78430 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R6–ES–2009–0013; MO 

92210–0–0009] 

RIN 1018–AW45 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

the Preble’s Meadow Jumping Mouse 

in Colorado 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

revised critical habitat for the Preble’s 

meadow jumping mouse (Zapus 

hudsonius preblei) (PMJM) in Colorado, 

where it is listed as threatened in a 

Significant Portion of the Range (SPR) 

under the Endangered Species Act of 

1973, as amended (Act). In total, 

approximately 411 miles (mi) (662 

kilometers (km)) of rivers and streams 

and 34,935 acres (ac) (14,138 hectares 

(ha)) fall within the boundaries of 

revised critical habitat in Boulder, 

Broomfield, Douglas, El Paso, Jefferson, 

Larimer, and Teller Counties. 

DATES: This rule becomes effective on 

January 14, 2011. 

ADDRESSES: This final rule, the 

economic analysis, the environmental 

assessment, comments and materials 

received, and supporting documentation 

we used in preparing this final rule, are 

available for viewing on the Internet at 

http://www.regulations.gov (see Docket 

No. FWS–R6–ES–2009–0013) and also 

by appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Colorado Ecological Services 

Office, 134 Union Boulevard, Suite 670, 

Lakewood, CO 80225; telephone 303– 

236–4773; facsimile 303–236–4005. 

FOR FURTHER INFORMATION CONTACT: 

Susan Linner, Field Supervisor, U.S. 

Fish and Wildlife Service, Colorado 

Ecological Services Office (see 

ADDRESSES). If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics relevant to the designation of 

revised critical habitat in this final rule. 

For additional information on the 

biology of this subspecies, see our 

October 8, 2009, proposed rule to revise 

the designation of critical habitat for the 

PMJM (74 FR 52066); our July 10, 2008, 

final rule to amend the listing for the 

PMJM to specify over what portion of its 

range the subspecies is threatened (73 

FR 39789); and our May 13, 1998, final 

rule to list the PMJM as threatened (63 

FR 26517). 

Previous Federal Actions 

On August 22, 2003, the City of 

Greeley filed a complaint in the U.S. 

District Court for the District of 

Colorado challenging our June 23, 2003, 

designation of critical habitat for the 

PMJM (68 FR 37275) (City of Greeley, 

Colorado v. United States Fish and 

Wildlife Service et al., Case No. 03–CV– 

01607–AP). On December 9, 2003, the 

Mountain States Legal Foundation filed 

a complaint in the U.S. District Court for 

the District of Wyoming challenging our 

1998 listing of the PMJM and 

designation of critical habitat for the 

PMJM (Mountain States Legal 

Foundation v. Gale E. Norton et al., Case 

No. 03–cv–250–J). That complaint was 

later expanded to include our July 10, 

2008, final rule to amend the listing for 

the PMJM to specify over what portion 

of its range the subspecies is threatened 

(73 FR 39789) and transferred to the 

U.S. District Court for the District of 

Colorado (Mountain States Legal 

Foundation v. Ken Salazar et al., Case 

No. 1:08–cv–2775–JLK). These lawsuits 

challenged the validity of the 

information and reasoning we used to 

designate critical habitat for the PMJM. 

On July 20, 2007, we announced that 

we would review our June 23, 2003, 

designation of critical habitat for the 

PMJM (68 FR 37275) after questions 

were raised about the integrity of 

scientific information we used and 

whether the decision we made was 

consistent with the appropriate legal 

standards (Service 2007a). Based on our 

review of the previous critical habitat 

designation, we determined that it was 

necessary to revise critical habitat. This 

rule incorporates those revisions that we 

found appropriate. 

On July 10, 2008, we amended the 

listing for the PMJM to specify over 

what portion of its range the subspecies 

is threatened (73 FR 39789), and 

determined that the listing of the PMJM 

is limited to the SPR in Colorado. Upon 

that determination, all critical habitat 

designated in 2003 within the State of 

Wyoming was removed from the 

regulations at 50 CFR 17.95 for this 

species. 

On April 16, 2009, we reached a 

settlement agreement with the City of 

Greeley in which we agreed to 

reconsider our critical habitat 

designation for the PMJM. The 

settlement stipulated that we submit to 

the Federal Register a proposed rule for 

revised critical habitat by September 30, 

2009, and a final rule for revised critical 

habitat by September 30, 2010 (U.S. 

District Court, District of Colorado 

2009a). On June 16, 2009, an order was 

issued granting Mountain States Legal 

Foundation a motion to dismiss their 

claims on the 1998 listing and 2008 

final determination without prejudice, 

and stayed their challenge to the 2003 

critical habitat designation pursuant to 

the City of Greeley settlement (U.S. 

District Court, District of Colorado 

2009b). 

On October 8, 2009, we published a 

proposed rule in the Federal Register to 

revise the designation of critical habitat 

for the PMJM (74 FR 52066), and 

accepted public comments for 60 days 

(from October 8 to December 7, 2009). 

On May 27, 2010, we opened a second 

comment period of 30 days (from May 

27 to June 28, 2010) and requested 

comments on our draft economic 

analysis (DEA) (Industrial Economics 

2010a), draft environmental assessment, 

amended Required Determinations 

section of the proposed rule, and any 

other part of our proposed revised 

critical habitat designation (75 FR 

29700). On August 9, 2010, an 

agreement with the City of Greeley 

extended the date for submission of the 

final rule for revised critical habitat to 

the Federal Register to December 1, 

2010 (U.S. District Court, District of 

Colorado 2010). 

For additional information about 

previous Federal actions concerning the 

PMJM, see our July 10, 2008, rule for the 

PMJM to specify over what portion of its 

range the subspecies is threatened (73 

FR 39789). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of revised critical habitat for the PMJM 

during the two comment periods. The 

first comment period, associated with 

the publication of the proposed rule to 

revise the designation of critical habitat 

for the PMJM (74 FR 52066) opened on 

October 8, 2009, and closed on 

December 7, 2009. We opened a second 

comment period on our DEA, draft 

environmental assessment, amended 

Required Determinations section of the 

proposed rule, and any other part of our 

proposed revised critical habitat 

designation (75 FR 29700) on May 27, 

2010, and closed it on June 28, 2010. We 

also contacted peer reviewers; 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties, and invited 


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them to comment on the proposed rule 

and supporting documents. 

We received 45 comments in response 

to the proposed rule. Comments were 

received from 2 peer reviewers, 1 

Federal agency, 1 State agency, and 8 

local governmental entities, 7 nongovernment organizations, and 18 

private individuals (including 14 via 

similar post cards). Thirty-seven 

comments were received during the 

October 8 to December 7, 2009, 

comment period. Eight comments were 

received during the May 27 to June 28, 

2010, comment period, all but one from 

entities that had commented previously. 

We received no requests for public 

hearings. All substantive comments 

have been either incorporated into the 

final determination or are addressed 

below. 

Peer Review 

In accordance with our policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we solicited 

expert opinions from three 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

two of the peer reviewers that we 

contacted. The peer reviewers generally 

agreed that we relied on the best 

scientific information available, 

accurately described the species and its 

habitat requirements, and concurred 

that our critical habitat proposal was 

well supported. The peer reviewers 

provided additional suggestions to 

improve the final critical habitat rule. 

Recommended editorial revisions and 

clarifications have been incorporated 

into the final rule as appropriate. We 

respond to all substantive comments 

below. 

Comments From Peer Reviewers 

(1) Comment: One peer reviewer 

commented that upstream and adjacent 

habitat, beyond designated critical 

habitat, requires management to 

decrease potential for catastrophic 

wildfire and flooding, and to maintain 

appropriate stream flow and channel 

integrity. 

Our Response: We agree. Federal 

agencies are directed, under section 

7(a)(1) of the Act (16 U.S.C. 1531 et 

seq.), to utilize their authorities to carry 

out programs for the conservation of 

endangered and threatened species. 

Proactive management on U.S. Forest 

Service (USFS) and other Federal lands 

upstream or outward from designated 

critical habitat should consider 

implications to the PMJM and its critical 

habitat. In addition, section 7(a)(2) of 

the Act requires every Federal agency to 

insure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of a 

listed species or result in the 

destruction or adverse modification of 

designated critical habitat. The activity 

does not have to take place within 

PMJM habitat or critical habitat to be 

subject to section 7 consultation. In 

considering the effects of a proposed 

action, the Federal agency looks at both 

the direct and indirect effects of an 

action on the species or critical habitat. 

Indirect effects are caused by the 

proposed action, are later in time, and 

are reasonably certain to occur. If, for 

example, management activities on 

Federal land, or a Federal permit or 

Federal funding for an activity upstream 

of critical habitat, may result in 

increased runoff, sedimentation, or 

channel alteration within critical 

habitat, those effects must be considered 

by the Federal agency. Outside of 

Federal lands and when no Federal 

nexus is present, cooperative 

conservation efforts with State and local 

government, and private property 

owners are the most effective means of 

addressing appropriate land 

management. 

(2) Comment: One peer reviewer 

commented that we should have 

emphasized the relationship of 

‘‘subshrub cover’’ (low-growing woody 

shrubs or perennial plants with a woody 

base) and plant species richness with 

the presence of PMJM. 

Our Response: We agree that these 

concepts are important to PMJM habitat. 

Low shrub cover and species richness 

are correlated with occupancy of 

riparian corridors by the PMJM. These 

relationships may be significant and are 

described in Clippinger (2002, p. 73). 

The primary constituent elements 

(PCEs) of critical habitat for the PMJM 

are described more broadly and include 

riparian corridors, in part, ‘‘containing 

dense, riparian vegetation consisting of 

grasses, forbs, or shrubs, or any 

combination thereof.’’ We believe that 

this final rule appropriately captures the 

importance of the low, diverse 

vegetative cover essential to the 

conservation of PMJM. 

(3) Comment: One peer reviewer 

maintained that our explanation of why 

Buffalo Creek and Wigwam Creek 

(Jefferson County) were not included as 

proposed critical habitat should be 

better supported. 

Our Response: Areas along both 

Buffalo Creek and Wigwam Creek have 

been subject to catastrophic fires. These 

events caused subsequent flooding and 

increased sedimentation of these 

streams. Trapping efforts targeting 

PMJM have not been conducted in these 

areas since the fires; however, it is 

unlikely that severely burned areas are 

currently occupied by the PMJM. The 

areas remain degraded and for at least 

the near future will not support the 

PCEs necessary for the conservation of 

the PMJM in the appropriate quantity 

and spatial arrangement to support 

inclusion as critical habitat. Given the 

extent of critical habitat proposed 

elsewhere in this subdrainage, we 

conclude that it is not necessary or 

appropriate to designate critical habitat 

in these degraded stream reaches. 

(4) Comment: One peer reviewer 

suggested that our failure to propose 

critical habitat on the Big Thompson 

River, North Fork of the Big Thompson 

River, and Little Thompson River was 

based more on issues of land ownership 

than on science. 

Our Response: All three of these 

rivers are within the Big Thompson 

River subdrainage (subdrainages equate 

to U.S. Geological Survey 8-digit 

hydrological unit boundaries and are 

hereafter referred to as HUCs). Within 

this HUC we are designating Buckhorn 

Creek (Unit 3) and Cedar Creek (Unit 4) 

as critical habitat, but we identified no 

other areas that merited designation. 

Public lands, especially undeveloped 

Federal lands and other public lands 

currently devoted to conservation, are 

more likely to support viable PMJM 

populations, both currently and in the 

future. We made our determinations 

after examining both quality of existing 

habitat and land ownership, and 

prioritized designation of Federal lands 

within this HUC. 

Public Comments 

Biological Concerns and Methodology 

(5) Comment: One commenter stated 

that proposed critical habitat should be 

expanded to reflect understanding of 

genetic diversity within the PMJM. 

Our Response: Our designation of 

revised critical habitat incorporates 

current knowledge of genetic diversity 

in the PMJM. Genetic analysis has 

revealed significant differences between 

PMJM populations in northern and 

southern portions of the range (King et 

al. 2006, pp. 4337–4338). The Preble’s 

Meadow Jumping Mouse Recovery 

Team (Jackson 2009, pers. comm.) 

concluded that recovery populations 

outlined in the Working Draft of a 

Recovery Plan (PMJM Recovery Team 

2003), and included in the Preliminary 

Draft Recovery Plan (Draft Plan) (Service 

2003a), were spread north and south to 

provide adequate representation of the 

genetic differences in northern and 


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southern portions of the range examined 

in King et al. (2006). This same 

approximate distribution in populations 

north and south is reflected in this 

revised critical habitat designation. 

(6) Comment: One commenter urged 

the Service to consider the value of 

expanding proposed critical habitat to 

provide habitat linkage for PMJM 

populations north and south of Denver, 

and among other drainages where 

critical habitat was proposed. 

Our Response: Potential connectivity 

of critical habitat was considered 

consistent with our conservation 

strategy and that proposed in the Draft 

Plan. In most cases, revised critical 

habitat units exceed minimum reach 

lengths for large, medium, and small 

populations proposed in the Draft Plan. 

All designated critical habitat units and 

subunits exceed 3 mi (5 km) in stream 

length, the minimum length of stream 

the Draft Plan prescribes for a small 

recovery population. In some cases, we 

chose not to link stream reaches through 

the designation of marginal habitat, or 

not to substantially extend critical 

habitat to encompass a larger PMJM 

population, where multiple smaller 

recovery populations are consistent 

with our conservation strategy. 

(7) Comment: One commenter 

requested that, before designating 

revised critical habitat, the Service 

should consult with scientists regarding 

how climate change may affect PMJM 

movement, habitat needs, and habitat 

connectivity. For example, it was 

suggested that we should consider 

potential effects of changes in 

precipitation and earlier spring runoff. 

Our Response: Variability in existing 

climate models suggests uncertainty as 

to future climate change and potential 

effects in Colorado, where the PMJM is 

listed. We have considered the potential 

impact of future climate change on the 

PMJM, and we believe that our revised 

designation adequately addresses likely 

climate change scenarios by designating 

critical habitat areas throughout the 

north-south range of the PMJM in 

Colorado that vary in elevation and in 

stream size (see Climate Change, below). 

In the Big Thompson River and Upper 

South Platte River drainages, we are 

designating critical habitat units in 

excess of those recovery populations 

called for in the Draft Plan to provide 

resilience, should climate change 

reduce the value of lower elevation 

habitats currently occupied by the 

PMJM. These units, the Cache La 

Poudre Unit (Unit 2) and the Upper 

South Platte Unit (Unit 11), are centered 

on Federal lands and include reaches 

extending to the highest elevation the 

PMJM is currently known to occupy in 

Colorado. If, in the future, a clearer 

picture of the effects of climate change 

on the PMJM is developed, further 

revision of critical habitat may be 

appropriate (see also Climate Change, 

below). 

(8) Comment: One commenter stated 

that both sites where trapping has 

documented PMJM presence since 2003, 

and sites of earlier captures, should be 

included in designated critical habitat. 

Our Response: Not all areas where the 

PMJM is known to occur in Colorado are 

being designated as revised critical 

habitat. See our response to comment 

44. We incorporated the best scientific 

and commercial information available 

into this final rule, including 

information regarding all locations 

where PMJM have been trapped since 

our 2003 final rule. These more recent 

capture locations did not significantly 

expand the known distribution of the 

PMJM in Colorado. However, we did 

consider each new capture location and 

its potential significance prior to our 

proposing revised critical habitat for the 

PMJM. 

(9) Comment: One commenter stated 

that the Draft Plan for the PMJM, which 

was cited as a basis for the Service’s 

conservation strategy and certain 

decisions regarding proposed 

designation of revised critical habitat, is 

6 years old and does not include current 

data. 

Our Response: The 2003 Draft Plan 

(Service 2003a) provides a conservation 

strategy for the PMJM. It was developed 

primarily by the PMJM Recovery Team 

and refined through comments and 

additional information we received. 

Information on range, occupancy, 

populations, and habitat characteristics 

were used in developing the Draft Plan. 

Recent review by the current PMJM 

Recovery Team has verified that 

concepts and strategies incorporated 

into the Draft Plan remain appropriate 

(Jackson 2010, pers. comm.). However, 

we also incorporated new data, as 

appropriate, in developing our proposal 

and this final rule, including trapping 

results, genetic and morphometric 

confirmation of species identification, 

and changes to habitat. 

(10) Comment: One commenter 

pointed out that the Service has not 

proposed critical habitat to address all 

recovery populations called for in the 

Draft Plan, including HUCs where the 

PMJM is known to occur. 

Our Response: While the conservation 

strategy underlying our proposed 

revision of critical habitat was informed 

by the Draft Plan and the ongoing 

recovery planning process, areas we are 

designating as revised critical habitat in 

this rule will not be identical to areas 

ultimately designated as recovery 

populations. The Draft Plan designated 

location of certain recovery populations 

in HUCs where PMJM are known to be 

present. However, in some HUCs within 

the likely range of the PMJM, there is 

little or no available information on the 

existence of PMJM populations or the 

extent of occupied habitat. In these 

cases, the Draft Plan only applied 

standard criteria to achieve recovery of 

the species. For example, the Draft Plan 

required, at minimum, three small 

recovery populations or one medium 

recovery population in several HUCs, 

but only if the HUC was found to be 

occupied by the PMJM. Since we have 

determined that the conservation of the 

PMJM can be achieved by designating 

critical habitat in areas that are known 

to support the species, rather than in 

areas with no confirmed occupancy by 

the species, we are designating no 

critical habitat in HUCs where 

occupancy has not been confirmed. In 

other cases, such as the Kiowa HUC in 

Elbert County, trapping efforts have 

been limited to sites of human 

development, and, while there is 

confirmed occurrence of the PMJM, it is 

not sufficient to inform us of 

distribution or abundance within the 

HUC. We exercised our professional 

judgment and determined that those 

limited areas of confirmed occurrence of 

the PMJM in and near human 

development are not essential to the 

conservation of the PMJM. We are not 

designating such sites as critical habitat. 

(11) Comment: One commenter stated 

that areas of critical habitat should be 

designated in excess of recovery goals 

suggested in the Draft Plan. 

Our Response: In two HUCs, we are 

designating critical habitat units beyond 

those recovery populations that the 

Draft Plan specifies. We are designating 

critical habitat capable of supporting a 

large PMJM population independent of, 

and in addition to, the large recovery 

populations proposed in the Draft Plan 

along the Cache la Poudre River (Unit 2) 

in the Cache La Poudre River HUC and 

designated reaches of the Upper South 

Platte River and its tributaries (Unit 10) 

in excess of recovery goals for the Upper 

South Platte River HUC. In other HUCs, 

we did not identify or designate 

additional areas that met the definition 

of critical habitat in excess of recovery 

goals stated in the Draft Plan. 

(12) Comment: Multiple commenters 

stated that the outward extent of 

proposed critical habitat did not 

accurately reflect limits of PMJM 

habitat. One commenter stated that 

distance outward from riparian 

vegetation is a much better predictor of 

PMJM habitat than is our use of distance 


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from the stream edge, based on stream 

order (a classification of streams by 

relative size). Another commenter stated 

that floodplain plus 100 meters should 

be used as the outward boundary of 

critical habitat on reaches where 

floodplain mapping is available. 

Our Response: We believe that the 

outward extent of critical habitat we are 

designating includes all PCEs required 

by the PMJM and effectively protects 

habitat essential to the conservation of 

the PMJM. We agree that site-specific 

assessment of habitat components, 

including extent of riparian vegetation, 

is a more precise method of designating 

critical habitat (see our response to 

comment 14 below). However, sitespecific mapping of PMJM habitat in 

Colorado is not generally available. 

Land use and recent site history 

complicate efforts to accurately assess 

and map riparian habitat limits. 

Floodplain mapping is not available for 

most foothill streams designated as 

PMJM critical habitat. Where limits of 

the designated 100-year floodplain have 

been mapped, floodplain limits are 

often revised, especially in the Colorado 

Front Range development corridor, 

where filling of the floodplain may 

occur and flood levels are altered by 

development. We used the best 

available scientific and commercial 

information with respect to determining 

the outward extent of PMJM critical 

habitat. 

(13) Comment: One commenter 

suggested that the Service should 

provide detail on the development of 

the average floodplain widths used to 

designate outward limits of critical 

habitat for streams of different order and 

stated that the calculation needs to be 

based on a sufficient sample of sites 

across PMJM range to be meaningful. 

Our Response: The estimates of 

average floodplain width based on 

stream order that we use in this 

designation of critical habitat were 

previously developed in conjunction 

with our June 23, 2003, designation of 

critical habitat for the PMJM (68 FR 

37275). We believe that a sufficient 

number of representative streams were 

examined to provide an appropriate 

estimation of average floodplain width 

as related to stream order. 

(14) Comment: One commenter stated 

that the Riparian Conservation Zone 

(RCZ) mapping, developed as part of the 

approved Douglas County Habitat 

Conservation Plan (HCP), corresponds 

better to appropriate outward limits of 

critical habitat than do the boundaries 

that the Service proposed for revised 

critical habitat, and that critical habitat 

boundaries should align with countywide HCP boundaries for consistency 

and to avoid confusion. 

Our Response: We agree that it is 

preferable that critical habitat 

boundaries match HCP boundaries 

where HCP boundaries accurately 

reflect limits of habitat essential to the 

conservation of the PMJM. RCZ 

boundaries in the Douglas County HCP 

were developed based on conservation 

strategies for the PMJM provided in the 

Draft Plan. After consideration, we are 

designating the outward boundaries of 

revised critical habitat on non-Federal 

lands in Douglas County to correspond 

to the boundaries developed for RCZ 

(see the Delineation of Critical Habitat 

Boundaries section). 

Procedural and Legal Issues 

(15) Comment: Two commenters 

stated that the Service cannot propose a 

critical habitat revision prior to analysis 

of alternatives under the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.), a draft economic 

analysis (DEA), and a Regulatory 

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

analysis. They stated that the 

environmental and economic impacts of 

the proposed action must be considered 

prior to the proposal. 

Our Response: By Service policy, we 

draft and circulate the NEPA, DEA, and 

Regulatory Flexibility Act analyses 

between the proposed and final critical 

habitat designation. Comments on the 

entire proposal, including the draft 

environmental assessment, DEA, and 

Regulatory Flexibility Act analysis, were 

accepted for 30 days following the May 

27, 2010, publication making available 

these documents (75 FR 29700). The 

information provided in these 

documents and comments regarding 

them were fully considered prior to this 

final rule, in accordance with applicable 

regulations and statutes. 

(16) Comment: Two commenters 

stated that the Service inappropriately 

proposed critical habitat in areas where 

the PMJM was not known to exist at the 

time of listing. 

Our Response: Section 3(5)(A) of the 

Act defines critical habitat, in part, as 

those specific areas within the 

geographic area occupied by the species 

at the time of listing, and specific areas 

outside the geographic area occupied by 

the species at the time of listing upon 

determination that such areas are 

essential for the conservation of the 

species. Our designation constitutes our 

best assessment of areas determined to 

be within the geographical area 

occupied at the time of listing that 

contain the physical and biological 

features essential to the conservation of 

the PMJM that may require special 

management, and those additional areas 

not occupied at the time of listing, but 

that have been determined to be 

essential to the conservation of the 

PMJM. Management and protection of 

all the areas is necessary to achieve the 

conservation of PMJM. Therefore, we 

are also designating areas that were not 

known to be occupied at the time of 

listing, but which were subsequently 

identified as being occupied, and which 

we have determined to be essential to 

the conservation of the PMJM in our 

Preliminary Draft Recovery Plan 

(Service 2003a). We have based our 

critical habitat designation on the best 

currently available scientific 

information. 

(17) Comment: One commenter stated 

that only areas ‘‘indispensible and 

absolutely necessary’’ to the PMJM 

should be designated as critical habitat 

and that the Service should include 

only the ‘‘minimum amount of habitat 

needed to avoid short-term jeopardy’’ 

(citing Middle Rio Grande Conservancy 

District v. Babbitt). Based on this 

reasoning, they asserted that we could 

not tie critical habitat to the Draft Plan, 

which addresses long-term recovery. 

Our Response: Within the range of the 

listed species, critical habitat is defined 

to include areas occupied at the time of 

listing on which are found those 

physical or biological features essential 

to the conservation of the species, and 

which may require special management 

considerations or protection, and those 

additional areas not occupied at the 

time of listing but that have been 

determined to be essential to the 

conservation of the species. 

Conservation is defined in the Act as the 

use of all methods and procedures 

which are necessary to bring any 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Limiting designation of critical habitat 

to avoiding ‘‘short-term jeopardy’’ would 

not meet the Act’s intent that critical 

habitat provide for the conservation 

(e.g., recovery) of the species. 

(18) Comment: One commenter 

expressed the concern that details of all 

existing HCPs involving the PMJM were 

not readily available for public review 

and that all HCPs should be available on 

the Service’s ‘‘ECOS’’ Web site and the 

Service’s Mountain-Prairie Region Web 

site. 

Our Response: Most HCPs that 

address the PMJM have been available 

to the public on our ECOS Web site. 

When we were made aware that certain 

HCPs were not posted, we provided the 

commenter the requested materials as 

expeditiously as possible. 


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(19) Comment: One commenter stated 

that Geographic Information System 

(GIS) data depicting proposed critical 

habitat boundaries should have been 

made available for public review. 

Our Response: We provided GIS 

depictions of proposed critical habitat 

when requested. Additionally, we 

believe that the legal description of 

stream reaches and outward distances 

from streams that we provided in our 

proposal to revise the designation of 

critical habitat were adequate to identify 

the areas proposed. 

(20) Comment: One commenter 

recommended that we incorporate a 

provision in our critical habitat 

designation that would exclude from 

critical habitat areas covered by future 

HCPs, when completed. 

Our Response: The basis for 

exclusions from critical habitat under 

section 4(b)(2) of the Act is explained in 

‘‘Exclusions’’ below. We cannot make a 

determination now to exclude areas 

covered by HCPs that may be developed 

sometime in the future, because we have 

no way to evaluate the effectiveness, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion, of plans that do not yet exist 

and have not been implemented. If, in 

the future, we determine that changes in 

designated critical habitat for the PMJM 

are appropriate, we have the option to 

revise critical habitat. 

(21) Comment: One commenter asked 

us to confirm that the existing special 

4(d) rule, which exempts take of PMJM 

under section 9 of the Act for specified 

activities, including ditch maintenance 

and any continued use of perfected 

water rights, is not affected by the 

designation of critical habitat. 

Our Response: The 4(d) rule for the 

PMJM (see 50 CFR 17.40 (l)) provides 

certain exemptions from the take 

prohibitions found in section 9 of the 

Act. Take prohibitions under section 9 

are not affected by the designation of 

critical habitat. The primary regulatory 

effects of a critical habitat designation 

under the Act are triggered through the 

provisions of section 7 of the Act, which 

applies only to activities conducted, 

authorized, or funded by a Federal 

agency. In limited cases, an activity that 

is excluded from take provisions under 

the 4(d) rule may require a Federal 

permit or involve Federal funding. In 

these cases, while take would be 

exempted under the 4(d) rule, section 7 

consultation would still occur to ensure 

that Federal actions would not 

jeopardize the PMJM or result in 

destruction or adverse modification of 

its critical habitat. 

(22) Comment: One commenter stated 

that under the Act, the Service must reconsult on any projects within newly 

designated critical habitat that 

previously underwent section 7 

consultation. 

Our Response: For Federal actions, 

the lead Federal agency determines 

whether their action may affect 

designated PMJM critical habitat. This 

applies to projects previously consulted 

on under section 7 where the Federal 

agency has retained discretionary 

involvement or control over the action. 

Federal agencies may sometimes need to 

request reinitiation of consultation on 

actions for which formal consultation 

has been completed (see 50 CFR 

402.16). 

Comments on Specific Units 

(23) Comment: One commenter 

requested us to connect critical habitat 

Units 1 (North Fork of the Cache la 

Poudre River) and 2 (Cache la Poudre 

River) in Larimer County. 

Our Response: The Milton Seaman 

Reservoir at the downstream extent of 

Unit 1 is a barrier to PMJM movement 

and effectively prevents linking of the 

two units. We do not believe that it is 

biologically necessary or possible to link 

these two units. See also our response 

to Comment 6. 

(24) Comment: One commenter called 

for us to exclude the area proposed as 

critical habitat in Unit 1 (North Fork of 

the Cache la Poudre River) on the 

mainstem of the North Fork of the Cache 

la Poudre River upstream of the Milton 

Seaman Reservoir and within the 

footprint of the proposed reservoir 

expansion. 

Our Response: We have not excluded 

this reach from designated critical 

habitat. This area includes Federal and 

State property that would potentially be 

inundated by the City of Greeley’s 

proposed expansion of the Milton 

Seaman Reservoir. Expansion under the 

currently proposed plan would 

inundate about 3 mi (5 km) of the river. 

In 2002, the City of Greeley contended 

that the reach in question supported 

only patches of willow shrub, had little 

habitat for the PMJM, and did not meet 

the definition of critical habitat (Kolanz 

2003). In our on June 23, 2003, 

designation of critical habitat (68 FR 

37275), we concluded the area in 

question supported those physical or 

biological features essential to the 

conservation of the species, and may 

require special management 

considerations or protection. We stated 

that, within the reach in question, some 

habitat components appeared 

discontinuous, and PMJM habitat was, 

at that time, of lower quality than 

habitat upstream of this reach, due to 

heavy grazing. However, we concluded 

that the area in question did include the 

requisite PCEs to support the PMJM, 

and its designation as critical habitat 

was essential for the conservation of the 

large PMJM population along the North 

Fork of the Cache la Poudre River. The 

Service chose not to exclude this reach 

from critical habitat in 2003. This 

prompted the legal actions by the City 

of Greeley addressed in ‘‘Previous 

Federal Actions’’ above. 

The City of Greeley, in a letter dated 

May 20, 2009, outlined its concerns 

regarding designation of critical habitat 

in this area, and requested exclusion of 

the area from revised critical habitat 

under section 4(b)(2) of the Act (Kolanz 

2009a). The City of Greeley also 

submitted a report by ERO Resources 

Corporation (ERO) assessing the area to 

be inundated by the proposed reservoir 

expansion (ERO 2008). ERO concluded 

that of the approximately 165 ac (66.8 

ha) of designated critical habitat that 

would be inundated, only about 26 

acres were of moderate to high quality 

for the PMJM. Non-habitat and lowquality habitat were attributed to the 

dominant upland vegetation and steep 

slopes, while the moderate- to highquality habitat was associated with the 

narrow riparian corridor (ERO 2008, pp. 

11–12). In our October 8, 2009, proposal 

to revise the designation of critical 

habitat for the PMJM (74 FR 52066), we 

again determined that the area met the 

definition of critical habitat, that it 

included physical and biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. Three 

other letters from the City of Greeley 

followed, two within public comment 

periods for the proposed revised critical 

habitat, expanding on the City of 

Greeley’s concerns (Kolanz, 2009b, 

2009c, 2010). 

Consistent with previously stated 

concerns over habitat quality, the City of 

Greeley contended that the area in 

question is not essential to the 

conservation of the PMJM. The City of 

Greeley pointed out that it was not 

mapped as PMJM habitat in our 

proposal to establish special regulations 

for the conservation of the PMJM 

(December 3, 1998, 63 FR 66777), and 

was not shown to be ‘‘occupied’’ by 

PMJM in a recent Colorado Division of 

Wildlife (CDOW) database. The reach in 

question is part of the USFS Greyrock 

Grazing Allotment, which extends from 

Milton Seaman Reservoir, 

approximately 3 mi (5 km) upstream, 

and includes lands owned primarily by 

the USFS (about 2 mi (3 km) of the 

stream), as well as State lands, City of 

Greeley lands, and private lands (USFS 


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2008). The USFS 2008 Biological 

Assessment for management of the 

Greyrock Grazing Allotment explains 

the history of the site and past habitat 

limitations (USFS 2008). Heavy 

livestock grazing for many decades 

drastically reduced riparian shrubs and 

trees. In the last 7 years, riparian habitat 

quality has significantly improved in 

the reach. Following removal of grazing 

along the North Fork of the Cache la 

Poudre River, a notable increase in 

willow growth and a tall, dense 

herbaceous component of the plant 

community was observed in the riparian 

zone in 2007. With no further livestock 

grazing in the reach through 2010, a 

lush riparian community has developed 

that provides PCEs essential to the 

support of the PMJM, in quantity and 

spatial arrangement that suggests 

riparian habitat is now of high quality. 

Upland habitat in the reach has been 

slower to recover following heavy 

grazing, and weed control efforts are 

needed. While the PMJM had been 

documented upstream in this drainage, 

the reach above Milton Seaman 

Reservoir had not been trapped to 

establish whether the PMJM was present 

until 2010, when a limited trapping 

effort by the USFS captured a jumping 

mouse within the proposed reservoir 

expansion area (USFS 2010). The 

CDOW database will be updated 

accordingly. Restoration of habitat in 

this reach has advanced to the point 

where grazing will again take place on 

the allotment. Carefully managed 

grazing will maintain or improve PMJM 

habitat in this allotment into the future. 

The USFS has informally consulted 

with the Service over management of 

this allotment and we have concluded 

that carefully managed grazing will 

maintain or improve PMJM habitat on 

the allotment into the future. 

The City of Greeley also stated that 

designation of critical habitat in this 

area would create significant financial 

burden on the City. Our DEA (section 

5.3) assigns a low incremental cost 

($20,000 to $38,000) to the designation 

of critical habitat for the Halligan 

Reservoir and Milton Seaman Reservoir 

projects. However, additional costs 

could be incurred should designation of 

critical habitat affect regulatory 

approval of the proposed project, and 

cause the City of Greeley to pursue a 

more costly alternative. Because of their 

speculative nature, these costs were not 

included in the DEA (see our response 

to Comment 56), but we discuss them in 

the FEA and here. Under section 7 of 

the Act, the Service will evaluate 

whether any proposed alternative for 

Milton Seaman Reservoir expansion 

under permit review by the U.S. Army 

Corps of Engineers (Corps) will 

jeopardize the PMJM or result in 

destruction or adverse modification of 

its designated critical habitat. Under the 

City of Greeley’s worst case scenario, 

our designation of critical habitat and 

subsequent consultation regarding the 

reservoir project could result in a 

finding of ‘‘destruction or adverse 

modification of critical habitat’’ by the 

Service, or could result in the Corps 

denying a permit under the Clean Water 

Act (33 U.S.C. 1251 et seq.), based on 

the proposed project not being the ‘‘least 

damaging practicable alternative.’’ To be 

attributable to our designation of critical 

habitat, an outcome and any resultant 

costs would have to differ from the 

results of regulatory review of the same 

project with no critical habitat 

designation. For example, the outcome 

would have to differ from the result of 

Service consultation in the absence of 

critical habitat that results in a jeopardy 

determination, or in the absence of 

critical habitat, the Corps denying a 

permit based on the presence of the 

PMJM, combined with an array of other 

considerations. The question of whether 

regulatory review under scenarios with 

or without critical habitat would 

produce different results contributes to 

the speculative nature of costs 

attributable to critical habitat 

designation. Factors relevant to possible 

future Service and Corps regulatory 

determinations follow. 

Substantial planning has taken place 

between the City of Greeley, the Service, 

The Nature Conservancy, and other 

entities, to address potential impacts to 

the PMJM and its habitat from the 

planned reservoir expansion. The City 

of Greeley has expressed an interest in 

implementing conservation measures to 

offset impact of the proposed project to 

the PMJM prior to project construction. 

Conservation measures have been 

identified that could serve to offset 

project impacts to the PMJM, should the 

planned project move forward. These 

conservation measures are targeted at 

PMJM populations and supporting 

ecological processes in critical habitat 

Unit 1, which includes the reservoir 

expansion area. Further development of 

conservation measures and their 

incorporation into plans for proposed 

reservoir expansion could help maintain 

the value of this critical habitat unit to 

the recovery of the PMJM and reduce or 

eliminate the possibility of a jeopardy or 

adverse modification determination by 

the Service. 

Our designation of critical habitat for 

the PMJM should be considered by the 

Corps as indicative of the high natural 

resource value of the lands designated. 

A decision that the area does not meet 

the definition of critical habitat would 

imply a lesser resource value. However, 

if the Service were to exclude the reach 

in question from critical habitat for 

reasons of relevant non-biological 

factors (economic, social, etc.), it would 

not change our determination that the 

area meets the definition of critical 

habitat, nor would it change the 

inherent resource value of the reach or 

its contribution to the conservation and 

recovery of the PMJM. Therefore, from 

a resource perspective, the Corps’ 

assessment of the value of this reach 

and its role in their consideration of 

issuing a permit to the City of Greeley 

may not differ between the cases of 

critical habitat designation and 

exclusion from designation based on 

non-biological factors. 

Any future Milton Seaman Reservoir 

expansion may differ from the project 

currently proposed. The City of Greeley 

is an active participant in the HalliganSeaman Water Management Project. To 

efficiently manage their supplies, the 

cities of Fort Collins and Greeley have 

proposed the Halligan-Seaman Water 

Management Project as a regional water 

storage and management project on the 

North Fork of the Cache la Poudre River. 

Both cities and their partners are 

working together to increase water 

storage capacity for their communities 

through coordinated enlargements of 

Halligan and Milton Seaman reservoirs. 

The participants are using an innovative 

Shared Vision Planning process, which 

brings together stakeholders in a 

collaborative planning and model 

building exercise. The Service is 

supportive of this process, has 

participated as resources allow, and 

anticipates that its results will inform 

the Halligan-Seaman Water 

Management Project. The eventual 

proposal for Milton Seaman Reservoir 

expansion may vary from the proposal 

currently envisioned, to facilitate 

coordinated management of these 

reservoirs. 

Onsite alternatives to the project 

currently proposed by the City of 

Greeley may result from the HalliganSeaman Water Management Project. 

Such alternatives could reduce the 

probability of a Service determination of 

adverse modification of critical habitat, 

or Corps permit denial based on 

presence of critical habitat. Any such 

alternatives could, however, also result 

in less water storage or storage at a 

higher cost. 

The most costly possible result of our 

designation of critical habitat would be 

a case where the City of Greeley would 

have to abandon expansion plans for the 

Milton Seaman Reservoir, and develop 


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storage options at one or more alternate 

sites. Assuming a current estimated cost 

of $116 million for the proposed project 

(Kolanz 2010, p. 4) and the Corps’ 

estimated costs of alternate storage cited 

in the DEA (up to 8 times the cost of 

storage through Milton Seaman 

Reservoir expansion), additional cost 

due to designation of critical habitat 

could range to $812 million. The Corps’ 

estimates relate to comparative costs 

incurred by other Front Range Colorado 

water projects (Peter, pers. comm. 2010). 

Under the scenarios above, the 

additional cost to the City of Greeley 

associated with critical habitat 

designation upstream of the Milton 

Seaman Reservoir could range from 

$20,000 to as high as $812 million. We 

have considered both the potential costs 

due to designation of critical habitat, 

and the relative likelihood of their 

occurrence, when evaluating the City of 

Greeley’s request for exclusion. 

The reach of river above the Milton 

Seaman Reservoir is part of critical 

habitat Unit 1, established to be 

consistent with a large recovery 

population along the North Fork of the 

Cache La Poudre River and its 

tributaries, as designated in the Draft 

Plan. The entire reach of the North Fork 

between the Halligan Reservoir to the 

north and Milton Seaman Reservoir to 

the south is within this unit. The two 

reservoirs create barriers to PMJM 

movement along the river, and the 

population of PMJM between the 

reservoirs and on adjoining tributaries is 

thought to be relatively isolated from 

populations elsewhere. The City of 

Greeley contends that loss of up to 3 mi 

(5 km) of the approximately 88 mi (140 

km) in this critical habitat unit will have 

little relative impact on the unit’s ability 

to conserve and recover the PMJM. We 

do not know the extent of habitat 

needed to support a large recovery 

population as described in the Draft 

Plan. At a minimum, a total of 50 mi (80 

km) of connected streams and 

tributaries is suggested for a large PMJM 

population in the Draft Plan. But the 

Draft Plan bases size of PMJM recovery 

populations on the numbers of PMJM 

present, not the extent of habitat. Until 

such time as population estimates for 

the area are developed, we will not 

know whether 50 mi (80 km), or even 

88 mi (140 km), of streams will be 

sufficient. In this context, loss of 3 of 

the 88 mi (5 of the 140 km) may 

significantly impact the ability of the 

critical habitat unit to support a large 

population and meet the recovery goal 

outlined in the Draft Plan. 

The City of Greeley suggested that an 

exclusion would support ongoing 

Federal and local cooperation in the 

development of water resources in the 

drainage. Water use and storage issues 

continue to generate close scrutiny in 

Colorado. The Milton Seaman Reservoir 

expansion, Halligan Reservoir 

expansion, and other proposed projects 

have both their proponents and critics. 

While an exclusion could lead to the 

continuation and strengthening of 

partnerships between the City of 

Greeley, certain other public and private 

entities, and the Service, it would likely 

alienate others. Despite our decision not 

to exclude the area above Milton 

Seaman Reservoir from critical habitat 

designation, we anticipate a continued 

working relationship with the City of 

Greeley to address both their needs and 

those of the PMJM. 

If approved, the proposed reservoir 

expansion would occur well in the 

future. The required review under 

NEPA and the permit issuance by the 

Corps under the section 404 of the Clean 

Water Act, necessary for reconstruction 

of the reservoir’s dam, are likely to take 

years. Because of this, considerable 

uncertainty exists regarding when and 

in what form an expansion of Milton 

Seaman Reservoir might occur. Given 

the uncertainties regarding timing, 

design, and future conservation 

commitments associated with reservoir 

expansion, exclusion of the area, even if 

it should be determined to be 

appropriate someday in the future, is 

premature. 

Exclusion of this reach from critical 

habitat would do little to relieve the 

costs of regulatory review and 

associated permitting (delays, 

administrative costs, consulting costs, 

and cost of developing additional 

conservation measures) for the City of 

Greeley. The area of the proposed 

expansion includes Federal land owned 

by the USFS. All alternatives impacting 

this land will involve USFS approval. In 

addition, any dam replacement or 

reconstruction would require a permit 

from the Corps under the Clean Water 

Act. Even without critical habitat, 

section 7 review appears unavoidable. 

Exclusion from critical habitat would 

not alleviate the need for section 7 

consultation, or appreciably increase the 

administrative costs involved. 

Designation of critical habitat (the 

identification of lands that are necessary 

for the conservation of the species) is 

beneficial in the recovery planning for 

a species. In this case, the Draft Plan has 

helped inform critical habitat 

designation by designating a large 

recovery population in this area. This 

final rule may, in turn, contribute to the 

development of a final recovery plan for 

the North Fork of the Cache La Poudre 

River. 

We have determined that this portion 

of the North Fork of the Cache la Poudre 

River contains the physical and 

biological features essential to the 

conservation of the PMJM in accordance 

with 4(a)(3) of the Act. We conclude 

that it is inappropriate to exclude this 

reach from critical habitat under section 

4(b)(2) of the Act. 

(25) Comment: Two commenters 

pointed out that critical habitat 

proposed along Spring Brook and South 

Boulder Creek in Unit 5 (South Boulder 

Creek), Boulder County, is 

discontinuous as mapped. 

Our Response: PMJM have been found 

on both Spring Brook and South 

Boulder Creek. Spring Brook has been 

diverted into a canal; therefore, it does 

not follow its historical course directly 

into South Boulder Creek. The limits of 

critical habitat we are designating for 

the two reaches are separated by 

approximately 100 ft (30 m) through a 

rural residential upland area which may 

not contain the physical and biological 

features essential for the conservation of 

PMJM, as defined. However, we do not 

believe that this discontinuity 

significantly affects the species’ ability 

to move between these portions of this 

critical habitat unit. 

(26) Comment: The City of Boulder 

requested that we coordinate with the 

City to ‘‘fine tune’’ the boundaries of 

Unit 5 (South Boulder Creek) to 

expedite regulatory review of future 

projects with a Federal nexus. 

Our Response: As in other units, 

based on the scale of our mapping, there 

may be some areas within the general 

boundaries of designated critical habitat 

in Unit 5 that do not support PCEs 

required by the PMJM. For example, 

specific areas that support existing 

buildings, roads, and parking lots are 

not considered critical habitat. These 

areas are excluded by text in this rule. 

We will continue to be available to work 

with the City of Boulder to determine 

boundaries of areas that do not meet the 

definition of critical habitat. 

(27) Comment: The U.S. Department 

of Energy (DOE) commented that it 

controls much of the ‘‘Rocky Flats Site,’’ 

described by the Service as the Rocky 

Flats National Wildlife Refuge (NWR) 

(Unit 6), in Jefferson and Broomfield 

Counties, and noted that proposed 

critical habitat would include portions 

of DOE’s Central Operable Unit (COU) 

of 1,300 ac (530 ha), where a former 

facility processed and manufactured 

nuclear weapons. Many DOE 

operational maintenance and 

monitoring activities continue to take 

place within the COU under closure and 

cleanup agreements. The DOE urged the 

Service to exclude the COU from 


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designation of critical habitat within 

this unit because designation could 

adversely impact actions required under 

these agreements. 

Our Response: We have modified this 

final rule to more accurately reflect DOE 

presence on the Rocky Flats Site. The 

Rocky Flats Site (Unit 6) is managed by 

the Service (Rocky Flats NWR) and DOE 

(the Central Operating Unit and certain 

other lands). Buildings and other 

structures at the site have been 

decommissioned and demolished, and 

the disturbed areas have been restored, 

or are undergoing restoration. Clean-up 

and closure of the COU was completed 

in 2005. Many operational maintenance 

and monitoring activities continue to 

take place in the COU, to maintain the 

CERCLA (the Comprehensive 

Environmental Response, 

Compensation, and Liability Act, also 

known as Superfund, 42 U.S.C. 9601 et 

seq.) and RCRA (Resource Conservation 

and Recovery Act, 42 U.S.C. 6901 et 

seq.) remedies implemented in 

accordance with the Rocky Flats 

Management Agreement. 

The final Rocky Flats NWR 

Comprehensive Conservation Plan 

(CCP) was announced in the Federal 

Register on April 18, 2005 (70 FR 

20164). The CCP outlines the 

management direction and strategies for 

NWR operations, habitat restoration, 

and visitor services, for a period of 15 

years. The CCP provides a vision for the 

NWR; guidance for management 

decisions; and the goals, objectives, and 

strategies to achieve the NWR’s vision 

and purpose. One objective of the CCP 

is to protect, maintain, and improve 

approximately 1,000 ac (400 ha) of 

PMJM habitat on the NWR. A 

programmatic section 7 consultation 

with DOE for their cleanup and 

maintenance activities was completed 

in 2004 (Service 2004c). This 

consultation addressed removal of 

manmade structures in and adjacent to 

PMJM habitat, and ongoing operations 

in the COU in support of the CERCLA/ 

RCRA remedy. 

We invited information and 

comments on potential exclusion of the 

Rocky Flats Site in part because of the 

previous exclusion of the site from 

critical habitat in our June 23, 2003, 

final rule (68 FR 37275). That exclusion 

appeared at odds with the recent 

interpretation of critical habitat 

designation on Federal lands. Federal 

agencies have an affirmative 

conservation mandate under section 

7(a)(1) of the Act to contribute to the 

conservation of listed species. On the 

Rocky Flats Site, as with other Federal 

lands, we anticipate that effective land 

management strategies can and will be 

employed by Federal agencies to 

conserve PMJM populations. We have 

determined that lands on the Rocky 

Flats Site are essential to the 

conservation of the species. Designation 

of critical habitat on the Rocky Flats Site 

highlights the importance of the area to 

the PMJM, while encouraging the NWR 

and DOE to provide a consistent and 

effective approach to conserve the 

PMJM. These lands require special 

management considerations or 

protection, as evidenced by and 

incorporated in management plans and 

the programmatic consultation 

referenced above. Potential effects to 

habitat on the site that may be 

addressed under programs, practices, 

and activities within the authority and 

jurisdiction of Federal land management 

agencies include, but are not limited to, 

weed management, wildland fire 

management, recreation, construction 

and maintenance of roads and trails, 

and operational maintenance and 

monitoring activities within the COU. 

For the above reasons, we conclude that 

the entire Rocky Flats site, including the 

COU, contains the physical and 

biological features essential to the 

conservation of the PMJM and merits 

designation as critical habitat. 

(28) Comment: One commenter 

requested that the easternmost portion 

of the Rocky Flats Site (Unit 6) in 

Jefferson and Broomfield Counties, the 

site of proposed roadway expansion 

along Indiana Street, be excluded from 

critical habitat, because it is planned for 

development. They cited the Rocky 

Flats National Wildlife Refuge Act of 

2001, and Rocky Flats National Wildlife 

Refuge Comprehensive Conservation 

Plan and Environmental Impact 

Statement (CCP/EIS) as addressing the 

roadway expansion and anticipating its 

future construction in spite of potential 

PMJM presence. Two other commenters 

urged that the specific area in question 

be included in designated critical 

habitat. 

Our Response: The areas in question 

contain the physical and biological 

features essential to conservation of the 

PMJM and have not been excluded from 

critical habitat. Should project plans for 

the road expansion go forward, the 

Service has concluded that subsequent 

environmental review, including 

compliance with the Act, will be 

required of any future project proponent 

to address any impacts to the PMJM, its 

habitat, and designated critical habitat. 

The Service has made no conclusions as 

to how any transfer of Federal land or 

roadway expansion would affect the 

PMJM. The Service only found that 

transfer of a corridor up to 300-ft (92-m) 

wide would not adversely affect 

management of the NWR (Service 2004, 

p. 191). 

(29) Comment: Denver Water 

requested exclusion of their properties 

covered under the Denver Water HCP, 

provided maps of their properties, and 

pointed out apparent Service mapping 

errors. 

Our Response: The eight properties in 

question include a total of 

approximately 250 ac (113 ha) in 4 

critical habitat units (Units 5, 7, 9, and 

10). We have excluded these properties 

from critical habitat designation under 

section 4(b)(2) of the Act (see the 

Exclusions section below), and 

corrected maps and acreages as 

appropriate. 

(30) Comment: Douglas County 

requested exclusion of non-Federal 

lands within Douglas County based on 

their 2006 HCP. 

Our Response: We have not excluded 

the non-Federal lands in Douglas 

County. On May 11, 2006, we issued a 

section 10 incidental take permit that 

covers the PMJM for the Douglas County 

HCP (Service 2006a). The Douglas 

County HCP addresses only specified 

activities conducted by Douglas County 

and the towns of Castle Rock and 

Parker, within Douglas County, 

Colorado, on private and other nonFederal lands within the RCZ, as 

mapped by Douglas County. Impacts to 

the RCZ associated with the covered 

activities are mitigated by the 

permanent protection of portions of the 

RCZ and the restoration of habitat from 

temporary impacts. Stream segments 

totaling 15 mi (24 km) in length and 

1,132 ac (458 ha) of the RCZ have been 

permanently protected as part of the 

Douglas County HCP. Management 

plans exist or are in development for 

these protected properties (Dougherty 

2009). The majority of proposed critical 

habitat in Units 8 and 9, and a small 

amount of non-Federal property in Unit 

10 are within the boundaries of the 

Douglas County HCP. 

While the Douglas County HCP 

includes the extensive mapped RCZ that 

encompasses areas believed to support 

the PMJM, the plan does not provide a 

means by which habitat within these 

zones will be effectively managed into 

the future. Only about 5 percent of the 

lands within the RCZ are set aside for 

conservation under the plan. The vast 

majority of lands in the RCZ receive no 

specific protection under the HCP. 

Potential impacts to physical and 

biological features essential to the PMJM 

from entities other than Douglas County 

and the cities of Parker and Castle Rock, 

including those by private landowners, 

are not addressed in the plan. 


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(31) Comment: One commenter 

proposed that we link the two subunits 

proposed in Unit 8 (Cherry Creek), 

Douglas County. 

Our Response: The Draft Plan calls for 

a medium recovery population in Lower 

South Platte—Cherry Creek HUC. Each 

of the two subunits appears large 

enough to support a medium recovery 

population. We determined that linking 

them was not appropriate, after 

considering the variable quality of 

intervening habitat on private lands and 

determining that a much larger critical 

habitat unit with more reaches in lowquality habitat would not provide 

additional benefit to the PMJM. 

(32) Comment: One commenter stated 

that we should limit the downstream 

extent of designated critical habitat 

along Plum Creek in Unit 9 (West Plum 

Creek), Douglas County, to the point of 

maximum reservoir storage under the 

U.S. Army Corps of Engineers’ (Corps’) 

Chatfield Reservoir Reauthorization 

Project preferred alternative (maximum 

storage at 5,444 feet (ft) (1,660 meters 

(m)) in elevation). 

Our Response: The reach in question 

is federally owned, has been 

documented to support the PMJM, and 

has PCEs of appropriate quantity and 

spatial arrangement to qualify as critical 

habitat. We have determined that Plum 

Creek downstream to Chatfield 

Reservoir contains the physical and 

biological features essential to the 

conservation of the PMJM, and we have 

identified no basis to exclude this area 

from critical habitat under section 

4(b)(2) of the Act. Substantial planning 

has taken place to address potential 

impacts to the PMJM should the 

reservoir expansion proceed, in part 

because proposed expansion of reservoir 

storage capacity would impact existing 

critical habitat on the Upper South 

Platte River (Unit 10). While designation 

of critical habitat along Plum Creek will 

provide additional regulatory protection 

to PMJM habitat in the area, the project 

sponsors are developing alternatives to 

address impacts to designated critical 

habitat on Plum Creek should the 

planned project move forward. 

(33) Comment: One commenter stated 

that we should exclude the Penley 

Ranch property along Indian Creek, Unit 

9 (West Plum Creek) from critical 

habitat, on the basis that trapping 

conducted in 2007 did not document 

the PMJM on the property and the 

Service agreed at the time the PMJM 

was ‘‘not likely to be present’’ on the 

site. The commenter further stated that 

if the property was not excluded, we 

should develop more appropriate (less 

extensive) site-specific boundaries of 

critical habitat on the site. 

Our Response: While the PMJM was 

not captured during the 2007 trapping 

effort, habitat on the site appeared to 

support the physical and biological 

features essential to the conservation of 

the PMJM. We concurred in 2007 that 

the PMJM was not likely present and 

that a proposed rural residential 

development on the property would not 

be likely to adversely affect the PMJM. 

We stated that our concurrence was 

valid only for one year. The residential 

development proposed did not take 

place. Captures of the PMJM have 

occurred in areas of comparable or 

lower quality habitat downstream on 

Indian Creek. PCEs are present along 

this reach of Indian Creek. While no 

further trapping efforts have taken 

place, we believe that the PMJM likely 

uses the reach, at a minimum as a 

movement corridor, and may occupy 

portions of the property. We therefore 

conclude that this reach of Indian Creek 

is occupied and merits designation as 

critical habitat. Indian Creek on the 

Penley Ranch is within the RCZ 

established under the Douglas County 

HCP. Outward extent of critical habitat 

on the property is being designated 

consistent with the boundaries of the 

Douglas County RCZ (see the 

Delineation of Critical Habitat 

Boundaries section below). See also 

related comment 61 and our response. 

(34) Comment: One commenter stated 

that the upstream extent of critical 

habitat along Bear Creek in Unit 9 (West 

Plum Creek) should terminate at the 

Lake Waconda Dam, as the lake and 

Perry Park Golf Course create a barrier 

to PMJM movement, and any PMJM 

population upstream from the golf 

course is isolated. 

Our Response: After we considered 

the extent to which the dam, lake, 

adjacent golf course, and associated 

development form a barrier to PMJM 

movement up and down stream, and 

assessed the quantity and spatial 

arrangement of PCEs on the reach 

upstream of the lake, we elected to limit 

the upstream extent of designated 

critical habitat along Bear Creek to the 

base of the Lake Waconda Dam (see the 

Summary of Changes from the Proposed 

Rule section below). Based on review of 

aerial photographs, we determined that 

the area upstream of the dam does not 

contain the physical and biological 

features essential to the conservation of 

the PMJM in the necessary spatial 

arrangement and distribution. 

(35) Comment: One commenter 

suggested that we designate critical 

habitat to link all four proposed 

subunits of Unit 10 (Upper South Platte 

River), Jefferson and Douglas Counties, 

and also designate their tributaries as 

critical habitat. 

Our Response: The Service has 

determined that connecting these 

subunits to form one very large critical 

habitat unit is not necessary. Land 

ownership and land uses vary along the 

South Platte River and its tributaries. 

While areas designated as critical 

habitat largely consist of National Forest 

System lands, many of the intervening 

reaches do not. Quality of PMJM habitat 

is not consistent. Reaches of lesser 

quality that are not being designated as 

critical habitat generally correspond to 

those that are not federally owned. In 

addition, the large West Plum Creek 

Unit (Unit 9), which corresponds to a 

large recovery population required in 

the Draft Plan, is also being designated 

in the same HUC. Tributaries have been 

examined, and we are designating only 

those that we determined meet the 

definition of critical habitat based on 

occurrence of physical and biological 

features essential to the conservation of 

the PMJM and proximity to known 

PMJM occurrence. (See also our 

response to comment 6.) 

(36) Comment: One commenter 

requested that we exclude critical 

habitat in Teller County because no 

PMJM have been documented there. 

Our Response: The PMJM has been 

documented on Trout Creek, Unit 10 

(South Platte River), at or very near the 

Douglas County–Teller County line 

(Service 2010). Based on contiguous 

habitat along Trout Creek in Teller 

County, we are designating critical 

habitat upstream to 7,600 ft (2,300 m) in 

elevation. We believe that this elevation 

provides a reasonable estimate of the 

upstream extent of habitat likely to be 

occupied by the PMJM in this reach. 

(37) Comment: Two commenters 

requested exclusion of Unit 11 

(Monument Creek), El Paso County, 

from critical habitat based on potential 

economic impacts and because 

protections for the PMJM are already in 

place as a result of the 1998 listing and 

local limits on development. 

Our Response: Our DEA addressed 

the extent of economic impacts likely to 

occur in this unit as the result of critical 

habitat designation. The updated final 

economic analysis (FEA) (Industrial 

Economics 2010b) concludes that $10.4 

million to $17.7 million in incremental 

impacts due to designation of critical 

habitat may occur in Unit 11 over the 

next 20 years, resulting almost entirely 

from increased costs associated with 

section 7 consultation on residential 

and commercial development. However, 

the FEA (Chapter 3) explains why these 

estimates may be higher than what will 

likely occur. Based on the results of the 


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FEA, we have not excluded any areas 

from designation of critical habitat 

based on economic impacts (see the 

Required Determinations section). 

Current protections afforded the PMJM 

by its threatened status under the Act 

and by local regulations have not 

protected the PMJM and its habitat from 

the cumulative impacts of development. 

Degradation of creeks and riparian 

vegetation in this unit from recent 

development and associated stormwater 

runoff presents an ongoing issue. This 

degradation and projected future 

development in the area indicate that 

the unit requires special management 

consideration and protection. 

(38) Comment: One commenter urged 

us not to exclude El Paso County from 

critical habitat based on any countywide 

HCP not finalized. 

Our Response: We have not excluded 

El Paso County from critical habitat. The 

county has been developing a 

countywide HCP for the PMJM in 

coordination with the Service for 

several years. A countywide plan would 

likely cover most or all of the area in 

critical habitat Unit 11 (Monument 

Creek). When we proposed revised 

critical habitat, we anticipated that we 

would receive a draft HCP prior to final 

revised critical habitat designation. To 

date, we have not received a draft of an 

HCP for our review, nor do we have any 

assurance as to if, when, or in what 

form, any countywide HCP will be 

submitted, or whether an incidental take 

permit for the PMJM under section 10 

would be issued. Since any potential El 

Paso County plan remains in its 

formative stages, we have no basis to 

address possible benefits of exclusion. 

Other Comments 

(39) Comment: One commenter noted 

that we had no basis to revise the 2003 

rule that designated critical habitat for 

the PMJM. 

Our Response: We stand by our 

determination that revising critical 

habitat for PMJM is appropriate. Based 

on our review of the June 23, 2003, final 

rule to designate critical habitat for the 

PMJM (68 FR 37275), we determined 

that it is necessary to revise critical 

habitat. Our review found that we 

excluded three counties from critical 

habitat based on countywide HCPs 

under development. The 2003 rule 

stated, ‘‘If pending HCPs are not 

completed, we will determine whether 

areas designated in this final rule need 

further refinement’’ (68 FR 37290). 

Seven years later, only one of the three 

counties excluded from critical habitat 

has completed an HCP, and coverage 

under the Douglas County HCP is 

limited to actions by three local 

governments. Therefore, the basis upon 

which these exclusions were made, that 

countywide HCPs would be completed 

in the near future, was faulty, and 

revision is appropriate. 

(40) Comment: Two commenters 

pointed out that our 2003 rule 

downplayed the value of critical habitat 

designation. One commenter stated 

critical habitat designation is unhelpful, 

duplicative, and unnecessary, and that 

it provides little additional value given 

that areas proposed are believed to be 

occupied and currently subject to 

section 7 review under the Act. Based 

on this, they contended that the value 

of including additional critical habitat 

through our revision was negligible. 

Our Response: Designation of critical 

habitat is mandated by the Act. The 

purpose of critical habitat designation is 

to contribute to the conservation of 

endangered and threatened species and 

the ecosystems upon which they 

depend. It alerts Federal agencies and 

the public to areas essential for the 

conservation of the species and provides 

the species added regulatory protection 

under section 7 of the Act when Federal 

actions occur. (See Benefits of 

Designating Critical Habitat, below.) 

(41) Comment: We received 

comments that critical habitat provides 

little additional protection for the PMJM 

over various layers of existing 

protections, including local land use 

regulations, and that this negates the 

need for critical habitat designation. 

Our Response: Protections under the 

Act, including those afforded by 

designation of critical habitat, for the 

listed SPR of the PMJM in Colorado are 

necessary in part because local 

regulations and conservation efforts 

have proven insufficient to conserve the 

species. Our July 10, 2008, final rule 

that refined the listing of the PMJM (73 

FR 39789) specifies over what portion of 

its range the subspecies is threatened. 

(42) Comment: One commenter stated 

that designation of critical habitat 

should be limited to Federal lands. 

Our Response: As defined, critical 

habitat is not limited by land 

ownership, but rather based on areas 

essential to the conservation of the 

species and in need of special 

management or protection. Federally 

owned lands are more likely to 

contribute to conservation of the PMJM 

than private lands that are not subject to 

the Act’s affirmative conservation 

mandate of 7(a)(1), which imposes on 

Federal agencies a duty to conserve 

listed species. Therefore, we prioritized 

the inclusion of Federal lands when 

deciding what quantity and distribution 

of lands containing the physical and 

biological features essential to the 

conservation of the PMJM are necessary. 

However, even with this prioritization, 

the amount of Federal lands alone is 

insufficient to provide for the 

conservation of the PMJM, as these 

lands are limited in geographic location, 

size, and habitat quality within 

Colorado. We are designating both 

Federal lands and non-Federal land as 

critical habitat where they meet the 

definition of critical habitat. 

(43) Comment: One commenter urged 

us not to exempt HCPs from critical 

habitat, based on the contentions that 

their purpose differs from that of critical 

habitat and that HCPs are less 

protective. The commenter suggested 

that the Service should conduct a 

detailed analysis of past protection of 

the PMJM afforded by HCPs, as opposed 

to that afforded by critical habitat 

designation, including the degree of 

habitat loss and take of the PMJM. The 

commenter added that exclusions based 

on HCPs would fragment habitat 

corridors otherwise designated as 

critical habitat. 

Our Response: Critical habitat and 

HCPs differ in their purpose, but both 

have a similar role in conservation of 

the species. In general, critical habitat 

designation affords an added layer of 

regulatory protection with regard to 

Federal actions, while an HCP provides 

a mechanism to permit take caused by 

non-Federal entities. We exclude areas 

covered by HCPs from critical habitat 

when the benefits of exclusion are 

greater than the benefits of inclusion. As 

part of this determination, we analyzed 

whether the HCP in place affords equal 

or greater conservation of the species 

than critical habitat designation would 

afford. These HCPs were developed to 

address the conservation needs of the 

PMJM and maintain its habitat. Issuance 

of associated section 10 permits by the 

Service required section 7 consultations. 

Exclusion of these HCPs is not expected 

to affect movement corridors, because 

the HCPs were developed in 

coordination with the Service and 

address the conservation requirements 

of the PMJM. 

(44) Comment: One commenter 

believed that, at a minimum, all habitat 

occupied by PMJM should be 

designated as critical habitat, and called 

on us to provide a rationale for any 

occupied areas not designated. 

Our Response: The Act does not 

require that we designate critical habitat 

on all lands occupied by the species. We 

used the best scientific and commercial 

data available in our determination of 

this final designation of revised critical 

habitat. In addition, we considered peer 

review comments, public comments, 

and any additional information we 


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received. We determined a subset of all 

known occupied areas that contain PCEs 

is sufficient to provide for the 

conservation of the PMJM. This 

conclusion is based on the 

recommendations in the Draft Plan that 

a mix of small, medium, and large 

populations can conserve the species. 

We are designating all areas that we 

found to be essential. 

(45) Comment: One commenter stated 

that the Service must consider whether 

habitat outside that occupied by the 

listed entity is justified for designation 

as critical habitat and stated the opinion 

that occupied habitat in Wyoming must 

be considered for inclusion. 

Our Response: In accordance with 

section 3(5)(C) of the Act, not all areas 

that can be occupied by a species will 

be designated critical habitat. We 

designate as critical habitat areas 

outside the geographical area presently 

occupied by a listed species only when 

a designation limited to its present 

range would be inadequate to ensure the 

conservation of the species. Given the 

extent and distribution of known PMJM 

populations, we believe that protection 

within certain areas currently occupied 

will be sufficient to conserve the PMJM 

in Colorado, where the PMJM is listed 

under the Act. 

(46) Comment: One commenter 

suggested that we should conduct 

research to prove that the PMJM can live 

in all 418 mi of stream proposed as 

critical habitat. 

Our Response: We base our 

designation of critical habitat on the 

best scientific and commercial 

information available. The best 

information available to us indicates 

that the units we are designating as 

critical habitat are occupied. In 

addition, all PCEs upon which the 

PMJM depends are present within each 

unit of critical habitat. At any given site 

within a unit, one or more PCEs must 

be present for the site to qualify as 

critical habitat. For example, it may be 

determined that a reach qualifies as 

critical habitat based only on its ability 

to provide connectivity between more 

extensive habitat upstream and 

downstream. Determination of the limits 

of critical habitat at a specific site based 

on absence of any PCEs will be made by 

the Service on a site-by-site basis where 

needed. 

(47) Comment: One commenter noted 

the potential impact of critical habitat 

designation to grazing on Federal lands, 

which the commenter stated has been 

shown to be compatible with 

maintenance of PMJM populations. 

Our Response: The impact of the 

designation of critical habitat on Federal 

lands includes consultation under 

section 7 of the Act to determine if 

Federal actions would result in adverse 

modification of critical habitat. Where 

grazing is compatible with the 

maintenance and recovery of PMJM 

populations, we would determine that 

adverse modification would not be 

likely. Agriculture, including grazing, 

can be managed in many different ways, 

some of which may be beneficial to 

PMJM habitat, others harmful. Some 

PMJM habitat on Federal lands is 

currently grazed in a manner that 

appears to maintain good habitat for the 

PMJM. However, there may be areas 

managed in a manner that is not 

conducive to the development or 

maintenance of PMJM habitat. As 

defined, critical habitat is essential to 

conserve the species and may require 

special management considerations or 

protection. The areas designated as 

critical habitat have been determined to 

be essential to the conservation of the 

PMJM. During consultation required 

under section 7 of the Act, grazing 

practices on these areas would receive 

increased scrutiny by Federal land 

managing agencies and the Service. In 

those areas where current management 

results in maintenance of good PMJM 

habitat, there is a need to continue such 

practices, so future management 

considerations or protections may be 

required. In other instances, protections 

of designated critical habitat would help 

ensure that livestock management 

practices potentially harmful to the 

conservation of PMJM are not 

conducted without required 

consultation. 

(48) Comment: One commenter stated 

that based on any future change to our 

definition of ‘‘adverse modification,’’ 

third parties may mount legal 

challenges to Service consultations 

under section 7 of the Act and HCPs 

that address critical habitat. 

Our Response: Section 7(a)(2) 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. Decisions by the Fifth 

and Ninth Circuits Court of Appeals 

have invalidated our definition of 

destruction or adverse modification (50 

CFR 402.02) (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F.3d 1059 (9th Cir. 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service et 

al., 245 F.3d 434, 442 (5th Cir. 2001)), 

and we do not rely on this regulatory 

definition when we analyze whether an 

action is likely to destroy or adversely 

modify critical habitat. In response to 

these decisions, we are reviewing the 

regulatory definition of adverse 

modification in relation to conservation. 

We cannot speculate about future 

change to the definition of adverse 

modification, how it may impact 

conservation of the PMJM, or litigation 

that could follow. Threat of future 

lawsuits should not influence our 

designation of appropriate critical 

habitat. 

Comments on Economic Analysis and 

Environmental Assessment 

(49) Comment: One commenter stated 

that providing only a ‘‘revision’’ of our 

2003 economic analysis and 

environmental assessment, alluded to in 

our revised critical habitat proposal, is 

insufficient and circumvents NEPA. 

Our Response: The DEA and NEPA 

analysis that we conducted for the 2009 

proposed rule updated our 2003 

analysis. Our FEA and final 

environmental assessment differ 

substantially from documents produced 

in support of our 2003 designation of 

critical habitat. As all address 

designation of critical habitat for the 

PMJM, there are similarities. 

(50) Comment: One commenter 

indicated that the DEA underestimated 

the actual costs of critical habitat 

designation by applying an incremental 

approach to identify only those impacts 

attributable solely to the proposed rule. 

Because the SPR in Colorado, where the 

PMJM is listed, lies within the U.S. 

Tenth Circuit Court of Appeals, its 

ruling in New Mexico Cattle Growers 

Association v. United States Fish and 

Wildlife Service, 248 F.3d 1277 (10th 

Cir. 2001) should be followed. In this 

case, the court instructed the Service to 

conduct a full analysis of the economic 

impacts of proposed critical habitat, 

regardless of whether those impacts are 

attributable co-extensively to other 

causes. 

Our Response: The economic analysis 

estimates the total cost of species 

conservation activities, without 

subtracting the impact of pre-existing 

baseline regulations (i.e., the cost 

estimates are fully co-extensive). In 

addition, the economic analysis breaks 

the costs down into the baseline costs of 

all conservation activities resulting from 

the listing of PMJM under the Act, and 

the incremental costs of designation of 

critical habitat, which are above and 

additional to the baseline costs. We 

considered both the coextensive as well 

as the incremental costs when 

performing the 4(b)(2) exclusion 

analysis. In 2001, the U.S. 10th Circuit 

Court of Appeals instructed the Service 

to conduct a full analysis of all of the 

economic impacts of proposed critical 

habitat designation, regardless of 

whether those impacts are attributable 

co-extensively to other causes (New 


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Mexico Cattle Growers Ass’n v. USFWS, 

248 F.3d 1277 (10th Cir. 2001)). The 

economic analysis for the PMJM 

complies with direction from the U.S. 

10th Circuit Court of Appeals. 

In developing this final rule, we 

considered our February 12, 2008, Draft 

Critical Habitat Exclusions Guidance. 

This guidance was developed by the 

Service in response to critical habitat 

case law, which documents the Courts’ 

interpretations of the requirements of 

the Act. This rule is also consistent with 

the October 3, 2008, opinion from the 

Solicitor titled, ‘‘The Secretary’s 

Authority to Exclude Areas from a 

Critical Habitat Designation under 

Section 4(b)(2) of the Endangered 

Species Act.’’ 

In this rule, the Service declines to 

exercise its discretion to exclude any 

areas based on co-extensive or 

incremental impacts in this rule. Two 

courts have found the Secretary’s 

decision not to exclude is completely 

within the Service’s discretion and is 

not reviewable by a court (Home 

Builders Association of Northern 

California v. U.S. Fish & Wildlife Serv., 

2006 U.S. Dist. Lexis 80255, *66 (E.D. 

Cal. 2006), reconsideration granted in 

part on other grounds, 2007 U.S. Dist. 

Lexis 5208 (Jan. 24, 2007); Cape 

Hatteras Access Preservation Alliance v. 

DOI, 2010 U.S. Dist. Lexis 84515 (D.D.C. 

Aug. 17, 2010). 

(51) Comment: One commenter stated 

that the Service has not adequately 

quantified and analyzed the myriad 

potential economic benefits of critical 

habitat designation. 

Our Response: The purpose of critical 

habitat is to support the conservation of 

the PMJM. Quantification and 

monetization of species’ conservation 

benefits requires information on the 

incremental change in the probability of 

PMJM conservation that is expected to 

result from the designation. No studies 

exist that provide such information for 

this species. Even if this information 

existed, the published valuation 

literature does not support the 

monetization of incremental changes in 

conservation probability for this species. 

Therefore, the primary benefits of this 

rule cannot be quantified or monetized 

based on the best, readily available 

scientific and economic information. 

Depending on the project modifications 

ultimately implemented as a result of 

the regulation, other ancillary benefits 

that are not the stated objective of 

critical habitat may also be achieved. 

Chapter 9 of the DEA describes the 

categories of potential benefits, 

including improvements in the value of 

adjacent or proximate properties, 

improvements in water quality, 

aesthetic benefits, increased recreational 

opportunities, increased regional 

expenditures and employment resulting 

from increased visitation to the region, 

and educational benefits. Because these 

categories of benefits are not the 

primary intention of the rule, and 

quantification and monetization of these 

benefits would require significant effort 

and provide limited value to the 

Service’s decision-making process, we 

provide only a qualitative discussion of 

these potential benefits. 

(52) Comment: One commenter stated 

that the DEA underestimates the 

potential impacts in Unit 11 (Monument 

Creek), El Paso County, by excluding 

from analysis the following types of 

parcels not likely to require a section 7 

consultation: (1) Those parcels under 

county or government ownership; (2) 

those parcels occupied by existing 

buildings; and (3) those parcels under 

100 ac (40 ha) in area. Further, the 

commenter stated that this assumption 

is inconsistent with other conclusions 

reached by the DEA, where: (1) The 

costs to small governmental 

jurisdictions are analyzed and estimated 

in the initial regulatory flexibility 

analysis (IRFA), (2) cost impacts to 

parcels occupied by existing buildings 

as a result of building maintenance 

activities are considered, and (3) parcels 

under 100 ac (40 ha) have undergone 

section 7 consultations for PMJM. 

Our Response: In section 3.6 of the 

DEA, the Service acknowledges that 

those parcels removed from further 

consideration could eventually be 

developed in such a way that would 

require a Federal permit or funding, 

resulting in a section 7 consultation and 

mitigation. However, the DEA focuses 

on estimating the potential economic 

impacts to new residential and 

commercial development on readily 

developable, private, and large open 

parcels of land. As evidenced by the 

Service’s consultation history for the 

PMJM, such parcels are more likely to 

have a Federal nexus and undergo a 

section 7 consultation. As a result, 

parcels under government ownership 

were removed from further 

consideration. In Chapter 4 and 

Appendix A, the DEA estimates the 

impacts to governmental entities, 

including those that are small, and that 

are associated with other activities, 

namely road/bridge, utility, and bank 

stabilization construction and 

maintenance. These activities do not 

necessarily occur on parcels of land 

owned by the government. 

With respect to maintenance activities 

at existing buildings, the Service’s 

consultation history does not suggest 

such activity requires consultation for 

the PMJM. However, the Service 

recognizes that large parcels with 

existing buildings could eventually be 

redeveloped (e.g., large ranch parcels), 

and therefore these parcels were 

analyzed in Chapter 3 of the FEA. 

Finally, parcels under 100 ac (40 ha) in 

size were removed from further 

consideration in the analysis, because 

the smallest residential development 

project that required a formal section 7 

consultation since 2003 was 173 units 

on a 107-ac parcel (Struthers Ranch). 

The Service’s consultation record 

demonstrates that projects under 100 ac 

(40 ha) typically undergo informal 

section 7 consultations and technical 

assistance with the Service. In section 

3.3.2, the DEA estimates the costs for 

these types of consultations. 

(53) Comment: One commenter 

indicated that the DEA underestimates 

the true economic impact of the 

proposed rule on the residential sector 

by not considering the impacts to the 

local, State, and national economy. 

Our Response: In section 3.5, the DEA 

estimates the regional economic impacts 

that may result from a potential 

reduction in residential home 

construction in Douglas and El Paso 

Counties due to the critical habitat 

designation. These regional impacts 

include estimates of the indirect 

(changes in output industries that 

supply goods and services to those 

directly affected), induced effects 

(changes in household consumption 

resulting from a change in employment), 

and job loss. To assess the potential 

impact of the proposed rule on the 

national economy, the FEA considers 

estimating the social welfare losses that 

result from changes in the price and 

quantity of available housing. However, 

such an analysis could not be conducted 

due to insufficient information to 

reliably model the markets for housing 

in areas affected by critical habitat. We 

assume these costs are in addition to the 

compliance costs incurred by 

developers or existing landowners or 

both. 

(54) Comment: One commenter 

indicated that the DEA does not include 

consultation costs for 15 road, bridge, 

utility, and bank stabilization projects 

that may not be covered by the existing 

Douglas County HCP. If these projects 

occur outside of the RCZ established by 

the HCP, the commenter indicated that 

they would incur these costs in full 

(estimated $60,000 to $150,000), rather 

than just the incremental costs 

estimated in the DEA. 

Our Response: As described in section 

4 of the DEA, the projected number of 

road, bridge, utility, and bank 

stabilization projects potentially 


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impacted by the designation of critical 

habitat is based on estimates provided 

by the Colorado Department of 

Transportation and the consultation 

history provided by the Corps. Using 

this information, the DEA projects 

between approximately 21 and 24 

formal consultations associated with 

these activities in Douglas County over 

the next 20 years. Because there was no 

available information that indicated 

specifically whether these projects 

would occur inside or outside the RCZ, 

the analysis calculates and applies unitspecific, area-based factors to estimate 

the probability that projects would 

occur outside the RCZ and within 

critical habitat, and would therefore 

require consultation as a result of the 

designation (see pages 2–15 through 2– 

17 of the DEA). For Douglas County, 

these factors are between 6 and 16 

percent. Using this methodology, we 

estimate in the DEA that the total 

incremental consultation cost 

(undiscounted) for the 21 to 24 projects 

ranges between $119,000 and $135,000. 

(55) Comment: Douglas County 

commented that the DEA does not 

account for the costs to purchase 

additional mitigation lands in Douglas 

County to support their HCP. Mitigation 

beyond that already established by the 

Douglas County HCP may be required 

for activities that occur in critical 

habitat. These costs could be 

significantly higher because the 

mitigation land already banked under 

the HCP would be exhausted more 

rapidly, the banked mitigation lands are 

unevenly distributed across critical 

habitat units, and land must be 

purchased in large blocks to acquire a 

relatively small percentage of PMJM 

habitat. 

Our Response: As described in section 

4.2.3 of the DEA, the estimated cost of 

mitigation ranges from $3,580 to 

$35,800 per ac. The Service believes this 

tenfold range in unit costs is likely 

sufficient to cover the costs of 

additional mitigation land purchases 

that may result from designation of 

critical habitat in Douglas County. Since 

we have adopted the RCZ developed for 

the Douglas County HCP as the outward 

extent of critical habitat, additional 

mitigation required for projects covered 

by the HCP is not likely to increase 

greatly in extent. Measures to offset 

impacts to critical habitat may be 

restricted to the same unit where 

impacts occur. Exhibit 3–13 of the DEA 

provides an assessment of the quantity 

of land available for mitigation within 

each unit. 

(56) Comment: One commenter 

indicated that the DEA does not 

estimate a cost associated with the 

regulatory uncertainty created by the 

critical habitat label for the City of 

Greeley’s proposed expansion at the 

Milton Seaman Reservoir. 

Our Response: Because of data 

limitations, as well as factors other than 

the designation of critical habitat (such 

as political, financial, and general 

environmental impacts) that will 

influence the outcome of the proposed 

expansion project at the Milton Seaman 

Reservoir, the costs associated with 

regulatory uncertainty attributable to the 

presence of the PMJM or its designated 

critical habitat are difficult to quantify. 

As described in section 5.3.3 of the 

DEA, a representative of the Corps 

suggested that the cost to the City of 

Greeley to pursue an offsite alternative 

to the preferred Milton Seaman 

Reservoir project may be as much as 

three to eight times higher than that of 

the expansion project that is currently 

contemplated. This range of increased 

costs was provided by the Corps, based 

on their rough estimate of the costs to 

develop water supply (on a per ac-ft 

basis) in the study area. It was not 

intended to be used to quantify the cost 

impacts of regulation uncertainty due to 

critical habitat designation, but rather to 

qualitatively characterize the relative 

costs of water supply development 

alternatives. However, we address this 

issue further in our FEA, and our 

discussion of the proposed Milton 

Seaman Reservoir in comment 24, 

above. 

(57) Comment: One commenter 

indicated that the DEA did not calculate 

the economic impact to the proposed 

Penley Reservoir (Unit 9) in Douglas 

County. 

Our Response: The economic analysis 

focuses on an estimate of impacts to 

economic activities that are reasonably 

foreseeable. The DEA did not consider 

potential impacts to the Penley 

Reservoir because the project is in the 

very early stages of planning. Due to 

insufficient information about this 

project, and considerable uncertainty as 

to whether it will be constructed within 

the next 20 years, the FEA does not 

quantify the potential impacts to this 

project, but does acknowledge it as 

potentially affected by the designation. 

(58) Comment: One commenter 

indicated that the DEA does not take 

into account the full range of activities 

required as part of the CERCLA and 

RCRA remedy for the DOE’s COU on the 

Rocky Flats Site (Unit 6), Jefferson and 

Broomfield counties, and the costs to 

revise or develop a new programmatic 

biological assessment and an 

accompanying biological opinion. 

Our Response: The FEA includes an 

extended list of the ongoing 

maintenance and monitoring activities 

required as part of the CERCLA/RCRA 

remedy for the COU. Costs to the DOE 

to initiate one new programmatic 

consultation with the Service to cover 

all of these recurring remedial activities 

within critical habitat are estimated in 

section 7.2.1. 

(59) Comment: One commenter 

indicated that the DEA should recognize 

that the management and operations of 

the COU and Rocky Flats NWR areas on 

the Rocky Flats Site are conducted by 

two different Federal agencies with 

different and distinct regulatory 

requirements and objectives. 

Our Response: In our FEA, we have 

revised section 7 to clarify and 

distinguish the respective management 

and operation of the two areas by the 

DOE Office of Legacy Management and 

the Service. 

(60) Comment: Some commenters 

questioned the adequacy of the draft 

environmental assessment. Commenters 

either suggested that analysis of a wider 

range of alternatives was required or 

suggested detailed analysis of a specific 

alternative. Suggested alternatives 

included designation as critical habitat 

on all habitat occupied by the PMJM, 

designation of critical habitat consistent 

with all recovery populations called for 

in the Draft Plan, and designation of 

lesser amounts of critical habitat than 

proposed in our action alternative. 

Our Response: Designation as critical 

habitat of all habitat occupied by the 

PMJM, and designation of critical 

habitat consistent with recovery 

populations called for in the Draft Plan, 

were alternatives considered but not 

fully evaluated in the draft 

environmental assessment. In the first 

case, based on the Draft Plan, our 

professional judgment, and the best 

science available, we determined that 

only a subset of all occupied habitat was 

required for conservation of the PMJM. 

As explained in our July 10, 2008, rule 

to specify over what portion of its range 

the PMJM is threatened (73 FR 39789), 

listing under the Act is largely based on 

widespread threats to PMJM’s habitat 

from current and future human 

development. Current populations and 

distribution of PMJM are more than 

sufficient to maintain the species if 

threats are successfully addressed. 

Protecting all existing PMJM 

populations and their supporting habitat 

from development into the future is not 

required to conserve the species. In the 

second case, recovery populations 

specified in the Draft Plan do not 

necessarily equate to specific areas that 

meet the definition of critical habitat. 

For example, many proposed recovery 

populations were identified by HUC, 


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but not tied to a specific location. 

Recovery populations were also 

assigned to HUCs where the PMJM has 

not yet been verified as present. 

Insufficient information on PMJM 

presence and distribution is available to 

support designation of critical habitat in 

all HUCs addressed in the Draft Plan. 

See also our response to comments 10 

and 11. 

(61) Comment: One commenter 

believed that the proposed action merits 

an environmental impact statement 

(EIS). 

Our Response: An EIS is required 

only in instances where a major Federal 

action is expected to have a significant 

impact on the human environment. 

Based on our draft environmental 

assessment, DEA, and the comments we 

received from the public, we prepared a 

final environmental assessment and 

determined that revised critical habitat 

for the PMJM does not constitute a 

major Federal action expected to have a 

significant impact on the human 

environment. That determination is 

documented in our Finding of No 

Significant Impact (FONSI). The final 

environmental assessment, FEA, and 

FONSI provide our rationale for our 

determination that this revised critical 

habitat designation will not have a 

significant impact on the human 

environment. 

(62) Comment: One commenter urged 

us to address an alternative consistent 

with the use of the Douglas County RCZ 

boundaries as the outward extent of 

designated critical habitat in our 

environmental assessment. 

Our Response: Our final 

environmental assessment addresses the 

RCZ boundaries as part of the preferred 

alternative. RCZ boundaries encompass 

slightly less area but more accurately 

define appropriate limits of critical 

habitat. The effects of using RCZ 

boundaries on three critical habitat 

units where such boundaries occur 

differ negligibly from effects of the 

action alternative in our draft 

environmental assessment. 

(63) Comment: One commenter stated 

that under the NEPA cumulative 

impacts analysis, the Service should 

include effects from past permitted take 

of the PMJM. 

Our Response: Under NEPA, 

cumulative impacts are impacts to the 

environment that result from the 

incremental effects of the action in 

question when added to past, present, 

and reasonably foreseeable future 

actions. Designation of revised critical 

habitat does not result in take of the 

PMJM, so evaluation of past, present, 

and future take is not required in our 

environmental assessment. Section 7 

consultations involving the PMJM and 

its critical habitat will evaluate past 

impact and future take during the 

consultation process. 

Summary of Changes From the 

Proposed Rule 

Our final designation of revised 

critical habitat for the PMJM results in 

a decrease of 7 mi (11 km) of rivers and 

streams and a decrease of 4,207 ac 

(1,702 ha) of land area from what we 

proposed in our October 8, 2009, 

proposed rule to revise the designation 

of critical habitat (74 FR 52066). The 

following changes account for the 

difference. 

(1) The areas designated as critical 

habitat in Units 1, 5, 7, 9, 10, and 11 

have changed from those areas 

proposed. We excluded portions of 

these units from the final designation of 

critical habitat, because we believe that 

the benefits of excluding these specific 

areas from the designation outweigh the 

benefits of including these areas. We 

have also concluded that the exclusion 

of these areas from the final designation 

of critical habitat will not result in the 

extinction of the PMJM. These 

exclusions are discussed in detail in the 

Exclusions section below. 

(2) In Unit 9 in Douglas County, we 

have reduced the extent of designated 

critical habitat from that proposed on 

Bear Creek, a tributary to West Plum 

Creek. The upstream terminus of 

designated critical habitat is located at 

the base of the Waconda Lake Dam, 

because Waconda Lake and surrounding 

development present a barrier to PMJM 

movement along Bear Creek. 

(3) We have determined that it is 

appropriate to use boundaries of the 

RCZ mapped by Douglas County for 

their HCP as the outward boundary of 

revised critical habitat in portions of 

Units 8, 9, and 10. See the Delineation 

of Critical Habitat Boundaries section 

below for a discussion of this change. 

(4) Area totals within various units 

have been recalculated. Area totals 

described in the proposed rule for 

various units included slight 

inaccuracies, which resulted from the 

GIS methodology that counted 

overlapping stream segments twice. 

Therefore, the area within some units 

has decreased. 

(5) We agreed to modify the outward 

boundaries of proposed critical habitat 

within Douglas County’s mapped RCZ 

boundaries (see the Delineation of 

Critical Habitat Boundaries section), as 

the RCZ represents a site-specific 

mapping of PMJM habitat boundaries. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management, such 

as research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot otherwise be relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing 

activities that are likely to result in the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

non-Federal landowners. Where a 

landowner seeks or requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) of the 

Act would apply, but even in the event 

of a destruction or adverse modification 

finding, the Federal action agency’s and 

the applicant’s obligation is not to 

restore or recover the species, but to 

implement reasonable and prudent 


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alternatives to avoid destruction or 

adverse modification of critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time of listing must 

contain physical and biological features 

that are essential to the conservation of 

the species, and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas supporting the 

essential physical or biological features 

that provide essential life cycle needs of 

the species; that is, areas on which are 

found the physical or biological features 

laid out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species. Under the Act and 

regulations at 50 CFR 424.12, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed 

only when we determine those areas are 

essential for the conservation of the 

species and that designation limited to 

those areas occupied at the time of 

listing would be inadequate to ensure 

the conservation of the species. When 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species require such additional 

areas, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the species at the time 

of listing. An area currently occupied by 

the species but that was not occupied at 

the time of listing may, however, be 

essential to the conservation of the 

species and may be included in the 

critical habitat designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. Substantive 

comments we receive in response to 

proposed critical habitat designations 

are also considered. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat is designated at a 

particular point in time; with changes in 

the future, we may find that the 

designation no longer includes all of the 

habitat areas necessary for the recovery 

of the species to respond to these 

changes. For these reasons, a critical 

habitat designation does not signal 

habitat outside the designated area is 

unimportant or may not be required for 

recovery of the species. 

Areas that support occurrences, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions we and other 

Federal agencies implement under 

section 7(a)(1) of the Act. They are also 

subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard, as determined on the basis of 

the best available scientific information 

at the time of the agency action. 

Federally funded or permitted 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, HCPs, or other species 

conservation planning efforts if new 

information available to these planning 

efforts calls for a different outcome. 

Climate Change 

According to the Intergovernmental 

Panel on Climate Change (IPCC), 

‘‘Warming of the climate system in 

recent decades is unequivocal, as is now 

evident from observations of increases 

in global average air and ocean 

temperatures, widespread melting of 

snow and ice, and rising global sea 

level’’ (IPCC 2007, p. 1). Climate change 

will be a particular challenge for 

biodiversity because the interaction of 

additional stressors associated with 

climate change and current stressors 

may push species beyond their ability to 

survive (Lovejoy and Hannah 2005, pp. 

325–326). The synergistic implications 

of climate change and habitat 

fragmentation are the most threatening 

aspect of climate change for biodiversity 

(Hannah et al. 2005, p. 4). 

For the southwestern region of the 

United States, which includes Colorado, 

warming is occurring more rapidly than 

elsewhere in the country (Karl et al. 

2009, p. 129). In Colorado, Statewide 

temperatures have increased 2 °F (3.6 

°C) over the past 30 years, but high 

variability in annual precipitation 

precludes the detection of long-term 

trends (Ray et al. 2008, p. 5). 

While there is uncertainty about the 

exact nature and severity of climate 

change-related impacts anticipated 

within the Colorado range of the PMJM, 

a trend of climate change in the 

mountains of western North America is 

expected to decrease snowpack, hasten 

spring runoff, and reduce summer flows 

(IPCC 2007, p. 11). This could impact 

the PMJM habitat in a variety of direct 

and indirect ways. With increases in 

temperature, species’ ranges are likely to 

move higher in elevation and northward 

(Karl et al. 2009, p. 132). Changes could 

cause a greater PMJM dependence on 

higher elevation, cooler, and potentially 

moister areas for survival in Colorado. 

The highest elevation at which the 

PMJM has been documented in 

Colorado is approximately 7,600 ft 

(2,317 m) (Service 2010). The 

preponderance of lands near to or 

higher than this elevation in the 

Colorado Front Range are in Federal 

ownership and are likely subject to 

fewer threats from human development 

than non-Federal lands. These Federal 

lands may serve as an important refuge 

should PMJM populations shift higher 

into the mountains. 

Changes in stream flow intensity and 

timing may affect riparian habitats on 

which the PMJM depends. For example, 

earlier runoff could impact the smaller 

high-elevation streams within the upper 

reaches of drainages, which are 

maintained primarily by melted snow. 

Reduced or no flow during summer and 

fall could make these streams less 

hospitable to the PMJM and limit their 

seasonal use. Changes in timing and 

amount of runoff may also influence 

human diversion, storage, and 

conveyance of water (Ray et al. 2008, p. 

41), which in turn could impact riparian 

habitats required by the PMJM. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and the regulations at 50 CFR 

424.12(b), in determining which areas 

occupied at the time of listing to 

designate as critical habitat, we consider 


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the physical and biological features that 

are essential to the conservation of the 

species and that may require special 

management considerations or 

protection. These features are the 

primary constituent elements (PCEs), 

laid out in the appropriate quantity and 

spatial arrangement for conservation of 

the species. In general, physical and 

biological factors include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We derive the PCEs required for the 

PMJM from its biological needs. The 

areas included in this revised critical 

habitat designation for the species 

contain the essential features to fulfill 

the species life-history requirements. 

The PCEs and the resulting physical and 

biological features essential to the 

conservation of the PMJM are derived 

from studies of this species’ habitat, 

ecology, and life history as described in 

our proposed rule to revise the 

designation of critical habitat for the 

PMJM, published in the Federal 

Register October 8, 2009 (74 FR 52066). 

All units designated as critical habitat 

for the PMJM are currently believed to 

be occupied, are within the geographical 

area occupied by the species at the time 

of listing, and contain sufficient PCEs to 

support one or more life-history 

functions. Individual stream reaches 

within each unit contain at least one of 

the PCEs, and are either believed to be 

occupied by the PMJM, or provide 

crucial opportunities for connectivity to 

facilitate dispersal and genetic exchange 

within the unit. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the PMJM, and the requirements of the 

habitat to sustain the essential lifehistory functions of the species, we have 

determined that the PCEs specific to the 

PMJM are: 

(1) Riparian corridors: 

(A) Formed and maintained by 

normal, dynamic, geomorphological, 

and hydrological processes that create 

and maintain river and stream channels, 

floodplains, and floodplain benches and 

that promote patterns of vegetation 

favorable to the PMJM; 

(B) Containing dense, riparian 

vegetation consisting of grasses, forbs, or 

shrubs, or any combination thereof, in 

areas along rivers and streams that 

normally provide open water through 

the PMJM’s active season; and 

(C) Including specific movement 

corridors that provide connectivity 

between and within populations. This 

may include river and stream reaches 

with minimal vegetative cover or that 

are armored for erosion control; travel 

ways beneath bridges, through culverts, 

along canals and ditches; and other 

areas that have experienced substantial 

human alteration or disturbance. 

(2) Additional adjacent floodplain and 

upland habitat with limited human 

disturbance (including hayed fields, 

grazed pasture, other agricultural lands 

that are not plowed or disked regularly, 

areas that have been restored after past 

aggregate extraction, areas supporting 

recreational trails, and urban–wildland 

interfaces). 

Existing human-created features and 

structures within the boundaries of the 

mapped units, such as buildings, roads, 

parking lots, other paved areas, 

manicured lawns, other urban and 

suburban landscaped areas, regularly 

plowed or disked agricultural areas, and 

other features not containing any of the 

PCEs that support the PMJM, are not 

considered critical habitat. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the occupied areas 

contain the physical and biological 

features that are essential to the 

conservation of the species, and 

whether these features may require 

special management considerations or 

protection. Special management 

considerations or protection means any 

methods or procedures useful in 

protecting physical and biological 

features of the environment for the 

conservation of listed species. The areas 

we are designating as revised critical 

habitat will require some level of 

management to address the current and 

future threats to the physical and 

biological features essential to the 

conservation of the PMJM, and to ensure 

the recovery of the species. In all units, 

special management considerations or 

protection of the essential features may 

be required to provide for the sustained 

function of the riparian corridors on 

which the PMJM depends. 

The PMJM is closely associated with 

riparian ecosystems that are relatively 

narrow and represent a small percentage 

of the landscape. Our July 10, 2008, 

final rule for the PMJM to specify over 

what portion of its range the subspecies 

is threatened (73 FR 39789) concluded 

that the decline in the extent and 

quality of PMJM habitat is the main 

factor that threatens the subspecies. 

Special management considerations and 

protection may be required to address 

the threats of habitat alteration, 

degradation, loss, and fragmentation 

that results from urban development, 

flood control, water development, 

agriculture, and other human land uses 

that adversely impact PMJM 

populations. Habitat destruction may 

affect the PMJM directly or by 

destroying nest sites, food resources, 

and hibernation sites; by disrupting 

behavior; or by forming a barrier to 

movement. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available to designate 

critical habitat. We are designating 

critical habitat in specific areas that 

include river and stream reaches, and 

their adjacent floodplains and uplands, 

that are within the known geographic 

and elevational range of the PMJM in 

the SPR in Colorado where it is listed 

and that contain the features essential to 

the conservation of the PMJM. All areas 

included in critical habitat contain at 

least one of the PCEs, and are currently 

occupied by the PMJM or provide 

crucial opportunities for connectivity to 

facilitate dispersal and genetic 

exchange. 

Our critical habitat designation 

identifies the appropriate quantity and 

spatial arrangement of the requisite 

PCEs that we have determined to be 

essential to the conservation of the 

subspecies. We determined that there 

are more areas currently occupied by 

the PMJM than are necessary to 

conserve the subspecies within the SPR 

in Colorado. We base this on the known 

occurrence and distribution of the 

PMJM (Service 2010) and upon the 

conservation strategy in the Draft Plan, 

which indicates that when specified 

criteria are met for a subset of existing 

populations throughout the range of the 

PMJM, the subspecies can be delisted 

(Service 2003a, p. 19). To recover the 

PMJM to the point where it can be 

delisted, the Draft Plan identifies the 

need for a specified number, size, and 

distribution of wild, self-sustaining 

PMJM populations. On the basis of the 

above described criteria, we have 

chosen a subset of the areas occupied by 

the PMJM within the SPR in Colorado 

that have the physical and biological 

features essential to the PMJM for 

inclusion in critical habitat. 


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We only consider including 

unoccupied areas within critical habitat 

designations if they are essential to the 

conservation of the species, and we 

determine that we cannot conserve the 

species by only including occupied 

areas in the critical habitat. Because we 

have determined that the conservation 

of the PMJM can be achieved through 

the designation of currently occupied 

lands, we find that no unoccupied areas 

are essential at this time. The subspecies 

was listed primarily due to the threat of 

impending development to the existing 

remaining habitat for the species within 

the Front Range of Colorado. We have 

determined that recovery of the 

subspecies can be achieved by 

protecting a subset of the currently 

occupied habitat from the threat of 

development. Recolonization of former 

parts of the range, while beneficial to 

the subspecies, is not currently believed 

to be necessary to conserve the PMJM in 

the long term. 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas such as lands covered 

by buildings, pavement, and other 

structures because such lands lack PCEs 

for the PMJM. The scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final rule have been 

excluded by text in the rule and are not 

designated as critical habitat. Therefore, 

a Federal action involving these lands 

will not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent critical habitat. 

Available Information 

Our June 23, 2003, final rule 

designating critical habitat for the PMJM 

(68 FR 37275) cited the March 11, 2003, 

Working Draft of a Recovery Plan for the 

PMJM, and the concepts described 

within (PMJM Recovery Team 2003), as 

a source of the best scientific and 

commercial data available on the PMJM. 

For designating revised critical habitat, 

we relied heavily on the information, 

concepts, and conservation 

recommendations contained in the 

Working Draft and the slightly modified 

Draft Plan (Service 2003a), as well as the 

current efforts of the recently formed 

Recovery Team. We used these as a 

starting point for identifying those areas 

for inclusion in critical habitat that 

contain the requisite PCEs in the 

appropriate quantity and spatial 

arrangement that are essential for the 

conservation of the PMJM. The Draft 

Plan is based on the work of scientists 

and stakeholders who met regularly 

over a period of more than 3 years. The 

plan was developed by incorporating 

principles of conservation biology and 

all available knowledge regarding the 

PMJM. Recovery Team meetings were 

open to the public, and drafts of the 

plan were discussed in public meetings 

held in Colorado and Wyoming. We 

forwarded a draft of the Draft Plan to 

species experts for review, and their 

comments (Armstrong 2003, pers. 

comm.; Hafner 2003, pers. comm.) were 

considered prior to the Draft Plan being 

made available on the Service Web site. 

We also have incorporated all new 

information received since 2003, 

including: 

• Data in reports submitted by 

researchers holding recovery permits 

under section 10(a)(1)(A) of the Act; 

• Research published in peerreviewed articles and presented in 

academic theses, agency reports, and 

unpublished data; and 

• Various Geographic Information 

System (GIS) data layers and cover type 

information, including land ownership 

information, topographic information, 

locations of the PMJM obtained from 

radio-collars, and locations of the PMJM 

confirmed to the species level via 

deoxyribonucleic acid (DNA) analysis, 

morphological analysis, and other 

verified records. 

We also received information from 

Federal, State, and local governmental 

agencies, and from academia and 

private organizations that have collected 

scientific data on the PMJM. 

The Draft Plan identifies specific 

criteria for reaching recovery and the 

delisting of the PMJM. An important 

change since our 2003 designation of 

critical habitat was the 2008 final rule 

limiting the listing of the PMJM to the 

SPR in Colorado. The Draft Plan 

identified areas as necessary for 

recovery throughout the range of the 

PMJM, including areas in Wyoming 

where the PMJM was listed at the time. 

Identified areas within the SPR in 

Colorado were based on the best 

available information and continue to 

reflect our best judgment of what we 

believe to be necessary for recovery. 

While elements of the Draft Plan may 

change prior to finalization of a recovery 

plan, our review of the Draft Plan and 

the ongoing Recovery Team review 

leads us to conclude that the concepts 

described within it continue to 

represent the best scientific and 

commercial data available regarding 

steps needed for the recovery of the 

PMJM. 

The Draft Plan provides a review of 

conservation biology theory regarding 

population viability (Service 2003a, p. 

21). To recover the PMJM to the point 

where it can be delisted, the Draft Plan 

identifies the need for a specified 

number, size, and distribution of wild, 

self-sustaining PMJM populations across 

the known range of the PMJM. It defines 

large populations as maintaining 2,500 

mice, and usually including at least 50 

mi (80 km) of rivers and streams. It 

defines medium populations as 

maintaining 500 mice, and usually 

including at least 10 mi (16 km) of rivers 

and streams. The average number of 

PMJM per stream mile was derived from 

site-specific studies and used to 

approximate minimum occupied stream 

miles required to support recovery 

populations of appropriate size (Service 

2003a, p. 21). 

The distribution of these recovery 

populations is intended both to reduce 

the risk of multiple PMJM populations 

being negatively affected by natural or 

manmade events at any one time, and to 

preserve the existing genetic variation 

within the PMJM. The Draft Plan states, 

‘‘species well-distributed across their 

historical range are less susceptible to 

extinction and more likely to reach 

recovery than species confined to a 

small portion of their range.’’ The 

document also states that ‘‘spreading the 

recovery populations across hydrologic 

units throughout the range of the 

subspecies also preserves the greatest 

amount of the remaining genetic 

variation, and may provide some genetic 

security to the range-wide population’’ 

(Service 2003a, p. 20). The Draft Plan 

emphasizes the value of retaining 

disjunct or peripheral populations that 

may be important to recovery (Lomolino 

and Channell 1995, p. 481) and may 

have diverged genetically from more 

central populations due to isolation, 

genetic drift, and adaptation to local 

environments (Lesica and Allendorf 

1995, pp. 754–755). 

While the Draft Plan addresses the 

entire range of the PMJM, the SPR in 

Colorado where the PMJM remains 

listed includes multiple subdrainages 

that are addressed individually in the 

Draft Plan (Figure 1). Within Colorado, 

the Draft Plan identifies recovery 

criteria for the two major river drainages 

where the PMJM occurs (the South 

Platte River drainage and the Arkansas 

River drainage), and for each 

subdrainage judged likely to support the 

PMJM. In some cases, the Draft Plan 

identifies recovery criteria for 

subdrainages where limited trapping 

has not confirmed the presence of the 

PMJM. Boundaries of drainages and 

subdrainages have been mapped by the 


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USGS. For the Draft Plan, 8-digit 

hydrologic unit boundaries were 

selected to define subdrainages. A total 

of 13 HUCs in the SPR of PMJM in 

Colorado are identified in the Plan as 

occupied or potentially occupied by the 

PMJM. Ten are identified in the South 

Platte River drainage and three in the 

Arkansas River drainage. 

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One issue raised by the Recovery 

Team was whether the conservation 

strategy that specified the number, size, 

and distribution of PMJM recovery 

populations in Colorado remained valid 

despite the 2008 removal of the 

Wyoming portion of PMJM’s range from 

listing. In Colorado, the strategy has 

been to establish at least three large 

populations and three medium 

populations spread over six 

subdrainages. Recovery of the PMJM 

would require these populations to be 

protected from threats. Additionally, the 

Plan suggests establishing at least three 

small populations or one medium 

population in seven other subdrainages, 

if the PMJM is present. Another issue 


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raised was whether the strategy required 

modification based on DNA testing that 

revealed that the PMJM in northern and 

southern areas of the subspecies’ range 

(Wyoming and Larimer County in 

Colorado vs. Douglas and El Paso 

Counties in Colorado) exhibited 

significant genetic differences (King et 

al. 2006, pp. 4337–4338). The Recovery 

Team concluded (Jackson 2009, pers. 

comm.) that the 2003 conservation 

strategy adequately addresses recovery 

across the PMJM’s range in Colorado, 

and would maintain the genetic 

diversity reported by King et al. (2006). 

Biological Factors 

Presence of the PMJM was determined 

based largely on the results of trapping 

surveys, the vast majority of which were 

conducted in the 12 years since listing 

the PMJM under the Act. Consistent 

with our July 10, 2008, final rule to 

amend the listing for the PMJM (73 FR 

39789), subdrainages judged to be 

occupied by the PMJM in Colorado 

include those that: (1) Have recently 

been documented to support jumping 

mice identified by genetic or 

morphological examination as the 

PMJM; or (2) have recently been 

documented to support jumping mice 

not identified to the species level, but 

occurring at elevations below 6,700 ft 

(2,050 m), where western jumping mice 

have infrequently been documented. In 

our July 17, 2002, proposal (67 FR 

47154) and our June 23, 2003, 

designation of critical habitat (68 FR 

37275), we summarized trapping results 

and means of positive identification for 

each unit. See our 2003 rule designating 

critical habitat and our 2008 final rule 

to amend the listing for the PMJM for 

more information on our determinations 

regarding presence of the PMJM in 

various subdrainages. 

Boundaries of some critical habitat 

units extend beyond capture locations 

to include those reaches that we believe 

to be occupied by the PMJM, based on 

the best scientific data available 

regarding capture sites, the known 

mobility of the PMJM, and the quality 

and continuity of habitat components 

along stream reaches. Where 

appropriate, we include details on the 

known status of the PMJM within 

specific subdrainages in the ‘‘Revised 

Critical Habitat Designation’’ section of 

this rule. 

Despite numerous surveys, the PMJM 

has not been found in the Denver 

metropolitan area since well before its 

1998 listing, and is believed to be 

extirpated from much of the Front 

Range urban corridor as a result of 

extensive urban development. The area 

does not support the spatial 

arrangement and quantity of requisite 

PCEs to support PMJM populations, 

and, as a consequence, we have 

determined that this area does not 

contain the features essential to the 

conservation of the species. 

Additional Factors Considered 

Based on the Draft Plan, we believe 

that we can achieve conservation of the 

PMJM with only a subset of areas 

currently occupied or containing 

essential features. To identify the 

specific subset of areas for inclusion in 

critical habitat, we considered several 

qualitative criteria in addition to the 

presence of the PCEs. These criteria 

were used to judge the current status, 

conservation needs, and probable 

persistence of the essential features of 

PMJM populations in specific areas, and 

included: (1) The quality, continuity, 

and extent of habitat components 

present; (2) the presence of lands 

devoted to conservation (either public 

lands such as parks, wildlife 

management areas, and dedicated open 

space, or private lands under 

conservation easements); and (3) the 

landscape context of the site, including 

the overall degree of current human 

disturbance and presence, and 

likelihood of future development based 

on local planning and zoning. 

Where specific areas met the 

definition of critical habitat under 

section 3 of the Act (within the 

geographical area occupied by the 

species and containing features essential 

to the conservation of the species which 

may require special management 

considerations or protection) and other 

criteria were comparable, we evaluated 

land ownership as a selection criterion 

for inclusion in critical habitat. 

Consistent with the Draft Plan (Service 

2003, p. 52), we first selected Federal 

lands where effective land management 

strategies can be employed by Federal 

agencies to conserve PMJM populations. 

Federal agencies already have an 

affirmative conservation mandate under 

the Act to contribute to the conservation 

of listed species. Therefore, we 

determined that federally owned lands 

are more likely to meet the requirements 

for recovery of the species than private 

lands that are not subject to the Act’s 

affirmative conservation mandate. 

However, we cannot depend solely on 

federally owned lands for critical 

habitat, as these lands are limited in 

geographic location, size, and habitat 

quality within the SPR in Colorado 

where the PMJM is listed. In addition to 

the federally owned lands, we included 

some non-Federal public lands, 

including lands owned by the State of 

Colorado or by local governments, and 

some privately owned lands. 

This revised designation of critical 

habitat in Colorado consists of 11 units, 

6 of which are designed to support three 

large and three medium PMJM recovery 

populations, corresponding to those 

designated in the Draft Plan. While the 

Draft Plan designates the approximate 

location of these large and medium 

recovery populations, it does not 

delineate specific boundaries. 

In addition, the Draft Plan establishes 

a goal of three small recovery 

populations (including at least 3 mi (5 

km) of rivers or streams) or one medium 

recovery population in seven other 

HUCs within the PMJM’s range in 

Colorado. The Draft Plan does not 

identify the locations of recovery 

populations within these remaining 

seven HUCs. It also provides an 

exception to the above goal; no recovery 

populations are required in those HUCs 

that, when adequately surveyed, are 

found to have no PMJM populations. In 

some HUCs, presence of the PMJM has 

not been confirmed and the quality, 

continuity, and extent of physical and 

biological features essential to the PMJM 

appear lacking. In others, insufficient 

surveys have been conducted to 

establish distribution of PMJM 

populations or to determine where 

recovery populations should be located. 

Due to insufficient information, we are 

unable to designate critical habitat units 

corresponding to Draft Plan 

requirements in all of these remaining 

seven HUCs. 

The Draft Plan anticipates that, in the 

future, the locations of these remaining 

recovery populations will be designated 

and specific boundaries of all recovery 

populations (large, medium, and small) 

will be delineated by State and local 

governments, and other interested 

parties, working in coordination with 

the Service. In contrast to the Draft Plan, 

this revised designation of critical 

habitat required delineation of specific 

boundaries for all critical habitat areas 

in order to meet the requirements of the 

Act and our implementing regulations. 

As a result, any future recovery plan 

developed for the PMJM may designate 

recovery populations or delineate their 

boundaries in a manner inconsistent 

with the critical habitat units we are 

designating. This may occur if future 

information changes our understanding 

of the occurrence and distribution of 

PMJM populations. 

In some HUCs identified in the Draft 

Plan, little is known regarding the status 

of the PMJM. For example, PMJM has 

not been confirmed to occur in the Crow 

Creek, Lone Tree, and Bijou HUCs 

within the South Platte River drainage 


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in Colorado or in the Big Sandy HUC in 

the Arkansas River drainage. If the 

PMJM is not present, designation of 

recovery populations in these HUCs 

may not be necessary, and these HUCs 

may be deleted from any future recovery 

plan. We do not believe that these areas 

contain features that are essential to the 

conservation of the species, so we are 

not designating critical habitat within 

these four HUCs. 

The conservation strategy employed 

in the Draft Plan emphasizes the 

importance of protecting additional 

PMJM populations beyond those 

designated as recovery populations, to 

provide insurance for the PMJM in the 

event that designated recovery 

populations cannot be effectively 

managed or protected as envisioned or 

in the event that populations are 

decimated by rare but uncontrollable 

events, such as catastrophic fires or 

flooding. The Plan recommends 

directing recovery efforts toward public 

lands, rather than private lands, where 

possible, and calls upon all Federal 

agencies to protect and manage for the 

PMJM wherever it occurs on Federal 

lands. However, Federal lands alone 

cannot fully provide for the 

conservation of the species. Therefore, 

we included non-Federal lands when 

we found those lands contained the 

PCEs in the appropriate quantity and 

spatial arrangement to provide the 

physical and biological features 

essential to the conservation of the 

species. 

We believe that the designation of 

areas of critical habitat outside of those 

areas identified for recovery 

populations, on both non-Federal and 

additional Federal lands, is essential for 

the conservation of the PMJM. Should 

unforeseen events cause the continued 

decline of PMJM populations 

throughout the SPR in Colorado, PMJM 

populations and the PCEs on which 

they depend are more likely to persist 

and remain viable on Federal lands, 

where consistent and effective land 

management strategies can be more 

easily employed. These additional 

PMJM populations on Federal lands 

could serve as substitute recovery 

populations should designated recovery 

populations decline or fail to meet 

recovery goals. In addition, some PMJM 

populations on Federal lands have been 

the subject of ongoing research that 

could prove vital to the conservation of 

the PMJM. Therefore, in addition to 

designating critical habitat for sites 

consistent with those listed in the Draft 

Plan, we reviewed other sites of PMJM 

occurrence, especially Federal lands, 

and are designating certain additional 

units as critical habitat that include the 

requisite PCEs and are known to 

support the PMJM. 

Based on this conservation strategy, 

we are designating critical habitat 

preferentially on certain Federal lands 

that support required PCEs in the 

appropriate spatial arrangement and 

quantity and are occupied by the PMJM, 

where Federal property extends along 

stream reaches at least 3 mi (5 km). This 

length corresponds to the minimum size 

of small recovery populations as defined 

by the Draft Plan. These areas of critical 

habitat may include intervening nonFederal lands, that in some cases 

support all PCEs needed by the PMJM 

or, if fragmented by human 

development, contain at least one of the 

PCEs and are at least likely to provide 

connectivity between areas of PMJM 

habitat on adjacent Federal lands. 

Delineation of Critical Habitat 

Boundaries 

We are designating revised critical 

habitat for the PMJM based on the 

interpretation of multiple sources used 

during our June 23, 2003, designation of 

critical habitat (68 FR 37275); new 

information developed in the 

preparation of our October 8, 2009, 

proposed rule (74 FR 52066); and 

information we received in response to 

our request for public comments on our 

October 8, 2009, proposed rule (74 FR 

52066) and our May 27, 2010, 

publication (75 FR 29700). For this rule, 

we used GIS-based mapping using ESRI 

ArcGIS software incorporating USGS 

National Hydrography Dataset streams 

along with stream order (by Strahler 

code), Colorado Department of 

Transportation roads, U.S. Census 

Bureau cities, USGS topographic maps, 

2005 Farm Service Agency, National 

Agricultural Inventory Program 1m 

color imagery, and the COMaP dataset 

(Theobald et al. 2008). We divided 

lands we are designating as critical 

habitat into specific mapping units, i.e., 

critical habitat units, often 

corresponding to individual HUCs. For 

the purposes of this rule, these units are 

described primarily by latitude and 

longitude, and by Public Land Survey, 

Township, Section, and Range, to mark 

the upstream and the downstream 

extent of critical habitat along rivers and 

streams. 

As in 2003, we were faced with 

making a decision concerning the 

outward extent of critical habitat into 

uplands. Studies suggest that the PMJM 

uses uplands at least as far out as 328 

ft (100 m) beyond the 100-year 

floodplain (Shenk and Sivert 1999a, p. 

11; Ryon 1999, p. 12; Schorr 2001, p. 14; 

Shenk 2004; Service 2003a, p. 26). 

Apparent hibernacula (wintering 

chambers) have been documented 

outward to 335 ft (102 m) of a perennial 

stream bed or intermittent tributary 

(Ruggles et al. 2003, p. 19). We have 

typically described potential PMJM 

habitat as extending outward 300 ft (90 

m) from the 100-year floodplain of 

rivers and streams (Service 2004a, p. 5). 

The Draft Plan (Service 2003a, p. 26) 

defines PMJM habitat as the 100-year 

floodplain plus 328 ft (100 m) outward 

on both sides, but allows for alternative 

delineations that provide for all the 

needs of the PMJM and include the 

alluvial floodplain, transition slopes, 

and appropriate upland habitat. 

To allow normal behavior and to 

ensure that the PMJM and the PCEs on 

which it depends are protected, we 

believe that the outward extent of 

critical habitat should at least 

approximate the outward distances 

described above in relation to the 100- 

year floodplain. Unfortunately, 

floodplains have not been mapped for 

many streams within the PMJM’s range. 

Where floodplain mapping is available, 

we have found that it may include local 

inaccuracies. While alternative 

delineation of critical habitat based on 

geomorphology and existing vegetation 

could accurately portray the presence 

and extent of required habitat 

components, we lack an explicit data 

layer that could support such a 

delineation of critical habitat. 

In 2003, we also considered 

determining the outward extent of 

critical habitat based on a distance 

outward from features such as the 

stream edge, associated wetlands, or 

riparian areas. We judged wetlands an 

inconsistent indicator of habitat extent 

and found no consistent source of 

riparian mapping available across the 

SPR of Colorado where the PMJM is 

listed. We also considered using an 

outward extent of critical habitat 

established by a vertical distance above 

the elevation of the river or stream to 

approximate the floodplain and adjacent 

uplands likely to be used by the PMJM. 

This proved unacceptable over the 

diverse topography that surrounds 

stream reaches occupied by the PMJM. 

For this revised designation, we 

generally maintain consistency with our 

2003 designation of critical habitat in 

delineating the upland extent of critical 

habitat boundaries as a set distance 

outward from the river or stream edge 

(as defined by the ordinary high water 

mark) varying with the size (order) of a 

river or stream. We compared known 

floodplain widths to stream order over 

a series of sites and approximated 

average floodplain width for various 

orders of streams. To that average we 

added 328 ft (100 m) outward on each 


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side. For example, this analysis 

determined the average floodplain for 

streams of order 1 and 2 (the smallest 

streams) is approximately 33 ft (10 m). 

Based on this calculation, for streams of 

order 1 and 2, we are designating 

critical habitat as 361 ft (110 m) outward 

from the stream edge; for streams of 

order 3 and 4, we are designating 

critical habitat as 394 ft (120 m) outward 

from the stream edge; and for stream 

orders 5 and above (the largest streams 

and rivers), we are designating critical 

habitat as 459 ft (140 m) outward from 

the stream edge. In each case we are 

approximating average floodplain width 

plus 328 ft (100 m). While critical 

habitat will not extend outward to all 

areas used by individual mice over time, 

we believe that these corridors of 

critical habitat ranging from 722 ft (220 

m) to 918 ft (280 m) in width (plus the 

river or stream width) will support the 

full range of PCEs essential for 

conservation of PMJM populations in 

these reaches, and should help protect 

the PMJM and its habitat from 

secondary impacts of nearby 

disturbance. 

Following both our July 17, 2002, 

proposal of critical habitat (67 FR 

47154), and our October 8, 2009, 

proposal to revise critical habitat (74 FR 

52066), we received comments 

regarding the appropriate outward 

limits of critical habitat and means of 

establishing them. Most comments 

suggested one of two alternative 

methods: (1) Site-specific mapping of 

critical habitat for each reach; or (2) one 

outward limit for all rivers and streams. 

We determined that the first alternative 

was not feasible with the resources 

available to us, and that the second 

alternative less accurately reflected 

limits of habitat than the methodology 

employed above. 

An exception is our delineation of the 

outward boundary of designated critical 

habitat in those portions of Units 8, 9, 

and 10, where a Riparian Conservation 

Zone has been mapped in conjunction 

with development of the Douglas 

County HCP and delineates the limits of 

PMJM habitat. The RCZ depicts known 

or potential PMJM habitat over 283 

stream mi (456 km) and over 18,000 ac 

(7,000 ha) in Douglas County. Mapping 

of the RCZ relied on geomorphology and 

existing vegetation to assess presence 

and extent of required habitat 

components (i.e., those physical and 

biological features essential for the 

conservation of the PMJM). It followed 

the alternative habitat delineation 

suggested in the Draft Plan (Service 

2003a), and provides for the needs of 

the PMJM by including the alluvial 

floodplain, transition slopes, and 

appropriate upland habitat along stream 

reaches. When we approved the Douglas 

County HCP, we reviewed the 

methodology and concluded that the 

RCZ reflected the best information 

available for establishing the limits of 

PMJM habitat. 

Beyond the conclusion that the RCZ 

boundary provides a more accurate 

depiction of the appropriate boundary 

of critical habitat than what we 

proposed, we also considered the 

potential confusion that designation of 

critical habitat that differs from the 

established RCZ boundary might cause. 

The RCZ has been widely publicized in 

Douglas County and is used as a guide 

to help avoid impacts to PMJM and its 

habitat. Establishing critical habitat 

through standard setbacks from streams 

would have created a confusing pattern 

of dual lines that depict PMJM habitat 

limits. For these reasons we are 

designating the outward boundary of 

critical habitat on non-Federal lands in 

Units 8, 9, and 10 to correspond to the 

boundaries set by the RCZ, where the 

RCZ is present. In some instances this 

increases the width of critical habitat 

designated; in others it decreases the 

width. Overall, it results in a decrease 

in critical habitat than that which would 

otherwise have been designated, but it 

more accurately reflects on-site habitat 

conditions. On Federal properties 

designated as revised critical habitat in 

Douglas County, and on a very few nonFederal properties not included in the 

RCZ, outward boundaries of critical 

habitat units include standard distances 

from streams based on stream order. 

Revised Critical Habitat Designation 

We are designating 11 units that total 

approximately 411 mi (662 km) of rivers 

and streams and 34,935 ac (14,138 ha) 

of lands in Colorado, including land 

under Federal, State, local government, 

and private ownership. No lands 

designated as critical habitat are under 

tribal ownership. The areas we describe 

below constitute our best assessment at 

this time of areas that meet the 

definition of critical habitat for the 

PMJM. The units are those areas that are 

most likely to substantially contribute to 

conservation of the PMJM, will 

contribute to the long-term survival and 

recovery of the species, and require 

special management considerations or 

protection. These units, in many cases, 

correspond to the same geographic area 

of the units in Colorado delineated in 

the 2003 designation. However, there 

are multiple revisions and unit 

additions. This designation of revised 

critical habitat replaces the former 

critical habitat designation for the PMJM 

in 50 CFR 17.95(a). 

Table 1 shows each unit, approximate 

area, and land ownership. Estimates 

reflect the total river or stream length 

and area of lands within critical habitat 

unit boundaries. Limited areas within 

these boundaries may not include any of 

the requisite PCEs. Any such developed 

areas or other areas not supporting any 

of the requisite PCEs are excluded by 

text of this rule, and the total area we 

are designating may, therefore, be less 

than what is indicated in Table 1. 

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BILLING CODE 4310–55–C 

Lands that we are designating as 

revised critical habitat are divided into 

11 critical habitat units that contain all 

of the PCEs necessary to meet the 

essential biological needs of the PMJM 

throughout the SPR in Colorado, where 

PMJM is listed. 


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We present a brief description of each 

unit, and reasons why it meets the 

definition of critical habitat for the 

PMJM, below. The units are generally 

based on geographically distinct river 

drainages and subdrainages (HUCs). 

These units have been subject to, or are 

threatened by, varying degrees of 

degradation from human use and 

development. For these reasons, the 

essential features within each of the 

specific areas we are designating as 

critical habitat may require special 

management considerations or 

protection. Management may include 

measures in addition to those that may 

already be in place to preserve such 

areas to avoid, reduce, or offset humaninduced and natural impacts, and to 

restore such areas following 

unavoidable adverse impacts, including 

fire and flooding. 

South Platte River Drainage—North of 

Denver 

Unit 1: North Fork of the Cache la 

Poudre River, Larimer County 

Unit 1 encompasses approximately 

8,365 ac (3,385 ha) on 87 mi (140 km) 

of streams within the North Fork of the 

Cache la Poudre River HUC. We are 

designating critical habitat along the 

lower portions of the North Fork of the 

Cache la Poudre River and its 

tributaries, to provide for the large 

recovery population specified in the 

Draft Plan. The unit includes the North 

Fork of the Cache la Poudre River from 

the Milton Seaman Reservoir upstream 

to the Halligan Reservoir. Major 

tributaries within the unit include 

Stonewall Creek, Rabbit Creek 

(including its North Fork, Middle Fork, 

and South Fork), and Lone Pine Creek. 

The Eagle’s Nest Open Space area, 

proposed as critical habitat within Unit 

1, has been excluded from this critical 

habitat designation (see the Exclusions 

section below). Much of the unit is 

covered by the 2006 Livermore Area 

HCP (Service 2006b). The HCP covers 

certain incidental take of the PMJM 

related to ongoing agriculture and 

compatible activities, and conservation 

and stewardship activities in the 

Livermore area. However, the HCP does 

not address take resulting from most 

development. 

The unit includes both public and 

private lands. It includes portions of the 

Arapaho-Roosevelt National Forest, as 

well as Lone Pine State Wildlife Area. 

In the Cache la Poudre HUC, stream 

reaches that contain requisite PCEs are 

widespread. The area remains largely 

rural and agricultural with habitat 

components likely to support relatively 

high densities of the PMJM. 

Pressure for residential development 

is increasing within the area. 

Management of livestock grazing in the 

unit is often, but not in all cases, 

compatible with maintenance of quality 

PMJM habitat. Proposed reservoir 

projects and associated water 

management may impact portions of 

this unit but may also present 

conservation opportunities. Based on 

these and other threats, special 

management considerations and 

protection are needed. This unit is 

essential to the conservation of the 

PMJM because it contains habitat 

essential to a population of the PMJM 

that supports the conservation 

principles of redundancy and resiliency 

throughout the SPR in Colorado where 

the PMJM is listed. 

Unit 2: Cache la Poudre River, Larimer 

County 

Unit 2 encompasses approximately 

4,929 ac (1,995 ha) on 51 mi (82 km) of 

streams within the Cache la Poudre 

River watershed. This unit is within the 

Cache la Poudre HUC and south of Unit 

1. It includes the Cache la Poudre River 

from Poudre Park upstream to the 7,600 

ft (2,317 m) elevation below Rustic. 

Major tributaries within the unit include 

Hewlett Gulch, Young Gulch, Skin 

Gulch, Poverty Gulch, Elkhorn Creek, 

Pendergrass Creek, and Bennett Creek. 

The unit is primarily composed of 

Federal lands of the Arapaho-Roosevelt 

National Forest, including portions of 

the Cache la Poudre Wilderness, but 

includes limited non-Federal lands as 

well. The unit supports the appropriate 

spatial arrangement of the requisite 

PCEs to ensure the conservation of the 

PMJM. Since this unit is located in the 

same Cache la Poudre HUC as Unit 1, 

it is unlikely to serve as an initial 

recovery population. However, it 

encompasses a significant area of habitat 

likely to support a sizeable population 

of the PMJM. Due to Federal ownership, 

residential or commercial development 

pressure is minimal; however, the area 

is subject to substantial recreational use 

(rafting, kayaking, fishing) in the Cache 

la Poudre River corridor. Non-Federal 

lands include existing development that 

may limit the habitat components 

present. Such reaches may serve the 

PMJM mostly as connectors between 

areas that contain all of the necessary 

PCEs. Maintenance of connectivity for 

PMJM movement through such areas is 

important. Based on these and other 

threats, special management 

considerations and protection are 

needed. This unit is essential to the 

conservation of the PMJM because it 

contains habitat essential to a 

population of the subspecies that 

supports the conservation principles of 

redundancy and resiliency throughout 

the SPR in Colorado where the PMJM is 

listed. 

Unit 3: Buckhorn Creek, Larimer County 

Unit 3 encompasses approximately 

3,912 ac (1,583 ha) on 45 mi (73 km) of 

streams within the Buckhorn Creek 

watershed. It includes Buckhorn Creek 

from just west of Masonville, upstream 

to the 7,600-ft (2,317-m) elevation. 

Major tributaries within the unit include 

Little Bear Gulch, Bear Gulch, 

Stringtown Gulch, Fish Creek, and 

Stove Prairie Creek. The unit is located 

in the Big Thompson HUC, and we are 

designating it as critical habitat to 

address the medium recovery 

population called for this area in the 

Draft Plan (Service 2003a). The unit 

includes both public lands, mostly on 

portions of the Arapaho-Roosevelt 

National Forest, and private lands. 

Requisite PCEs are present. Pressure for 

expanded rural development exists on 

non-Federal lands within the unit while 

recreational use is centered on public 

lands. Based on these and other 

development pressures, special 

management considerations and 

protection are needed. This unit is 

essential to the conservation of the 

PMJM because it contains habitat 

essential to a population of the 

subspecies that supports the 

conservation principles of redundancy 

and resiliency throughout the SPR in 

Colorado where the PMJM is listed. 

Unit 4: Cedar Creek, Larimer County 

Unit 4 encompasses approximately 

641 ac (259 ha) on 8 mi (12 km) of 

streams within the Cedar Creek 

watershed, including Dry Creek and Jug 

Gulch. Cedar Creek is a tributary of the 

Big Thompson River and enters the Big 

Thompson River at Cedar Cove. The 

unit is centered on Federal lands of the 

Arapaho-Roosevelt National Forest, but 

includes some stream reaches on nonFederal lands. This unit is located in the 

Big Thompson HUC and, while unlikely 

to serve as an initial recovery 

population, it supports a population on 

mostly Federal lands of the upper Big 

Thompson River. Requisite PCEs are 

present, but the unit is isolated, at least 

in terms of riparian connection, from 

the PMJM population on nearby 

Buckhorn Creek drainage (Unit 3) to the 

north. This site is upstream of The 

Narrows of the Big Thompson Canyon, 

a barrier to PMJM movement, while the 

confluence of the Big Thompson River 

and Buckhorn Creek is downstream 

from The Narrows. However, the close 

proximity of the headwaters of Jug 

Gulch within this unit to the headwaters 


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of Bear Gulch within the Buckhorn 

Creek critical habitat unit suggests that 

some PMJM may pass between the two 

populations and thus between the two 

significant watersheds within this HUC. 

Non-Federal lands within this unit 

support existing development and will 

likely experience continued residential 

development pressure. Therefore, 

special management considerations and 

protection are needed. This unit is 

essential to the conservation of the 

PMJM because it contains habitat 

essential to a population of the 

subspecies that supports the 

conservation principles of redundancy 

and resiliency throughout the SPR in 

Colorado where the PMJM is listed. 

Unit 5: South Boulder Creek, Boulder 

County 

Unit 5 encompasses approximately 

798 ac (323 ha) on 8 mi (12 km) of 

streams within the South Boulder Creek 

watershed. It includes South Boulder 

Creek from Baseline Road upstream to 

Eldorado Springs, and includes the 

Spring Brook tributary. Denver Water 

lands proposed as critical habitat within 

Unit 5 have been excluded from this 

critical habitat designation (see the 

Exclusions section). The unit includes 

both public and private lands. It 

includes substantial lands owned by the 

City of Boulder Open Space and 

Mountain Parks. 

This unit is located in the St. Vrain 

HUC, and we are designating it as 

critical habitat to address the medium 

recovery population designated for this 

area in the Draft Plan (Service 2003a). 

Requisite PCEs are present, and portions 

of the area have been the subject of 

PMJM research funded by the City of 

Boulder. At some sites high densities of 

the PMJM have been documented 

(Meaney et al. 2003, pp. 616–617). A 

wide floodplain, complex ditch system, 

and the irrigation of pastures make 

habitat within the lower portions of this 

unit unique. Pressure for expanded 

development is occurring on the limited 

private, undeveloped land within the 

unit. Recreational use of the City of 

Boulder lands is considerable and could 

adversely impact the PMJM if not 

properly managed. Based on these and 

other threats, special management 

considerations and protection are 

needed. This unit is essential to the 

conservation of the PMJM because it 

contains habitat essential to a 

population of the subspecies that 

supports the conservation principles of 

redundancy and resiliency throughout 

the SPR in Colorado where the PMJM is 

listed. 

Unit 6: Rocky Flats Site, Jefferson, 

Boulder, and Broomfield Counties 

Unit 6 encompasses approximately 

1,108 ac (448 ha) on 12 mi (20 km) of 

streams, and includes the Rock Creek 

Subunit, Woman Creek Subunit, and 

Walnut Creek Subunit. Greater than 99 

percent of Unit 6 is within the Rocky 

Flats Site and consists of Federal lands 

managed by the Service and DOE. The 

Rocky Flats Site was a nuclear 

industrial facility for the DOE between 

1951 and the end of the Cold War. Later 

it became the DOE Environmental 

Technology Site. Much of the Rocky 

Flats Site became the Rocky Flats NWR 

in 2005, but DOE maintains control over 

the Central Operable Unit (1,300 ac, 530 

ha) and other lands near the western 

boundary of the site. 

The Rock Creek Subunit is located in 

the St. Vrain HUC, and the Woman 

Creek and Walnut Creek subunits are in 

the Middle South Platte-Cherry Creek 

HUC. Since the unit includes portions 

of two HUCs, both of which support 

designated critical habitat 

corresponding with recovery 

populations designated elsewhere in the 

Draft Plan, this unit is unlikely to serve 

as an initial recovery population. 

However, this unit is unique and 

important because it is limited almost 

entirely to Federal lands of the Rocky 

Flats Site, and populations on the site 

have been the subject of the longest 

span of research of any PMJM 

populations. 

This unit is essential to the 

conservation of the PMJM because 

requisite PCEs are present and the site 

supports small streams largely 

unimpacted by human development. 

This unit is essential to the conservation 

of the PMJM because it contains habitat 

essential to a population of the 

subspecies that supports the 

conservation principles of redundancy 

and resiliency throughout the SPR in 

Colorado where the PMJM is listed. In 

addition, the site presents an 

opportunity to study small populations 

and their viability over time. However, 

the small populations present and their 

apparent isolation suggest that the 

PMJM population on the unit may be 

vulnerable. Continuation of existing 

management and adapting future 

management to support conservation of 

the PMJM on site is necessary on both 

NWR and DOE lands. 

Unit 7: Ralston Creek, Jefferson County 

Unit 7 encompasses approximately 

773 ac (313 ha) on 9 mi (14 km) of 

streams within the Ralston Creek 

watershed. It includes Ralston Creek 

from Ralston Reservoir upstream to the 

7,600-ft (2,317-m) elevation. Denver 

Water lands proposed as critical habitat 

within Unit 7 have been excluded from 

this critical habitat designation (see the 

Exclusions section). The unit includes 

both public and private lands including 

lands in Golden Gate Canyon State Park 

and White Ranch County Park. 

This unit is located in the Clear Creek 

HUC, and we are designating it as 

critical habitat to partially address the 

criteria of three small recovery 

populations or one medium recovery 

population called for in this area in the 

Draft Plan (Service 2003a). The segment 

of Ralston Creek that passes through the 

Cotter Corporation’s existing 

Schwartzwalder Mine serves as a 

connector between areas that support all 

requisite PCEs required by the PMJM 

located upstream and downstream. 

Protection and management 

considerations are required for both the 

mine area and public lands within the 

unit. This unit is essential to the 

conservation of the PMJM because it 

contains habitat essential to a 

population of the subspecies that 

supports the conservation principles of 

redundancy and resiliency throughout 

the SPR in Colorado where the PMJM is 

listed. 

South Platte River Drainage—South of 

Denver 

Unit 8: Cherry Creek, Douglas County 

Unit 8 encompasses approximately 

2,536 ac (1,026 ha) on 30 mi (48 km) of 

streams within the Cherry Creek 

watershed. Unit 8 includes two 

subunits. The first, the Lake Gulch 

Subunit, includes Cherry Creek from the 

downstream boundary of the 

Castlewood Canyon State Recreation 

Area, upstream to its confluence with 

Lake Gulch. Tributaries within the 

subunit include Lake Gulch and Upper 

Lake Gulch. It includes portions of the 

Castlewood Canyon State Recreation 

Area, as well as portions of Douglas 

County’s Green Mountain Ranch 

property. The second, the Antelope 

Creek Subunit, includes Antelope Creek 

from its confluence with West Cherry 

Creek upstream and a tributary, Haskel 

Creek. The outward boundaries of 

critical habitat in this subunit have been 

modified from those proposed to 

conform to boundaries of the Douglas 

County RCZ on non-Federal lands 

where the RCZ has been mapped (see 

the Delineation of Critical Habitat 

Boundaries section above). The two 

subunits include both public and 

private lands. These subunits are 

located in the Middle South PlatteCherry Creek HUC and address the 

medium recovery population designated 


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for this area in the Draft Plan (Service 

2003a). PCEs essential to the 

conservation of the PMJM in the upper 

reaches of the Cherry Creek basin 

appear widespread, and there are 

multiple options as to where we could 

designate critical habitat for a medium 

recovery population. This unit is also 

essential to the conservation of the 

PMJM because it provides critical 

habitat to support populations of the 

subspecies to meet the conservation 

principles of redundancy and resiliency 

throughout the SPR in Colorado where 

the PMJM is listed. Some development 

pressure is occurring from expanding 

rural development on private lands 

within these areas. Management 

considerations are required for 

development within this unit, as well as 

for grazing and recreational activities. 

Unit 9: West Plum Creek, Douglas 

County 

Unit 9 encompasses approximately 

5,518 ac (2,233 ha) on 90 mi (145 km) 

of streams within the Plum Creek 

watershed. It includes Plum Creek from 

Chatfield Reservoir upstream to the 

confluence with West Plum Creek then 

continues upstream on West Plum Creek 

to its headwaters. Major tributaries 

within the unit include Indian Creek, 

Jarre Creek, Garber Creek (including 

North, Middle, and South Garber Creek), 

Jackson Creek, Spring Creek, Dry Gulch, 

Bear Creek, Starr Canyon, Gove Creek, 

and Metz Canyon. We have reduced the 

extent of final critical habitat on Bear 

Creek from that proposed, ending it at 

the base of the Waconda Lake Dam (see 

the Summary of Changes from the 

Proposed Rule section above). Denver 

Water lands proposed as critical habitat 

within Unit 9 have been excluded from 

this critical habitat designation (see the 

Exclusions section below). The outward 

boundaries of critical habitat in this unit 

have been modified from those 

proposed to conform to boundaries of 

the Douglas County RCZ on non-Federal 

lands where the RCZ has been mapped 

(see the Delineation of Critical Habitat 

Boundaries section above). 

The unit encompasses both public 

and private lands. It includes portions 

of the Pike-San Isabel National Forest, 

as well as Chatfield State Recreation 

Area (Corps property), and Colorado 

Division of Wildlife’s Woodhouse 

Ranch property. This unit is located in 

the Upper South Platte HUC, and it 

addresses the large recovery population 

designated for this area in the Draft Plan 

(Service 2003a). Aside from a portion of 

lower Plum Creek, the unit remains 

rather rural, requisite PCEs are present, 

and it includes habitat components 

likely to support relatively high 

densities of the PMJM. Pressure for 

expanded suburban and rural 

development is occurring within the 

area. On some private and public lands, 

management considerations are required 

for livestock grazing. This unit is 

essential to the conservation of the 

PMJM because it contains habitat 

essential to a population of the 

subspecies that supports the 

conservation principles of redundancy 

and resiliency throughout the SPR in 

Colorado where the PMJM is listed. 

Unit 10: Upper South Platte River, 

Douglas, Jefferson, and Teller Counties 

Unit 10 encompasses approximately 

3,060 ac (1,238 ha) on 34 mi (54 km) of 

streams within the South Platte River 

watershed. It includes four subunits. 

The Chatfield Subunit includes a 

section of the South Platte River 

upstream of Chatfield Reservoir within 

Chatfield State Recreation Area (Corps 

property). The Bear Creek Subunit 

includes Bear Creek and West Bear 

Creek, tributaries to the South Platte 

River. The South Platte Subunit 

includes a segment of the South Platte 

River upstream from Nighthawk, 

including the tributaries Gunbarrel 

Creek and Sugar Creek. This subunit is 

centered on Federal lands of the PikeSan Isabel National Forest but includes 

some intervening non-Federal lands. 

The Trout Creek Subunit includes 

portions of Trout Creek, a tributary to 

Horse Creek, and also portions of Eagle 

Creek, Long Hollow, Fern Creek, Illinois 

Gulch, and Missouri Gulch. This 

subunit is centered on Federal lands of 

the Pike-San Isabel National Forest but 

includes some intervening non-Federal 

lands along Trout Creek. Denver Water 

lands proposed as critical habitat within 

Unit 10 have been excluded from this 

critical habitat designation (see the 

Exclusions section below). The outward 

boundaries of critical habitat in this unit 

have been modified from those 

proposed to conform to boundaries of 

the Douglas County RCZ on non-Federal 

lands in Douglas County where the RCZ 

has been mapped (see the Delineation of 

Critical Habitat Boundaries section 

above). 

This unit is located in the same Upper 

South Platte HUC as West Plum Creek, 

where the Draft Plan designated a large 

recovery population and, therefore, is 

unlikely to serve as an initial recovery 

population. The unit encompasses four 

areas of primarily Federal land spread 

through the drainage, three within the 

Pike-San Isabel National Forest 

boundary. While requisite PCEs are 

present, habitat components present and 

the likely density of PMJM populations 

vary. The Trout Creek Subunit appears 

to have high quality PMJM habitat and 

may provide a continued opportunity to 

research relationships between the 

PMJM and the western jumping mouse 

(Z. princeps), both of which have been 

verified from the same trapping effort on 

Trout Creek. The four subunit areas 

should ensure that populations of the 

PMJM sufficient for its conservation are 

maintained in the portion of this HUC 

upstream of Chatfield Reservoir on the 

South Platte River and its tributaries. 

This unit is essential to the conservation 

of the PMJM because it contains habitat 

essential to populations of the 

subspecies that supports the 

conservation principles of redundancy 

and resiliency throughout the SPR in 

Colorado where the PMJM is listed. Due 

to Federal ownership, residential or 

commercial development pressure is 

minimal; however, the area is subject to 

substantial recreational use. Proposed 

reservoir projects may impact portions 

of this unit. Based on these and other 

development pressures, special 

management considerations and 

protection are needed. 

Arkansas River Drainage 

Unit 11: Monument Creek, El Paso 

County 

Unit 11 is located in the Arkansas 

River drainage. It encompasses 

approximately 3,295 ac (1,333 ha) on 38 

mi (61 km) of streams within the 

Monument Creek watershed. It includes 

Monument Creek from the confluence of 

Cottonwood Creek upstream to the 

southern boundary of the U.S. Air Force 

(USAF) Academy (Academy) and from 

the northern boundary of the Academy 

upstream to the dam at Monument Lake. 

Major tributaries within the unit include 

Kettle Creek, Black Squirrel Creek, 

Monument Branch, Middle Tributary, 

Smith Creek, Jackson Creek, Beaver 

Creek, Teachout Creek, and Dirty 

Woman Creek. The unit is primarily on 

private lands. It includes a small portion 

of the Pike-San Isabel National Forest. 

Lands within the Struthers Ranch, 

Dahle Property, and Lefever Property 

HCPs, which were proposed as critical 

habitat within this unit, have been 

excluded from this critical habitat 

designation (see Exclusions, below). 

This unit is located in the Fountain 

Creek HUC, and we are designating it as 

critical habitat to address part of the 

large recovery population designated for 

this area in the Draft Plan (Service 

2003a). The area is unique in that it 

represents the only known PMJM 

population of significant size within the 

Arkansas River drainage and the 

southernmost known occurrence of the 

PMJM. The Draft Plan (Service 2003a) 


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specifies a large recovery population 

along Monument Creek and its 

tributaries including lands within the 

Academy. While the Academy lands 

support the requisite PCEs, support a 

significant PMJM population, and are 

essential to maintenance of this 

proposed recovery population, we 

determined that the Academy lands 

merit exemption under section 4(a)(3) of 

the Act because an integrated natural 

resources management plan is in place 

that addresses conservation of the 

PMJM. 

Requisite PCEs are present throughout 

this unit, but development pressure is 

extremely high on some private lands 

within the unit. Development has 

resulted in changes in base flows and 

increased stormwater runoff, and has 

adversely impacted stream channels and 

associated riparian systems 

(Mihlbachler 2007). Comprehensive 

management measures to address 

habitat degradation are needed. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) 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. Decisions by the Fifth and 

Ninth Circuits Court of Appeals have 

invalidated our definition of destruction 

or adverse modification (50 CFR 402.02) 

(see Gifford Pinchot Task Force v. U.S. 

Fish and Wildlife Service, 378 F.3d 1059 

(9th Cir. 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442 (5th Cir. 2001)), and we do not 

rely on this regulatory definition when 

we analyze whether an action is likely 

to destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain those physical and biological 

features that relate to the ability of the 

area to periodically support the 

subspecies) to serve its intended 

conservation role for the subspecies. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the 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. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

An exception to the concurrence 

process referred to in (1) above occurs 

in consultations that involve National 

Fire Plan projects, known as Section 7 

Counterpart Regulations for National 

Fire Plan Projects. In 2004, the USFS 

and the Bureau of Land Management 

(BLM) reached agreements with us to 

streamline a portion of the section 7 

consultation process (BLM 2004, pp. 1– 

8; USFS 2004, pp. 1–8). Under these 

regulations Alternative Consultation 

Agreements allow the USFS and the 

BLM the opportunity to make ‘‘not likely 

to adversely affect’’ determinations for 

projects that implement the National 

Fire Plan, and do not need to submit 

these projects for concurrence. Such 

projects include prescribed fire, 

mechanical fuels treatments (thinning 

and removal of fuels to prescribed 

objectives), emergency stabilization, 

burned area rehabilitation, road 

maintenance and operation activities, 

ecosystem restoration, and culvert 

replacement actions. The USFS and the 

BLM must ensure staffs are properly 

trained, and both agencies must submit 

monitoring reports to us to determine if 

the procedures are being implemented 

properly and that effects on endangered 

species and their habitats are being 

properly evaluated. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define reasonable and prudent 

alternatives at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action; 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction; 

(3) Are economically and 

technologically feasible; and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

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 we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

PMJM or its designated critical habitat 

require section 7 consultation under the 

Act. Activities on State, Tribal, local, or 

private lands requiring a Federal permit 

(such as a permit from the Corps under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from us 

under section 10 of the Act) or involving 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, tribal, local, or private 

lands that are not federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

The designation of critical habitat 

does not imply that lands outside of 

critical habitat do not play an important 

role in the conservation of the PMJM. 

Federal actions that may affect areas 

outside of critical habitat, such as 

development, agricultural activities, and 

road construction, are still subject to 

review under section 7 of the Act if they 

may affect the PMJM, because Federal 

agencies must consider both effects to 

the species and effects to critical habitat 

independently. The prohibitions of 

section 9 of the Act applicable to the 

PMJM under 50 CFR 17.31 also continue 

to apply both inside and outside of 

designated critical habitat. 


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Application of the Jeopardy and 

Adverse Modification Standards 

Jeopardy Standard 

Currently, the Service applies an 

analytical framework for PMJM jeopardy 

analyses that relies heavily on the 

importance of known populations to the 

species’ survival and recovery. The 

analysis required by section 7(a)(2) of 

the Act is focused not only on these 

populations but also on the habitat 

conditions necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the PMJM in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, the jeopardy analysis focuses 

on the rangewide status of the SPR 

where the PMJM is threatened, the 

factors responsible for that condition, 

and what is necessary for this species to 

survive and recover. An emphasis is 

also placed on characterizing the 

condition of the PMJM in the area 

affected by the proposed Federal action 

and the role of affected populations in 

the survival and recovery of the PMJM. 

That context is then used to determine 

the significance of adverse and 

beneficial effects of the proposed 

Federal action and any cumulative 

effects for purposes of making the 

jeopardy determination. 

Adverse Modification Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or retain those PCEs that relate 

to the ability of the area to periodically 

support the species. Activities that may 

destroy or adversely modify critical 

habitat are those that alter the PCEs to 

an extent that appreciably reduces the 

conservation value of critical habitat for 

the PMJM. As discussed above, the role 

of critical habitat is to support the lifehistory needs of the species and provide 

for the conservation of the species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may adversely affect critical 

habitat and, therefore, should result in 

consultation for the PMJM include, but 

are not limited to, the following: 

(1) Any activity that results in 

development or alteration of the 

landscape within a unit, including: land 

clearing; activities associated with 

construction for urban and industrial 

development, roads, bridges, pipelines, 

or bank stabilization; agricultural 

activities such as plowing, disking, 

haying, or intensive grazing; off-road 

vehicle activity; and mining or drilling 

of wells. 

(2) Any activity that results in 

changes in the hydrology of the unit, 

including: construction, operation, and 

maintenance of levees, dams, berms, 

and channels; activities associated with 

flow control, such as releases, 

diversions, and related operations; 

irrigation; sediment, sand, or gravel 

removal; and other activities resulting in 

the draining or inundation of a unit. 

(3) Any sale, exchange, or lease of 

Federal land that is likely to result in 

the habitat in a unit being destroyed or 

appreciably degraded. 

(4) Any activity that detrimentally 

alters natural processes in a unit, 

including changes to inputs of water, 

sediment and nutrients, or any activity 

that significantly and detrimentally 

alters water quantity in the unit. 

(5) Any activity that could lead to the 

introduction, expansion, or increased 

density of an exotic plant or animal 

species that is detrimental to the PMJM 

and to its habitat. 

Note that the scale of these activities 

would be a crucial factor in determining 

whether, in any instance, they would 

directly or indirectly alter critical 

habitat to the extent that the value of the 

critical habitat for the survival and 

recovery of the PMJM would be 

appreciably diminished. 

We consider all of the units we are 

designating as critical habitat to contain 

features essential to the conservation of 

the PMJM and which require special 

management. All of the units are within 

the geographic range of the species and 

the SPR in Colorado where it is listed, 

and they are believed to be currently 

occupied. To ensure that their actions 

do not jeopardize the continued 

existence of the PMJM, Federal agencies 

already consult with us on activities in 

areas currently occupied by the PMJM, 

or in unoccupied areas if the species 

may be affected by the action. Federal 

actions not affecting listed species or 

critical habitat and actions on nonFederal lands that are not federally 

funded or permitted do not require 

section 7 consultation. 

Exemptions—Application of Section 

4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate 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 integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

We consult with the military on the 

development and implementation of 

INRMPs for installations with federally 

listed species. We analyzed INRMPs 

developed by military installations that 

are located within the SPR in Colorado 

where the PMJM is listed and that 

contain those features essential to the 

species’ conservation to determine if 

they are exempt under the authority of 

section 4(a)(3)(B) of the Act. 

U.S. Air Force Academy 

The Academy, in El Paso County, is 

the lone Department of Defense property 

that supports a population of the PMJM 

in habitat that we determined contains 

physical and biological features that are 

essential to the conservation of the 


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species. The Academy completed an 

INRMP in 1998, and updated it in 2008 

(USAF 1998, 2008). The Academy’s 

INRMP describes habitats found at the 

Academy, including habitats used by 

the PMJM (USAF 1998, 2008). It 

addresses management concerns, 

provides goals and objectives regarding 

the PMJM, and describes management 

actions designed to accomplish those 

objectives. The INRMP also requires 

monitoring, evaluation of the plan’s 

effectiveness, and modification of 

management actions when appropriate. 

The Academy also developed a 

Conservation Agreement with the 

Service and an accompanying 

‘‘Conservation and Management Plan for 

the Preble’s Meadow Jumping Mouse at 

the U.S. Air Force Academy’’ in 1999 

(USAF 1999). The Conservation 

agreement was extended for 5 years in 

2009. The plan provides guidance for 

USAF management decisions. In 

addition, the Service completed a 

programmatic section 7 consultation in 

2000, addressing certain activities at the 

Academy that may affect the PMJM 

(Service 2000), and concurred with 2008 

changes to the INRMP. 

We have reviewed these measures and 

have concluded the INRMP addresses 

the four criteria identified above. As a 

result, we did not propose Academy 

lands as critical habitat and have not 

included Academy lands in this final 

designation. Based on the above 

considerations, and in accordance with 

section 4(a)(3)(B)(i) of the Act, we have 

determined that the Academy lands are 

subject to the Academy’s INRMP, and 

that conservation efforts identified in 

the INRMP will provide a benefit to 

PMJM occurring in habitats within or 

adjacent to these facilities. Therefore, 

lands within this installation are exempt 

from critical habitat designation under 

section 4(a)(3) of the Act. As a result, we 

are not including a total of 

approximately 3,300 ac (1,300 ha) of 

habitat in this Department of Defense 

installation in this final critical habitat 

designation. 

Exclusions—Application of Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 

critical habitat 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. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If, based on this 

analysis, the Secretary makes this 

determination, then he can exercise his 

discretion to exclude the area only if 

such exclusion would not result in the 

extinction of the species. 

When considering the benefits of 

inclusion for an area, we consider the 

additional regulatory benefits under 

section 7 of the Act that area would 

receive from the protection from adverse 

modification or destruction as a result of 

actions with a Federal nexus, the 

educational benefits of mapping 

essential habitat for recovery of the 

listed species, and any benefits that may 

result from a designation due to State or 

Federal laws that may apply to critical 

habitat. 

When considering the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan 

that provides equal to or more 

conservation that a critical habitat 

designation would provide. 

In the case of PMJM, the benefits of 

critical habitat include public awareness 

of PMJM presence and the importance 

of habitat protection, and in cases where 

a Federal nexus exists, increased habitat 

protection for PMJM due to the 

protection from adverse modification or 

destruction of critical habitat. 

In evaluating the existence of a 

conservation plan when considering the 

benefits of exclusion, we consider a 

variety of factors, including but not 

limited to, whether the plan is finalized; 

how it provides for the conservation of 

the essential physical and biological 

features; whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in a management plan will be 

implemented into the future; whether 

the conservation strategies in the plan 

are likely to be effective; and whether 

the plan contains a monitoring program 

or adaptive management to ensure that 

the conservation measures are effective 

and can be adapted in the future in 

response to new information. 

After evaluating the benefits of 

inclusion and the benefits of exclusion, 

the two sides are carefully weighed to 

determine whether the benefits of 

exclusion outweigh those of inclusion. 

If they do, we then determine whether 

exclusion of the particular area would 

result in extinction of the species. If 

exclusion of an area from critical habitat 

will result in extinction, that area will 

not be excluded from the designation. 

Based on the information provided by 

entities seeking exclusion, as well as 

additional public comments we 

received, we evaluated whether certain 

lands in the proposed critical habitat 

were appropriate for exclusion from this 

final designation. We considered the 

areas discussed below for exclusion 

under section 4(b)(2) of the Act, and 

present our detailed analysis below. For 

those areas in which the Secretary has 

exercised his discretion to exclude, we 

believe that: 

(1) Their value for conservation will 

be preserved for the foreseeable future 

by existing protective actions, or 

(2) The benefits of excluding the 

particular area outweigh the benefits of 

their inclusion, based on the ‘‘other 

relevant factor’’ provisions of section 

4(b)(2) of the Act. 

Exclusions Based on Economic Analysis 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we prepared a DEA, based on 

the October 8, 2009, proposed rule (74 

FR 52066), which we made available for 

public review on May 27, 2010 (75 FR 

29700). We opened a comment period 

on the DEA for 30 days, until June 28, 

2010. Following the close of the 

comment period, an FEA of the 

potential economic effects of the 

designation was developed, taking into 

consideration these comments and any 

new information. 

The intent of the FEA is to identify 

and analyze the potential economic 

impacts associated with the final 

revised critical habitat designation for 

the PMJM in the SPR in Colorado where 

it is listed under the Act. The FEA 

quantifies the economic impacts of all 

potential conservation efforts for the 

PMJM, which are the co-extensive costs. 

The majority of these costs will likely be 


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incurred regardless of whether or not we 

designate revised critical habitat. The 

economic impact of the revised critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering protections already in place 

for the species (e.g., under the Federal 

listing and other Federal, State, and 

local regulations), but not including 

critical habitat designated in 2003. 

Therefore, the baseline represents the 

costs incurred regardless of whether 

critical habitat is designated. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the proposed 

designation of revised critical habitat for 

the species. The incremental 

conservation efforts and associated 

impacts are those not expected to occur 

absent the designation of critical habitat 

for the species. In other words, the 

incremental costs are those attributable 

solely to the designation of critical 

habitat above and beyond the baseline 

costs; these are the costs we considered 

in the final designation of revised 

critical habitat. The analysis looked 

retrospectively at baseline impacts 

incurred since the species was listed, 

and forecasted both baseline and 

incremental impacts likely to occur with 

the final revised critical habitat 

designation. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The FEA measures lost 

economic efficiency associated with 

residential and commercial 

development, public projects, and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the 

designation might unduly burden a 

particular group or economic sector. 

Finally, the FEA looks retrospectively at 

costs that have been incurred since May 

13, 1998, when the PMJM was listed 

under the Act (63 FR 26517), and 

considers those costs that may occur in 

the 20 years following the designation of 

critical habitat, which was determined 

to be the appropriate period for analysis 

because limited planning information 

was available for most activities to 

forecast activity levels for projects 

beyond a 20-year timeframe. The FEA 

quantifies economic impacts from 

PMJM conservation efforts associated 

with the following categories of activity: 

residential and commercial 

development; roads/bridges, utilities, 

and bank stabilization projects; water 

supply development; USFS land 

management; Rocky Flats Site land 

management; and gravel mining. 

Based on the FEA, co-extensive costs 

(the economic impacts of all potential 

conservation efforts for the PMJM) are 

expected to be from $89 million to $202 

million, assuming a 7 percent discount 

rate, over the next 20 years. Potential 

incremental impacts associated with the 

revised critical habitat designation are 

estimated to be $28.2 million to $63.4 

million (approximately $2.66 million to 

$5.98 million on an annualized basis), 

assuming a 7 percent discount rate, over 

the next 20 years. These incremental 

impacts generally consist of those 

incremental administrative costs of 

conducting section 7 consultations with 

the Service, and additional costs of 

project modifications undertaken to 

avoid adverse modification of critical 

habitat and avoid or minimize adverse 

impacts to critical habitat. In the highend scenario, potential impacts to 

residential and commercial 

development represent 92 percent of the 

co-extensive costs and 96 percent of the 

incremental impacts, assuming a 7 

percent discount rate. The largest 

contributor to incremental costs is 

residential and commercial 

development in Unit 9 (West Plum 

Creek), Unit 10 (Upper South Platte), 

and Unit 11 (Monument Creek). The 

following table provides estimates of coextensive impacts and those attributable 

to designation of critical habitat, by 

activity, over the next 20 years. Table 2 

(below) gives a comparison and 

summary of both the total (co-extensive) 

costs estimated for all PMJM 

conservation activities, and the 

incremental costs resulting from the 

revised designation of critical habitat for 

the PMJM, projected over 20 years, at a 

7 percent discount rate. 

TABLE 2—ESTIMATED POST-DESIGNATION, CO-EXTENSIVE, AND INCREMENTAL IMPACTS OVER 20 YEARS, BY ACTIVITY

(PRESENT VALUE, 2009 DOLLARS), SHOWING HIGH AND LOW ESTIMATES, ASSUMING A 7 PERCENT DISCOUNT RATE. 

Activity Co-extensive 

high Co-extensive low Incremental high Incremental low 

Residential and Commercial Development ..................................... $186,000,000 $82,000,000 $61,100,000 $26,900,000 

Road/Bridge, Utility, and Bank Stabilization .................................... 2,910,000 1,500,000 946,000 497,000 

Water Supply Development ............................................................. 11,500,000 3,890,000 937,000 323,000 

USFS Lands Management .............................................................. 977,000 977,000 357,000 357,000 

Rocky Flats Site ............................................................................... 149,000 149,000 70,800 70,800 

Total .......................................................................................... 201,536,000 88,516,000 63,410,800 28,147,800 

Our economic analysis did not 

identify any disproportionate costs that 

are likely to result from the designation. 

Consequently, the Secretary has 

determined not to exert his discretion to 

exclude any areas from this designation 

of critical habitat for the PMJM based on 

economic impacts. A copy of the FEA 

with supporting documents may be 

obtained by contacting the Colorado 

Ecological Services Office (see 

ADDRESSES) or by downloading from the 

Internet at http://www.regulations.gov. 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense (DOD) where the designation of 

critical habitat might present an impact 

to national security. In preparing this 

final rule, we have determined that the 

lands within the revised designation of 

critical habitat for the PMJM are not 

owned or managed by the DOD, and, 

therefore, we anticipate no impact to 

national security. The Secretary has 

determined not to exert his discretion to 

exclude any areas from this final 

designation based on impacts on 

national security. 


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Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether landowners have developed 

any HCPs or other resource management 

plans for the areas proposed for 

designation, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at any Tribal issues, 

and consider the government-togovernment relationship of the United 

States with Tribal entities. We also 

consider any social impacts that might 

occur because of the designation. 

Our NEPA analysis may also disclose 

impacts we may consider in our 

analysis under section 4(b)(2) of the Act. 

In order to consider environmental 

impacts of the designation of critical 

habitat, we prepared a draft 

environmental assessment, based on the 

October 8, 2009, proposed rule (74 FR 

52066), and made it available for public 

review on May 27, 2010, (75 FR 29700). 

We opened a comment period on the 

draft environmental assessment for 30 

days, until June 28, 2010. Following the 

close of the comment period, a final 

environmental assessment of the 

potential environmental effects of the 

designation was developed, taking into 

consideration comments and any new 

information. A copy of the final 

environmental assessment and Finding 

of No Significant Impact (FONSI) may 

be obtained by contacting the Colorado 

Ecological Services Office (see 

ADDRESSES), or by downloading from 

the Internet at http:// 

www.regulations.gov. 

In order to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If based on this analysis, we 

determine that the benefits of exclusion 

outweigh the benefits of inclusion, then 

we can exclude the area only if such 

exclusion would not result in the 

extinction of the species. 

Benefits of Designating Critical Habitat 

Regulatory Benefits 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with us on actions that may 

affect critical habitat and must avoid 

destroying or adversely modifying 

critical habitat. Prior to our designation 

of critical habitat, Federal agencies 

consult with us on actions that may 

affect a listed species and must refrain 

from undertaking actions that are likely 

to jeopardize the continued existence of 

the species. Thus, the analysis of effects 

to critical habitat is a separate and 

different analysis from that of the effects 

to the species. The difference in 

outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

on habitat will often result in effects on 

the species. However, the regulatory 

standard is different: the jeopardy 

analysis looks at the action’s impact on 

survival and recovery of the species, 

while the adverse modification analysis 

looks at the action’s effects on the 

designated habitat’s contribution to the 

species’ conservation. This will, in 

many instances, lead to different results 

and different regulatory requirements. 

Once an agency determines that 

consultation under section 7 of the Act 

is necessary, the process may conclude 

informally when we concur in writing 

that the proposed Federal action is not 

likely to adversely affect critical habitat. 

However, if we determine through 

informal consultation that adverse 

impacts are likely to occur, then we 

would initiate formal consultation, 

which would conclude when we issue 

a biological opinion on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to PCEs, but it would not contain 

any mandatory reasonable and prudent 

measures or terms and conditions. We 

suggest reasonable and prudent 

alternatives to the proposed Federal 

action only when our biological opinion 

results in an adverse modification 

conclusion. 

In providing the framework for the 

consultation process, the previous 

section applies to all the following 

discussions of benefits of inclusion or 

exclusion of critical habitat. 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species which may 

require special management 

considerations or protection. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that the habitat that is 

identified, if managed, could provide for 

the survival and recovery of the species. 

Furthermore, once critical habitat has 

been designated, Federal agencies must 

consult with the Service under section 

7(a)(2) of the Act to ensure that their 

actions will not adversely modify 

designated critical habitat or jeopardize 

the continued existence of the species. 

As noted in the Ninth Circuit’s Gifford 

Pinchot decision, the Court ruled that 

the jeopardy and adverse modification 

standards are distinct, and that adverse 

modification evaluations require 

consideration of impacts to the recovery 

of species. Thus, through the section 

7(a)(2) consultation process, critical 

habitat designations provide recovery 

benefits to species by ensuring that 

Federal actions will not destroy or 

adversely modify designated critical 

habitat. 

The identification of lands that are 

necessary for the conservation of the 

species can assist in the recovery 

planning for a species, and therefore is 

beneficial. In this case the Draft Plan has 

helped inform critical habitat 

designation, and this final rule may, in 

turn, contribute to development of a 

final recovery plan. The process of 

proposing and finalizing a critical 

habitat rule provides the Service with 

the opportunity to determine lands 

essential for conservation as well as 

identify the physical and biological 

features essential for conservation on 

those lands. The designation process 

includes peer review and public 

comment on the identified features and 

lands. This process is valuable to land 

owners and managers in developing 

conservation management plans for 

identified lands, as well as any other 

occupied habitat or suitable habitat that 

may not have been included in the 

Service’s determination of essential 

habitat. 

However, the designation of critical 

habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and adverse modification of 

its critical habitat, but not specifically to 

manage remaining lands or institute 

recovery actions on remaining lands. 

Conversely, management plans institute 

intentional, proactive actions over the 

lands they encompass to remove or 

reduce known threats to a species or its 

habitat and, therefore, implement 

recovery actions. We believe that the 


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conservation of a species and its habitat 

that could be achieved through the 

designation of critical habitat, in some 

cases, is less than the conservation that 

could be achieved through the 

implementation of a management plan 

that includes species-specific provisions 

and considers enhancement or recovery 

of listed species as the management 

standard over the same lands. 

Consequently, implementation of any 

HCP or management plan that considers 

enhancement or recovery as the 

management standard will often provide 

as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Educational Benefits 

A benefit of including lands in critical 

habitat is that designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the PMJM. Because the critical 

habitat process includes a public 

comment period, opportunities for 

public hearings, and announcements 

through local venues, including radio 

and other news sources, the designation 

of critical habitat provides numerous 

occasions for public education and 

involvement. Through these outreach 

opportunities, land owners, State 

agencies, and local governments can 

become more aware of the plight of 

listed species and conservation actions 

needed to aid in species recovery. 

Through the critical habitat process, 

State agencies and local governments 

may become aware of areas that could 

be conserved under State laws, local 

ordinances, or specific management 

plans. 

Benefits of Exclusion 

When considering the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation; 

the continuation, strengthening, or 

encouragement of partnerships; or 

implementation of a management plan 

that provides equal to or more 

conservation than a critical habitat 

designation would provide. 

When we evaluate the existence of a 

conservation plan to consider the 

benefits of exclusion, we consider a 

variety of factors, including but not 

limited to, whether the plan is finalized; 

how it provides for the conservation of 

the essential physical and biological 

features; whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in a management plan will be 

implemented into the future; whether 

the conservation strategies in the plan 

are likely to be effective; and whether 

the plan contains a monitoring program 

or adaptive management to ensure that 

the conservation measures are effective 

and can be adapted in the future in 

response to new information. 

After evaluating the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

determine whether the benefits of 

exclusion outweigh those of inclusion. 

If we determine that they do, we then 

determine whether exclusion would 

result in extinction. If exclusion of an 

area from critical habitat would result in 

extinction, we will not exclude it from 

the designation. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

cooperation of non-Federal landowners. 

More than 60 percent of the United 

States is privately owned (National 

Wilderness Institute 1995), and at least 

80 percent of endangered or threatened 

species occur either partially or solely 

on private lands (Crouse et al. 2002, p. 

720). Stein et al. (1995, p. 400) found 

that only about 12 percent of listed 

species were found almost exclusively 

on Federal lands (90 to 100 percent of 

their known occurrences restricted to 

Federal lands) and that 50 percent of 

federally listed species are not known to 

occur on Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998, p. 

1407; Crouse et al. 2002, p. 720; James 

2002, p. 271). Building partnerships and 

promoting voluntary cooperation of 

landowners are essential to 

understanding the status of species on 

non-Federal lands, and are necessary to 

implement recovery actions such as 

reintroducing listed species, habitat 

restoration, and habitat protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. We 

encourage non-Federal landowners to 

enter into conservation agreements, 

based on a view that we can achieve 

greater species conservation on nonFederal land through such partnerships 

than we can through regulatory methods 

(December 2, 1996; 61 FR 63854). 

As discussed above, consultation 

under section 7(a)(2) of the Act, and the 

duty to avoid jeopardy to a listed 

species and adverse modification of 

designated critical habitat, is only 

triggered where Federal agency action is 

involved. In the absence of Federal 

agency action, the primary regulatory 

restriction applicable to non-Federal 

landowners is the prohibition against 

take of listed animal species under 

section 9 of the Act. In order to take 

listed animal species where no 

independent Federal action is involved 

that would trigger section 7 

consultation, a private landowner must 

obtain an incidental take permit under 

section 10 of the Act. 

However, many private landowners 

are wary of possible consequences of 

encouraging endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996, pp. 5–6; 

Bean 2002, pp. 2–3; Conner and 

Mathews 2002, pp. 1–2; James 2002, pp. 

270–271; Koch 2002, pp. 2–3; Brook et 

al. 2003, pp. 1639–1643). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

endangered or threatened species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This holds 

true for PMJM presence on private lands 

in Colorado. This perception results in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999, pp. 1264–1265; Brook et al. 

2003, pp. 1644–1648). We attempt to 

ease these concerns through 

communication and outreach with 

landowners; however, we recognize that 

these efforts are not always successful. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The outcome 


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of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. In cases 

where conservation actions are 

currently employed but anxiety 

regarding the potential impacts of 

critical habitat designation exists, we 

may find that excluding non-Federal 

lands from critical habitat designation 

results in improved partnerships and 

conservation efforts. 

Benefits of Excluding Lands With 

Habitat Conservation Plans 

The benefits of excluding lands with 

approved HCPs from critical habitat 

designation, such as HCPs that cover the 

PMJM, include relieving landowners, 

communities, and counties of any 

additional regulatory burden that might 

be imposed as a result of the critical 

habitat designation. Many HCPs take 

years to develop, and upon completion, 

are consistent with the recovery 

objectives for listed species that are 

covered within the plan area. Many 

HCPs also provide conservation benefits 

to unlisted sensitive species. 

A related benefit of excluding lands 

covered by approved HCPs from critical 

habitat designation is the unhindered, 

continued ability it gives us to seek new 

partnerships with future plan 

participants, including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. The 

HCPs often cover a wide range of 

species, including listed plant species 

and species that are not State or 

federally listed and would otherwise 

receive little protection from 

development. By excluding these lands, 

we preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

We also note that permit issuance in 

association with HCP applications 

requires consultation under section 

7(a)(2) of the Act, which would include 

the review of the effects of all HCPcovered activities that might adversely 

impact the species under a jeopardy 

standard, including possibly significant 

habitat modification (see definition of 

‘‘harm’’ at 50 CFR 17.3), even without 

the critical habitat designation. In 

addition, all other Federal actions that 

may affect the listed species would still 

require consultation under section 

7(a)(2) of the Act, and we would review 

these actions for possibly significant 

habitat modification in accordance with 

the definition of harm referenced above. 

Habitat Conservation Plans Evaluated 

for Exclusion 

The information provided in the 

previous section applies to the 

following analysis of exclusions under 

section (4)(b)(2) of the Act. Portions of 

the revised critical habitat units and 

their subunits warrant exclusion from 

the designation of revised critical 

habitat under section 4(b)(2) of the Act 

based on the partnerships, management, 

and protection afforded under these 

approved and legally operative HCPs. 

We consider a current plan (HCPs as 

well as other types) to provide adequate 

management or protection for PMJM 

and its habitat if it meets the following 

criteria: 

(1) The plan is complete and provides 

the same or better level of protection 

from adverse modification or 

destruction than that provided through 

a consultation under section 7 of the 

Act; 

(2) There is a reasonable expectation 

that the conservation management 

strategies and actions will be 

implemented for the foreseeable future 

and be effective, based on past practices, 

written guidance, or regulations; and 

(3) The plan provides adaptive 

management and conservation strategies 

and measures consistent with currently 

accepted principles of conservation 

biology. 

Section 10(a)(1)(B) of the Act 

authorizes us to issue to non-Federal 

entities a permit for the incidental take 

of endangered and threatened species. 

This permit allows a non-Federal 

landowner to proceed with an activity 

that is legal in all other respects, but 

that results in the incidental taking of a 

listed species (i.e., take that is incidental 

to, and not the purpose of, the carrying 

out of an otherwise lawful activity). The 

Act specifies that an application for an 

incidental take permit must be 

accompanied by a habitat conservation 

plan (HCP), and specifies the content of 

such a plan. The purpose of 

conservation agreements is to describe 

and ensure that the effects of the 

permitted action on covered species are 

adequately minimized and mitigated, 

and that the action does not appreciably 

reduce the survival and recovery of the 

species. In our assessment of 

conservation agreements associated 

with this final rulemaking, the analysis 

required for these types of exclusions 

involves careful consideration of the 

benefits of designation versus the 

benefits of exclusion. The benefits of 

designation typically arise from 

additional section 7 protections, as well 

as enhanced public awareness once 

specific areas are identified as critical 

habitat. The benefits of exclusion 

generally relate to relieving regulatory 

burdens on existing conservation 

partners, maintaining good working 

relationships with them, and 

encouraging the development of new 

partnerships. 

We have weighed the benefits of 

excluding lands in the following HCPs 

from critical habitat against the benefits 

of inclusion. We determined that the 

benefits of excluding the lands covered 

by the Denver Water HCP, Struthers 

Ranch HCP, Eagle’s Nest Open Space 

HCP, the Lefever Property HCP, and the 

Dahle Property HCP from designation as 

PMJM critical habitat outweigh the 

benefits of including these areas and 

that these exclusions would not result 

in extinction of the PMJM. Thus, as 

allowed by section 4(b)(2) of the Act, we 

have excluded them from the critical 

habitat designation. 

Denver Water Habitat Conservation Plan 

On May 1, 2003, we issued a section 

10 incidental take permit to Denver 

Water for the Denver Water HCP 

(Service 2003b). This permit covers the 

PMJM. Denver Water owns various 

properties (including easements), 

facilities, and infrastructure within the 

SPR in Colorado where the PMJM is 

listed. The Denver Water HCP covers 

the water facilities and infrastructure 

owned and operated by Denver Water, 

including: The Foothills, Marston, and 

Moffat treatment plants; 17 pump 

stations; 29 treated water storage 

reservoirs; and 2,464 mi (3,968 km) of 

pipe. The permit area includes 

approximately 6,000 ac (2,700 ha) of 

occupied and potential PMJM habitat on 

Denver Water properties in Boulder, 

Jefferson, and Douglas Counties. Denver 

Water properties covered by the HCP 

include portions of Units 5, 7, 9, and 10 

proposed as revised critical habitat. 

The HCP promotes implementation of 

applicable best management practices to 

benefit the PMJM that avoid, minimize, 

and eliminate impacts to occupied and 

potential PMJM habitat. Where 

unavoidable impacts occur, Denver 

Water conducts mitigation as required 

in the HCP. Denver Water is authorized 

to take up to 25 ac (10 ha) of occupied 

and potential habitat through impacts 

from the covered activities at any one 

time with a maximum of 75 ac (30 ha) 

total disturbed over the 30-year term of 

the HCP. 

This HCP provides long-term 

assurances that Denver Water’s covered 

activities are permitted and in 

compliance with the Act and provides 

the Service with a tool to minimize and 


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mitigate take on occupied and potential 

habitat. To accomplish these goals, the 

plan requires the following special 

management and protection: 

(a) Before conducting a covered 

activity (principally operations and 

maintenance activities) on occupied and 

potential habitat, Denver Water will 

determine whether avoidance and 

minimization efforts are applicable, 

practicable, and can be used to avoid, 

reduce, or eliminate take. Generally, the 

use of best management practices will 

be the most practicable avoidance or 

minimization tool. Appendix 5 of the 

HCP lists best management practices 

that may be applicable to Denver 

Water’s routine operation and 

maintenance activities and projects. In 

some cases, the use of best management 

practices will avoid take. In other 

situations, best management practices 

will minimize take. Where take still 

results, mitigation will be used to offset 

the impacts. 

(b) As required by section 10 

regulations (50 CFR 17.22), the HCP 

requires Denver Water to perform 

compliance monitoring and 

effectiveness monitoring to determine 

whether the terms and conditions of the 

HCP are being met. Monitoring activities 

include: Document pre- and post-impact 

site conditions; determine the extent of 

take of occupied and potential habitat; 

determine the success of PMJM habitat 

revegetation efforts; report on additional 

Denver Water actions, including 

initiation of mitigation, discussion of 

best management practices utilized, if 

any, and other management decisions 

that address implementation of the HCP; 

hold an annual meeting between Denver 

Water and the Service; and prepare an 

annual monitoring report. 

(c) Adaptive management will be 

employed to gain new data, or research 

new information regarding the biology 

of the PMJM. The use of adaptive 

management in areas of questionable 

PMJM habitat suitability, PMJM use, or 

PMJM presence will likely increase the 

potential for success within the HCP 

and increase the potential for new and 

useful information on PMJM biology to 

be acquired. 

(d) The HCP will result in the 

protection of over 6,000 ac (2,400 ha) of 

potential and occupied habitat. Denver 

Water must limit temporary impacts to 

25 ac (10 ha) of occupied and potential 

habitat at any one time. Temporary 

impacts will not exceed 75 ac (30 ha) 

over the term of the HCP. Denver Water 

will also track all impacts, restore 

disturbed vegetation, and track all 

successful restorations to ensure the 

above limits are not exceeded. 

(e) To offset foreseeable permanent 

impacts to 1 ac (0.4 ha) of habitat, 

Denver Water will create 0.25 ac (0.10 

ha) of riparian shrub, create 2.25 ac 

(0.91 ha) of upland occupied and 

potential habitat, and revegetate a 

number of trails and dirt roads. Should 

permanent impacts exceed the 1.0 ac 

(0.4 ha) (this HCP covers a maximum of 

10 ac (4 ha) of permanent impacts), 

Denver Water will mitigate this through: 

A conservation easement at a ratio of 

8:1; by enhancements at a ratio of 2:1; 

or a combination of preservation at 6:1 

and enhancements at 1:1. 

(f) Other mitigation includes: Weed 

management; education, training, and 

the distribution of information to 

Denver Water employees to promote 

avoidance, minimization, or best 

management practices as applicable and 

practicable; restoration of habitat 

linkage corridors; population 

monitoring and research; and provision 

of trapping data to the Service. 

Denver Water provides annual reports 

to the Service of activities conducted 

under the HCP. These reports document 

that conservation and management have 

been effective and consistent with 

provisions of the HCP. We believe that 

the Denver Water HCP is protective of 

the PMJM, is likely to be effective into 

the future, and is consistent with our 

regulatory objectives for protection of 

PMJM. 

Section 4(b)(2) Weighing Analysis 

Denver Water controls a large 

complex of treatment plants, pump 

stations, pipelines, and reservoirs, some 

including habitat occupied by the 

PMJM. Through their HCP, Denver 

Water agreed to follow best management 

practices to benefit the PMJM on 6,000 

ac (2,700 ha) of potential PMJM habitat, 

whether the PMJM is present or not. The 

principal benefit of any designated 

critical habitat is that Federal activities 

that may affect critical habitat require 

consultation under section 7 of the Act. 

There is little benefit to designating 

critical habitat on Denver Water 

properties because: (a) Denver Water has 

an HCP in place covering the same 

properties proposed for designation; (b) 

Denver Water is a private landowner 

conducting primarily private (nonFederal) actions in these areas; (c) less 

than 240 ac (100 ha) of the Denver 

Water HCP overlaps with areas 

proposed as critical habitat (the HCP 

covers a much larger area than would 

have been covered on Denver Water 

lands by the proposed critical habitat); 

(d) educational benefits from 

designation of critical habitat on areas 

within the Denver Water HCP (through 

mapping of essential habitat) would be 

minimal, as the areas in question are 

owned or leased by Denver Water, and 

Denver Water is well aware of the value 

to the PMJM of those areas proposed as 

critical habitat; (e) designation of critical 

habitat on private property may 

discourage private landowners from 

participating in an HCP; and (f) beyond 

regulatory benefits of critical habitat 

designation, we know of no additional 

protections (such as additional Federal 

or State laws or regulations) that would 

be triggered by critical habitat 

designation. 

The benefits of exclusion on Denver 

water properties, however, are that: (a) 

Denver Water’s HCP will provide greater 

assurances and conservation benefits to 

the PMJM than critical habitat 

designation, because the HCP will 

assure the long-term protection (totaling 

30 years, after which it may be 

extended) and management of the 

species and its habitat, with funding, 

through the standards in the HCP; (b) 

exclusion of properties within Denver 

Water’s HCP reduces the requirements 

for additional regulatory review and 

associated permitting costs (delays, 

administrative costs, consulting costs, 

and costs of developing additional 

conservation measures); (c) exclusion of 

critical habitat will allow more 

flexibility to a municipal water supplier 

with private lands and privately owned 

facilities to operate as needed in order 

to meet its mission of supplying water 

to its customers; and (d) Denver Water’s 

HCP provides an integrated and 

comprehensive approach to species 

conservation, rather than the piecemeal 

approach of multiple section 7 

consultations that only address 

activities with a Federal nexus. 

Development and implementation of 

this HCP has promoted a conservation 

partnership between Denver Water and 

the Service and benefitted the PMJM. 

Exclusion of areas within the HCP from 

proposed critical habitat would preserve 

this current partnership and encourage 

future cooperation on projects and 

programs effecting the PMJM, other 

listed species, and a broad array of fish 

and wildlife resources. 

After evaluating the benefits of 

exclusion and the benefits of inclusion, 

we have determined that the benefits of 

exclusion outweigh those of inclusion. 

Exclusion Will Not Result in Extinction 

of the Species 

The HCP covers only small portions 

of four proposed critical habitat units 

that total over 10,000 ac (4,000 ha). The 

HCP allows, at maximum, 10 ac (4 ha) 

of permanent impacts through the 30- 

year life of the permit. Both permanent 

and temporary impacts will be mitigated 


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as discussed above. We conclude that 

exclusion will not result in extinction of 

the PMJM, nor will it preclude 

conservation or recovery of the species. 

Struthers Ranch Habitat Conservation 

Plan 

On December 12, 2003, we issued a 

section 10 incidental take permit 

covering the PMJM for the Struthers 

Ranch residential development along 

Black Forest Creek, El Paso County, 

consistent with the Struthers Ranch 

HCP (Service 2003c). The site supported 

approximately 49 ac (20 ha) of PMJM 

habitat. Parts of the Struthers Ranch 

property are within Unit 11 of the area 

proposed as revised critical habitat. 

Flooding has heavily impacted the 

middle and upper portions of Black 

Forest Creek. A 1999 flood event 

inundated the middle fork and 

deposited a large amount of sand and 

silt downstream. The HCP was designed 

to minimize the possibility of future 

severe flooding events, substantially 

improve remaining PMJM habitat, and 

minimize adverse effects resulting from 

developed areas nearby. Under the HCP, 

approximately 35.5 ac (14.4 ha) of 

undeveloped land along Black Forest 

Creek was withdrawn from cattle 

grazing, was returned to a more natural 

condition, and is maintained as a 

preserve with conservation measures to 

restore and enhance vegetation for 

wildlife. An adaptive management 

strategy was addressed in the HCP. 

Monitoring has documented the 

successful restoration of the property in 

accordance with provisions of the HCP. 

Lands preserved as PMJM habitat are 

deed-restricted and managed for the 

PMJM. The deed restriction prohibits 

any activities that would adversely 

impact PMJM habitat. Conservation and 

management has been effective and 

consistent with provisions of the HCP. 

We conclude that the HCP is protective 

of the PMJM, is likely to be effective 

into the future, and is consistent with 

our regulatory objectives. 

Section 4(b)(2) Weighing Analysis 

Through their HCP, Struther’s Ranch 

agreed to follow best management 

practices to benefit the PMJM on 35.5 ac 

(14.4 ha) of PMJM habitat. The principal 

benefit of any designated critical habitat 

is that Federal activities that may affect 

the habitat require consultation under 

section 7 of the Act. There is little 

benefit to designating critical habitat on 

Struther’s Ranch property because: (a) 

An HCP is in place covering the same 

area proposed for designation; (b) 

Struther’s Ranch is private land with 

primarily private (non-Federal) actions 

in this area; (c) the area covered by the 

HCP encompasses only a small fraction 

of a unit (i.e., most of the designation in 

this unit will remain intact); (d) 

educational benefits from designation of 

critical habitat on areas within the 

Struther’s Ranch HCP (through mapping 

of essential habitat) would be minimal, 

as the owners of the area in question are 

well aware of the value to the PMJM of 

the area proposed as critical habitat; (e) 

designation of critical habitat on private 

property may discourage private 

landowners from participating in an 

HCP; and (f) beyond regulatory benefits 

of critical habitat designation, we know 

of no additional protections (such as 

additional Federal or State laws or 

regulations) that would be triggered by 

critical habitat designation. 

The benefits of exclusion of the 

Struther’s Ranch HCP land are: (a) The 

Struther’s Ranch HCP will provide 

greater assurances and conservation 

benefits to the PMJM than critical 

habitat designation, because the HCP 

assures the area is deed restricted and 

managed for the PMJM; and (b) The 

Struther’s Ranch HCP provides an 

integrated and comprehensive approach 

to species conservation on site rather 

than the piecemeal approaches of 

section 7 consultation that only 

addresses activities with a Federal 

nexus. 

After evaluating the benefits of 

exclusion and the benefits of inclusion, 

we have determined that the benefits of 

exclusion outweigh those of inclusion. 

Exclusion Will Not Result in Extinction 

of the Species 

Habitat impacts allowed under this 

HCP have already occurred. We 

conclude that exclusion will not result 

in extinction of the PMJM, nor will it 

preclude conservation or recovery of the 

species. 

Eagle’s Nest Open Space Habitat 

Conservation Plan 

On August 5, 2004, we issued Larimer 

County a section 10 incidental take 

permit covering the PMJM consistent 

with the county’s HCP for their Eagle’s 

Nest Open Space (ENOS) property, 

located in the Laramie Foothills region 

of Larimer County (Service 2004b). The 

ENOS is partially within Unit 1 of the 

area that was proposed as revised 

critical habitat. The ENOS encompasses 

755 ac (306 ha) of rolling foothills and 

steep slopes and includes 1.0 mi (1.6 

km) of the North Fork of the Cache la 

Poudre River. There are approximately 

261 ac (106 ha) of PMJM habitat on the 

ENOS, the vast majority of which is 

managed for PMJM conservation under 

the HCP. Less than 3 ac (1 ha) can be 

permanently affected under the ENOS 

HCP for a natural-surface hiking and 

equestrian trail, and cattle access to the 

river. Agreed-upon habitat improvement 

for the PMJM included fencing off of 

riparian areas to control cattle grazing, 

shrub planting, limiting management 

activities during the PMJM active 

season, and control of public access and 

allowed activities. This area is protected 

as open space by the Larimer County 

Open Lands program. The protection 

and enhancement of wildlife habitat is 

one of the primary goals on ENOS. The 

area is used for educational programs by 

the county, demonstrating PMJM and 

riparian habitat management. Mitigation 

is paid for through the county’s Help 

Preserve Open Space Sales Tax 

revenues guaranteed through 2018. 

Success criteria, monitoring, and a 

process to address unforeseeable events 

are addressed in the HCP. Monitoring 

reports submitted from 2004 through 

2008 documented the success of 

mitigation efforts. 

Section 4(b)(2) Weighing Analysis 

Through their HCP, Larimer County 

agreed to follow best management 

practices to benefit the PMJM through 

protection and management of 261 ac 

(106 ha) of PMJM habitat. The principal 

benefit of any designated critical habitat 

is that Federal activities that may affect 

the habitat require consultation under 

section 7 of the Act. There is little 

benefit to designating critical habitat on 

ENOS property because: (a) An HCP is 

in place covering the same area 

proposed for designation; (b) ENOS is 

owned by Larimer County with 

primarily private (non-Federal) actions 

in this area; (c) the area covered by the 

HCP encompasses only a small fraction 

of Unit 1; (d) educational benefits from 

designation of critical habitat on areas 

within the ENOS HCP (through 

mapping of essential habitat) would be 

minimal, as Larimer County is aware of 

the value to the PMJM of the area 

proposed as critical habitat and is using 

it to educate the public about PMJM and 

its habitat; (e) designation of critical 

habitat on non-Federal property may 

discourage local government from 

participating in an HCP; and (f) beyond 

regulatory benefits of critical habitat 

designation, we know of no additional 

protections (such as additional Federal 

or State laws or regulations) that would 

be triggered by critical habitat 

designation. 

The benefits of exclusion of the ENOS 

HCP land, however, are that: (a) The 

ENOS HCP will provide greater 

assurances and conservation benefits to 

the PMJM than critical habitat 

designation because the HCP will assure 

the area is managed for the PMJM; (b) 


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The ENOS HCP provides an integrated 

and comprehensive approach to species 

conservation rather than the piecemeal 

approach of section 7 consultations that 

only addresses activities with a Federal 

nexus; and (c) development and 

implementation of this HCP has 

promoted a conservation partnership 

between Larimer County and the 

Service, and has benefitted the PMJM. 

Exclusion of areas within the HCP from 

proposed critical habitat would preserve 

this current partnership and encourage 

future cooperation on projects and 

programs effecting the PMJM, other 

listed species, and a broad array of fish 

and wildlife resources. 

After evaluating the benefits of 

exclusion and the benefits of inclusion, 

we have determined that the benefits of 

exclusion outweigh those of inclusion. 

Exclusion Will Not Result in Extinction 

of the Species 

Impacts to habitat (3 ac (1 ha)) 

allowed by the ENOS HCP have already 

occurred. Remaining PMJM habitat is 

managed as described above. We 

conclude that exclusion will not result 

in extinction of the PMJM, nor will it 

preclude conservation or recovery of the 

species. 

Other Habitat Conservation Plan Lands 

On November 19, 2002, we approved 

an HCP, and we issued a section 10 

incidental take permit covering the 

PMJM for a single family residence on 

the Lefever Property along Black 

Squirrel Creek in Black Forest, El Paso 

County (Service 2002b). The Lefever 

Property is within Unit 11 of the area 

proposed as revised critical habitat. 

Under the HCP, 0.56 ac (0.25 ha) of 

PMJM habitat was permitted to be 

disturbed, and 4.52 ac (1.83 ha) of the 

property was placed in a conservation 

easement and deeded to El Paso County, 

to be managed as foraging habitat for the 

PMJM according to specific 

requirements laid out in the HCP. The 

following activities are expressly 

prohibited by the property easement: 

Construction or reconstruction of any 

building or other structure or 

improvement on portions of the 

property; any division or subdivision of 

the title to the property; commercial 

timber harvesting; mining or extraction 

of soil, sand, gravel, rock, oil, natural 

gas, fuel, or any other mineral 

substance; paving or otherwise covering 

with concrete, asphalt, or any other 

paving material; and the dumping or 

uncontained accumulation of any trash, 

refuse, or debris on the property. As 

further compensation for the impacted 

habitat, 0.89 ac (0.36 ha) of the 4.52 ac 

(1.83 ha) were planted with 100 shrubs 

to enhance PMJM habitat. Three years of 

monitoring demonstrated success of the 

planting effort. The permit expires 

November 19, 2012, but the 

conservation easement and 

requirements of the HCP call for the 

property to be managed consistent with 

the needs of the PMJM in perpetuity. 

On July 23, 2002, we approved a loweffect HCP, and we issued a section 10 

incidental take permit covering the 

PMJM for a single family residence on 

the Dahle Property, Thunderbird 

Estates, near Monument Creek in 

Colorado Springs, El Paso County 

(Service 2002c). The Dahle Property is 

within Unit 11 of the area proposed as 

revised critical habitat. Under the HCP, 

0.15 ac (0.060 ha) of upland PMJM 

habitat was permitted to be disturbed 

for the construction of a single-family 

residence and 0.5 ac (0.2 ha) of the 

property was preserved in a native and 

unmowed condition and enhanced 

through weed control and Salix (willow) 

planting. Required monitoring has 

documented success of these measures. 

The take permit expired July 29, 2007; 

however, preservation of PMJM habitat 

continues in perpetuity. 

Section 4(b)(2) Weighing Analysis 

The Lefever Property and Dahle 

Property HCPs address single residences 

on small properties. The applicants 

expended significant resources to 

develop these HCPs. Relieving these 

landowners of any real or perceived 

regulatory burden that might 

accompany designation of critical 

habitat supports partnerships between 

the private property owners and the 

Service. The principal benefit of any 

designated critical habitat is that 

Federal activities that may affect the 

habitat require consultation under 

section 7 of the Act. There is little 

benefit to designating critical habitat on 

properties covered by these two HCPs 

because: (a) The HCPs cover the same 

area proposed for designation; (b) it is 

unlikely that future Federal actions will 

occur on these small private areas; (c) 

the areas covered by the HCPs 

encompass a small fraction of Unit 11; 

(d) educational benefits from 

designation of critical habitat on areas 

within the HCPs (through mapping of 

essential habitat) would be minimal, as 

the two single landowners are aware of 

the value to the PMJM of the area 

proposed as critical habitat; (e) 

designation of critical habitat on nonFederal property may discourage private 

entities from participating in an HCP; 

and (f) beyond regulatory benefits of 

critical habitat designation, we know of 

no additional protections (such as 

additional Federal or State laws or 

regulations) that would be triggered by 

critical habitat designation. 

The benefits of exclusion of land in 

these two HCPs, however, are that: (a) 

The HCPs will provide greater 

assurances and conservation benefits to 

the PMJM than critical habitat 

designation because the HCPs assure the 

areas are managed to preserve habitat 

for the PMJM; and (b) development and 

implementation of these HCPs has 

promoted a conservation partnership 

between private landowners and the 

Service, and has benefitted the PMJM. 

Exclusion of areas within the HCPs from 

proposed critical habitat may serve as 

an example to private landowners and 

encourage future cooperation on 

projects and programs effecting the 

PMJM, other listed species, and other 

fish and wildlife resources. 

After evaluating the benefits of 

exclusion and the benefits of inclusion, 

we have determined that the benefits of 

exclusion outweigh those of inclusion. 

Exclusion Will Not Result in Extinction 

of the Species 

The Lefever Property and Dahle 

Property HCP permits allowed 0.71 ac 

(0.31 ha) of permanent habitat impacts, 

which have already occurred. Offsets 

and mitigation included additional 

lands that have been set aside for the 

PMJM, with habitat improvement and 

conservation easement, as described 

above. We conclude that exclusion of 

the lands in these HCPs will not result 

in extinction of the PMJM, nor will it 

preclude conservation or recovery of the 

species. 

Summary of Habitat Conservation Plan 

Lands Excluded 

Based on our evaluation of special 

management considerations and 

protection provided by the Denver 

Water HCP, the Struthers Ranch HCP, 

the Eagle’s Nest Open Space HCP, the 

Lefever Property HCP, and the Dahle 

Property HCP, and in light of the 

definition of critical habitat in section 

3(5)(A) of the Act, we have considered, 

but are not, designating these areas as 

revised critical habitat. We believe that 

these HCPs meet the criteria used by the 

Service to determine whether a plan 

provides adequate special management 

or protection to a listed species. The 

conservation strategies and measures are 

likely to be effective, because they were 

developed based on the best scientific 

data available and they required 

monitoring and reporting to ensure 

compliance and success. The lands 

excluded total 6,315.73 ac (2,328.34 ha), 

in portions of Units 1, 5, 7, 9, 10, and 

11. 


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Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant. OMB bases its 

determination upon the following four 

criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA, 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 (5 U.S.C. 801 et seq.), whenever an 

agency must 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 

effects 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 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

As part of our DEA for the proposed 

designation, we provided our initial 

regulatory flexibility analysis for 

determining whether the proposed rule 

would result in a significant economic 

impact on a substantial number of small 

entities. Based on comments we 

received, we have revised the FEA and 

finalized our regulatory flexibility 

analysis (FRFA), as part of our final 

rulemaking. In this final rule, we are 

certifying that the critical habitat 

designation for the PMJM will not have 

a significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). 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 

considered the types of activities that 

might trigger regulatory impacts under 

the 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 final designation 

of revised critical habitat for the PMJM 

would affect a substantial number of 

small entities, we considered the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

In order to determine whether it is 

appropriate for our agency to certify that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities, we considered 

each industry or category individually. 

However, the SBREFA does not 

explicitly define substantial number or 

significant economic impact. 

Consequently, to assess whether a 

substantial number of small entities is 

affected by this revised 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 numbers of small entities 

potentially affected, we also considered 

whether their activities have any 

Federal involvement. Critical habitat 

designation will not affect activities that 

do not have any Federal involvement; 

designation of critical habitat affects 

activities conducted, funded, permitted, 

or authorized by Federal agencies. 

Under the Act, designation of critical 

habitat only affects activities carried 

out, funded, or permitted by Federal 

agencies. Following this revised critical 

habitat designation, Federal agencies 

must consult with us under section 7 of 

the Act if their activities may affect 

designated critical habitat. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat will be incorporated into the 

existing consultation process. 

Some kinds of activities are unlikely 

to have any Federal involvement and so 

will not result in any additional effects 

under the Act. However, there are some 

State laws that limit activities in 

designated critical habitat even where 

there is no Federal nexus. If there is a 

Federal nexus, Federal agencies will be 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or carry out that may 

affect critical habitat. If we conclude, in 

a biological opinion, that a proposed 

action is likely to destroy or adversely 

modify 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 

destroying or adversely modifying 

critical habitat. 

Within the revised critical habitat 

designation, the types of actions or 

authorized activities that we have 

identified as potential concerns and that 

may be subject to consultation under 

section 7 if there is a Federal nexus are: 

Residential and commercial 

development; roads/bridges, utilities, 

and bank stabilization projects; water 

supply development; USFS land 

management practices; Rocky Flats Site 

management practices; and gravel 

mining. As discussed in Appendix A of 

the FEA, of the activities addressed in 

the analysis, only residential and 

commercial development, and 

construction and maintenance of roads/ 

bridges, utilities, and bank stabilization 

projects, are expected to experience 

incremental, administrative 

consultation costs that may be borne by 

small businesses. 

Any existing and planned projects, 

land uses, and activities that could 

affect the revised critical habitat but 

have no Federal involvement would not 

require section 7 consultation with the 

Service, so they are not restricted by the 

requirements of the Act. Federal 

agencies may need to reinitiate a 

previous consultation if discretionary 

involvement or control over the Federal 


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action has been retained or is authorized 

by law and the activities may affect 

critical habitat. 

In the FEA, we evaluated the potential 

economic effects on small entities 

resulting from implementation of 

conservation actions related to the 

designation of critical habitat for the 

PMJM. Please refer to our FEA of the 

revised critical habitat designation for a 

more detailed discussion of potential 

economic impacts; we will summarize 

key points of the analysis below. 

The FEA, and its associated FRFA, 

estimate that total potential incremental 

economic impacts in areas designated as 

revised critical habitat over the next 20 

years will be $2.66 million to $5.98 

million annually, assuming a 7-percent 

discount rate. Approximately 96 percent 

of the incremental impacts attributed to 

the designation of critical habitat are 

expected to be related to section 7 

consultations with Federal agencies for 

residential and commercial 

development. Expected impacts to 

residential and commercial 

development include added costs 

primarily due to administrative 

consultations and required 

modifications to development project 

scope or design, including mitigation (or 

setting aside conservation lands), 

habitat restoration and enhancement, 

and project delays. Small entities 

represent 97 percent of all entities in the 

residential and commercial 

development industry that may be 

affected. Incremental costs also are 

expected related to road/bridge, utility, 

and bank stabilization construction and 

maintenance activities throughout the 

revised critical habitat. Small entities 

represent 90 percent of all entities in the 

road/bridge, utility, and bank 

stabilization construction and 

maintenance industries that may be 

affected. The Small Business Size 

Standard for the industry sectors that 

could potentially be affected by the 

revised critical habitat designation are 

as follows: 

• New Housing Operative Builders— 

$33.5 million in annual receipts. 

• Land Subdivision—$7 million in 

annual receipts. 

• Natural Gas Distribution—500 

employees. 

• Water Supply and Irrigation 

Systems—$7 million annual receipts. 

• Pipeline Transportation of Natural 

Gas—$7 million annual receipts. 

In addition, government entities in 

the area may be affected. Of these, 

approximately 70 percent are small 

government jurisdictions (i.e., cities, 

counties, towns, townships, villages, 

school districts, or special districts with 

a population of less than 50,000). 

Of principal interest is residential and 

commercial development, and 

associated land subdivision, as an 

estimated 96 percent of potential 

incremental impacts may affect that 

industry sector. The small businesses in 

this industry sector may bear a total of 

$26.2 to $60.3 million (at a 7-percent 

discount rate) in incremental impacts 

related to section 7 consultations over 

the next 20 years (through 2029). 

However, when expressed as a 

percentage of a small developer’s annual 

sales revenue, assuming that one small 

developer is required for each of the 

development projects, these monetary 

incremental impacts are likely to be 

small. The incremental impact due to 

revised critical habitat designation is 

estimated to range from $171,000 to 

$393,000 per project. An average of 

eight projects is anticipated to occur in 

critical habitat per year. For new home 

builders, estimated annual sales in 2007 

per developer in Colorado were $6.51 

million. Therefore, in years where a 

developer has a project in critical 

habitat, the estimated incremental 

impact represents 2.6 to 6.0 percent of 

that developer’s annual sales in this 

industry. However, we expect these 

costs to be incurred over a period of 

more than one year, as most 

developments will take longer than one 

year to complete (i.e., if a project takes 

2 or more years to complete, the impact 

as a proportion of revenue in any one 

year will be substantially less). 

For land subdividers, the FEA 

assumes that annual sales per 

establishment are limited to the small 

business threshold of $7 million 

annually. The estimated annual 

incremental impact therefore represents 

2.4 to 4.6 percent of a subdivider’s 

annual sales. As discussed above, the 

incremental impact associated with 

each project is expected to be incurred 

over a period of more than one year. 

Thus, this analysis overstates the actual 

annual impact on a small entity. 

There are additional factors that may 

cause this analysis to overstate the 

actual impact on small residential and 

commercial developers, and on land 

subdividers. First, it is likely that a 

portion of the impact will be realized by 

landowners in the form of higher 

housing prices. The proportion of the 

total impact borne by landowners is 

unknown. We believe the analysis gives 

a high estimate of possible development 

and that it is likely the actual amount 

of development will be less. As 

described in Chapter 3 of the FEA, the 

analysis likely overstates the amount of 

development activity and, therefore, the 

total incremental impact associated with 

residential and commercial 

development. Lastly, anecdotal 

evidence and existing county building 

restrictions suggest that fewer properties 

within revised critical habitat are being 

developed than are quantified by the 

FEA. This will likely further reduce the 

annual incremental impact borne per 

small entity. 

For road/bridge, utility, and bank 

stabilization construction and 

maintenance, the FEA estimates that 

incremental impacts will range from 

$322,000 to $748,000 over 20 years, or 

$30,400 to $76,000 annually. Given an 

estimated average of four projects 

impacting critical habitat and requiring 

section 7 consultation each year, and 

assuming one small entity 

(municipality, wastewater district, etc.) 

conducts each activity, the impact to 

each small government entity involved 

would be $7,600 to $17,700. 

In summary, we have considered 

whether this revised designation will 

result in a significant economic impact 

on a substantial number of small 

entities. Given the analysis above, the 

expected annual impacts to small 

businesses in the affected industries are 

significantly less than the annual 

revenues that could be garnered by a 

single small operator in those 

industries, and as such, impacts are low 

relative to potential revenues. Based on 

the above reasoning and currently 

available information, we conclude that 

this rule will not have a significant 

economic impact on a substantial 

number of small business entities. 

Therefore, we are certifying that the 

revised designation of critical habitat for 

the PMJM will not have a significant 

economic impact on a substantial 

number of small entities. 

Energy Supply, Distribution, and Use— 

Executive Order 13211 

On May 18, 2001, the President issued 

E.O. 13211 (Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use) 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. The Office 

of Management and Budget’s guidance 

for implementing this Executive Order 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’ 

when compared to no regulatory action. 

The only criterion that may be relevant 

to this analysis is increases in the cost 

of energy distribution in excess of one 

percent. As described in the FEA, 

constructing and maintaining electrical 

and natural gas distribution and 

transmission systems is a type of utility 

project potentially occurring in the 


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revised critical habitat. The FEA 

concludes that incremental impacts may 

be incurred; however, they are unlikely 

to reach the threshold of one percent. 

Therefore, designation of revised critical 

habitat is not expected to lead to any 

adverse outcomes (such as a reduction 

in electricity production or an increase 

in the cost of energy production or 

distribution), and a Statement of Energy 

Effects is not 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: 

(1) 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, or 

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. 

First, it excludes ‘‘a condition of federal 

assistance.’’ Second, it excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 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; Aid to Families with 

Dependent Children 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 nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

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. 

(2) As discussed in the FEA of the 

designation of revised critical habitat for 

the PMJM, we do not believe that the 

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 FEA concludes that 

incremental impacts may occur due to 

project modifications that may need to 

be made for development activities; 

however, these are not expected to affect 

small governments to the extent 

described above. Consequently, we do 

not believe that this final revised critical 

habitat designation will significantly or 

uniquely affect small government 

entities. As such, a Small Government 

Agency Plan is not required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the PMJM 

in a takings implications assessment. 

Critical habitat designation does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. The takings 

implications assessment concludes that 

this designation of critical habitat for 

the PMJM does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132, this 

rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of, our revised 

critical habitat designation with 

appropriate State resource agencies in 

Colorado. We received no comments 

from the State of Colorado or State 

resource agencies in Colorado. The 

designation of critical habitat in areas 

currently occupied by the PMJM may 

impose nominal additional regulatory 

restrictions to those currently in place 

and, therefore, may have little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments, in that the areas that 

contain the physical and biological 

features essential to the conservation of 

the species are more clearly defined, 

and the PCEs of the habitat necessary to 

the conservation of the species are 

specifically identified. This information 

does not alter where and what federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), this rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of the Order. 

We are designating critical habitat in 

accordance with the provisions of the 

Act. This final rule uses standard 

property descriptions and identifies the 

physical and biological features 

essential to the conservation of the 

subspecies within the designated areas 

to assist the public in understanding the 

habitat needs of the PMJM. 

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 of 1995 (44 U.S.C. 3501 

et seq.). 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. 


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National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We completed a NEPA analysis for 

this revised critical habitat designation. 

We notified the public of availability of 

the draft environmental assessment for 

the proposed rule on May 27, 2010 (75 

FR 29700. The final environmental 

assessment, as well as the Finding of No 

Significant Impact, is available upon 

request from the Field Supervisor, 

Colorado Ecological Services Office (see 

FOR FURTHER INFORMATION CONTACT

section) or on our Web site at http:// 

mountain-prairie.fws.gov/species/

mammals/preble/ 

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), E.O. 13175, 

the Department of the Interior’s manual 

at 512 DM 2, and Secretarial Order 

3206, we readily acknowledge our 

responsibility to communicate 

meaningfully with recognized Federal 

tribes on a government-to-government 

basis. In accordance with Secretarial 

Order 3206 of June 5, 1997 (American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act), we readily 

acknowledge our responsibilities to 

work directly with Tribes in developing 

programs for healthy ecosystems, to 

acknowledge that tribal lands are not 

subject to the same controls as Federal 

public lands, to remain sensitive to 

Indian culture, and to make information 

available to Tribes. We determined that 

there are no Tribal lands in Colorado 

occupied at the time of listing that 

contain the features essential for the 

conservation of the PMJM, and no 

unoccupied Tribal lands that are 

essential for the conservation of the 

PMJM. Therefore, we are not 

designating critical habitat for the PMJM 

on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available online at 

http://mountain-prairie.fws.gov/species/

mammals/preble, or upon request from 

the Field Supervisor, Colorado 

Ecological Services Office (see 

ADDRESSES). 

Authors 

The primary authors of this package 

are the staff members of the Colorado 

Ecological Services Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, for the reasons we have 

stated in the preamble, we amend part 

17, subchapter B of chapter I, title 50 of 

the Code of Federal Regulations as set 

forth below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.95(a), revise the entry for 

‘‘Preble’s Meadow Jumping Mouse 

(Zapus hudsonius preblei)’’ to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Preble’s Meadow Jumping Mouse 

(Zapus hudsonius preblei) 

(1) Critical habitat units are depicted 

for Boulder, Broomfield, Douglas, El 

Paso, Jefferson, Larimer, and Teller 

Counties in Colorado on the maps 

below. 

(2) The primary constituent elements 

of critical habitat for the Preble’s 

meadow jumping mouse are: 

(i) Riparian corridors: 

(A) Formed and maintained by 

normal, dynamic, geomorphological, 

and hydrological processes that create 

and maintain river and stream channels, 

floodplains, and floodplain benches and 

that promote patterns of vegetation 

favorable to the Preble’s meadow 

jumping mouse; 

(B) Containing dense, riparian 

vegetation consisting of grasses, forbs, or 

shrubs, or any combination thereof, in 

areas along rivers and streams that 

normally provide open water through 

the Preble’s meadow jumping mouse’s 

active season; and 

(C) Including specific movement 

corridors that provide connectivity 

between and within populations. This 

may include river and stream reaches 

with minimal vegetative cover or that 

are armored for erosion control; travel 

ways beneath bridges, through culverts, 

along canals and ditches; and other 

areas that have experienced substantial 

human alteration or disturbance. 

(ii) Additional adjacent floodplain 

and upland habitat with limited human 

disturbance (including hayed fields, 

grazed pasture, other agricultural lands 

that are not plowed or disked regularly, 

areas that have been restored after past 

aggregate extraction, areas supporting 

recreational trails, and urban–wildland 

interfaces). 

(3) Critical habitat does not include 

buildings, roads, parking lots, other 

paved areas, lawns, other urban and 

suburban landscaped areas, regularly 

plowed or disked agricultural areas, and 

the land on which they are located 

existing within the legal boundaries on 

the effective date of this rule. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS digital ortho-photo 

quarter-quadrangles, and critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) Zone 15N 

coordinates. 

(5) Note: Index map of critical habitat 

for the Preble’s meadow jumping mouse 

follows: 

BILLING CODE 4310–55–P 


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(6) Unit 1: North Fork Cache la Poudre 

River, Larimer County, Colorado. 

(i) This unit consists of 87.2 mi (140.4 

km) of streams and rivers. North Fork 

Cache la Poudre River from Seaman 

Reservoir (40 43 7N 105 14 32W, T.9N., 

R.70W., Sec. 28) upstream to Halligan 

Reservoir spillway (40 52 44N 105 20 

15W, T.11N., R.71W., Sec. 34) excluding 

1.06 mi (1.71 km) of the North Fork 

Cache la Poudre River within the Eagles 

Nest Open Space (from 40 45 44N 105 

13 50W, T. 9N, R.70W., Sec. 9 to 40 46 

17N 105 13 59W, T. 9N, R.70W., Sec. 4). 

Includes Lone Pine Creek from its 

confluence North Fork Cache la Poudre 

River (40 47 54N 105 15 30W, T.10N., 

R.70W., Sec. 32) upstream and 

continuing upstream into North Lone 

Pine Creek to 7,600 ft (2,317 m) 

elevation (40 49 58N 105 34 09W, 

T.10N., R.73W., Sec. 15). Includes 

Columbine Canyon from its confluence 

with North Lone Pine Creek (40 49 47N 

105 33 31W, T.10N., R.73W., Sec. 15) 

upstream to 7,600 ft (2,317 m) elevation 

(40 49 32N 105 33 58W, T.10N., R.73W., 

Sec. 15). Also includes Stonewall Creek 

from its confluence with North Fork 

Cache la Poudre River (40 48 19N 105 

15 21W, T.10N., R.70W., Sec. 29) 

upstream to (40 53 26N 105 15 40W, 

T.11N., R.70W., Sec. 29). Includes 

Tenmile Creek from its confluence with 

Stonewall Creek (40 51 49N 105 15 

32W, T.10N., R.70W., Sec. 5) upstream 

to Red Mountain Road (40 53 00N 105 

16 09W, T.11N., R.70W., Sec. 31). Also 

includes Rabbit Creek from its 

confluence with North Fork Cache la 

Poudre River (40 48 30N 105 16 07W, 

T.10N., R.70W., Sec. 30) upstream to the 

confluence with North and Middle 

Forks of Rabbit Creek (40 49 34N 105 20 

49W, T.10N., R 71W., Sec. 21). Also 

includes South Fork Rabbit Creek from 

its confluence with Rabbit Creek (40 48 

39N 105 19 45W, T.10N., R.71W., Sec. 

27) upstream to (40 49 39N 105 24 40W, 

T.10N., R.72W., north boundary Sec. 

24). Includes an unnamed tributary from 

its confluence with South Fork Rabbit 

Creek (40 47 28N 105 20 47W, T.10N., 

R.71W., Sec. 33) upstream to (40 47 28N 

105 23 12W, T.10N., R.71W., Sec. 31). 

Which in turn has an unnamed tributary 

from their confluence at (40 47 17N 105 

21 48W, T.10N., R.71W., east boundary 

Sec. 32) upstream to (40 46 55N 105 22 

16W, T.9N., R.71W., Sec. 5). Also 

includes Middle Fork Rabbit Creek from 

its confluence with Rabbit Creek (40 49 

34N 105 20 49W, T.10N., R 71W., Sec. 

21) upstream to 7,600 ft (2,317 m) 

elevation (40 49 46N 105 26 59W, 

T.10N., R.72W., Sec. 15). This includes 

an unnamed tributary from its 

confluence with Middle Fork Rabbit 

Creek (40 49 56N 105 25 51W, T.10N., 

R.72W., Sec. 14) upstream to 7,600 ft 

(2,317 m) elevation (40 48 48N 105 26 

29W, T.10N., R.72W., Sec. 23). This unit 

includes North Fork Rabbit Creek from 

its confluence with Rabbit Creek (40 49 

34N 105 20 49W, T.10N., R.71W., Sec. 

21) upstream to 7,600 ft (2,317 m) 

elevation (40 49 38N 105 29 19W, 

T.10N., R.72W., Sec. 17). Includes an 

unnamed tributary from its confluence 

with North Fork Rabbit Creek (40 50 

45N 105 27 44W, T.10N., R.72W., Sec. 

9) upstream to 7,600 ft (2,317 m) 

elevation (40 50 57N 105 28 46W, 

T.10N., R.72W., Sec. 9). 

(ii) Note: Map of Unit 1 follows: 


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(7) Unit 2: Cache la Poudre River, 

Larimer County, Colorado. 

(i) This unit consists of 50.8 mi (81.7 

km) of streams and rivers. Cache la 

Poudre River from Poudre Park (40 41 

16N 10 18 2W, T.8N., R.71W., Sec. 2) 

upstream to (40 42 02N 105 34 04W, 

T.9N., R.73W., west boundary Sec. 34). 

Includes Hewlett Gulch from its 

confluence with Cache la Poudre River 

(40 41 16N 105 18 24W, T.8N., R.71W., 

Sec. 2) upstream to the boundary of 

Arapahoe-Roosevelt National Forest (40 

43 29N 105 18 51W, T.9N., R.71W., Sec. 

23). Also includes Young Gulch from its 

confluence with Cache la Poudre River 

(40 41 25N 105 20 57W, T.8N., R.71W., 

Sec. 4) upstream to (40 39 14N 105 20 

13W, T.8N., R.71W., south boundary 

Sec. 15). Also includes an unnamed 

tributary from its confluence with Cache 

la Poudre River at Stove Prairie Landing 

(40 40 58N 105 23 23W, T.8N., R.71W., 

Sec. 6) upstream to (40 39 31N 105 22 

34W, T.8N., R.71W., Sec. 17). Includes 

Skin Gulch from its confluence with the 

aforementioned unnamed tributary at 

(40 40 33N 105 23 16W, T.8N., R.71W., 

Sec. 7) upstream to (40 39 40N 105 24 

16W, T.8N., R.72W., Sec. 13). Unit 2 

also includes Poverty Gulch from its 

confluence with Cache la Poudre River 

(40 40 28N 105 25 44W, T.8N., R.72W., 

Sec. 11) upstream to 7,600 ft (2,317 m) 

elevation (40 39 01N 105 26 40W, T.8N., 

R.72W., Sec. 22). Also includes Elkhorn 


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Creek from its confluence with Cache la 

Poudre River (40 41 50N 105 26 24W, 

T.9N., R.72W., Sec. 34) upstream to (40 

44 03N 105 27 34W, T.9N., R.72W., Sec. 

21). Also includes South Fork Cache la 

Poudre River from its confluence with 

Cache la Poudre River (40 41 11N 105 

26 50W, T.8N., R.72W., Sec. 3) upstream 

to 7,600 ft (2,317 m) elevation (40 38 

48N 105 29 22W, T.8N., R.72W., Sec. 

20). Includes Pendergrass Creek from its 

confluence with South Fork Cache la 

Poudre River (40 39 56N 105 27 30W, 

T.8N., R.72W., Sec. 15) upstream to 

7,600 ft (2,317 m) elevation (40 38 34N 

105 27 28W, T.8N., R.72W., Sec. 22). 

Also included in the unit is Bennett 

Creek from its confluence with Cache la 

Poudre River (40 40 26N 105 28 41W, 

T.8N., R.72W., Sec. 9) upstream to 7,600 

ft (2,317 m) elevation (40 39 19N 105 31 

29W, T.8N., R.73W., Sec. 13). 

(ii) Note: Map of Unit 2 follows: 

BILLING CODE 4310–55–P 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.004</GPH>
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78473 

(8) Unit 3: Buckhorn Creek, Larimer 

County, Colorado. 

(i) This unit consists of 45.5 mi (73.2 

km) of streams. Buckhorn Creek from 

(40 30 20N 105 13 39W, T.6N., R.70W., 

east boundary Sec. 9) upstream to 7,600 

ft (2,317 m) elevation (40 34 17N 105 25 

31W, T.7N., R.72W., Sec. 14). Includes 

Little Bear Gulch from its confluence 

with Buckhorn Creek (40 31 17N 105 15 

33W, T.6N., R.70W., Sec. 5) upstream to 

(40 30 43N 105 16 35W, T.6N., R.70W., 

Sec. 6). Also includes Bear Gulch from 

its confluence with Buckhorn Creek (40 

31 16N 105 15 52W, T.6N., R.70W., Sec. 

5) upstream to 7,600 ft (2,317 m) 

elevation (40 29 45N 105 20 4W, T.6N., 

R.71W., Sec. 10). Also includes 

Stringtown Gulch from its confluence 

with Buckhorn Creek (40 32 21N 105 16 

42W, T.7N., R.70W., Sec. 30) upstream 

to 7,600 ft (2,317 m) elevation (40 30 

30N 105 20 50W, T.6N., R.71W., Sec. 4). 

Also includes Fish Creek from its 

confluence with Buckhorn Creek (40 32 

48N 105 18 20W, T.7N., R.70W., Sec. 

30) upstream to 7,600 ft (2,317 m) 

elevation (40 30 56N 105 21 20W, T.6N., 

R.71W., Sec. 4). Includes North Fork 

Fish Creek from its confluence with 

Fish Creek (40 32 48N 105 18 20W, 

T.7N., R.71W., west boundary Sec. 25) 

upstream and following the first 

unnamed tributary northwest to (40 33 

34N 105 19 45W, T.7N., R.71W., Sec. 

22). Also includes Stove Prairie Creek 

from its confluence with Buckhorn 

Creek (40 34 16N 105 19 48W, T.7N., 

R.71W., Sec. 15) upstream to the dirt 

road crossing at (40 35 22N 105 20 17W, 

T.7N., R.71W., Sec. 10). Also includes 

Sheep Creek from its confluence with 

Buckhorn Creek (40 34 15N 105 20 53W, 

T.7N., R.71W., Sec. 16) upstream to 

7,600 ft (2,317 m) elevation (40 33 08N 

105 21 47W, T.7N., R.71W., Sec. 20). 

Also includes Twin Cabin Gulch from 

its confluence with Buckhorn Creek (40 

34 38N 105 23 13W, T.7N., R.71W., Sec. 

18) upstream to 7,600 ft (2,317 m) 

elevation (40 35 45N 105 23 36W, T.7N., 

R.71W., Sec. 6). 

(ii) Note: Map of Units 3 and 4 

follows: 


emcdonald on DSK2BSOYB1PROD with RULES3
78474 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(9) Unit 4: Cedar Creek, Larimer County, 

Colorado. 

(i) This unit consists of 7.5 mi (12.1 

km) of streams. Cedar Creek from the 

boundary of Federal land (40 26 46N 

105 16 17W, T.6N., R.70W., Sec. 31) 

upstream to the boundary of Federal 

land (40 28 15N 105 18 11W, T.6N., 

R.71W., Sec. 24). Includes Dry Creek 

from its confluence with Cedar Creek 

(40 27 07N 105 16 16W, T.6N., R.70W., 

Sec. 30) upstream to the boundary of 

Federal land (40 28 52N 105 16 21W, 

T.6N., R.70W., Sec. 18). Also includes 

Jug Gulch from its confluence with 

Cedar Creek (40 28 15N 105 17 41W, 

T.6N., R.71W., Sec. 24) upstream to the 

boundary of Federal land (40 29 07N 

105 18 28W, T.6N., R.71W., Sec. 14). 

(ii) Note: Map of Unit 4 appears at 

paragraph (8)(ii) of this entry. 

(10) Unit 5: South Boulder Creek, 

Boulder County, Colorado. 

(i) This unit consists of 7.6 mi (12.2 

km) of streams. Including South Boulder 

Creek from Baseline Road (40 0 0N 105 

12 55W, T.1S., R.70W., Sec. 3) upstream 

to near Eldorado Springs, Colorado (39 

56 7N 105 16 16W, T.1S., R.70W., Sec. 

30). Unit 5 also includes Spring Brook 

from the Community Ditch near 

Eldorado Springs (39 55 59N 105 16 

10W, T.1S., R.70W., Sec. 30) upstream 

to the Denver Water boundary at the 

South Boulder Diversion Canal (39 55 

13N 105 16 12W, T.1S., R.70W., Sec. 

31). 

(ii) Note: Map of Units 5, 6, and 7 

follows: 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.005</GPH>
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78475 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.006</GPH>
78476 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(11) Unit 6: Rocky Flats Site, Jefferson 

County and Broomfield Counties, 

Colorado. 

(i) This unit consists of three subunits 

including 12.5 mi (20.1 km) of streams 

as follows: 

(A) The Woman Creek Subunit from 

Indiana Street (39 52 40N 105 9 55W, 

T.2S., R.70W., east boundary Sec. 13) 

upstream to (39 53 3N 105 13 20W, 

T.2S., R.70W., west boundary Sec. 15). 

Includes unnamed tributary from 

confluence with Woman Creek (39 52 

43N 105 10 11W, T.2S., R.70W., Sec. 13) 

upstream to (39 52 39N 105 12 11W, 

T.2S., R.70W., west boundary Sec. 14). 

(B) The Walnut Creek Subunit from 

Indiana Street (39 54 5N 105 9 55W, 

T.2S., R.70W., east boundary Sec. 1) 

upstream to (39 53 49N 105 11 59W, 

T.2S., R.70W., Sec. 11). Includes 

unnamed tributary from its confluence 

with Walnut Creek (39 54 6N 105 10 

42W, T.2S., R.70W., Sec. 1) upstream to 

(39 53 35N 105 11 29W, T.2S., R.70W., 

Sec. 11). 

(C) The Rock Creek Subunit from 

State Highway 128 (39 54 53N 105 11 

40W, T.1S., R.70W., Sec. 35) upstream 

to (39 54 17N 105 13 20W, T.2S., 

R.70W., west boundary Sec. 3). Includes 

an unnamed tributary from its 

confluence with Rock Creek (39 54 40N 

105 12 11W, T.2S., R.70W., east 

boundary Sec. 3) upstream to (39 54 42 

N 105 13 00W, T.2S., R.70W., Sec. 3). 

Also includes an unnamed tributary 

from its confluence with Rock Creek at 

(39 54 26N 105 12 34W, T.2S., R.70W., 

Sec. 3) upstream to (39 54 7N 105 12 

52W, T.2S., R.70W., Sec. 3). Includes 

another unnamed tributary from its 

confluence with Rock Creek at (39 54 

23N 105 12 56W, T.2S., R.70W., Sec. 3) 

upstream to (39 54 8N 105 13 20W, 

T.2S., R.70W., west boundary Sec. 3. 

Includes another unnamed tributary 

from its confluence with Rock Creek at 

(39 54 15N 105 13 5W, T.2S., R.70W., 

Sec. 3) upstream to (39 54 08N 105 13 

09W, T.2S., R.70W., Sec. 3). 

(ii) Note: Map of Unit 6 appears at 

paragraph (10)(ii) of this entry. 

(12) Unit 7: Ralston Creek, Jefferson 

County, Colorado. 

(i) This unit consists of 8.5 mi (13.7 

km) of streams. Ralston Creek from 

6,065 ft (1,849 m) elevation at the 

northern edge of Denver Water property 

just upstream of Ralston Reservoir (39 

49 12N 105 15 35W, T.3S., R.70W., Sec. 

6) upstream into Golden Gate Canyon 

State Park to 7,600 ft (2,300 m) elevation 

(39 50 53 105 21 16W, T.2S., R.71W., 

Sec. 29). 

(ii) Note: Map of Unit 7 appears at 

paragraph (10)(ii) of this entry. 

(13) Unit 8: Cherry Creek, Douglas 

County, Colorado. 

(i) This unit consists of two subunits 

including 29.8 mi (47.9 km) of streams 

as follows: 

(A) The Lake Gulch Subunit including 

Cherry Creek from the northern 

boundary of Castlewood Canyon State 

Recreation Area (39 21 44N 104 45 39W, 

T.8S., R.66W., south boundary Sec. 10) 

upstream to the confluence with Lake 

Gulch (39 20 24N 104 45 36W, T.8S., 

R.66W., Sec. 23). Lake Gulch from the 

aforementioned confluence upstream to 

(39 15 37N 104 46 05W, T.9S., R.66W., 

south boundary Sec. 15). Includes 

Upper Lake Gulch from its confluence 

with Lake Gulch (39 17 24N 104 46 

11W, T.9S., R.66W., Sec. 3) upstream to 

(39 13 24N 104 50 21W, T.9S., R.67W., 

mid-point Sec. 36). 

(B) The Antelope Creek Subunit from 

its confluence with West Cherry Creek 

(39 16 11N 104 42 49W, T.9S R.65W., 

S18) upstream to the Franktown Parker 

Reservoir (39 10 20N 104 46 16W, T.10S 

R.66W., S22). It also includes Haskel 

Creek from its confluence with Antelope 

Creek (39 13 43N, 104 45 5W, T.9S 

R.66W., S35) upstream to the Haskel 

Creek Spring Pond at 7,000 ft (2,134 m) 

elevation (39 11 60N 104 47 40N, T.10S 

R.66W., S8). 

(ii) Note: Map of Unit 8 follows: 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78477 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.007</GPH>
78478 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(14) Unit 9: West Plum Creek, Douglas 

County, Colorado. 

(i) This unit consists of 90.3 mi (145.3 

km) of streams. Plum Creek from 

Chatfield Lake (39 32 35N 105 03 07W, 

T.6S., R.68W., Sec. 7) upstream to its 

confluence with West Plum Creek and 

East Plum Creek (39 25 49N 104 58 8W, 

T.7S., R.68W., Sec. 23), excluding 0.14 

mi (0.23 km) of Plum Creek owned by 

Denver Water at the Highline Canal 

crossing (excluding from 39 30 44N 105 

01 41W, T.6S., R.68W., Sec. 20 

downstream to 39 30 41N 105 01 32W, 

T.6S., R.68W., Sec. 20). West Plum 

Creek from the aforementioned 

confluence (39 25 49N 104 58 8W, 

T.7S., R.68W., Sec. 23) upstream to the 

boundary of Pike-San Isabel National 

Forest and 7,600 ft (2,317 m) elevation 

(39 13 07N 104 59 20W, T.9S., R.68W., 

Sec. 34). Includes Indian Creek from its 

confluence with Plum Creek (39 28 22N 

104 59 57W, T.7S., R.68W., Sec. 4) 

upstream to Silver State Youth Camp 

(39 22 24N 105 05 13W, T.8S., R.69W., 

Sec. 11). Indian Creek includes an 

unnamed tributary from its confluence 

with Indian Creek at Pine Nook (39 23 

01N 105 04 24W, T.8S., R.69W., Sec. 2) 

upstream to (39 22 10N 105 04 08W, 

T.8S., R.69W., Sec. 12). Also includes 

Jarre Creek from its confluence with 

Plum Creek (39 25 50N 104 58 15W, 

T.7S., R.68W., Sec. 23) upstream to 

7,600 ft (2,317 m) elevation (39 21 50N 

105 03 20W, T.8S., R.69W., Sec. 12). 

Jarre Creek includes an unnamed 

tributary from its confluence with Jarre 

Creek (39 22 58N 105 01 52W, T.8S., 

R.68W., Sec. 5) upstream to (39 22 44N 

105 02 14W, T.8S., R.68W., Sec. 8). Also 

includes an unnamed tributary from its 

confluence with West Plum Creek (39 

22 20N 104 57 39W, T.8S., R.68W., Sec. 

11) upstream to (39 21 36N 104 55 40W, 

T.8S, R67W., Sec.18). Unit 9 also 

includes Garber Creek from its 

confluence with Plum Creek (39 22 10N 

104 57 49W, T.8S., R.68W., Sec. 11) 

upstream to its confluence with South 

Garber Creek and Middle Garber Creek 

(39 21 02N 105 02 13W, T.8S., R.68W., 

Sec. 18). Including South Garber Creek 

from its confluence with Garber Creek 

(39 21 02N 105 02 13W, T.8S., R.68W., 

Sec. 18) upstream to 7,600 ft (2,317 m) 

elevation (39 19 14N 105 03 13W, T.8S., 

R.69W., Sec. 25). Including Middle 

Garber Creek from its confluence with 

Garber Creek (39 20 55N 105 02 35W, 

T.8S., R.68W., Sec. 18) upstream to (39 

19 48N 105 04 09W, T.8S., R.69W., west 

boundary Sec. 25). Including North 

Garber Creek from its confluence with 

Middle Garber Creek (39 20 55N 105 02 

35W, T.8S., R.68W., Sec. 18) upstream 

to 7,600 ft (2,317 m) elevation (39 20 

47N 105 04 37W, T.8S., R.69W., Sec. 

23). Includes Jackson Creek from its 

confluence with Plum Creek (39 21 02N 

104 58 30W, T.8S., R.68W., Sec. 14) 

upstream to 7,600 ft (2,317 m) elevation 

(39 17 59N 105 03 57W, T.9S., R.69W., 

Sec. 1). Includes Spring Creek from its 

confluence with West Plum Creek at (39 

19 04N 104 58 26W, T.8S., R.68W., Sec. 

35) upstream to (39 15 21N 105 01 40W, 

T.9S., R.68W., Sec. 20). Including Dry 

Gulch from its confluence with Spring 

Creek (39 17 54N 104 59 58W, T.9S., 

R.68W., Sec. 4) upstream to 7,600 ft 

(2,317 m) elevation (39 16 07N 105 02 

33W, T.9S., R.68W., Sec. 18). Including 

Bear Creek from its confluence with 

West Plum Creek (39 17 30N 104 58 

25W, T.9S., R.68W., Sec. 2) upstream to 

the base of the Waconda Lake dam (39 

15 43 N, 104 59 09 W, T.9S, R.68W, 

Sec.15). Including Gove Creek from its 

confluence with West Plum Creek (39 

14 07N 104 57 42W, T.9S., R.68W., Sec. 

26) upstream to 7,600 ft (2,317 m) 

elevation (39 11 50N 104 58 32W, 

T.10S., R.68W., Sec. 11). Includes Merz 

Canyon stream from its confluence with 

Gove Creek (39 13 05N 104 57 33W, 

T.9S., R.68W., Sec. 36) upstream to (39 

12 39N 104 57 04 W, T.10S., R.68W., 

Sec.1). Includes Starr Canyon stream 

from its confluence with West Plum 

Creek (39 13 07N 104 58 41W, T.9S., 

R.68W., Sec. 35) upstream to 7,600 ft 

(2,317 m) elevation (39 12 32N 104 59 

01W, T.10S., R.68W., Sec. 3). 

(ii) Note: Map of Unit 9 follows: 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78479 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.008</GPH>
78480 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(15) Unit 10: Upper South Platte 

River, Douglas, Jefferson, and Teller 

Counties, Colorado. 

(i) This unit consists of four subunits 

including 33.6 mi (54.1 km) of rivers 

and streams as follows: 

(A) The Chatfield Subunit, on the 

border of Jefferson County and Douglas 

County entirely within Chatfield State 

Park from Chatfield Lake (39 31 32N 105 

04 45W, T.6S., R.69W., Sec. 14) 

upstream to the northern boundary of 

the Kassler Center land owned by 

Denver Water (39 29 35N 105 05 14W, 

T.6S., R.69W., Sec. 26). 

(B) The Bear Creek Subunit, Douglas 

County from Pike–San Isabel National 

Forest boundary (39 25 27N 105 07 

40W, T.7S., R.69W., west boundary Sec. 

21) upstream to (39 22 32N 105 06 40W, 

T.8S., R.69W., south boundary Sec. 4). 

Includes West Bear Creek from its 

confluence with Bear Creek (39 25 15N 

105 07 30W, T.7S., R.69W., Sec. 21) 

upstream to a confluence with an 

unnamed tributary (39 24 17N 105 07 

38W, T.7S., R.69W., Sec. 33). 

(C) The South Platte River Subunit, on 

the border of Jefferson County and 

Douglas County from the southern 

boundary of Denver Water land near 

Nighthawk (39 21 04N 105 10 28W, 

T.8S., R.70W., Sec. 13) upstream to the 

north eastern boundary of Denver Water 

land at (39 18 47N 105 11 33W, T.8S., 

R.70W., Sec. 35), excluding Denver 

Water lands along this stretch (39 19 

10N 105 11 17W, T.8S., R.70W., Sec. 

26), and utilizing the Douglas County 

Riparian Conservation Zones on nonFederal lands. Also included in this 

subunit from the southwestern 

boundary of Denver Water property at 

(39 18 04N 105 12 03W, T.9S., R.70W., 

Sec. 2) to the north eastern boundary of 

Denver Water property at (39 17 27N 

105 12 24W, T.9S., R.70W., Sec. 3). 

Includes Sugar Creek, within Douglas 

County from the eastern boundary of 

Denver Water land near Oxyoke (39 18 

24N 105 11 32W, T.8S., R.70W., Sec. 35) 

upstream to 7,600 ft (2,317 m) elevation 

(39 18 31N 105 08 09W, T.8S., R.69W., 

Sec. 32). Includes Gunbarrel Creek, 

within Jefferson County from the 

western boundary of Denver Water land 

near Oxyoke (39 18 27N 105 12 06W, 

T.8S., R.70W., Sec. 34) upstream to (39 

18 41N 105 14 36W, T.8S., R.70W., Sec. 

32). 

(D) The Trout Creek Subunit, Douglas 

County upstream into Teller County 

from (39 13 02N 105 09 31W, T.9S., 

R.69W., Sec. 31) upstream to 7,600 ft 

(2,317 m) elevation which is 0.8 mi (1.3 

km) into Teller County (39 07 13N 105 

05 49W, T.11S., R.69W., Sec. 3). 

Includes Eagle Creek from its 

confluence with Trout Creek (39 11 52N 

105 08 27W, T.10S., R.69W., Sec. 8) 

upstream to 7,600 ft (2,317 m) elevation 

(39 12 06N 105 07 12W, T.10S., R.69W., 

Sec. 9). Also including an unnamed 

tributary from its confluence with Trout 

Creek (39 11 07N 105 08 05W, T.10S., 

R.69W., Sec. 17) upstream to (39 10 18N 

105 08 23W, T.10S., R.69W., Sec. 20). 

Also including Long Hollow from its 

confluence with Trout Creek (39 10 56N 

105 08 01W, T.10S., R.69W., Sec. 17) 

upstream to 7,600 ft (2,317 m) elevation 

(39 11 30N 105 06 19W, T.10S., R.69W., 

Sec. 10). 

(ii) Note: Map of Unit 10 follows: 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78481 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.009</GPH>
78482 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(16) Unit 11: Monument Creek, El Paso 

County, Colorado. 

(i) This unit consists of 38.0 mi (61.1 

km) of streams. Monument Creek from 

its confluence with Cottonwood Creek 

(38 55 36N 104 48 55W, T.13S., R66W., 

Sec. 7) upstream to the southern 

property boundary of the U.S. Air Force 

Academy (38 57 08N 104 49 49W, 

T.13S., R.66W., Sec. 6), excluding 0.82 

ac (0.33 ha) on the Dahle property (38 

56 56N 104 49 39W, T.13S., R66W., Sec. 

6). Then Monument Creek from the 

northern property boundary of the U.S. 

Air Force Academy (39 02 31N 104 51 

05W, T.12S., R.67W., north boundary 

Sec. 2) upstream to Monument Lake (39 

05 19N 104 52 43W, T.11S., R.67W., 

Sec. 15). Includes Kettle Creek from the 

property boundary of the U.S. Air Force 

Academy (38 58 33N 104 47 55W, 

T.12S., R.66W., Sec. 29) upstream to its 

intersection with a road at (39 00 07N 

104 45 24W, T.12S., R.66W., east 

boundary Sec. 15). Which includes an 

unnamed tributary from its confluence 

with Kettle Creek (38 59 06N 104 46 

55W, T.12S., R.66W., Sec. 21) upstream 

to (38 59 14N 104 46 19W, T.12S., 

R.66W., Sec. 22). Also includes Black 

Squirrel Creek from the property 

boundary of the U.S. Air Force 

Academy (39 00 06N 104 49 00W, 

T.12S., R.66W., Sec. 18) upstream to (39 

02 30N 104 44 38W, T.12S., R.66W., 

north boundary Sec. 2). Including an 

unnamed tributary from its confluence 

with Black Squirrel Creek (39 01 19N 

104 46 21W, T.12S., R.66W., Sec. 10) 

upstream to (39 02 30N 104 45 42W, 

T.12S., R.66W., north boundary Sec. 3). 

Which includes another unnamed 

tributary from (39 01 50N 104 46 20W, 

T.12S., R.66W., Sec. 3) upstream to (39 

02 30N 104 46 03W, T.12S., R.66W., 

north boundary Sec. 3), excluding 

approximately 5 ac (2 ha) on the Lefever 

property (39 00 57N 104 46 33W, 

T.12S., R.66W., Sec. 9). Also includes 

an unnamed tributary from the property 

boundary of the U.S. Air Force 

Academy (39 00 14N 104 49 3W, T.12S., 

R.66W., Sec. 18) upstream to 6,700 ft 

(2,043 m) elevation (39 0 29N 104 48 

24W, T.12S., R.66W., Sec. 17). Including 

an unnamed tributary from (39 0 19N 

104 48 55W, T. 12S., R.66W., Sec. 18) 

upstream to (39 0 30N 104 48 48N, T. 

12S., R.66W., Sec. 18). Unit 11 also 

includes Monument Branch from the 

property boundary of the U.S. Air Force 

Academy (39 00 50N 104 49 24W, 

T.12S., R.66W., Sec. 7) upstream to (39 

01 10N 104 48 45W, T.12S., R.66W., 

east boundary Sec. 7). Also includes 

Smith Creek from the property 

boundary of the U.S. Air Force 

Academy (39 01 36N 104 49 46W, 

T.12S., R.66W., Sec. 7) upstream to (39 

02 24N 104 48 00W, T.12S., R.66W., 

Sec. 5). Also includes Jackson Creek 

from its confluence with Monument 

Creek (39 02 33N 104 51 13W, T.11S., 

R.67W., Sec. 35) upstream to (39 04 30N 

104 49 10W, T.11S., R.66W., Sec. 19). 

Includes an unnamed tributary from its 

confluence with Jackson Creek (39 04 

12N 104 50 05W, T.11S., R.67W., Sec. 

25) upstream to Higby Road (39 04 42N 

104 49 40W, T.11S., R.66W., Sec. 19). 

Also includes Beaver Creek from its 

confluence with Monument Creek (39 

02 52N 104 52 02W, T.11S., R.67W., 

Sec. 35) upstream to 7,600 ft (2,317 m) 

elevation (39 03 08N 104 55 32W, 

T.11S., R.67W., Sec. 31). Also includes 

Teachout Creek from its confluence 

with Monument Creek (39 03 44N 104 

51 53W, T.11S., R.67W., Sec. 26) 

upstream to Interstate 25 (39 04 19N 104 

51 29W, T.11S., R.67W., Sec. 23). Also 

includes Dirty Woman Creek from its 

confluence with Monument Creek (39 

04 55N 104 52 34W, T.11S., R.67W., 

Sec. 22) upstream to Highway 105 (39 

05 35N 104 51 28 W, T.11S., R.67W., 

Sec. 14). 

(ii) Note: Map of Unit 11 follows: 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78483 

* * * * * Dated: November 24, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2010–30571 Filed 12–14–10; 8:45 am] 

BILLING CODE 4310–55–C 


emcdonald on DSK2BSOYB1PROD with RULES3ER15DE10.010</GPH>