecting habitat downstream of 
known populations where new populations could be established. 
Similarly, the commenter suggests that the Service must expand its 
designation to include other stream reaches with PCEs for recovery 
habitat, and that the Service has not taken into consideration range 
contraction of the species. The Service cannot seek to maintain the 
status quo by only protecting existing populations if recovery is its 
true goal.
    Our Response: Although the Service did not explicitly state the 
importance of seed dispersal, it is implied in our statement regarding 
``population expansion'' on page 47837 of the proposed rule (69 FR 
47834). Population expansion cannot occur without seed dispersal for a 
sexually reproducing plant such as G. n. ssp. coloradensis, which does 
not produce rhizomes (underground stems) or stolons (above ground 
stems). Additionally, we believe that for a plant characterized by a 
very short distance of seed dispersal (typically less than 1 m for this 
species), pollen flow should be emphasized as a primary mechanism of 
gene flow and concomitant increase in genetic variation.
    Regarding the need for expansion of the critical habitat 
designation, a substantial effort was made to provide for linkage of 
individual subpopulations and provide for colonization downstream via 
seed dispersal to aid in species recovery (please see response Comment 
1 (Peer)). As evidenced throughout the description in the proposed rule 
of several of the units, the Service has protected suitable habitat 
between, and downstream from, known subpopulations based on the best 
available scientific information. Habitat that does not contain PCEs 
was eliminated as it is not essential for the conservation of this 
species. The Service believes that the current extent of contiguous 
critical habitat, in addition to habitat protected by WEAs, provides 
for the conservation needs of the species to colonize new habitats and 
expand populations, and provides for recovery needs of the species. 
Therefore, there is no need to consider repatriation to the entire 
historic range. However, the Service acknowledges that recovery 
planning may indicate a need for additional habitat.
    Comment 20: The Service acknowledges the importance of flooding and 
scouring events to the ecology of the G. n. ssp. coloradensis, but does 
not adequately attempt to protect and restore these important 
ecological processes, and the economic analysis does not address the 
costs and benefits of maintaining instream flows and preventing water 
diversions. The Service must do all that it can to retain flooding and 
scouring events in suitable habitat for the G. n. ssp. coloradensis or 
to achieve recovery.
    Our Response: We agree that it is important to do all that we can 
to retain flooding and scouring events in suitable habitat for the 
plant. During the development of the proposed rule, we spent a 
considerable amount of time examining maps and field conditions in 
areas that may provide natural hydrological patterns for G. n. ssp. 
coloradensis, but we were not able to identify any such areas. As 
discussed in the economic analysis, Section 4.2.5, where a Federal 
nexus exists, costs related to water diversions, and in the case of 
this economic analysis, costs related to water diversion activities are 
not expected.
    However, discussions with several landowners revealed that natural 
processes such as flood events continue to provide some flooding and 
scouring events needed for colonization of G. n. ssp. coloradensis. For 
example, at least five different landowners described at least one 
significant flood event that occurred over the past ten years that was 
responsible for scouring out habitat for plants with a colonizing 
habit--three of whom believe that such an event was responsible for at 
least one subpopulation of G. n. ssp. coloradensis located on their 
property today that was previously undiscovered during surveys. As the 
Service continues to work with landowners while implementing WEAs over 
the next several years, we will continue to explore opportunities to 
enhance, restore, and conserve hydrological regimes.
    Comment 21: On page 8 of the economic analysis, the Service 
acknowledges that overgrazing may threaten the G. n. ssp. coloradensis. 
However, page 4-11 of the economic analysis implies that the timing, 
not the intensity, of livestock grazing impacts the species.
    Our Response: We agree that while grazing can be an important land 
management tool, overgrazing can detrimentally affect the plant. As 
discussed in Section 4.2.1.1 of the economic analysis, the timing of 
grazing, regardless of intensity, is potentially dangerous to the plant 
if it occurs during the flowering and seed setting in July and August. 
Consequently, the economic analysis quantifies the impacts to ranchers 
from excluding the core subpopulation from all grazing from late May 
until August and captures the economic impacts of this exclusion. The 
economic impacts would not vary by grazing intensity since the costs 
are based on the quantity of forage produced by the excluded area.
    As noted in comments provided by two peer reviewers knowledgeable 
about the ecological requirements of G. n. ssp. coloradensis (see 
Comment 7 (Peer)), grazing may be an important tool for maintaining 
open habitat for this species. There is a growing body of evidence 
documenting the importance of decreasing the level of competition with 
other plants to maintain suitable (i.e., more open and less over-grown) 
habitat for G. n. ssp. coloradensis (Munk et al. 2002, Burgess 2003, 
Heidel 2004a and 2004b).
    Comment 22: One commenter stated that the Service had information 
about potential populations in the vicinity of

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the designation yet outside of the area inventoried, yet the Service 
made no attempt to verify these reports. Similarly, the Service should 
check herbaria records in addition to CNHP and WNDD records to document 
known locations of G. n. ssp. coloradensis.
    Our Response: The Service sought out and used the best available 
information for this designation. We worked hard to contact landowners 
to gain access to historical areas, hired a full-time professional 
botanist to survey over 90 mi (145 km) of primarily private lands 
during the summer of 2004, and updated museum and database records. We 
were able to gain access on approximately 80 percent of these 
locations. While the Service has an obligation to follow up on 
potential occurrences provided by various sources (e.g., informal 
reports, credible leads from other field botanists), we need the 
permission of the landowner owner to access lands. Therefore, while in 
some cases we had reason to believe that private lands adjacent to 
surveyed areas may have been occupied by the plant, unless permission 
was granted by the landowners, we did not survey the land. However, if 
the presence of plants on that property was previously verified, yet 
access was not allowed to update those surveys, we assumed presence and 
these areas were included in this designation. We believe that all 
available and pertinent information concerning locations for the 
species was confirmed and pertinent information was included in this 
designation to the extent possible.
    Comment 23: We are unsure why the Service would have eliminated 
areas that did not contain the appropriate vegetation or associated 
native plant species as indicated on page 47838 of the proposed rule 
(69 FR 47834).
    Our Response: The Service eliminated areas based on observations, 
surveys, and recommendations of a professional botanist. Those areas 
referred to by the commenter were typically characterized by 
exclusively upland species that would never be observed in the same 
habitat as G. n. ssp. coloradensis (e.g., Kochia scoparia). If the PCEs 
were present, then the Service considered the habitat was suitable for 
G. n. ssp. coloradensis.
    Comment 24: The proposed rule states that critical habitat provides 
little additional protection to most species while consuming 
significant amounts of conservation resources was viewed as incorrect 
and inappropriate. The comment states that critical habitat does 
provide protections beyond those conveyed under other parts of the Act, 
and that the Center for Biological Research has used the Service's own 
data to show that listed species with critical habitat are less likely 
to be declining and over twice as likely to be recovering as listed 
species without critical habitat. The commenter notes that 2004 surveys 
and concomitant information collected regarding the conservation needs 
of the species would not have occurred without the need to designate 
critical habitat. The commenter further states that while the Service 
explains the accelerated schedules of court-ordered designations and 
the cost of publishing the designations, the Service had four years to 
complete this designation but did not begin work until March 2004.
    Our Response: See Response to Comment 5.
    Comment 25: The preferred alternative of the Environmental 
Assessment fails to provide for recovery of G. n. ssp. coloradensis. 
The Service proposes that conservation actions will be limited to only 
a subset of occupied habitat in which concentrated subpopulations of 
the plant are found. The statement in the Environmental Analysis that 
special management of WEAs will focus on the core of the concentrated 
subpopulations, the average size of which is 15 by 15 m (50 by 50 ft), 
contradicts the Service's assessment regarding the importance of future 
opportunities for colonization events for metapopulation persistence 
and species viability.
    Our Response: The areas encompassed in the WEAs were based on the 
same areas that would have been designated as critical habitat at those 
locations. That is, the agreements protect the same areas that critical 
habitat would have protected but for the WEAs. This is consistent with 
the Service's position regarding the need to protect long-term 
metapopulation persistence and species viability by protecting as many 
populations as possible through conservation--either through critical 
habitat or WEAs.
    We made a substantial effort to provide for linkage of individual 
subpopulations and provide for colonization downstream via seed 
dispersal to aid in species recovery. The Service believes that the 
current extent of contiguous critical habitat, in addition to habitat 
protected by WEAs, provides for the conservation needs of the species 
to colonize new habitats and expand populations, and provides for 
recovery needs of the species (also see Responses to Comment 1 and 19).
    Eleven WEAs protect a total area encompassing 1,038 ha (2,564 ac) 
along 59 km (37 mi) of stream. This gives an average of 94 ha (233 ac) 
and 5.4 km (3.4 mi) of stream for each WEA. Within this average of 94 
ha (233 ac) per WEA, there may be three or four subpopulations with an 
average size of 15 m\2\ (50 ft\2\) (this average is based on actual 
sizes of populations observed in the field). While all 94 ha (233 ac) 
are included in the WEA, there may be a need to conduct special 
management actions on only one or two of these core subpopulations. For 
example, the WEA encompassed a total of 16 ha (40 ac) of habitat for G. 
n. ssp. coloradensis, yet the special management--which involved 
building a fence around the core subpopulation of plants because no 
other way could be found to protect it, encompassed an area of only 11 
m by 17 m (35 ft by 55 ft). By acknowledging that private property in 
question is providing for the conservation needs of G. n. ssp. 
coloradensis and that no changes are needed at this time, we are 
stating that the current management being implemented by the landowner 
is providing the special management and protection that critical 
habitat requires (see Response to Comment 6). Therefore, it is 
typically not necessary to undertake additional special management on 
all acreage covered within the WEAs, only for those smaller areas still 
in need of additional protection.
    Comment 26: The economic analysis presents a table of listed 
species that were included in previous consultations concerning G. n. 
ssp. coloradensis. The commenter asks us to clarify whether or not 
other listed species such as the peregrine falcon can be found in the 
proposed area.
    Our Response: The Service has conducted past consultations on G. n. 
ssp. coloradensis in combination with numerous species, as indicated in 
the DEA, Exhibit 2-3 was listed. The peregrine falcon was removed from 
this table, and the final economic analysis reflects the removal of the 
peregrine falcon from this table.
    Comment 27: Some costs ($32/hour for the labor to repair fences, 
$3,500 to provide a species list to Wyoming Department of 
Transportation, $1,000 for a ``no effect'' concurrence letter) seem 
inflated.
    Our Response: We acknowledge that a rancher may perform fence 
maintenance activities themselves, but we consider the regional custom 
rate for fence repair to be an approximation of the rancher's 
opportunity cost of performing fence maintenance activities. If 
agricultural operators do not own the machinery and equipment necessary 
to perform every farm and ranch operation, farmers and ranchers may 
need to hire custom operators to perform the activities. The

[[Page 1947]]

economic analysis is based on the assumption that the ranchers will 
hire a custom operator to perform annual fence maintenance. Rates for 
hiring others to perform work normally include the costs of owning 
equipment and performing the custom operation. The hourly rate used in 
the economic analysis for fence repair is a regional specific rate 
based on a survey of Wyoming custom operators, farmers, ranchers, and 
agribusiness personnel conducted by the University of Wyoming in 2002. 
As for administrative costs of section 7 consultation, these costs are 
based on a sample of consultation records from several Service field 
offices around the country as described in Exhibit 4-1 of the economic 
analysis.
    Comment 28: The economic analysis needs to clarify and reconcile 
the pipeline projects described in the report and state whether routes 
have been finalized. If they have not been finalized, explain that the 
impacts of the pipeline are uncertain at this time.
    Our Response: A representative of the company installing the 
pipeline reviewed a map of the proposed designation and stated that the 
pipeline project is not expected to impact known plant populations. 
Section 4.2.2 of the economic analysis was modified to eliminate the 
confusion.
    Comment 29: A landowner who has since entered into a WEA explained 
that a road widening project adjacent to his property threatened G. n. 
ssp. coloradensis habitat, but it appears that this is not mentioned in 
the Road/Bridge section of the economic analysis.
    Our Response: The area in question is the route 149 bridge crossing 
Lodgepole Creek, north of Burns, Wyoming. We contacted the Public Works 
Department of Laramie County, Wyoming, and they indicated there is no 
planned work along this section of road. Section 4.2.4.2 of the final 
economic analysis has been updated to incorporate this new information.
    Comment 30: One commenter questioned why the draft economic 
analysis did not consider the potential economic benefits associated 
with the designation of critical habitat for the G. n. ssp. 
coloradensis.
    Our Response: The draft economic analysis, 1.2.4, Benefits section, 
states ``Given the limitations associated with estimating the benefits 
of proposed critical habitat designation for G. n. ssp. coloradensis, 
the Service believes that the benefits of proposed critical habitat 
designation are best expressed in biological terms that can be weighed 
against the expected costs impacts of the rulemaking.'' The development 
of quantitative estimates associated with the benefits of critical 
habitat is impeded by the lack of available studies and information 
relating to the size and value of beneficial changes that are likely to 
occur as a result of listing a species or designating critical habitat.
    This analysis is used for helping the Service decide whether to 
exclude areas and whether the exclusions outweigh the benefits of 
inclusion. So, the economic analysis looks at the burden on the public 
of the regulation, and whether any areas have a disproportionate 
burden. The Service must then balance that against the benefits of 
including that area, including the benefits of the area to the species 
and the benefits of the species' existence and recovery, to the extent 
these are provided by the critical habitat designation. This analysis 
is included in the 4(b)(2) discussion in the rules. We believe that 
monetizing may trivialize the benefits of critical habitat because 
there are no widely accepted ways for placing a dollar value on a 
biological benefit. In this analysis, several categories of benefits 
were identified, including preservation of open space and biodiversity, 
both of which can be associated with species conservation.

Summary of Changes From the Proposed Rule

    In preparing our final designation of critical habitat for Gaura 
neomexicana ssp. coloradensis, we reviewed comments received on the 
proposed designation of critical habitat, and we made the following 
changes to our proposed designation:
    (1) We made revisions based on 2004 surveys conducted this year to 
update our data on the species. We refined the final critical habitat 
designation and eliminated 964 ha (2,384 ac) along approximately 41 km 
(25 mi) of stream. Five units (Unit 2, Bear Creek East; Unit 4, Little 
Bear Creek/Horse Creek; Unit 5, Lodgepole Creek West; Unit 6, Lodgepole 
Creek East; and Unit 7, Borie) were reduced based on new 2004 
information provided by habitat evaluations (see Critical Habitat 
Designation section).
    (2) Under section 4(b)(2) of the Act, we excluded areas with 
Wildlife Extension Agreements (WEAs) which provide for conservation of 
G. n. ssp. coloradensis and its habitat. Specifically, we excluded 
1,038 ha (2,564 ac) along 59 km (37 mi) of stream, a total of 30 
percent of the proposed designation, in portions of Unit 4 (Little Bear 
Creek/Horse Creek), Unit 5 (Lodgepole Creek West), Unit 6 (Lodgepole 
Creek East), and Unit 7 (Borie), as well as the entire Unit 8 (Meadow 
Springs Ranch) based on development of WEAs. Collectively, we excluded 
a total of 1,808 ha (4,468 ac, 53%) of private lands and a total of 194 
ha (480 ac, 6%) of lands owned by city municipalities from this final 
critical habitat designation based on updated surveys conducted in 2004 
and development of WEAs (for a more information about the WEAs with 
landowners, see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).
    (3) Habitat supporting G. n. ssp. coloradensis populations located 
on the WAFB was not considered for proposed designation as critical 
habitat. The WAFB has an approved INRMP that provides a benefit to the 
species. Also, we did not include historical locations in Boulder, 
Douglas, and Larimer Counties in Colorado, because these areas did not 
contain the PCEs.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species (Primary Constituent Elements, or PCEs) and (II) that may 
require special management considerations or protection; and (ii) 
specific areas outside the geographic area occupied by a species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the species. ``Conservation'' means the use of 
all methods and procedures that are necessary to bring an endangered or 
a threatened species to the point at which listing under the Act is no 
longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat.
    To be included in a critical habitat designation, the habitat must 
first either be occupied at the time of listing with PCEs in need of 
special management or protection, or be unoccupied habitat that is, of 
itself, ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, occupied habitat areas that 
provide essential life-cycle needs of the species

[[Page 1948]]

(i.e., areas on which are found the PCEs, as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).)
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards under the Act, published in the 
Federal Register on July 1, 1994 (59 FR 34271), provides criteria, 
establishes procedures, and provides guidance to ensure that decisions 
made by the Service represent the best scientific and commercial data 
available. It requires Service biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to G. n. ssp. coloradensis. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1), and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods and Criteria

    For more information, please refer to the proposed critical habitat 
rule (August 6, 2004, 69 FR 47834).

Criteria Used To Identify Critical Habitat

    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of G. n. ssp. coloradensis at seven 
sites where previously known subpopulations occur. Much of what is 
known about the specific physical and biological requirements of G. n. 
ssp. coloradensis is described in the Primary Constituent Elements 
section.
    The Service worked with the WSA, the Wyoming Association of 
Conservation Districts, the WDA, the NRCS in Wyoming and Nebraska, the 
City of Fort Collins in Colorado, the City of Cheyenne in Wyoming, and 
several individual landowners to develop Wildlife Extension Agreements 
(WEAs) to provide for the conservation of G. n. ssp. coloradensis. 
These WEAs include specific on-the-ground actions to alleviate specific 
threats, such as: allowing the Service access to private land to 
conduct annual monitoring of G. n. ssp. coloradensis populations to 
evaluate success of management actions under the agreement; 
establishing an adaptive management approach to evaluate success of 
management actions under the agreement; and facilitating the collection 
of data needed for future recovery of the species. WEAs provide 
specific measures to address potential threats due to herbicide 
application, livestock grazing, and hay production. Through cooperation 
and communication between landowners and the Service, such WEAs provide 
for the conservation needs of G. n. ssp. coloradensis above and beyond 
what would be achievable through the designation of critical habitat on 
private lands while meeting the needs of individual landowners. Working 
cooperatively with private landowners to protect habitat for G. n. ssp. 
coloradensis through WEAs is the Service's preferred approach to 
protecting the species on private lands. The Service has pursued such 
agreements to the fullest extent practicable prior to finalizing 
critical habitat. In several locations throughout the species' known 
range of occurrence, the Service has determined that the benefits of 
excluding an area from critical habitat designation subject to one of 
these agreements outweigh the benefits of including it in the final 
critical habitat designation. Currently, 11 such agreements are in 
place. Accordingly, the Service has excluded 1,038 ha (2,564 ac) along 
59 km (37 mi) of stream from final critical habitat designation 
pursuant to section 4(b)(2) of the Act.
    The Service has worked with landowners to gain access to private 
lands to survey for plant populations. Most of these populations had 
not been surveyed since 1998, earlier in some cases. Field surveys were 
conducted during the summer of 2004 within 80 percent of all habitat 
previously known to be occupied by G. n. ssp. coloradensis.
    Reproductively mature G. n. ssp. coloradensis plants were found on 
35 of the previously known subpopulation locations, or approximately 60 
percent; 24 new subpopulations also were identified, in addition to 
many scattered individual plants between subpopulations. Based on 
information provided by these surveys, the Service has further refined 
the critical habitat designation from the original proposal.
    We designate critical habitat on lands on which the PCEs are found. 
While the species was known historically from several additional 
locations in northern Colorado and southeastern Wyoming, these 
populations are believed to be extirpated (Fertig 1994) and are not 
included in the designation.
    Much of the survey data on which this designation is based 
represents the number of flowering individuals during one point in 
time. Because of the annual fluctuation in population size for this 
species (ranging from 200 percent), and because the number of flowering 
individuals each year depends upon local environmental factors that 
vary substantially year to year (e.g., precipitation), it is likely 
that other individual plants and subpopulations exist but were not 
identified during previous, or 2004, surveys. This is particularly true 
for those areas containing the PCEs for the species that occur between 
subpopulations. Not only are these areas essential to achieving the 
long-term conservation goal of protecting the maximum number of 
populations possible, but they are essential in maintaining gene flow 
between populations via pollen flow to maintain, and potentially 
increase, local population genetic variation.
    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of G. n. ssp. coloradensis in all areas 
where it is known to occur, except WAFB (see discussion in ``Exclusions 
From Critical Habitat, Lands Under U.S. Air Force Jurisdiction'' 
section) and those areas for which WEAs have been secured. All units 
are essential because G. n. ssp.

[[Page 1949]]

coloradensis populations exhibit significant demographic uncertainty, 
contain very low genetic variation, and have very little opportunity to 
colonize new geographic areas with which to balance local extinction 
events. We believe the designation is of sufficient size to maintain 
ecological processes and to minimize secondary impacts resulting from 
human activities and land management practices occurring in adjacent 
areas. We mapped the units with a degree of precision commensurate with 
the available information and resources.
    Although we are not designating sites other than where populations 
are known to occur, we do not mean to imply that habitat outside the 
designation is unimportant or may not be required for recovery of the 
species. Areas that support newly discovered populations in the future, 
but are outside the critical habitat designation, will continue to be 
subject to the applicable prohibitions of section 9 of the Act and the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard. In addition, for such populations discovered on private 
lands, the Service will consider entering into conservation agreements 
with the landowners similar to the ones contemplated for currently 
known populations.
    We often exclude non-Federal public lands and private lands that 
are covered by an existing operative HCP and executed Implementation 
Agreement (IA) under section 10(a)(1)(B) of the Act from designated 
critical habitat because the benefits of exclusion outweigh the 
benefits of inclusion as discussed in section 4(b)(2) of the Act. There 
are no HCPs in place for Gaura neomexicana ssp. coloradensis at this 
time. Department of Defense lands with an approved INRMP also are 
excluded from critical habitat. We have approved the INRMP for WAFB, 
which provides a benefit to G. n. ssp. coloradensis. Consequently, we 
did not consider habitat supporting populations located on WAFB for 
designation as critical habitat.
    Designating critical habitat is one mechanism for providing habitat 
protection for G. n. ssp. coloradensis populations. However, the 
benefits of protecting extant populations through conservation 
agreements, by partnering with private landowners on whose property 
populations occur, outweigh the benefits of designating critical 
habitat for this species. Greater protection results from conservation 
agreements that restrict specific types of actions (e.g., 
indiscriminate application of herbicides; overgrazing; timing of hay 
cutting) undertaken by private landowners that may adversely impact G. 
n. ssp. coloradensis or its habitat and that would not involve a 
Federal nexus subject to consultation under section 7(a)(2) of the Act. 
The designation of critical habitat, in and of itself, does not provide 
similar restrictions. A review of the complete consultation history of 
G. n. ssp. coloradensis has revealed that none of the actions 
undertaken on private lands resulting in these threats to the species 
have ever required consultation under the Act. In addition, there is no 
mechanism in the critical habitat provisions of the ESA to either 
promote voluntary active conservation measures or to require them.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (PCEs) that are essential to the 
conservation of the species, and that may require special management 
considerations and protection. These include, but are not limited to, 
space for individual and population growth and for normal behavior; 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing (or development) of offspring; and habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.
    The PCEs for Gaura neomexicana ssp. coloradensis include those 
habitat components essential for the biological needs of rosette growth 
and development, flower production, pollination, seed set and fruit 
production, and genetic exchange. G. n. ssp. coloradensis typically 
lives and reproduces on subirrigated, stream-deposited soils on level 
or slightly sloping floodplains and drainage bottoms at elevations of 
1,524 to 1,951 m (5,000 to 6,400 ft). Most colonies are found in low 
depressions or along bends in wide, active, meandering stream channels 
a short distance upslope of the active channel, and may occur at the 
base of alluvial ridges at the interface between riparian meadows and 
drier grasslands (Fertig 2001). Average annual precipitation within its 
range is 33 to 41 cm (13 to 16 in), primarily in the form of rainfall 
(Fertig 2000). Soils in G. n. ssp. coloradensis habitat are derived 
from conglomerates, sandstones, and tufaceous mudstones and siltstones 
(i.e., derived from spongy, porous limestone formed by the 
precipitation of calcite from the water of streams and springs) of the 
Tertiary White River, Arikaree, and Ogallala formations (Fertig 2000).
    Ecological processes that create and maintain G. n. ssp. 
coloradensis habitat are important PCEs. Essential habitat components 
to G. n. ssp. coloradensis occur in areas where past and present 
hydrological and geological processes have created streams, 
floodplains, and conditions supporting favorable plant communities. 
Historically, G. n. ssp. coloradensis habitat has been maintained along 
streams by natural flooding cycles that periodically scour riparian 
vegetation, rework stream channels and floodplains, and redistribute 
sediments to create vegetation patterns favorable to G. n. ssp. 
coloradensis. G. n. ssp. coloradensis commonly occurs in communities 
including Agrostis stolonifera (redtop) and Poa pratensis (Kentucky 
bluegrass) on wetter sites, or Glycyrrhiza lepidota (wild licorice), 
Cirsium flodmanii (Flodman's thistle), Grindelia squarrosa (curlytop 
gumweed), and Equisetum laevigatum (smooth scouring rush) on drier 
sites (Fertig 1994). Both of these habitat types are usually 
intermediate in moisture between wet, streamside communities dominated 
by Carex spp. (sedges), Juncus spp. (rushes), and Typha spp. 
(cattails), and dry upland shortgrass prairie. Where hydrological flows 
are controlled to preclude a natural pattern of habitat development, 
and other forms of disturbance are curtailed or eliminated, a less 
favorable mature successional stage of vegetation will develop, 
resulting in the loss of many of these plant associates.
    Hydrological processes, and their importance in maintaining the 
moisture regime of habitat preferred by G. n. ssp. coloradensis, also 
have an important direct effect on seed germination and seedling 
recruitment. Analysis by Heidel (2004a) demonstrated a significant 
positive correlation between census number and net growing season 
precipitation 2 years prior to census. Important direct effects of 
moisture on G. n. ssp. coloradensis establishment and recruitment also 
have been demonstrated by the appearance of high numbers of new 
vegetative plants within 27 days after a 100-year flood event at WAFB 
on August 1, 1985 (Rocky Mountain Heritage Task Force 1987 cited in 
Heidel 2004a).
    The long-term availability of favorable G. n. ssp. coloradensis 
habitat also depends on impacts of drought, fires, windstorms, 
herbivory, and other natural events. G. n. ssp. coloradensis

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requires open, early- to mid-succession riparian habitat experiencing 
periodic disturbance. While non-natural disturbance (e.g., road 
construction, housing development) may encourage establishment of 
noxious weeds, periodic disturbance is necessary to control competing 
vegetation, and to create open, bare ground for seedling establishment 
(Fertig 2001). Salix exigua (coyote willow), Cirsium arvense (Canada 
thistle), and Euphorbia esula (leafy spurge) may become locally 
dominant in G. n. ssp. coloradensis habitat that is not periodically 
flooded or otherwise disturbed, resulting in decline of the species. 
Research has demonstrated negative impacts on G. n. ssp. coloradensis 
populations from competition with locally abundant noxious weeds, 
forbs, and grasses (Munk et al. 2002, Heidel 2004b).
    Based on our knowledge to date, the PCEs for Gaura neomexicana ssp. 
coloradensis are:
    (1) Subirrigated, alluvial soils on level or low-gradient 
floodplains and drainage bottoms at elevations of 1,524 to 1,951 m 
(5,000 to 6,400 ft).
    (2) A mesic moisture regime, intermediate in moisture between wet, 
streamside communities dominated by sedges, rushes, and cattails, and 
dry upland shortgrass prairie.
    (3) Early- to mid-succession riparian (streambank or riverbank) 
plant communities that are open and without dense or overgrown 
vegetation (including hayed fields that are disced every 5-10 year at a 
depth of 8-12 inches, grazed pasture, other agricultural lands that are 
not plowed or disced regularly, areas that have been restored after 
past aggregate extraction, areas supporting recreation trails, and 
urban/wildland interfaces).
    (4) Hydrological and geological conditions that maintain stream 
channels, floodplains, floodplain benches, and wet meadows that support 
patterns of plant communities associated with G. n. ssp. coloradensis.
    Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, parking lots, other paved 
areas, landscaped areas, regularly plowed or disced agricultural areas, 
and other features not containing any of the PCEs are not critical 
habitat.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas on 
which the PCEs are found and which may require special management 
considerations or protections. For G. n. ssp. coloradensis, special 
management considerations include maintaining existing management 
regimes that produce surface or subsurface water flows that provide the 
essential hydrological regime that supports the species (PCEs 1, 2, and 
4); appropriate application of herbicides used to control noxious weeds 
(PCE 3); and preventing harmful habitat fragmentation from residential 
and urban development that detrimentally affects plant-pollinator 
interactions, local hydrologic patterns and moisture regimes, leads to 
a decline in species reproduction, and increases susceptibility to 
overgrowth by non-native plant species (PCEs 1, 2, 3, and 4). While 
excessive grazing can lead to changes in essential habitat conditions 
(e.g., increases in soil temperature resulting in loss of moisture, 
decreases in plant cover, and increases in non-native species), 
managing for appropriate levels of grazing provides an important 
management tool with which to maintain open habitat needed by the 
species (PCEs 2 and 3).

Critical Habitat Designation

    We are designating seven units as critical habitat for G. n. ssp. 
coloradensis. The critical habitat areas described below constitute our 
best assessment at this time of the areas essential for the 
conservation of G. n. ssp. coloradensis. The units are--(1) Tepee Ring 
Creek in Wyoming; (2) Bear Creek East in Wyoming; (3) Bear Creek West 
in Wyoming; (4) Little Bear Creek/Horse Creek in Wyoming; (5) Lodgepole 
Creek West in Wyoming; (6) Lodgepole Creek East in Wyoming; and (7) 
Borie in Wyoming.
    The approximate area encompassed within each critical habitat unit 
is shown in Table 1.

                                     Table 1.--Final Critical Habitat Units for Gaura neomexicana ssp. coloradensis
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Percentage change from
                     Critical habitat unit                        Proposed acres (hectares)      Final acres (hectares)               proposal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Tepee Ring Creek......................................                      107 (43)                      107 (43)                             0
Unit 2: Bear Creek East.......................................                     801 (324)                     358 (145)                            55
Unit 3: Bear Creek West.......................................                     500 (202)                     500 (202)                             0
Unit 4: Little Bear Creek/Horse Creek.........................                 2,480 (1,004)                     807 (327)                            67
Unit 5: Lodgepole Creek West..................................                   1,067 (432)                     902 (365)                            15
Unit 6: Lodgepole Creek East..................................                   1,683 (681)                     378 (153)                            78
Unit 7: Borie.................................................                   1,141 (462)                     486 (197)                            57
Unit 8: Meadow Springs Ranch..................................                     707 (286)                         0 (0)                           100
                                                               -------------------------------
    Total.....................................................                 8,486 (3,434)                 3,538 (1,432)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The majority of the acreage occurs on privately owned land. We know 
of no Federal, tribal, or military lands within these boundaries. There 
is a small portion of land within Units 1, 2, 3, 4, 5, 6, and 7 that 
are owned by the State of Wyoming. We present brief descriptions of all 
units, and reasons why the PCEs essential for the conservation of G. n. 
ssp. coloradensis may be in need of special management or protection, 
below.

Unit 1: Tepee Ring Creek

    Unit 1 consists of 43 ha (107 ac) along 2.4 km (1.5 mi) of Tepee 
Ring Creek in Platte County, Wyoming, and is under private ownership. 
One subpopulation of G. n. ssp. coloradensis has been found along Tepee 
Ring Creek in the lower SE corner of T21N R68W Section 2. Habitat is 
moist meadow along the stream. Habitat along this stream reach 
throughout this unit is primarily identified as PEMA (palustrine 
emergent temporarily flooded) wetland intermixed with PEMC (palustrine 
emergent seasonally flooded) wetland, according to National Wetlands 
Inventory terminology (Service 1993). It is likely that G. n. ssp. 
coloradensis occurs in Section 1 downstream of the subpopulation in 
Section 2, based on presence of PCEs but this area is not included in 
this unit. This unit contains areas which represent the northernmost 
extent of the subspecies' known range of occurrence. This unit is 
separated by approximately 40 km (25 linear mi)

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from the closest population and provides conditions that are conducive 
to locally adaptive genetic variability not found in other populations. 
This unit may require special management for appropriate levels of 
grazing needed to maintain open habitat, and the application of 
herbicides used to control noxious weeds.

Unit 2: Bear Creek East

    Unit 2 consists of 145 ha (358 ac) along 8 km (5 mi) of the South 
Fork of the Bear Creek and the Bear Creek in Laramie County, Wyoming. 
Surveys during 2004 revealed reproductively mature G. n. ssp. 
coloradensis plants in the South Fork of the Bear Creek from T19N67W 
Section 25, extending northeast to Section 17, and within T19N66W 
Section 11, bordering Section 12. This unit is primarily under private 
ownership. Habitat within this stream reach is primarily identified as 
PEMC intermixed with PEMA. Surveys during 2004 revealed that Section 36 
on the southwestern end of the originally proposed unit, and Sections 
16, 9, 10 and the eastern half of Section 12 contained no G. n. ssp. 
coloradensis plants and, that in some areas containing PCEs were not 
present. Therefore, these areas were removed from this unit. This unit 
has historically supported a number of G. n. ssp. coloradensis 
populations in a variety of habitat types, and is located at the 
furthest point downstream within the Bear Creek drainage. Disconnected 
from other population gene pools, conditions surrounding subpopulations 
within this area are conducive to locally adapted genotypes not found 
in other populations. Special management in this unit may require 
timing the cutting of hay with fruit and seed set of G. n. ssp. 
coloradensis, and for the application of herbicides used to control 
noxious weeds.

Unit 3: Bear Creek West

    Unit 3 consists of three stream reaches encompassing a total of 202 
ha (500 ac) along 11.7 km (7.3 mi) of stream within the Bear Creek 
drainage in Laramie County, Wyoming. This unit is primarily under 
private ownership, but includes some Wyoming State lands. This unit may 
require special management for appropriate levels of grazing needed to 
maintain open habitat, and the application of herbicides used to 
control noxious weeds.
    Reach 1: Habitat within this reach is semi-moist meadows on flat 
benches and streambanks along an intermittent stream. Plants are most 
abundant in areas with low thistle density and heavily browsed willow, 
and are absent from adjacent, ungrazed areas with dense willow thickets 
(WNDD 2004). Several subpopulations of G. n. ssp. coloradensis were 
found during surveys of 2004 throughout this entire reach. This reach 
supports a large population with good reproduction and has good 
condition.
    Reach 2: Habitat within this reach consists of hummocky banks of 
loamy clay soil and gravelly, sloping terraces in semi-moist, closely 
grazed Poa pratensis (Kentucky bluegrass)/Elymus spp. (wild rye) 
streamside meadow at the edge of dense Carex aquatilis (Nebraska 
sedge)/Juncus balticus (Baltic rush) community (WNDD 2004). Several 
subpopulations of Gaura neomexicana ssp. coloradensis were found during 
surveys of 2004 throughout this entire reach. This location represents 
the uppermost elevation within the species' known range of occurrence. 
Historically it has supported a large population located in habitat 
that contains few threats; conditions that remain present today.
    Reach 3: Habitat within this reach consists of three types--(1) 
Seasonally wet Juncus balticus/Agrostis stolonifera (redtop)/Poa 
pratensis community on subirrigated gravelly-sandy soil in low 
depressions a distance from the current stream channel; (2) streambank 
terraces of dark-brown loamy clay in dense Helianthus nuttallii 
(Nuttall's sunflower)/Solidago canadensis (Canada goldenrod)/Phleum 
pratense (timothy) grass community; and (3) grassy terrace dominated by 
Agrostis stolonifera, Poa pratensis, Elymus smithii (wild rye), and 
Melilotus albus (white sweetclover) on brown clay-loam (WNDD 2004). 
Several subpopulations of G. neomexicana ssp. coloradensis were found 
during surveys of 2004 throughout this entire reach, including T18N 
R68W Section 21 and 22. There is a natural break in habitat 
approximately in the center of Section 21, at which point the PEMA 
habitat changes to scrub-shrub and continues upstream (to the 
southwest) through the remainder of Section 21. We did not designate 
critical habitat beyond this natural break.

Unit 4: Little Bear Creek/Horse Creek

    Unit 4 consists of two stream reaches encompassing a total of 327 
ha (807 ac) along 18.8 km (11.7 mi) of stream within the Little Bear 
Creek and Horse Creek drainages in Laramie County, Wyoming. This unit 
is primarily under private ownership, but includes some Wyoming State 
lands. This unit may require special management for appropriate levels 
of grazing needed to maintain open habitat in some areas; special 
management to maintain surface or subsurface water flows; and for the 
application of herbicides used to control noxious weeds.
    Reach 1: Surveys conducted during 2004 found scattered individual 
plants and subpopulations of G. n. ssp. coloradensis throughout most of 
this reach. One or more PCEs were not present within the portions of 
this reach that the Service eliminated from the final critical habitat 
designation. Habitat throughout Little Bear Creek and the Paulson 
Branch stream reaches is primarily identified as PEMC intermixed with 
PEMA. This reach has supported a large number of subpopulations with a 
moderate-to-large number of plants over the years. Because this reach 
is reproductively isolated from any others, conditions surrounding 
resident subpopulations are conducive to locally adapted genetic 
variation important to future species persistence.
    Reach 2: Surveys conducted during 2004 found many subpopulations 
and individual plants of G. n. ssp. coloradensis throughout most of the 
Horse Creek drainage originally proposed as critical habitat, including 
Brunyansky Draw. One or more of the PCEs was not present within the 
Horse Creek drainage west of Interstate 25; therefore, the Service 
eliminated this portion of the original proposal from the final 
critical habitat designation. With the exception of the far eastern 
portion of the originally proposed reach, the remainder of the proposed 
reach within Horse Creek was included in a WEA for the conservation of 
G. n. ssp. coloradensis, and was dropped from the final critical 
habitat designation. While the far eastern end of the proposed 
designation was not surveyed during 2004 (permission was not granted by 
the landowner), observations during 2004 surveys of adjacent land 
revealed the presence of PCEs and suitable habitat. This area is not 
included in a WEA, PCEs are present, many subpopulations were found 
during 2004 surveys on adjacent land, and the last surveys conducted in 
this area found G. n. ssp. coloradensis, this portion of the proposed 
critical habitat was included in the final designation. The Service did 
not designate critical habitat beyond the center of Section 10 on the 
east end of this reach because the PCEs are not present.

Unit 5: Lodgepole Creek West

    Unit 5 consists of 365 ha (902 ac) along 20.4 km (12.7 mi) of 
Lodgepole Creek in Laramie County, Wyoming. This unit is primarily 
under private ownership, but includes some Wyoming

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State lands. Subpopulations of G. n. ssp. coloradensis have been found 
along Lodgepole Creek from T16N 68W Section 24 on the western edge of 
this unit, extending 19 km (12 mi) of stream east to T15N R66W Section 
3. Surveys conducted during 2004 revealed several subpopulations of G. 
n. ssp. coloradensis present throughout T16N R67W Sections 19 and 20. 
Access was denied for 2004 surveys throughout the remainder of the 
unit. We finalized a WEA with the landowner of Sections 19 and 20 
because the areas did not contain the PCEs for G. n. ssp. coloradensis. 
Sections 19, 20, and 24 were removed from this unit.
    Habitat throughout the designated critical habitat stream reach is 
primarily identified as PEMC intermixed with PEMA. This unit has 
supported a large number of small, and a few large, subpopulations over 
the years in a variety of habitat types and land management practices. 
The number of subpopulations within the variety of habitat may 
represent a number of locally selected genotypes existing under 
conditions not found elsewhere, providing an important contribution to 
the long-term conservation of the species. This unit may require 
special management for appropriate levels of grazing needed to maintain 
open habitat in some areas, and management for reduced levels of 
grazing in others; special management to maintain surface or subsurface 
water flows; and the application of herbicides used to control noxious 
weeds.

Unit 6: Lodgepole Creek East

    Unit 6 consists of one stream reach encompassing a total of 153 ha 
(378 ac) along 8.4 km (5.2 mi) of Lodgepole Creek in Laramie County, 
Wyoming. This unit is primarily under private ownership with some 
Wyoming State lands.
    The area is managed for livestock grazing and hay production, mowed 
late in the season and used for winter pasture. Previous surveys found 
subpopulations of Gaura neomexicana ssp. coloradensis along Lodgepole 
Creek from Thompson Reservoir Number 2 in T14N R62W Section 4 on the 
eastern edge of this unit, extending west to T15N R64W Section 27 on 
the unit's western edge. However, 2004 surveys found neither 
subpopulations nor PCEs east of Section 32; therefore, the eastern end 
of this proposed unit was dropped from final critical habitat 
designation. Similarly, 2004 surveys found no subpopulations or PCEs 
necessary to provide suitable habitat in the entire eastern reach on 
the border of Wyoming and Nebraska (Reach 2 of the proposal); 
therefore, the Service eliminated the eastern reach of the proposal 
from final critical habitat designation.
    While 2004 surveys found subpopulations of the G. n. ssp. 
coloradensis throughout the originally proposed western reach (Reach 1) 
of this unit, WEAs were secured with several landowners throughout this 
area. Therefore, these areas were removed from this unit. For those 
areas designated as critical habitat, this stream reach is primarily 
identified as PEMC with sparse amounts of PEMA. This unit may require 
special management for appropriate levels of grazing needed to maintain 
open habitat in some areas, and management for reduced levels of 
grazing in others; special management to maintain surface or subsurface 
water flows; and the application of herbicides used to control noxious 
weeds.

Unit 7: Borie

    Unit 7 consists of two stream reaches encompassing a total of 197 
ha (486 ac) along 12.3 km (7.6 mi) of Diamond Creek and Lone Tree Creek 
in Laramie County, Wyoming. This unit is primarily under private 
ownership, with some Wyoming State lands. This unit may require special 
management for appropriate levels of grazing needed to maintain open 
habitat in some areas, and management for reduced levels of grazing in 
others; the application of herbicides used to control noxious weeds; 
and preventing harmful habitat fragmentation from residential and urban 
development.
    Reach 1: This population is confluent with another population 
downstream along Diamond Creek on WAFB. Subpopulations of G. n. ssp. 
coloradensis have been found along Diamond Creek from the eastern 
boundary of this reach within T14N R67W Section 33, adjacent to WAFB, 
approximately 5.6 km (3.5 mi) of stream southwest to T13N R67W Section 
6. Subpopulations also have been found along smaller, unnamed 
tributaries to Diamond Creek from the eastern edge of T14N 67W Section 
32 approximately 3 km (2 mi) upstream within several small tributaries 
in Section 31 and T13N R67W Section 6.
    Surveys conducted during 2004 found many subpopulations, including 
the largest subpopulation within the plant's known distribution, 
throughout all areas surveyed with the exception of two 0.8 km (0.5 mi) 
stream segments within Reach 1--these stream segments were dropped from 
the final critical habitat designation because they did not contain 
PCEs. Because a WEA was secured to provide for the conservation needs 
of G. n. ssp. coloradensis within T13N R67W Sections 5 and 6, this 
portion of Reach 1 of the proposed critical habitat was dropped from 
the final designation. Similarly, because a WEA was secured to provide 
for the conservation of the only known subpopulation found within Reach 
2 of the proposal, and the remainder of the proposed Reach 2 contained 
neither G. n. ssp. coloradensis plants nor PCEs, this entire reach was 
dropped from the final designation. Habitat throughout this entire 
reach is PEMC intermixed with PEMA. This reach supports a large number 
of plants within several subpopulations, conducive to the development 
of considerable local genetic variation contributing to the 
conservation of this species.
    Reach 2: This reach was described as Reach 3 in the proposed 
critical habitat rule. Subpopulations of G. n. ssp. coloradensis have 
been found along Lone Tree Creek, from the northwest corner of T13N 
R67W Section 31, to 5 km (3 mi) upstream to T13N R68W Section 26. 
Because a WEA has been secured to provide for conservation of G. n. 
ssp. coloradensis within Sections 25 and 26, this reach has been 
reduced in size accordingly for the final critical habitat designation. 
This creek segment occurs at the southernmost point of the plant's 
distribution within Wyoming, with very little possibility for genetic 
exchange between local subpopulations and other populations that may be 
in the general area. Conditions are conducive to locally adapted 
subpopulations containing genetic variability important to the species' 
long-term persistence.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports

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provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. We may 
issue a formal conference report if requested by a Federal agency. 
Formal conference reports on proposed critical habitat contain an 
opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations 
in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the action agency's legal authority and jurisdiction, 
that are economically and technologically feasible, and that the 
Director believes would avoid destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect G. n. ssp. coloradensis or its 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers under section 404 of 
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or 
some other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency funding), also 
will continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal and private lands that are not federally funded, 
authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the G. n. ssp. 
coloradensis. Federal activities that, when carried out, may adversely 
affect critical habitat for the G. n. ssp. coloradensis include, but 
are not limited to:
    (1) Any action that changes existing water management practices 
including regulation of activities affecting waters of the United 
States by the Army Corps of Engineers under section 404 of the Clean 
Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by any Federal agency; and,
    (3) Road construction and maintenance, right-of-way designation, 
and regulation funded or permitted by the Federal Highway 
Administration.
    We consider all critical habitat units to be occupied by the 
species based on the most recent survey data collected for populations 
of G. n. ssp. coloradensis. Survey results found subpopulations of 
plants, or scattered individual plants, throughout each critical 
habitat unit included in this designation. To ensure that their actions 
do not jeopardize the continued existence of the species, Federal 
agencies already consult with us on activities in areas currently 
occupied by the species or if the species may be affected by the 
action. We consider all lands included in this final designation to be 
essential to the conservation of the G. n. ssp. coloradensis.

Exclusions From Critical Habitat

Lands Under U.S. Air Force Jurisdiction

    As discussed in the proposed rule, Section 318 of fiscal year 2004 
National Defense Authorization Act (Pub. L. 108-136) amended the Act to 
address the relationship of INRMPs to critical habitat by adding a new 
section 4(a)(3)(B). This provision prohibits the Service from 
designating as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an INRMP prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines 
in writing that such plan provides a benefit to the species for which 
critical habitat is proposed for designation.
    As described above, we identified habitat essential for the 
conservation of G. n. ssp. coloradensis in Laramie and Platte Counties 
in Wyoming. We have examined the INRMP for the WAFB to determine 
coverage for G. n. ssp. coloradensis. The INRMP identifies management 
issues related to conservation and enhancement of G. n. ssp. 
coloradensis and identifies goals and objectives that involve the 
protection of populations and habitat for this species. Some objectives 
for achieving those goals include: continue to participate in, and 
encourage development of, Cooperative Agreements and Memorandum of 
Understanding activities with Federal, State, and local government and 
support agencies; promote and support the scientific study and 
investigation of federally listed species management, conservation, and 
recovery; restrict public access in existing and potential habitat 
areas; and increase public education of federally listed species 
through management actions, the WAFB Watchable Wildlife Program, and a 
Prairie Ecosystem Education Center (WAFB 2001). Based on the beneficial 
measures for G. n. ssp. coloradensis contained in the INRMP for WAFB, 
we conclude that the INRMP provides a benefit to the species and have 
not included this area in the designation of critical habitat for G. n. 
ssp. coloradensis pursuant to section 4(a)(3) of the Act. We will 
continue to work cooperatively with the Department of the Air Force to 
assist the WAFB in implementing and refining the programmatic 
recommendations contained in this plan that provide benefits to G. n. 
ssp. coloradensis. The non-inclusion of WAFB demonstrates

[[Page 1954]]

the important contributions that approved INRMPs have to the 
conservation of the species. As with HCP exclusions, a related benefit 
of excluding Department of Defense lands with approved INRMPs is to 
encourage continued development of partnerships with other 
stakeholders, including States, local governments, conservation 
organizations, and private landowners to develop adequate management 
plans that conserve and protect G. n. ssp. coloradensis habitat.

Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.

Wildlife Extension Agreements (WEAs)

    We are excluding 11 properties from this final critical habitat 
designation that have WEAs in place for Gaura neomexicana ssp. 
coloradensis because we believe that they are appropriate for exclusion 
pursuant to the ``other relevant factor provisions of section 4(b)(2). 
Nine of the WEAs are with private landowners in Wyoming, including one 
located in Unit 4 (1,300 ac), one in Unit 5 (145 ac), five in Unit 6 
(439 ac), and two in Unit 7 (200 ac). Two WEAs are with city 
municipalities including the City of Cheyenne, Wyoming (within Unit 7, 
200 ac), and the City of Fort Collins, Colorado (all of Unit 8, 280 
ac).
    The goals of the above WEAs for the properties are similar in 
nature and include the following elements:
    (1) Monitoring G. n. ssp. coloradensis populations and habitat 
conditions. Data collected during monitoring will include the number of 
flowering adult plants and habitat condition. Habitat condition in 
areas managed primarily for livestock grazing will be evaluated 
according to NRCS (2001) rangeland condition assessment methodology. 
Data will provide information regarding the effects of land management 
activities on Colorado butterfly plant habitat and population growth;
    (2) For those areas managed primarily for hay production, 
coordinating hay cutting activity with needs of G. n. ssp. coloradensis 
seed production. The landowner agrees to inform the Service prior to 
the intended first cutting and allow the Service or its designee the 
opportunity to conduct Colorado butterfly plant surveys. The landowner 
agrees to allow the Service or its designee at least one additional 
opportunity to conduct Colorado butterfly plant surveys after the 
initial cutting, and prior to any additional cuttings. If three or more 
years of data collection reveals that the conservation needs of the 
Colorado butterfly plant could substantially benefit from changes in 
hay production activities, the landowner agrees to work with the 
Service to modify these activities to the extent feasible;
    (3) Controlled application herbicides to no closer than 100 feet of 
a known subpopulation of G. n. ssp. coloradensis. Some areas included 
in WEAs that are occupied by the Colorado butterfly plant also are 
occupied by invasive plant species in need of control, such as Canada 
thistle and leafy spurge. While herbicide application may be required 
to control the spread of these invasive species, the landowner agrees 
to the application of herbicides no closer than 100 feet of a known 
subpopulation of the Colorado butterfly plant; and
    (4) Managing livestock grazing activities in conjunction with 
conservation needs of G. n. ssp. coloradensis. It is assumed that the 
Colorado butterfly plant requires habitat in average, or above average, 
range condition according to the criteria identified above. However, if 
it is found that some other grazing intensity or timing of grazing is 
beneficial to the Colorado butterfly plant--resulting in above or below 
average range condition as defined by the NRCS criteria above--then 
that identified range condition will become the new target for that 
location to the extent practicable.
(1) Benefits of Inclusion
    Designation of critical habitat provides important information on 
those habitats and their primary constituent elements that are 
essential to the conservation of the species. This information is 
particularly important to any Federal agency, State, county, local 
jurisdiction, conservation organization, or private landowner that may 
be evaluating adverse actions or implementing conservation measures 
that involve those habitats. The benefit of a critical habitat 
designation would ensure that any actions authorized, funded, or 
carried out by a Federal agency would not likely destroy or adversely 
modify any critical habitat. All habitats within this designation are 
occupied. In the absence of critical habitat, any section 7 
consultation for potential adverse effects to the species would not 
ensure adverse modification of critical habitat is avoided; however, 
the consultation would ensure the proposed action would not jeopardize 
the continued existence of the species in the wild.
    Where WEAs are in place, our experience indicates that this benefit 
is small. Currently approved WEAs are already designed to address 
specific threats to provide for the conservation of Gaura neomexicana 
ssp. coloradensis and to implement conservation actions on the ground. 
Ninety percent of this species' occurrence is on private land, and, as 
a federally threatened plant, there are no prohibitions against take 
under the Act. The primary threats to the species on private land 
(nonselective herbicide use, grazing, and hay mowing) have no Federal 
nexus requiring section 7 consultation and so cannot be addressed 
through the statutory prohibition on adverse modification of critical 
habitat by Federal agency actions. Since the plants were listed in 
October 2000, we have no records indicating that section 7 consultation 
has been required for any such activities occurring on private lands. 
The likelihood that there will be any need to consult on such 
activities in the future is low.
(2) Benefits of Exclusion
    Section 10(a)(1)(B) of the Act allows non-Federal parties planning 
activities that have no Federal nexus, but which could result in the 
incidental taking of listed animals, to apply for an incidental take 
permit--the application for which includes a Habitat Conservation Plan 
(HCP). However, such a process is unnecessary for a threatened plant 
such as G. n. ssp. coloradensis because there are no take prohibitions. 
Consequently, an HCP is an unduly demanding mechanism by which to 
protect the conservation needs of this species, one unlikely to be 
undertaken by landowners.
    The WEAs, as written, meet the Service's criteria for providing 
adequate management protection, as outlined on page 47845 of the 
proposed rule (August 6, 2004, 69 FR 47834). First, each agreement 
provides a conservation benefit to the species (i.e., the agreement 
must maintain or provide for an increase in the species' population, or 
the enhancement or restoration of its habitat within the area covered 
by the agreement). The WEAs provide that each landowner agrees to spray 
herbicide no closer than within 31

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meters (100 feet) of a known subpopulation. The landowner agrees to 
allow Service representatives access to the project site for data 
collection and monitoring G. n. ssp. coloradensis populations on an 
annual basis. Data collected during monitoring will include the number 
of flowering adult plants and habitat condition. Habitat condition in 
areas managed primarily for livestock grazing will be evaluated 
according to NRCS rangeland conditions assessment methodology (NRCS 
2001). The Service assumes that G. n. ssp. coloradensis requires 
habitat in average, or above average, range condition according to the 
criteria identified above. However, while it is known that livestock 
grazing is compatible with the habitat needs of G. n. ssp. 
coloradensis, the optimal level of grazing and resulting range 
conditions, is not known. Therefore, the grazing intensity or timing of 
grazing that is found to be optimal for G. n. ssp. coloradensis, 
resulting in above or below average range condition as defined by the 
NRCS criteria above, will become the new target for that location to 
the extent practicable.
    For those areas primarily managed for hay production, the landowner 
agrees to inform the Service prior to the intended first cutting and 
allow the Service or its designee the opportunity to conduct G. n. ssp. 
coloradensis surveys. The landowner also agrees to allow the Service or 
its designee at least one additional opportunity to conduct G. n. ssp. 
coloradensis surveys after the initial cutting, and prior to any 
additional cuttings. If three or more years of data collection, as 
outlined above, reveals that the conservation needs of G. n. ssp. 
coloradensis could benefit from changes in hay production activities, 
the landowner agrees to work with the Service to modify these 
activities to the extent feasible. For example, the landowner may 
modify timing of hay cutting in areas of concentrated subpopulations of 
G. n. ssp. coloradensis to allow for seed production, or avoid the 
cutting altogether of small areas of subpopulations of the plants.
    Secondly, the WEAs provide assurances that the conservation 
management strategies and actions will be implemented. Each WEA was 
developed by the Wyoming Ecological Services Field Office with each 
individual landowner to ensure that all data collection and management 
activities were readily achievable during the key July-August flowering 
season for this species, while meeting the needs of the landowner. The 
Wyoming Field Office is responsible for implementing these agreements 
and is fully capable of accomplishing all objectives within each WEA 
each year.
    Thirdly, each WEA provides assurances that the conservation 
strategies and measures will be effective. As outlined in details 
above, each WEA contains biological goals appropriate for the 
subpopulations on property included in the WEA, as well as provisions 
for monitoring, evaluating success, and modifying targets and 
management activities as more information becomes available through 
data collection. Considering the average lifespan of each plant is 
three years, a 15-year term allows for the management and study of five 
generations of plants, providing sufficient time to address effects of 
long term climatic trends (e.g., drought) and their interactions with 
approaches to management.
    Lastly, while the Service criteria provide guidance to Service 
staff and the public on the nature of agreements highly likely to 
result in exclusions, they in no way limit the Secretary's discretion 
to exclude areas under the statutory standards, and so we could 
properly exclude these areas even if they did not comply with the 
Service's criteria for conservation agreements for the reasons set out 
below.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act and the recent Federal 
District Court decision concerning critical habitat (Center for 
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan. 
13, 2003), we have determined that the benefits of excluding the 
properties encompassed by the 11 WEAs, located in portions of Unit 4, 
Unit 5, Unit 6, Unit 7, and all of Unit 8s, outweigh the benefits of 
including them as critical habitat for G. n. ssp. coloradensis.
    Under the WEAs outlined above, the landowners and the Service will 
protect G. n. ssp. coloradensis from the key threats to the species on 
private lands that would otherwise continue notwithstanding a critical 
habitat designation. For example, controlled use of herbicides will 
eliminate mortality and increase survival rates of rosettes and 
reproductively mature plants. Grazing management will reduce direct 
mortality of reproductively mature plants and enable soils to maintain 
moisture content necessary for seed germination and rosette recruitment 
by eliminating overgrazing. At the same time, grazing will maintain an 
early- to mid-successional open habitat necessary for seed germination 
and rosette recruitment. Timing hay mowing to facilitate complete 
development of fruits and seeds will increase population size and 
ensure maintenance of genetic variation within populations. Increased 
fruit and seed set also will increase the long term viability of the 
population by contributing to the seed bank. Therefore, the WEAs that 
include actions to address the conservation needs of the species 
provide a biological benefit to the species, especially in light of 
concerns related to demographic uncertainty, low genetic variation, and 
limited colonization. All of the above allow the Service to manage the 
species proactively, instead of waiting for, and responding to, project 
level impacts involving a Federal nexus (which, as explained above, are 
expected to be infrequent).
    In addition, by providing a perceived benefit to the landowner by 
exempting their lands from critical habitat in return for entering into 
this agreement, we encourage future cooperation in undertaking 
voluntary conservation measures for listed species by these and other 
landowners. We note again that the ESA has no statutory mechanism to 
either encourage or require the ``special management or protection'' 
that may be needed for the PCEs of listed species on non-Federal land 
that might be designated as critical habitat, and these types of 
voluntary agreements are currently the only mechanisms for obtaining 
these management actions. Because most landowners oppose critical 
habitat designation on their lands, such a designation generally 
precludes their willingness to undertake conservation measures on 
behalf of the species. Yet active conservation measures by landowners 
or land managers are generally the only way to conserve the species, 
often leaving us with exclusions from critical habitat as the most 
practical means of obtaining the ``special management or protection'' 
the designation was intended to secure.
    In conclusion, we find that the exclusion of critical habitat from 
portions of Unit 4, Unit 5, Unit 6, Unit 7, and all of Unit 8 would 
most likely have a net positive effect on the conservation of G. n. 
ssp. coloradensis when compared to the conservation effects of a 
critical habitat designation. As described above, the overall benefits 
to this species of a critical habitat designation for these properties 
are relatively small. In contrast, we believe that this exclusion will 
enhance our existing partnership with these landowners, and it will set 
an example and provide positive incentives to other

[[Page 1956]]

non-Federal landowners who may be considering implementing conservation 
activities on their lands. We conclude that there is a higher 
likelihood of beneficial conservation activities occurring in these and 
other areas of southeastern Wyoming without designated critical habitat 
than there would be with designated critical habitat on these 
properties.
(4) Conclusion
    In considering whether or not exclusion of these properties might 
result in the extinction of this species, the Service considered the 
impacts to the Gaura neomexicana ssp. coloradensis. For the G. n. ssp. 
coloradensis populations located within the Units 4, 5, 6, 7, and 8, 
the Service concludes that the WEAs agreed to by the landowners will 
provide as much or more net conservation benefits as would be provided 
if these properties were designated as critical habitat. These WEAs, 
which are described above, will provide tangible proactive conservation 
benefits that will reduce the likelihood of extinction for the G. n. 
ssp. coloradensis and increase its likelihood of recovery. The 
exclusion of these areas will not increase the risk of extinction to 
this species, and it may increase the likelihood this species will 
recover by encouraging other landowners to implement voluntary 
conservation actions as current participants in WEAs have done. In sum, 
the above analysis concludes that an exclusion of these properties from 
final critical habitat for the G. n. ssp. coloradensis will have a net 
beneficial impact with little risk of negative impacts. Therefore, the 
exclusion of these lands will not cause extinction and should improve 
the chances of conserving the G. n. ssp. coloradensis.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on September 24, 2004. We accepted 
comments on the draft analysis until October 25, 2004.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the G. n. ssp. coloradensis. This information is intended 
to assist the Secretary in making decisions about whether the benefits 
of excluding particular areas from the designation outweigh the 
benefits of including those areas in the designation. This economic 
analysis considers the economic efficiency effects that may result from 
the designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land-use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section) or for downloading from the Internet at http://mountain-prairie.fws.gov/species/plants/cobutterfly/index.htm.
    We received three comment letters on the draft economic analysis of 
the proposed designation. Following the close of the comment period, we 
considered comments, prepared responses to comments, and prepared a 
summary of revisions to economic issues based on final critical habitat 
designation (see Responses to Comments section). The economic analysis 
indicates that is rule will not have an annual economic effect of $100 
million or more. The economic analysis employs a lower and upper 
scenario approach to the economic costs. The efficiency costs for the 
lower bound scenario are estimated to be $83,890 from 2005 to 2024. The 
efficiency costs for the upper bound scenario are estimated to be 
$104,690 from 2005 to 2024. The annualized economic effects of this 
designation are estimated to be $6,424 (lower bound scenario) and 
$8,263 (upper bound scenario). We have excluded 4,948 ac (2,002 ha) of 
privately and municipally owned lands analyzed in the draft economic 
analysis based on non-economic considerations so the direct economic 
impacts of the final designation is likely to be lower than this 
estimate.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this final rule easier to understand, including answers to 
questions such as the following--(1) Are the requirements in the final 
rule clearly stated? (2) Does the final rule contain technical jargon 
that interferes with the clarity? (3) Does the format of the final rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the final rule? (5) What else could we do to make this 
final rule easier to understand?
    Send a copy of any comments on how we could make this final rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC. 20240. You 
may e-mail your comments to this address, [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific area as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we

[[Page 1957]]

determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.
    The economic analysis indicates that is rule will not have an 
annual economic effect of $100 million or more.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA also 
amended the RFA to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number''small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect bull trout. Federal agencies also must consult with us if their 
activities may affect critical habitat. Therefore, designation of 
critical habitat could result in an additional economic impact on small 
entities due to the requirement to reinitiate consultation for ongoing 
Federal activities.
    On the basis of information in our final economic analysis, we have 
determined that a substantial number of small entities are not affected 
by the critical habitat designation for G. n. ssp. coloradensis. 
Therefore, we are certifying that the designation will not have a 
significant effect on a substantial number of small entities. The 
factual basis for certifying that this rule will not have a significant 
economic impact on a substantial number of small entities is as 
follows.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on G. n. ssp. 
coloradensis and its habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We also may identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats

[[Page 1958]]

it faces, as described in the final listing rule and this critical 
habitat designation. Within the final critical habitat units, the types 
of Federal actions or authorized activities that we have identified as 
potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Regulation of timber harvest, grazing, mining, and recreation 
by the Forest Service and Bureau of Land Management;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency; and
    (6) Activities funded by the Environmental Protection Agency, U.S. 
Department of Energy, or any other Federal agency.
    It is likely that a project proponent could modify a project or 
take measures to protect G. n. ssp. coloradensis. The kinds of actions 
that may be included if future reasonable and prudent alternatives 
become necessary include conservation set-asides, management of 
competing nonnative species, restoration of degraded habitat, and 
regular monitoring. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and proposed critical habitat designation. These measures 
are not likely to result in a significant economic impact to project 
proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. The 
most likely Federal involvement could include Army Corps of Engineers 
permits, permits we may issue under section 10(a)(1)(B) of the Act, 
Federal Highway Administration funding for road improvements, 
hydropower licenses issued by the Federal Energy Regulatory Commission, 
and regulation of timber harvest, grazing, mining, and recreation by 
the Forest Service and Bureau of Land Management. A regulatory 
flexibility analysis is not required.
    For these reasons, we are certifying that the designation of 
critical habitat for G. n. ssp. coloradensis will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et. 
seq.)

    Under the SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises. Refer to the final economic 
analysis for a discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This final rule to designate 
critical habitat for G. n. ssp. coloradensis is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500 million or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were--Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, a Small Government Agency Plan is 
not required.

[[Page 1959]]

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with the Department of the Interior and Department 
of Commerce policy, we requested information from, and coordinated 
development of, this final critical habitat designation with 
appropriate State resource agencies in Wyoming, Colorado, and Nebraska. 
The designation of critical habitat in areas currently occupied by G. 
n. ssp. coloradensis imposes no additional restrictions to those 
currently in place and, therefore, has little incremental impact on 
State and local governments and their activities. We are designating 
areas only in Wyoming. The designation may have some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the survival of the species are 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are designating critical habitat in accordance with 
the provisions of the Act. This rule uses standard property 
descriptions and identifies the primary constituent elements within the 
designated areas to assist the public in understanding the habitat 
needs of G. n. ssp. coloradensis.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (Ninth 
Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of G. n. ssp. coloradensis, pursuant to the Tenth Circuit ruling 
in Catron County Board of Commissioners v. U.S. Fish and Wildlife 
Service, 75 F.3d 1429 (Tenth Cir. 1996), we have undertaken a NEPA 
analysis for critical habitat designation and have notified the public 
of the availability of the Draft EA for the proposed rule when it is 
finished. A final EA is available upon request from the Field 
Supervisor, Wyoming Fish and Wildlife Office (see ADDRESSES section).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of G. n. ssp. 
coloradensis. Therefore, designation of critical habitat for the G. n. 
ssp. coloradensis has not been designated on tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Wyoming Fish and 
Wildlife Office (see ADDRESSES section).

Author

    The primary author of this package is Tyler Abbott (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we proposed to amend part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.12(h), revise the entry for Gaura neomexicana ssp. 
coloradensis under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Gaura neomexicana ssp.             Colorado butterfly    U.S.A. (WY, NE, CO)  Onagraceae-Evening   T                       704     17.96(a)           NA
 coloradensis.                      plant.                                     Primrose.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96(a), amend paragraph (a) by adding an entry for Gaura 
neomexicana ssp. coloradensis in alphabetical order under Family 
Onagraceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *

[[Page 1960]]

Family Onagraceae: Gaura neomexicana ssp. coloradensis (Colorado 
butterfly plant)
    (1) Critical habitat units are depicted for Laramie and Platte 
Counties in Wyoming, on the maps below.
    (2) The primary constituent elements of critical habitat for Gaura 
neomexicana ssp. coloradensis are:
    (i) Subirrigated, alluvial soils on level or low-gradient 
floodplains and drainage bottoms at elevations of 1,524 to 1,951 meters 
(5,000 to 6,400 feet).
    (ii) A mesic moisture regime, intermediate in moisture between wet, 
streamside communities dominated by sedges, rushes, and cattails, and 
dry upland shortgrass prairie.
    (iii) Early- to mid-succession riparian (streambank or riverbank) 
plant communities that are open and without dense or overgrown 
vegetation (including hayed fields, grazed pasture, other agricultural 
lands that are not plowed or disced regularly, areas that have been 
restored after past aggregate extraction, areas supporting recreation 
trails, and urban/wildland interfaces).
    (iv) Hydrological and geological conditions that serve to create 
and maintain stream channels, floodplains, floodplain benches, and wet 
meadows that support patterns of plant communities associated with 
Gaura neomexicana ssp. coloradensis.
    (3) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Final critical habitat units are described below. Data layers 
defining map units were created based on U.S. Geological Survey 7.5'' 
quadrangle maps (Borie, Bristol Ridge, Bristol Ridge NE, Burns, 
Cheyenne North, C S Ranch, Double L Ranch, Durham, Farthing Ranch, 
Hillsdale, Hirsig Ranch, Indian Hill, J H D Ranch, Lewis Ranch, Moffett 
Ranch, Nimmo Ranch, Pine Bluffs, P O Ranch, Round Top Lake) and 
corresponding U.S. Fish and Wildlife Service National Wetlands 
Inventory maps. Critical habitat is based on the most current maps of 
surveyed subpopulations. Critical habitat also includes adjacent areas, 
upstream and downstream, containing suitable hydrologic regimes, soils, 
and vegetation communities to allow for seed dispersal between 
populations and maintenance of the seed bank. To ease identification of 
the critical habitat, the boundaries follow section lines and major 
geographical features where feasible. The outward extent of critical 
habitat is 91 meters (300 feet) from the center line of the stream edge 
(as defined by the ordinary high-water mark). This amount of land will 
support the full range of primary constituent elements essential for 
persistence of G. n. ssp. coloradensis populations and should 
adequately protect the plant and its habitats from secondary impacts of 
nearby disturbance.

    (5) Note: Index Map follows:

BILLING CODE 4310-55-P

[[Page 1961]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.000

    (6) Unit 1: Tepee Ring Creek, Platte County, Wyoming.
    (i) This unit consists of 2.4 km (1.5 mi) of Tepee Ring Creek 
bounded by the western edge of Sec. 2, T21NR68W, extending downstream 
including S2S2 of Sec. 2; downstream to SW4SW4 Sec. 1, bounded by the 
southern line of Sec. 1.

    (ii) Note: Unit 1 (Map 1) follows:

[[Page 1962]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.001

    (7) Unit 2: Bear Creek East, Laramie County, Wyoming.
    (i) This unit consists of 8 km (5 mi) of the South Fork of the Bear 
Creek. Includes T19N R67W, NW4 Sec. 25; NE4 Sec. 25; downstream into 
T19N R66W, S2 SW4 Sec. 19; N2 SE4 Sec. 19; NW4 Sec. 20; SE4 SW4 Sec. 
17; SE4 Sec. 17; NE4SW4; N2 SE4 Sec. 11; N2 SW4 Sec. 12.

    (ii) Note: Unit 2 (Map 2) follows:

[[Page 1963]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.002


[[Page 1964]]


    (8) Unit 3: Bear Creek West, Laramie County, Wyoming.
    (i) Reach 1 consists of 4.7 km (2.9 mi) of an unnamed south 
tributary of North Bear Creek in the valley between North Bear Creek 
and the North Fork of the South Fork Bear Creek. Includes T18N R68W, N2 
SW4 Sec. 8; downstream to NW4NW4SE4 Sec. 8; SE4NE4 Sec. 8; NW4NW4 Sec. 
9; SE4SW4 Sec. 4; S2 SE4 Sec. 4.
    (ii) Reach 2 consists of 4.2 km (2.6 mi) of the North Fork of the 
South Fork Bear Creek, upstream of Nimmo Reservoir No. 9. Includes T18N 
R68W, SE4SW4 Sec. 17; downstream to N2SW4SE4 Sec. 17; NW4SE4SE4 Sec. 
17; S2NE4SE4 Sec. 17; NW4SW4 Sec. 16; SE4NW4 Sec. 16; S2 NE4 Sec. 16.
    (iii) Reach 3 consists of 2.8 km (1.7 mi) of the South Fork Bear 
Creek. Includes T18NR68W, N2N2SE4 Sec. 21; downstream to S2NW4 Sec. 22; 
NW4SW4NE4 Sec. 22; SE4NW4NE4 Sec. 22; W2 NE4NE4 Sec. 22.

    (iv) Note: Unit 3 (Map 3) follows:

[[Page 1965]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.003


[[Page 1966]]


    (9) Unit 4: Little Bear Creek/ Horse Creek, Laramie County, 
Wyoming.
    (i) Reach 1 consists of 16 km (10 mi) of Little Bear Creek, which 
includes approximately 5 mi (8 km) of the Paulson Branch tributary. 
Little Bear Creek includes T18NR68W, NW4NW4SW4 Sec. 35; downstream to 
N2 Sec. 35.T18NR67W, N2SW4 Sec. 32; NE4 Sec. 32; NW4NW4NW4 Sec. 33; S2 
Sec. 28; NW4SW4 Sec. 27; S2 SE4NW4 Sec. 27. Paulson Branch includes 
T18N R68W, N2SW4 Sec. 2; downstream to S2NE4 Sec. 2; N2 Sec. 1; 
T18N67W, NW4NW4 Sec. 6; SE4SW4 Sec. 31; SE4 Sec. 31.
    (ii) Reach 2 consists of 2.7 km (1.7 mi) of an unnamed tributary to 
Horse Creek on the far eastern end just east of, and parallel to, 
Indian Hill Road. Includes T17N R66W,W2SW4 Sec. 2; NE4 Sec. 10.

    (iii) Note: Unit 4 (Map 4) follows:

[[Page 1967]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.004

    (10) Unit 5: Lodgepole Creek West, Laramie County, Wyoming.
    (i) This unit consists of approximately 20.4 km (12.7 mi) west 
along Lodgepole Creek from State highway 85. Includes T16N R67W, N2 SW4 
Sec. 21; W2 SE4 Sec. 21; N2 NE4 Sec. 28; W2 NW4 Sec. 27; N2 S2 Sec. 27; 
SW4NE4 Sec. 27; S2 Sec. 26; S2 SW4 Sec. 25; N2 NE4 Sec. 36; T16N R66W, 
N2 Sec. 31; downstream to SW4NW4 Sec. 32; SW4 Sec. 32; S2 SE4 Sec. 32; 
SW4SW4 Sec. 33; SE4SE4 Sec. 33; S2 SW4 Sec. 34; T15N R66W, N2N2 Sec. 4; 
downstream to NE4NW4 Sec. 3; N2 NE4 Sec. 3; NW4 Sec. 2; SE4 Sec. 2.

    (ii) Note: Unit 5 (Map 5) follows:

[[Page 1968]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.005

    (11) Unit 6: Lodgepole Creek East, Laramie County, Wyoming.
    (i) Consists of 8.4 km (5.2 mi) of Lodgepole Creek from 
approximately 3.2 km (2 mi) northeast of the town of Hillsdale on the 
west end of the reach, downstream to approximately 0.4 km (0.25 mi) 
east of State highway 213, approximately 3.2 km (2 mi) north of the 
town of Burns. Includes T15NR64W, N2SW4 Sec. 29; SE4SE4NW4 Sec. 29; 
S2NE4 Sec. 29; S2 Sec. 28; S2S2 Sec. 27; N2N2 Sec. 34; N2N2 Sec. 35; S2 
SE4SE4 Sec. 26; T15NR62W, N2NW4 SW4 Sec. 32.

    (ii) Note: Unit 6 (Map 6) follows:

[[Page 1969]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.006

    (12) Unit 7: Borie, Laramie County, Wyoming.
    (i) Reach 1 consists of 10.5 km (6.5 mi) along Diamond Creek west 
of F.E. Warren Air Force Base and other smaller tributaries merging 
from the north. Includes T14NR67W, N2 Sec. 33; upstream to NW4SW4 Sec. 
33; S2 NE4 Sec. 32; E2 SE4 Sec. 32; SW4 Sec. 32; SE4 Sec. 31; T13N 
R67W, N2N2NE4 Sec. 5.
    (ii) Reach 2 consists of 1.7 km (1.1 mi) of Lone Tree Creek. 
Includes T13N R67W, NW4 Sec. 31; downstream to NE4SW4 Sec. 31.

    (iii) Note: Unit 7 (Map 7) follows:

[[Page 1970]]

[GRAPHIC] [TIFF OMITTED] TR11JA05.007

* * * * *

    Dated: December 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-239 Filed 1-10-05; 8:45 am]
BILLING CODE 4310-55-C