[Federal Register Volume 74, Number 194 (Thursday, October 8, 2009)]
[Proposed Rules]
[Pages 52066-52107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24113]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Revised Critical Habitat 
for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) in 
Colorado; Proposed Rule

Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2009-0013] [92210-1117-0000-B4]
RIN 1018-AW45


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) 
in Colorado

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise designated critical habitat for the Preble's meadow jumping 
mouse (Zapus hudsonius preblei) 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). The proposed revised 
critical habitat is located in Boulder, Broomfield, Douglas, El Paso, 
Jefferson, Larimer and Teller Counties in Colorado. Approximately 418 
miles (mi) (674 kilometers (km)) of rivers and streams and 39,142 acres 
(ac) (15,840 hectares (ha)) fall within the boundaries of the proposed 
revised designation. The proposed revised designation would therefore 
add 184 mi (298 km) of rivers and streams and 18,462 ac (7,472 ha) to 
the existing critical habitat designation of 234 mi (376 km) and 20,680 
ac (8,368 ha).

DATES: To ensure that we are able to consider your comments and 
information, we request that you provide them to us by December 7, 
2009. We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by 
November 23, 2009.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Electronically: Go to the Federal eRulemaking Portal at 
http://www.regulations.govto comment on FWS-R6-ES-2009-0013, which is 
the docket number for this rulemaking.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: [FWS-R6-ES-2009-0013]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, 
Colorado Ecological Services Office; mailing address P.O. Box 25486, 
DFC (MS 65412), Denver, CO 80225; telephone 303-236-4773; located at 
134 Union Boulevard, Suite 670, Lakewood, CO. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons why we should or should not revise the designation 
of specific habitat as ``critical habitat'' under section 4 of the Act 
(16 U.S.C. 1531 et seq.).
    (2) Specific information on:
    <bullet> The amount and distribution of Preble's meadow jumping 
mouse (PMJM) habitat in Colorado,
    <bullet> Areas occupied at the time of listing and that contain 
features essential for the conservation of the species that we should 
include in the revised designation and why,
    <bullet> Areas not containing features essential for the 
conservation of the species and why,
    <bullet> Areas not occupied at the time of listing that are 
essential to the conservation of the species and why, and
    <bullet> Areas that require special management consideration and 
protection and why.
    (3) Comments or information that may assist us with identifying or 
clarifying the primary constituent elements (see section below on 
Primary Constituent Elements).
    (4) Land use designations and current or planned activities in the 
areas proposed as revised critical habitat and their possible impacts 
on revised critical habitat.
    (5) How the proposed boundaries of the revised critical habitat 
could be refined to more closely circumscribe the riparian and adjacent 
upland habitats occupied by the Preble's meadow jumping mouse.
    (6) Whether our proposed revised designation should be altered in 
any way to account for the effects of climate change and why.
    (7) Whether any specific areas being proposed as revised critical 
habitat should be excluded under section 4(b)(2) of the Act from the 
final designation, and whether the benefits of potentially excluding 
any particular area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. We are specifically seeking comments from 
the public on the following lands: those covered by the Douglas County 
Habitat Conservation Plan (HCP) (Service 2006a) and the potential 
modification of outward boundaries of proposed critical habitat to 
conform to Douglas County's Riparian Conservation Zones (RCZs) 
(streams, adjacent floodplains, and nearby uplands likely to be used as 
habitat by the PMJM) as mapped for the Douglas County HCP; lands within 
the Livermore Area HCP (Service 2006b), the Larimer County's Eagle's 
Nest Open Space HCP (Service 2004b), the Denver Water HCP (Service 
2003b), the Struther's Ranch HCP (Service 2003c), and other HCPs; lands 
within El Paso County (because the county is currently developing a 
countywide HCP); lands within the proposed Seaman Reservoir expansion 
footprint; and, lands within the Rocky Flats National Wildlife Refuge 
(NWR).
    (8) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed revised designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts.
    (9) Whether we could improve or modify our approach to designating 
revised critical habitat in any way to provide for greater public 
participation and understanding, or to better accommodate public 
concerns and comments.
    We will revise the economic analysis and environmental assessment 
that were prepared for the previous designation, and we will provide 
drafts of the new economic analysis and environmental assessment to the 
public for review and comment before finalizing this proposal.
    Based on the public comments, we may find, during the development 
of the final rule, that areas proposed are not essential to the 
conservation of the species, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion. In 
all of these cases, this information will be incorporated into the 
final revised designation. Further, we may find, as a result of public 
comments, that areas not proposed also should be designated as revised 
critical habitat. Final management plans that address the conservation 
of the PMJM must be submitted to us during the public comment period so 
that we can take

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them into consideration when making our final critical habitat 
determination.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment, including any personal identifying information, will be posted 
on the website. If you submit a hardcopy comment that includes personal 
identifying information, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.

Background

    We intend to discuss only those topics directly relevant to the 
designation of critical habitat in this proposed rule. For additional 
information on the biology of this subspecies, see the May 13, 1998, 
final rule to list the PMJM as threatened (63 FR 26517); the June 23, 
2003, final rule designating critical habitat for the PMJM (68 FR 
37275); and the 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).

Species Description

    The PMJM is recognized as 1 of 12 subspecies of meadow jumping 
mouse (Zapus hudsonius), a species that ranges from the Pacific Coast 
of Alaska to the Atlantic Coast and from the northern limit of forests 
south to New Mexico, Oklahoma, and Georgia (Hafner et al. 1981, p. 501; 
Hall 1981, p. 843; Krutzsch 1954, pp. 420-421). Meadow jumping mice are 
small rodents with long tails, large hind feet, and long hind legs. 
Total length of an adult is approximately 7 to 10 inches (187 to 255 
millimeters), with the tail comprising 4 to 6 inches (108 to 155 
millimeters) of that length (Krutzsch 1954, p. 420; Fitzgerald et al. 
1994, p. 291). The large hind feet can be one-third again as large as 
those of other mice of similar size. The PMJM has a distinct, dark, 
broad stripe on its back that runs from head to tail and is bordered on 
either side by gray to orange-brown fur. The hair on the back of all 
jumping mice appears coarse compared to other mice. The underside hair 
is white and much finer in texture. The tail is bicolored and sparsely 
furred.

Geographic Range

    The PMJM is found along the foothills in southeastern Wyoming, 
southward along the eastern edge of the Front Range of Colorado to 
Colorado Springs in El Paso County (Hall 1981, p. 844; Clark and 
Stromberg 1987, pp. 184-188; Fitzgerald et al. 1994, pp. 291-293; 
Clippenger 2002, pp. 14-15, 20). Knowledge about the current 
distribution of the PMJM comes from collected specimens and live-
trapping locations from both range-wide survey efforts and numerous 
site-specific survey efforts conducted in Wyoming and Colorado since 
the mid-1990s.
    In Colorado, the distribution of the PMJM forms a band along the 
Front Range from Wyoming southward to Colorado Springs, with eastern 
marginal captures in western Weld County, western Elbert County, and 
north-central El Paso County.
    The semi-arid climate in eastern Colorado limits the extent of 
riparian corridors and restricts the range of the PMJM in this region. 
The PMJM has not been found on the extreme eastern plains in Colorado. 
The eastern boundary for the subspecies is likely defined by the dry 
shortgrass prairie, which may present a barrier to eastward expansion 
(Beauvais 2001, p. 3).
    The western boundary of the PMJM's range in Colorado appears 
related to elevation along the Front Range. We use 7,600 feet (ft) 
(2,317 meters (m)) in elevation as the general upper limit of the 
PMJM's habitat in Colorado (Service 2004a, p. 5). The western jumping 
mouse (Zapus princeps), a separate species from the PMJM, is similar in 
appearance and can easily be confused with the PMJM. The range of the 
western jumping mouse in Colorado is generally west of, and at higher 
elevations than, the range of the PMJM. However, the two species appear 
to coexist over portions of their range in the Front Range of Colorado 
(Bohan et al. 2005; Schorr et al., 2007). Recent morphological 
examination of specimens has confirmed the PMJM to an elevation of 
approximately 7,600 ft (2,317 m) in Colorado (Bohan et al., 2005) and 
to 7,750 ft (2,360 m) in southeastern Wyoming (Service 2009). For a 
discussion of the difficulties of differentiating between the PMJM and 
the western jumping mouse see our July 10, 2008, final rule to amend 
the listing for the PMJM (73 FR 39789).
    Although there is little information on past distribution or 
abundance of the PMJM, surveys identified various locations where the 
subspecies was historically present but is now absent (Ryon 1996, pp. 
25-26). Since at least 1991, the PMJM has not been found in Denver, 
Adams, or Arapahoe Counties in Colorado. Its absence in these counties 
is likely due to urban development, which has altered, reduced, or 
eliminated riparian habitat (Compton and Hugie 1993, p. 22; Ryon 1996, 
pp. 29-30).

Ecology and Life History

    Much of the current knowledge regarding life history of the meadow 
jumping mouse comes from studies of the species in the eastern and 
midwestern United States. The meadow jumping mouse usually has two 
litters per year, with an average of five young born per litter (Quimby 
1951, p. 67; Whitaker 1963, p. 244). Research has not been conducted on 
the number or size of PMJM litters, but we assume that they are 
comparable to other subspecies of the meadow jumping mouse. The PMJM is 
a true hibernator, usually entering hibernation in September or October 
and emerging the following May, after a potential hibernation period of 
7 or 8 months (Whitaker 1963, p. 5; Meaney et al. 2003, pp. 618-619). 
Similar to other subspecies of meadow jumping mouse, the PMJM does not 
store food, but survives on fat stores accumulated prior to hibernation 
(Whitaker 1963, p. 241).
    Meadow jumping mice are primarily nocturnal or crepuscular (active 
during twilight), but also may be active during the day. Little is 
known about social interactions and their significance in the PMJM. 
While the PMJM's dispersal capabilities are thought to be limited, in 
one case a PMJM was documented moving as far as 0.7 mi (1.1 km) in 24 
hours (Ryon 1999, p. 12), and the PMJM is able to move miles along 
stream corridors over its lifetime (Schorr 2003, pp. 9-10).
    While fecal analyses have provided the best data on the PMJM's diet 
to date, they overestimate the components of the diet that are less 
digestible. Based on fecal analyses, the PMJM eats insects; fungus; 
moss; pollen; Salix (willow); Chenopodium sp. (lamb's quarters); 
Salsola sp. (Russian thistle); Helianthus spp. (sunflower); Carex spp. 
(sedge); Verbascum sp. (mullein); Bromus, Festuca, Poa, Sporobolus, and 
Agropyron spp. (grasses); Lesquerella sp. (bladderpod); Equisetum spp. 
(horsetail); and assorted seeds (Shenk and Eussen 1999, pp. 9, 11; 
Shenk and Sivert 1999a, pp. 10-11). The diet shifts seasonally; it 
consists primarily of insects and fungi after emerging from 
hibernation, shifts to fungi, moss, and pollen during mid-summer (July 
and August), with insects again added in September (Shenk and Sivert 
1999a, pp. 12-13). The shift in diet along with shifts in mouse 
movements suggests that the PMJM may require specific seasonal diets, 
perhaps related to the physiological constraints imposed by

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hibernation (Shenk and Sivert 1999a, p. 14).
    The PMJM has a host of known predators, including the garter snake 
(Thamnophis spp.), prairie rattlesnake (Crotalus viridus), bullfrog 
(Rana catesbiana), fox (Vulpes vulpes and Urocyon cinereoargenteus), 
house cat (Felis catus), long-tailed weasel (Mustela frenata), and red-
tailed hawk (Buteo jamaicensis) (Shenk and Sivert 1999a, p. 13; Schorr 
2001, p. 29). Other potential predators include coyote (Canis latrans), 
barn owl (Tyto alba), great horned owl (Bubo virginianus), screech owl 
(Otus spp.), long-eared owl (Asio otus), northern harrier (Circus 
cyaneus), and large predatory fish. Mortality factors of the PMJM 
include drowning and being hit by vehicles (Schorr 2001, p. 29; Shenk 
and Sivert 1999a, p. 13). Introduced fauna that occupy riparian 
habitats may displace or compete with the PMJM. House mice (Mus 
musculus) were common in and adjacent to historic capture sites where 
the PMJM was no longer found (Ryon 1996, p. 26). Mortality factors 
known for the meadow jumping mouse, such as starvation, exposure, 
disease, and insufficient fat stores for hibernation (Whitaker 1963, 
pp. 225-228) also are likely causes of death in the PMJM subspecies.

Preble's Meadow Jumping Mouse Habitat

    Typical habitat for the PMJM is comprised of well-developed 
riparian vegetation with adjacent, relatively undisturbed grassland 
communities and a nearby water source (Bakeman 1997, pp. 22-31, 47-48). 
The PMJM is typically captured in areas with multi-storied cover with 
an understory of grasses or forbs or a mixture thereof (Bakeman 1997, 
pp. 22-31, 28-30; Meaney et al. 1997, pp. 15-16; Shenk and Eussen 1999, 
pp. 9-11; Schorr 2001, pp. 23-24). The shrub canopy is often Salix 
spp., although other shrub species may occur (Shenk and Eussen 1999, 
pp. 9-11).
    Although the PMJM commonly uses riparian vegetation immediately 
adjacent to a stream, other features that provide habitat for the 
subspecies include seasonal streams (Bakeman 1997, p. 76), low moist 
areas and dry gulches (Shenk 2004), agricultural ditches (Meaney et al. 
2003, p. 620), and wet meadows and seeps near streams (Ryon 1996, p. 
29).
    White and Shenk (2000, pp. 7-8) determined that riparian shrub 
cover, tree cover, and the amount of open water nearby are good 
predictors of PMJM densities. Trainor et al. (2007, pp. 471-472) found 
that high-use areas for the PMJM tended to be close to creeks and were 
positively associated with the percentage of shrubs, grasses, and woody 
debris. Hydrologic regimes that support PMJM habitat range from large 
perennial rivers, such as the South Platte River, to small drainages 
only 3 to 10 ft (1 to 3 m) wide.
    Clippenger (2002, pp. 44-45) found that, in Colorado, subshrub 
cover and plant species richness are higher at most sites where meadow 
jumping mice are present when compared to sites where they are absent, 
particularly at distances of 49 to 82 ft (15 to 25 m) from streams. In 
a study comparing habitats at PMJM capture locations on the Rocky Flats 
NWR (formerly the Department of Energy's (DOE's) Rocky Flats 
Environmental Technology Site), Jefferson County, and the U.S. Air 
Force Academy (Academy) in El Paso County, the Academy sites had lower 
plant species richness at capture locations but considerably greater 
numbers of the PMJM (Schorr 2001, p. 26). However, the Academy sites 
had higher densities of both grasses and shrubs. It is likely that PMJM 
abundance is not driven by the diversity of plant species alone, but by 
the density and abundance of riparian vegetation (Schorr 2001, p. 26).
    The PMJM has rarely been trapped in uplands adjacent to riparian 
areas (Dharman 2001, pp. 19-20). However, in detailed studies of PMJM 
movement patterns using radio-telemetry, the PMJM has been found 
feeding and resting in adjacent uplands (Shenk and Sivert 1999a, pp. 
11-12; Ryon 1999, p. 12; Schorr 2001, pp. 14-15). These studies suggest 
that the PMJM uses uplands at least as far out as 330 ft (100 m) beyond 
the 100-year floodplain (Shenk and Sivert 1999b, p. 11; Ryon 1999, p. 
12; Schorr 2001, p. 14; Service 2003a, p. 26; Shenk 2004). These upland 
habitats also assist in maintaining the integrity of riparian habitats 
by protecting them from disturbance and supporting normal hydrological 
functions of rivers, streams, and floodplains.
    The PMJM constructs day nests composed of grasses, forbs, sedges, 
rushes, and other available plant material. They may be globular in 
shape or simply raised mats of litter and are most commonly above 
ground but also can be below ground. They are typically found under 
debris at the base of shrubs and trees or in open grasslands (Ryon 
2001, p. 377). An individual mouse can have multiple day nests in both 
riparian and grassland communities (Shenk and Sivert 1999a, pp. 10-12) 
and may abandon a nest after approximately a week of use (Ryon 2001, p. 
377).
    Apparent hibernacula (hibernation nests) of the PMJM have been 
located both within and outside of the 100-year floodplain of streams 
(Shenk and Sivert 1999a, pp. 12-13; Schorr 2001, pp. 14-15). Those 
hibernating outside of the 100-year floodplain would likely be less 
vulnerable to flood-related mortality. Fifteen apparent PMJM 
hibernacula have been located through radio-telemetry, all within 335 
ft (102 m) of a perennial stream bed or intermittent tributary (Shenk 
and Sivert 1999a, p. 12; Schorr 2001, p. 28; Ruggles et al. 2003, p. 
19). Apparent hibernacula have been located under Salix shrubs, Prunus 
virginiana (chokecherry), Symphoricarpos albus (snowberry), Rhus 
trilobata (skunkbrush), Rhus spp. (sumac), Clematis spp. (clematis), 
Populus spp. (cottonwood), Quercus gambelii (Gambel's oak), Cirsium 
spp. (thistle), and Alyssum spp. (alyssum) (Shenk and Sivert 1999a, pp. 
12-13). At the Academy, four of six apparent hibernacula found by 
radio-telemetry were located in close proximity to Salix exigua (coyote 
willow) (Schorr 2001, p. 28).
    Flooding is a common and natural event in the riparian systems in 
southeastern Wyoming and along the Front Range of Colorado. This 
periodic flooding helps create a dense vegetative community by 
stimulating resprouting from Salix shrubs, and allows herbs and grasses 
to take advantage of newly deposited soil. Fire is also a natural 
component of the Colorado Front Range, and PMJM habitat naturally waxes 
and wanes with fire events. Within shrubland and forest, intensive fire 
may result in adverse impacts to PMJM populations. However, in a review 
of the effects of grassland fires on small mammals, Kaufman et al. 
(1990, p. 55) found a positive effect of fire on the meadow jumping 
mouse in one study and no effect of fire on the species in another 
study.
    The tolerance of the PMJM for invasive exotic plant species is not 
well understood. Whether or not exotic plant species reduce PMJM 
persistence at a site may be due in large part to whether plants create 
a monoculture and replace native species. The Preble's Meadow Jumping 
Mouse Recovery Team (Recovery Team) was particularly concerned about 
nonnative species such as Euphorbia esula (leafy spurge) that may form 
a monoculture, displacing native vegetation and thus reducing available 
habitat (Service 2003a, p. 13).

Previous Federal Actions

    For information on previous Federal actions concerning the PMJM, 
refer to the final listing rule published in the Federal Register on 
May 13, 1998 (63 FR 26517), the final rule designating

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critical habitat for the PMJM in portions of Colorado and Wyoming 
published in the Federal Register on June 23, 2003 (68 FR 37275), and 
the final rule to amend the listing for the PMJM to specify over what 
portion of its range the subspecies is threatened, published in the 
Federal Register on July 10, 2008 (73 FR 39789).
    On July 17, 2002, we proposed critical (67 FR 47154) and on June 
23, 2003, we published a final rule designating critical habitat for 
the PMJM. On August 22, 2003, the City of Greeley filed a complaint in 
the U.S. District Court for the District of Colorado challenging our 
designation of critical habitat for the PMJM (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 was later expanded that 
complaint to include our 2008 final determination on the PMJM and 
transferred it 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 the June 23, 
2003, final rule designating critical habitat 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 have determined that it is necessary to revise 
critical habitat, and this rule proposes those revisions.
    On July 10, 2008, we amended the final rule 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 
Significant Portion of the Range (SPR) in Colorado. Upon that 
determination, all critical habitat designated in 2003 in the State of 
Wyoming was removed from the regulations of 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).

Recovery Planning

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our endangered species program. To 
help guide the recovery effort, we prepare recovery plans for listed 
species native to the United States. Recovery plans describe actions 
considered necessary for conservation of the species, establish 
criteria for downlisting or delisting the species, and estimate time 
and cost for implementing the recovery measures needed.
    In early 2000, we established the Recovery Team under section 
4(f)(2) of the Act and our cooperative policy on recovery plan 
participation, a policy intended to involve stakeholders in recovery 
planning (59 FR 34272, July 1, 1994). Stakeholder involvement in the 
development of recovery plans helps minimize the social and economic 
impacts that could be associated with recovery of endangered species. 
Various stakeholders were represented on the Recovery Team, and other 
public participation (including oral comments at Recovery Team meetings 
and written comments on the early drafts of the recovery plan) took 
place. The Recovery Team prepared a series of drafts of a recovery plan 
for the PMJM. They identify the criteria for reaching recovery and 
delisting of the PMJM. Our June 23, 2003, final rule to designate 
critical habitat (68 FR 37275) cited the draft recovery plan dated 
March 11, 2003, which we refer to as the Working Draft (Prebles 
Recovery Team 2003). The 2003 rule and the conservation strategy that 
supported it were developed incorporating information from the Working 
Draft. We revised this Working Draft in November 2003 and released it 
to the public (http://www.fws.gov/mountain-prairie/species/mammals/preble/Nov2003DraftRecoveryPlan.pdf). This version is hereafter 
referred to as the Preliminary Draft Recovery Plan (or Plan) (Service 
2003a).
    For various reasons, primarily the prolonged evaluation undertaken 
in response to 2003 petitions to delist the PMJM, a draft recovery plan 
for the PMJM has not yet been finalized or issued for public comment. 
However, after inactivity from 2004 to 2009, the Recovery Team was 
reconvened and has initiated a review and update of the Preliminary 
Draft Recovery Plan. Recent Recovery Team review has largely reaffirmed 
the conservation strategies that were the basis of the Preliminary 
Draft Recovery Plan and that review is considered in this proposal. A 
draft recovery plan, once completed, will be published in the Federal 
Register, will be available for public comments, and will provide an 
additional venue for stakeholder and public participation.
    However, a final recovery plan is not a regulatory document 
(recovery plans are advisory documents because there are no specific 
protections, prohibitions, or requirements afforded to a species solely 
on the basis of a recovery plan) and does not obligate or commit 
parties to the actions or determination of the plans. Total disclosure 
and open communication with the public of our thoughts regarding 
possible future recovery scenarios are essential parts of recovery 
planning. Public review, peer review, and stakeholder involvement are 
also essential aspects of recovery planning, and are required by the 
Act and by Service policy. For these reasons, decisions we make in 
designation of critical habitat will not preclude determination or 
decisions in any aspect of recovery planning. Therefore, determinations 
of recovery strategies, criteria, or tasks within the recovery plan 
will not be limited by this proposed revision of critical habitat.

Summary of Proposed Changes to Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision from the areas we designated as critical habitat for the PMJM 
on June 23, 2003 (68 FR 37275) and amended on July 10, 2008 (73 FR 
39789). This proposed rule addresses only the PMJM in the SPR in 
Colorado. The differences include the following:
    (1) We propose to include in critical habitat specific areas that 
were excluded under section 4(b)(2) of the ESA and that were identified 
in our 2003 critical habitat designation. The 2003 designation of 
critical habitat for the PMJM in the SPR in Colorado comprises 5 units 
totaling 234 mi (377 km) of stream corridors. This proposed revision 
includes 11 units comprising a total of 418 mi (674 km) of stream 
corridors currently considered essential to the

[[Page 52070]]

conservation of the PMJM. The six additional units (Cedar Creek, South 
Boulder Creek, Rocky Flats NWR, Cherry Creek, West Plum Creek, and 
Monument Creek) were all proposed as critical habitat in the same or 
similar form on July 17, 2002 (67 FR 47154), but were not included in 
the 2003 final designation.
    (2) We propose as critical habitat lands addressed in the Denver 
Water HCP (Service 2003b) that were excluded under section 4(b)(2) of 
the Act in our 2003 final designation.
    (3) In Table 1, we provide a comparison between our 2003 final 
critical habitat designation and this proposed revised critical habitat 
rule.

 TABLE 1. Existing and Proposed Critical Habitat for the Preble's Meadow
                              Jumping Mouse
       by Stream Miles (Kilometers) and Acres (Hectares) per Unit.
------------------------------------------------------------------------
              UNIT                     EXISTING            PROPOSED
------------------------------------------------------------------------
1. N. Fork, Cache la Poudre       88 mi (142 km)      88 mi (142 km)
 River                            8,206 ac (3,321     8,619 ac (3,488
                                   ha)\*\.             ha)
------------------------------------------------------------------------
2. Cache la Poudre River          51 mi (82 km)       51mi (82 km)
                                  4,725 ac (1,912     4,944 ac (2,001
                                   ha)\*\.             ha)
------------------------------------------------------------------------
3. Buckhorn Creek                 43 mi (69 km)\*\    46 mi (73 km)
                                  3,798 ac (1,537     3,995 ac (1,617
                                   ha)\*\.             ha)
------------------------------------------------------------------------
4. Cedar Creek                    0                   8 mi (12 km)
                                                      668 ac (270 ha)
------------------------------------------------------------------------
5. South Boulder Creek            0                   8 mi (12 km)
                                                      856 ac (347 ha)
------------------------------------------------------------------------
6. Rocky Flats NWR                0                   13 mi (20 km)
                                                      1,108 ac (449 ha)
------------------------------------------------------------------------
7. Ralston Creek                  8 mi (13 km)\*\     9 mi (14 km)
                                  686 ac (277 ha)\*\  809 ac (328 ha)
------------------------------------------------------------------------
8. Cherry Creek                   0                   30 mi (48 km)
                                                      2,647 ac (1,071
                                                       ha)
------------------------------------------------------------------------
9. West Plum Creek                0                   94 mi (151 km)
                                                      8,724 ac (3,530
                                                       ha)
------------------------------------------------------------------------
10. Upper South Platte River      44 mi (71 km)\**\   35 mi (57 km)
                                  3,265 ac (1,321     3,353 ac ( 1,357
                                   ha)\*\.             ha)
------------------------------------------------------------------------
11. Monument Creek                0                   39 mi. (62 km)
                                                      3,419 ac (1,383
                                                       ha)
------------------------------------------------------------------------
Total                             234 mi (377 km)     418 mi (674 km)
                                  20,680 ac (8,368    39,142 ac (15,840
                                   ha).                ha)
------------------------------------------------------------------------
\*\ Changes from existing to proposed result only from corrected errors
  (imprecise measurements) from 2003 designated critical habitat totals.
** Changes from existing to proposed due to a significant error in 2003
  designated critical habitat totals.

    (4) The following is a list of the areas added or enlarged in this 
proposed revision to critical habitat designation as compared to our 
2003 critical habitat designation, and an explanation of why these 
areas are being considered.
    Unit 4: We proposed the Cedar Creek Unit as critical habitat in 
2002 based on presence of jumping mice thought to be the PMJM, but 
excluded it from final designation in 2003 due to lack of confirmed 
identification to species of those jumping mice captured. We now 
consider this unit occupied by the PMJM and are proposing it as 
critical habitat. This determination is based on the elevation (lower 
than 6,000 ft (1,829 m)) of jumping mouse captures and confirmation of 
the PMJM elsewhere in this subdrainage (Service 2009). It is consistent 
with our July 10, 2008, final rule to amend the listing for the PMJM 
(73 FR 39789).
    Units 5, 8, 9, and 11: We proposed these units as critical habitat 
in 2002 but excluded them from final designation in 2003 based on HCPs 
under development in Boulder, Douglas, and El Paso Counties. We propose 
these units as critical habitat in this rule and will review them for 
possible exclusion, where appropriate, under section 4(b)(2) of the Act 
for our final designation. This proposal includes small changes from 
the 2002 proposal to Units 9 and 11, and a more substantial change to 
Unit 8 based on reevaluation of certain stream reaches.
    Unit 6: We proposed this unit on Rocky Flats National Wildlife 
Refuge (NWR) as critical habitat in 2002 but excluded it from final 
designation in 2003 based on Federal ownership by the Department of 
Energy (DOE) and pending transfer of the site to the Service as Rocky 
Flats NWR. We propose this unit as critical habitat in this rule and 
will consider it for possible exclusion from our final designation 
under section 4(b)(2) of the Act.
    Units 7 and 10: In our 2003 designation, we excluded small portions 
of these Units from critical habitat based on the Denver Water HCP 
under section 4(b)(2) of the Act. The portions we previously excluded 
we again propose as critical habitat. We will review these specific 
areas, along with other lands we proposed as critical habitat included 
in the Denver Water HCP, under section 4(b)(2) of the Act prior to our 
final designation.

[[Page 52071]]

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) essential to the conservation of the species and
    (b) that may require special management considerations or 
protection; and
    (2) specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, 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) regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing 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 private landowners. Where a 
landowner 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) would apply, but even in 
the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent 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 data available, habitat areas that provide essential life 
cycle needs of the species (i.e., areas on which are found the primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement essential to the conservation of the species). 
Under the Act, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed as 
critical habitat only when we determine that those areas are essential 
for the conservation of the species.
    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 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 (Service 2007b) 
provide criteria, establish procedures, and 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.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all habitat areas that we may 
eventually determine are necessary for the recovery of the species, 
based on scientific data not now available. For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated area is unimportant or may not promote the recovery of the 
species.
    Areas that support occurrences, whether they are inside or outside 
the critical habitat designation, will continue to be subject to 
conservation actions we implement under section 7(a)(1) of the Act. 
They also are 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, 
whether inside or outside 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 require 
a different outcome.

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 propose as critical habitat, we consider the 
physical and biological features that are essential to the conservation 
of the species to be the PCEs laid out in the appropriate quantity and 
spatial arrangement for conservation of the species. In general, PCEs 
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 area proposed for designation as revised critical habitat provides 
riparian and adjacent upland habitat for the PMJM, including those 
habitat components essential for the biological needs of reproduction, 
rearing of young, foraging, sheltering, hibernation, dispersal, and 
genetic exchange. The PMJM is able to live and reproduce in and near 
riparian areas located within grassland, shrubland, forest, and mixed 
vegetation

[[Page 52072]]

types where dense herbaceous or woody vegetation occurs near the ground 
level, where available open water normally exists during their active 
season, and where there are ample upland habitats of sufficient width 
and quality for foraging, hibernation, and refugia from catastrophic 
flooding events. While Salix (willow) in shrub form is a dominant 
component in many riparian habitats occupied by the PMJM, the structure 
of the vegetation appears more important to the PMJM than species 
composition (Schorr 2001, p. 26).
    The PCEs associated with the biological needs of dispersal and 
genetic exchange also are found in areas that provide connectivity or 
linkage between or within PMJM populations. These areas may not include 
the habitat components listed above and may have experienced 
substantial human alteration or disturbance.
    The dynamic ecological processes that create and maintain PMJM 
habitat also are important PCEs. Habitat components essential to the 
PMJM are found in and near those areas where past and present 
geomorphological and hydrological processes have shaped streams, 
rivers, and floodplains, and have created conditions that support 
appropriate vegetative communities. PMJM habitat is maintained over 
time along rivers and streams by a natural flooding regime (or one 
sufficiently corresponding to a natural regime) that periodically 
scours riparian vegetation; reworks stream channels, floodplains, and 
benches; and redistributes sediments such that a pattern of appropriate 
vegetation is present along river and stream edges, and throughout 
their floodplains. Periodic disturbance of riparian areas sets back 
succession and promotes dense, low-growing shrubs and lush herbaceous 
vegetation favorable to the PMJM. Where flows are controlled to 
preclude a natural pattern and other disturbance is limited, a less 
favorable mature successional stage of vegetation dominated by 
cottonwoods or other trees may develop. The long-term availability of 
habitat components favored by the PMJM also depends on plant succession 
and impacts of drought, fires, windstorms, herbivory, and other natural 
events. In some cases, these naturally occurring ecological processes 
are modified or are supplanted by human land uses that include 
manipulation of water flow and of vegetation.
    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 life history 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 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; and
    (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 would not be considered 
critical habitat if this proposal is adopted.

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.
    The area proposed for designation 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. In all proposed 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. We 
consider the decline in the extent and quality of PMJM habitat to be 
the main factor threatening the subspecies (63 FR 26517, May 13, 1998; 
Hafner et al. 1998, pp. 121-123; Shenk 1998, pp. 24-27). Special 
management considerations and protection may be required to address the 
threats of habitat alteration, degradation, loss, and fragmentation 
resulting from urban development, flood control, water development, 
agriculture, and other human land uses that have adversely impacted 
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

    In this proposed designation of revised critical habitat we have 
identified specific areas that include only river and stream reaches, 
and their adjacent floodplains and uplands, that are within the known 
geographic and elevational range of the PMJM, that contain the features 
essential to the conservation of the PMJM. Further, the areas included 
in proposed critical habitat contain at least one of the requisite 
PCEs, and are currently occupied by the PMJM or provide crucial 
opportunities for connectivity to facilitate dispersal and genetic 
exchange.
    This proposed critical habitat designation identifies only 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 2009) and upon the conservation strategy in the 
Preliminary Draft Recovery 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 
Preliminary Draft Recovery Plan identifies the need for a specified 
number, size, and distribution of wild, self-sustaining PMJM 
populations across the known range of the PMJM. On the basis of the 
above criteria, we have chosen a subset of the areas occupied by the 
PMJM within the SPR in Colorado

[[Page 52073]]

that have the physical and biological features essential to the PMJM 
for inclusion in the proposed critical habitat.
    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 species in the long-term.
    In selecting areas of proposed critical habitat, we made an effort 
to avoid developed areas that are not likely to contribute to PMJM 
conservation. Our mapping incorporates the best scientific information 
available, but is limited in scale by our technical capabilities and 
the time available to us in under our settlement agreement with the 
City of Greeley (U.S. District Court, District of Colorado 2009a).
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 (Preble's Recovery Team 2003) and the 
concepts described within the Working Draft as a source of the best 
scientific and commercial data available on the PMJM. For this 
proposal, we rely heavily on the information, concepts, and 
conservation recommendations contained in the Working Draft and the 
slightly modified Preliminary Draft Recovery Plan (Service 2003a), as 
well as the current efforts of the newly formed Recovery Team. We use 
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 Preliminary Draft Recovery Plan is based 
on the work of scientists and stakeholders who met regularly over a 
period of more than three 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 Preliminary Draft 
Recovery Plan to species experts for review and their comments 
(Armstrong 2003; Hafner 2003) were considered prior to the Preliminary 
Draft Recovery Plan being made available on the Service website.
    We also have incorporated all new information received since 2003, 
including:
    <bullet> Data in reports submitted by researchers holding recovery 
permits under section 10(a)(1)(A) of the Act;
    <bullet> Research published in peer-reviewed articles and presented 
in academic theses, agency reports, and unpublished data; and
    <bullet> 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 species via 
deoxyribonucleic acid (DNA) analysis, morphological analysis, and other 
verified records.
    We received information from Federal, State, and local governmental 
agencies, and from academia and private organizations that have 
collected scientific data on the PMJM.
    The Preliminary Draft Recovery 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 
Preliminary Draft Recovery 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 PMJM 
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 Preliminary Draft 
Recovery Plan may change prior to finalization of a recovery plan, our 
recent review of the Preliminary Draft Recovery Plan and the recent 
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 Preliminary Draft Recovery 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 Preliminary Draft Recovery 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 Preliminary Draft 
Recovery 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 Preliminary Draft Recovery 
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 Preliminary Draft Recovery 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 
Preliminary Draft Recovery Plan (Figure 1). Within Colorado, the 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 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 U.S. 
Geological Survey

[[Page 52074]]

(USGS). For the Preliminary Draft Recovery Plan, 8-digit hydrologic 
unit (HUC) 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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[[Page 52075]]

    One issue recently reviewed 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 
removal of the Wyoming portion of PMJM's range from listing. In 
Colorado, the strategy is 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 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 that the previous strategy 
adequately addresses recovery across the PMJM's range in Colorado 
(Jackson 2009). The Recovery Team noted that recovery populations were 
appropriately spread north and south of the Denver metropolitan area, 
which lies between northern and southern populations examined in the 
King et al. (2006) study (Jackson 2009).
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 11 
years since listing 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 
species 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. We have limited 
discussion in this proposal. 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 only 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 Proposed Revised Critical Habitat 
Designation section of this proposal.
    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. 
Therefore, this area is not included in this proposed critical habitat 
designation.
Additional Factors Considered
    Based on the draft recovery 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 the proposed 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 and 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 possible, given all other criteria being comparable, and the 
specific areas meeting the definition of critical habitat under section 
3 of the Act (in that they are within the geographical area occupied by 
the species and contain features essential to the conservation of the 
species which may require special management considerations or 
protection), we evaluated land ownership as a selection criterion for 
inclusion in proposed critical habitat. 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 find 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 proposed critical habitat, as these lands are 
limited in geographic location, size, and habitat quality within the 
range of the PMJM. In addition to the federally owned lands, we 
selected some non-Federal public lands, including lands owned by the 
State of Colorado and by local governments, and privately owned lands.
    This proposed designation of revised critical habitat in Colorado 
includes six units designed to support three large and three medium 
PMJM recovery populations, corresponding to those designated in the 
Preliminary Draft Recovery Plan. While the Preliminary Draft Recovery 
Plan designates the approximate location of these large and medium 
recovery populations, it does not delineate specific boundaries. In 
addition, the Plan identifies seven other HUCs within the PMJM's range 
in Colorado, where a large or medium recovery population is not 
designated. In these seven additional HUCs, the Plan suggests 
establishing three small recovery populations (including at least 3 mi 
(5 km) of rivers or streams) or one medium recovery population in each, 
except for those HUCs which, when adequately surveyed, are without an 
existing PMJM population. The Plan does not identify the locations of 
recovery populations within these remaining seven HUCs. In this 
proposed designation of revised critical habitat, we are not proposing 
critical habitat units corresponding to Plan requirements in all of 
these remaining seven HUCs. In some, occurrence or distribution of PMJM 
populations is largely unknown; in others the quality, continuity, and 
extent of physical and biological features essential to the PMJM are 
lacking. Designating critical habitat in each of these remaining HUCs 
is not necessary to provide for the conservation of the subspecies.
    The Preliminary Draft Recovery Plan anticipates that, in the 
future, the locations of these remaining recovery populations will be 
designated and

[[Page 52076]]

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 us. In contrast to the 
Preliminary Draft Recovery Plan, this proposed revised designation of 
critical habitat must delineate specific boundaries for all critical 
habitat areas proposed 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 propose. This is likely to occur if future information changes 
our understanding of the distribution of PMJM populations.
    In some HUCs identified in the Preliminary Draft Recovery 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 in Colorado or 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 warranted, 
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 proposing critical habitat 
within these four HUCs. We have determined that we can meet the 
statutory requirements of critical habitat by proposing a subset of 
lands that contain the PCEs essential to the conservation of the PMJM.
    The conservation strategy employed in the Preliminary Draft 
Recovery 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 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. For this reason, we prioritized inclusion 
of Federal lands where possible. However, Federal lands alone cannot 
fully provide for the conservation of the species. Therefore, we 
included some 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 Federal 
land is essential for the conservation of the PMJM. Should unforeseen 
events cause the continued decline of PMJM populations throughout its 
range, 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 proposing critical habitat for sites consistent with those 
listed in the Preliminary Draft Recovery Plan, we reviewed other sites 
of PMJM occurrence, especially Federal lands, and are proposing certain 
additional units for designation as critical habitat that include the 
requisite PCEs and are known to support the PMJM.
    Based on this conservation strategy, we propose to designate 
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 Preliminary Draft 
Recovery Plan. These areas of proposed critical habitat may include 
intervening non-Federal 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.
    Revisions to the critical habitat designation may be necessary in 
the future to accommodate shifts in the occupied range of the PMJM. For 
example, there is potential for impacts to the PMJM and its habitat 
from currently predicted future climate changes. While specific effects 
to PMJM are somewhat uncertain, a trend of climate change in the 
mountains of western North America is expected to decrease snowpack, 
hasten spring runoff, and reduce summer flows (Intergovernmental Panel 
on Climate Change 2007, p. 11). Resultant changes to vegetative 
communities may compel PMJM distribution to shift to higher elevations 
not currently occupied, but still within the designated boundary of the 
SPR in Colorado. While effects from climate change may result in an 
increased PMJM dependence on these areas in the future if lower 
elevation areas become less habitable, elevations above 7,600 ft (2,317 
m) are not known to support the PMJM at this time. The preponderance of 
lands above 7,600 ft (2,317 m) within subdrainages supporting the PMJM 
are in Federal ownership.

South Platte River Drainage North of Denver

    In the Cache la Poudre HUC, stream reaches that contain requisite 
PCEs are widespread. We are proposing 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 Preliminary Draft Recovery Plan. We are also proposing a second 
area further south in this subdrainage on National Forest System lands 
along the main stem of the Cache la Poudre River and on selected 
tributaries. The two proposed units in the lower reaches and 
subdrainage contain the appropriate spatial arrangement of the 
requisite PCEs to ensure the conservation of the PMJM. While additional 
stream reaches that support requisite PCEs are present in the upper 
reaches of the North Fork of the Cache la Poudre and its tributaries, 
including Bull Creek, Willow Creek, Mill Creek, and Trail Creek, the 
PCEs in these reaches are of limited quantity. As a consequence, we are 
not proposing critical habitat in the upper reaches because we have 
determined that they do not contain the features essential for the 
conservation of the species. Therefore, we propose no critical habitat 
in the upper reaches of the North Fork.
    The Preliminary Draft Recovery Plan specifies a medium recovery 
population on South Boulder Creek within the St. Vrain HUC. Consistent 
with our 2002 proposal of critical habitat (67 FR 47153), we are 
including portions of the South Boulder Creek and Spring Creek as 
proposed critical habitat. Previously, we considered designating 
critical habitat along the St. Vrain River and adjacent tributaries and 
ditches between the towns of Hygiene and Lyons. However, we find that 
the areas along South Boulder Creek that contain the requisite PCEs are 
preferable to the St. Vrain River area because they are of higher 
habitat quality, while some of the areas and features along the St. 
Vrain River are being impacted by aggregate mining and other human 
development.

[[Page 52077]]

We also find only one unit within this general area is necessary to the 
conservation of the PMJM as outlined in the Preliminary Draft Recovery 
Plan. Therefore, we are selecting the areas along South Boulder Creek 
for inclusion in proposed ciritcal habitat instead of the St. Vrain 
River, due to the quality, quantity, and spatial arrangement of the 
PCEs and subsequent essential features..
    We also considered proposing critical habitat for the PMJM on 
higher elevations along the North St. Vrain Creek and the Middle St. 
Vrain Creek. However, since limited trapping efforts targeted at the 
PMJM have been conducted in these areas and occupancy by the PMJM 
appears uncertain, we are not proposing critical habitat along these 
creeks. The lack of presence of the mouse would mean that we would need 
to determine that these lands are essential to the conservation of the 
mouse in order to include them in the proposed designation. As stated 
previously, we determined that we could meet the statutory requirements 
of critical habitat by designating a subset of the known occupied 
lands.
    Rocky Flats NWR spans portions of the St. Vrain HUC and the Middle 
South Platte-Cherry Creek HUC. Requisite PCEs are present and the site 
supports small streams largely unimpacted by human development. Rocky 
Flats NWR has been a focus of research on the PMJM and monitoring of 
populations took place for several years when the site was owned by the 
Department of Energy (DOE) (PTI 1998). We proposed the site as critical 
habitat in 2002, but excluded in our 2003 final designation of critical 
habitat based on our section 4(b)(2) analysis that concluded the area 
did not require special management efforts. We propose the site again 
as critical habitat and we will again evaluate whether it is 
appropriate to exclude the site from critical habitat designation under 
section 4(b)(2) of the Act.
    As in our 2003 final designation of critical habitat (68 FR 37275), 
we are proposing critical habitat in the Big Thompson HUC on Buckhorn 
Creek and its tributaries consistent to provide for the medium recovery 
population as advised in the Preliminary Draft Recovery Plan. We are 
also proposing one additional area as critical habitat that is a 
tributary to the Big Thompson River, centered on National Forest System 
lands on portions of Dry Creek and its tributaries. We excluded this 
area from our 2003 designation of critical habitat in part due to 
uncertainty regarding identity of the jumping mice present. We know 
that the area both supports the PMJM and contains the PCEs essential to 
the conservation of the species.
    We also assessed National Forest System lands along the Big 
Thompson River and Little Thompson River for possible inclusion as 
critical habitat. Areas along the Big Thompson River and the North Fork 
of the Big Thompson River that contain the PCEs essential to the 
conservation of the PMJM are largely in private ownership that are 
impacted by substantial human development. The remaining protected 
lands (i.e., USFS holdings) are highly fragmented or are present only 
as stream reaches near the 7,600 ft (2,317 m) elevation. Requisite PCEs 
are generally not in the appropriate spatial arrangement and quantity 
to provide for the conservation of the PMJM. Therefore, we propose no 
critical habitat on the Big Thompson River, the North Fork of the Big 
Thompson River, or the Little Thompson River.
    The Lone Tree-Owl HUC provides requisite PCEs along limited stream 
reaches in Colorado. While the Preliminary Draft Recovery Plan (Service 
2003a) suggests three small or one medium recovery population in the 
Lone Tree-Owl HUC if PMJM are present, it is questionable whether the 
PMJM occurs within this HUC. On July 17, 2002, we proposed two small 
areas of critical habitat along Lone Tree Creek, one in Wyoming and one 
in Colorado (67 FR 47154). However, we omitted critical habitat along 
Lone Tree Creek from our June 23, 2003, designation (68 FR 37275) 
because, despite the relatively low elevation of the stream, to date 
the only jumping mice verified to species from Lone Tree Creek are 
western jumping mice (Service 2009). This corresponds to the pattern in 
southern Wyoming where, unlike in most of Colorado, western jumping 
mice are found regularly below 6,700 ft (2,043 m). No further captures 
of jumping mice have occurred in the Colorado portion of this HUC since 
our 2003 designation. The lack of presence of PMJM would mean that we 
would need to determine that these lands are essential to the 
conservation of the mouse in order to include them in the proposed 
designation. As stated previously, we determined that we could meet the 
statutory requirements of critical habitat by designating a subset of 
the known occupied lands. Therefore, we are not proposing critical 
habitat in the Lone Tree-Owl HUC.
    The Preliminary Draft Recovery Plan suggests three small recovery 
populations or one medium recovery population in the Crow Creek HUC, if 
PMJM are present. The Crow Creek HUC has few stream reaches that 
support requisite PCEs in the appropriate spatial arrangement and 
quantity to be essential to the conservation of the PMJM within the SPR 
in Colorado. Further, trapping within this HUC in Colorado has not 
resulted in captures of jumping mice (Service 2009). The lack of 
presence of the mouse would mean that we would need to determine that 
these lands are essential to the conservation of the mouse in order to 
include them in the proposed designation. As stated previously, we 
determined that we could meet the statutory requirements of critical 
habitat by designating a subset of the known occupied lands. Therefore, 
we are proposing no critical habitat within this HUC.
    The Preliminary Draft Recovery Plan suggests three small recovery 
populations or one medium recovery population in the Clear Creek HUC, 
if PMJM are present. The PMJM has been confirmed along a segment of 
Ralston Creek above Ralston Reservoir (Service 2009). We propose 
critical habitat on this reach similar to that in our 2003 designation 
of critical habitat. Based on limited occurrence of stream reaches that 
contain the requisite PCEs and existing human development patterns, we 
are limiting our proposed designation of critical habitat within the 
Clear Creek HUC to this single reach.

South Platte River Drainage South of Denver

    Within the Upper South Platte HUC, we propose critical habitat 
along West Plum Creek and its tributaries consistent with the large 
recovery population called for in the Preliminary Draft Recovery Plan. 
Based on public comments and information received in 2002, some small 
changes have been made to the tributaries previously proposed as 
critical habitat. We are not including portions of one unnamed 
tributary to West Plum Creek and the upper portion of Metz Canyon 
because they do not support the features essential to the PMJM.
    Consistent with our 2003 final designation of critical habitat 
within the Upper South Platte HUC, we propose critical habitat on Army 
Corps of Engineers' lands upstream of Chatfield Reservoir along the 
South Platte River and on three areas centered on National Forest 
System land in the Pike-San Isabel National Forest within the South 
Platte River watershed. The four areas of proposed critical habitat 
should ensure that a population of the PMJM sufficient for its 
conservation is maintained in the portion of this HUC upstream of 
Chatfield Reservoir on the South Platte River and its tributaries. 
However, we are not proposing to include some

[[Page 52078]]

National Forest System lands on some major tributaries of the South 
Platte River, because the habitat components required by the PMJMdo not 
contain features essential to the subspecies conservation since they 
have been degraded by catastrophic fire, flooding, or both. The Buffalo 
Creek watershed has been highly degraded by fire, followed by flooding, 
accompanying erosion, and sedimentation. While there is evidence of 
recovery of the habitat occurring, we conclude that, in the foreseeable 
future, this area will not develop the essential physical or biological 
features in the appropriate quantity and spatial arrangement to provide 
for the conservation of the PMJM; therefore, we are not proposing 
critical habitat in the Buffalo Creek watershed. The Wigwam Creek area, 
proposed as a critical habitat subunit in 2002, was not designated as 
critical habitat in 2003 following intense burning by the 2002 Hayman 
Fire, and is not being included in this proposal. The area remains 
degraded, and minimally supports PCEs necessary for the conservation of 
the PMJM, and we conclude that it is not appropriate to propose 
critical habitat in the area.
    The Preliminary Draft Recovery Plan (Service 2003a) specifies a 
medium recovery population along Cherry Creek in the Middle South 
Platte-Cherry Creek HUC. 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. Similar to our July 17, 2002, 
proposal of critical habitat (67 FR 47154), we include portions of 
Cherry Creek, Lake Gulch, and Upper Lake Gulch as proposed critical 
habitat because it contains the best spatial arrangement and quanity of 
requisite PCEs within the HUC. After additional review of the quality, 
continuity and extent of requisite PCEs; PMJM distribution; 
conservation potential; and conservation efforts within upper reaches 
of Cherry Creek and its tributaries, including East Cherry Creek and 
West Cherry Creek, we are proposing a second subunit of critical 
habitat on portions of Antelope Creek and Haskel Creek. We believe that 
this area contains the features essential to the conservation of the 
PMJM and could serve as an alternate or additional medium recovery 
population consistent with our recovery strategy.
    The Preliminary Draft Recovery Plan suggests either three small 
populations or one medium population in the Kiowa HUC if PMJM are 
present. No confirmation of the PMJM existed at the time of 2003 
critical habitat designation for this subdrainage, and no critical 
habitat was designated. Since 2003, PMJM were captured at two sites 
within the Kiowa (Service 2009). Various stream reaches throughout 
southern portions of the HUC support some of the PCEs and may support 
the PMJM. However, we do not believe that the areas contain the PCEs in 
the appropriate quantity and spatial arrangement. As a consequence, we 
are not proposing any critical habitat within the HUC.
    The Preliminary Draft Recovery Plan suggests either three small 
populations or one medium population in the Bijou HUC if PMJM are 
present. While requisite PCEs are present in the Bijou HUC, the limited 
trapping efforts that have occurred have not resulted in captures of 
jumping mice (Service 2009); therefore, consistent with our 
determination that areas not known to be occupied by the PMJM are not 
essential to its conservation, we are not proposing critical habitat in 
this HUC.

Arkansas River Drainage

    Within the Fountain Creek HUC, the Preliminary Draft Recovery Plan 
(Service 2003a) specifies a large recovery population along Monument 
Creek and its tributaries including lands within the U.S. Air Force 
Academy (Academy). While the Academy lands support the requisite PCEs, 
a significant PMJM population, and are essential to maintaining this 
recovery population, we determined that the Academy land merits 
exemption pursuant to section 4(a)(3) of the Act. We propose critical 
habitat east and north of the Academy similar to the area we proposed 
on July 17, 2002 (67 FR 47154), with the addition of one stream reach. 
In determining boundaries of critical habitat we considered whether 
documented PMJM populations on some stream reaches remained connected 
to the larger population present along Monument Creek and its 
tributaries on the Academy or whether, due to fragmentation caused by 
past development, they have become permanently isolated.
    A significant barrier to PMJM movement is present on Kettle Creek 
in the form of a large detention basin on the Academy just east of 
Interstate Highway 25 and accompanying outflow structure that channels 
creek flow under the highway. We have had discussions with the Academy 
regarding possible means of improving connectivity between upstream and 
downstream PMJM populations along this reach. Since improved 
connectivity may be possible and could prove essential in meeting the 
recovery criteria in this HUC, we are proposing critical habitat 
upstream of this reach of Kettle Creek.
    Along the upper reaches of Monument Creek, Monument Lake and the 
dam that forms it create at least a partial barrier to PMJM movement 
upstream and downstream. Mitigation associated with a project that 
modified Monument Lake Dam was intended to enhance connectivity for the 
PMJM through this reach of Monument Creek (Service 2002a). However, the 
mitigation has thus far not been completed. In addition some reaches 
upstream from Monument Lake have been significantly altered by human 
activity. We have not included these upper reaches in our proposed 
designation because they do not contain the requisite PCEs in an 
appropriate quantity and spatial arrangement.
    The Preliminary Draft Recovery Plan suggests either three small 
recovery populations or one medium recovery population to meet recovery 
criteria in both the Chico and the Big Sandy HUCs, if PMJM are present. 
We did not propose critical habitat in either of these HUCs in 2002 or 
designate it in 2003. We are not proposing critical habitat in the 
Chico HUC because the PCEs appear very limited in quantity and spatial 
arrangement within the subdrainage and, therefore, the area does not 
contain the features essential to the conservation of the PMJM. 
Additionally, the PMJM has been found at two locations within the Chico 
HUC, in apparently marginal habitat along an unnamed tributary of Black 
Squirrel Creek and at a site in the upper reaches of Black Squirrel 
Creek that is under development pressure (Service 2009). Subsequent 
trapping could not relocate the PMJM at the former site. In the Big 
Sandy HUC, requisite PCEs are limited to a few short reaches and, 
therefore, the area does not contain the features essential to the 
conservation of the PMJM. For this reason we are not proposing critical 
habitat in the Big Sandy HUC. In this location, limited trapping 
efforts targeted at the PMJM have not confirmed the presence of the 
PMJM (Service 2009).

Delineation of Critical Habitat Boundaries

    We propose 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) and using new information 
in the preparation of this revised proposed rule. For this proposed 
rule, we used GIS-based mapping using ESRI ArcGIS software 
incorporating USGS National Hydrography Dataset

[[Page 52079]]

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 proposing as critical habitat into specific 
mapping units, i.e., critical habitat units, often corresponding to 
individual HUCs. For the purposes of this proposed 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 proposed critical habitat along rivers and 
streams.
    As in 2003, we are faced with a decision concerning the outward 
extent of critical habitat into uplands. Studies suggest that the PMJM 
uses uplands at least as far out as 330 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 
have ranged 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 Preliminary Draft Recovery Plan (Service 2003a) defines PMJM 
habitat as the 100-year floodplain plus 330 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 range of the PMJM. 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 proposed revised designation, we 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 side. For example, 
this analysis determined the average flood plain for streams of order 1 
and 2 (the smallest streams) is 33 feet (10 m). Based on this 
calculation, for streams of order 1 and 2, we propose critical habitat 
as 361 ft (110 m) outward from the stream edge; for streams of order 3 
and 4, we propose 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 propose critical habitat as 459 ft (140 m) outward from the 
stream edge. While proposed 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 their habitats from 
secondary impacts of nearby disturbance. Following our July 17, 2002, 
proposal of critical habitat (67 FR 47154), we received a number of 
public comments regarding the appropriate outward limits of critical 
habitat and means of establishing them. However, most comments 
suggested either standardizing a single outward distance for all rivers 
and streams, site specific mapping of critical habitat for each reach, 
or relying on alternative mapping created for HCPs as a surrogate for 
site-specific mapping of critical habitat. We determined that none of 
these alternatives were both feasible with the resources available to 
us and more accurate rangewide than the methodology employed above.

Proposed Revised Critical Habitat Designation

    The proposed critical habitat contained within units discussed 
below constitutes our best evaluation of areas necessary to conserve 
the PMJM. Table 1 above provides a summary of the length of stream 
reach with habitat in each unit that is proposed as revised critical 
habitat. Proposed critical habitat for the PMJM includes approximately 
426 mi (686 km) of rivers and streams and 39,835 ac (16,121 ha) of 
lands in Colorado. Lands proposed as critical habitat are under 
Federal, State, local government, and private ownership (Table 2). No 
lands proposed as critical habitat are under tribal 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. Therefore, 
excluding certain developed areas or other areas not supporting any of 
the requisite PCEs, the areas proposed be less than that indicated in 
Table 2.

                         TABLE 2. Proposed Critical Habitat Acreage for the Preble's Meadow Jumping Mouse in Colorado Counties.
                                                                    by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
               COUNTY                        FEDERAL                  STATE                LOCAL GVT                OTHER                  TOTAL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Boulder                              6 ac                                            515 ac                 351 ac                 871 ac
                                     (2 ha)................                          (208 ha).............  (142 ha).............  (352 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Douglas                              3,024 ac                762 ac                  512 ac                 9,599 ac               13,896 ac
                                      (1,224 ha)...........   (308 ha).............   (207 ha)............   (3,885 ha)..........   (5,624 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 52080]]

 
El Paso                              59 ac                   0                       160 ac                 3,199 ac               3,419 ac
                                      (24 ha)..............                           (65 ha).............   (1,285 ha)..........  (1,383 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Jefferson/Broomfield\*\              1,564 ac                195 ac                  311 ac                 584 ac                 2,654 ac
                                     (633 ha)..............  (79 ha)...............  (126 ha).............  (236 ha).............  (1,074 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Larimer                              7,867 ac                2,363 ac                187 ac                 7,809 ac               18,226 ac
                                     (3,184 ha)............  (956 ha)..............  (76 ha)..............  (3,160 ha)...........  (7,376 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Teller                               77 ac                   0                       0                      0                      77 ac
                                     (31 ha)...............                                                                        (31 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Total                        12,596 ac               3,319 ac                1,685 ac               21,542 ac              39,142 ac
                                     (5,097 ha)............   (1,343 ha)...........  (682 ha).............  (8,718 ha)...........   (15,840 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ Broomfield County extends minimally on to Rock Flats NWR (Unit 7).

    Lands proposed as revised critical habitat are divided into 11 
critical habitat units containing all of those PCEs necessary to meet 
the primary biological needs of the PMJM throughout Colorado where it 
is listed. Each unit has all of the requisite PCEs present, and, based 
on the best scientific data available, all are believed to currently 
support the PMJM. Individual stream reaches designated 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.
    In proposing critical habitat, we did not include all areas 
currently occupied by the PMJM. A brief description of each PMJM 
critical habitat unit is provided below. The units are generally based 
on geographically distinct river drainages and subdrainages. 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 proposing 
as critical habitat may require special management considerations or 
protection. Management may include additional measures in addition to 
those that may already be in place to preserve such areas; to avoid, 
reduce, or offset human-induced and natural impacts; and to restore 
such areas following unavoidable adverse impacts, including fire or 
flooding.
Unit 1: North Fork of the Cache la Poudre River, Larimer, Colorado.
    Unit 1 encompasses approximately 8,619 ac (3,488 ha) on 88 mi (142 
km) of streams within the North Fork of the Cache la Poudre River 
watershed. It includes the North Fork of the Cache la Poudre River from 
Seaman Reservoir upstream to 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 unit 
includes both public and private lands. It includes portions of the 
Arapaho-Roosevelt National Forest, as well as Lone Pine State Wildlife 
Area.
    The unit is located in the Cache la Poudre HUC and is proposed to 
address the large recovery population designated for this area in the 
Preliminary Draft Recovery Plan (Service 2003a). The area remains rural 
and agricultural with habitat components likely to support relatively 
high densities of the PMJM. Pressure for expanded development is 
increasing within the area.
Unit 2: Cache la Poudre River, Larimer County.
    Unit 2 encompasses approximately 4,944 ac (2,001 ha) on 51 mi (82 
km) of streams within the Cache la Poudre River watershed. 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.
    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, 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. Some such reaches may serve the 
PMJM mostly as connectors between areas containing all necessary PCEs.
Unit 3: Buckhorn Creek, Larimer County.
    Unit 3 encompasses approximately 3,995 ac (1,617 ha) on 46 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 includes both public and private lands and portions of 
the Arapaho-Roosevelt National Forest.
    The unit is located in the Big Thompson HUC and is proposed to 
address the medium recovery population called for this area in the 
Preliminary Draft Recovery Plan (Service 2003a). Pressure for expanded 
rural development exists on non-Federal lands within the unit.
Unit 4: Cedar Creek, Larimer County.
    Unit 4 encompasses approximately 668 ac (270 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 non-Federal lands.

[[Page 52081]]

    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. It is isolated, 
at least in terms of riparian connection, from the PMJM population on 
nearby Buckhorn Creek. 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 of Bear Gulch within the Buckhorn 
Creek unit suggests that some individual mice may pass between the two 
populations and thus between the two significant watersheds within this 
HUC.
Unit 5: South Boulder Creek, Boulder County.
    Unit 5 encompasses approximately 856 ac (347 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. 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 is proposed to 
address the medium recovery population designated for this area in the 
Preliminary Draft Recovery Plan (Service 2003a). Portions of the area 
have been the subject of PMJM research funded by the City of Boulder 
and, in places, 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. In places, the outward extent of PCEs surpasses 
the standard distance outward from the stream used to define critical 
habitat in this designation. Pressure for expanded development is 
occurring on private lands within the unit. Recreational use of the 
City of Boulder lands is considerable and may adversely impact the 
PMJM.
Unit 6: Rocky Flats NWR, Jefferson and Broomfield Counties..
    Unit 6 encompasses approximately 1,108 ac (449 ha) on 13 mi (20 km) 
of streams on the subunits corresponding to the Rock Creek, Woman 
Creek, and Walnut Creek watersheds. The unit includes only Federal 
lands on the Rocky Flats NWR.
    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 extends to two HUCs, both of which 
have designated recovery population elsewhere, this unit is unlikely to 
serve as an initial recovery population. However, this unit is unique 
because it is limited entirely to Federal lands and populations on the 
site have been the subject of the longest continuing research on the 
PMJM. After cleanup and closure of the DOE's Rocky Flats Environmental 
Technology Site, the property was transferred to the Service to become 
part of our National Wildlife Refuge System. Streams within the unit 
are small and habitat components present do not support a high density 
of the PMJM. The site presents an opportunity to study small 
populations and their viability over time.
Unit 7: Ralston Creek, Jefferson County.
    Unit 7 encompasses approximately 809 ac (328 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. 
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 proposing to 
designate 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 Preliminary Draft Recovery Plan (Service 
2003a). The segment of Ralston Creek that passes through the Cotter 
Corporation's existing Schwartzwalder Mine serves as a connector 
between areas supporting all PCEs required by the PMJM located upstream 
and downstream.
Unit 8: Cherry Creek, Douglas County.
    Unit 8 encompasses approximately 2,647 ac (1,071 ha) on 30 mi (48 
km) of streams within the Cherry Creek watershed. It includes two 
subunits. The first includes Cherry Creek from the downstream boundary 
of the Castlewood Canyon State Recreation Area, upstream to its 
confluence with Lake Gulch. Tributaries within the unit include Lake 
Gulch and Upper Lake Gulch. It includes portions of the Castlewood 
Canyon State Recreation Area, as well as Douglas County's recently 
acquired Green Mountain Ranch property. The second subunit includes 
Antelope Creek from its confluence with West Cherry Creek upstream and 
a tributary, Haskel Creek. Both subunits include both public and 
private lands. These subunits are located in the Middle South Platte-
Cherry Creek HUC and address the medium recovery population designated 
for this area in the Preliminary Draft Recovery Plan (Service 2003a). 
Some development pressure is occurring from expanding rural development 
on private lands within these areas.
Unit 9: West Plum Creek, Douglas County.
    Unit 9 encompasses approximately 8,724 ac (3,530 ha) on 94 mi (151 
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. The unit is a combination of public and private lands. 
It includes portions of the Pike-San Isabel National Forest, as well as 
Chatfield State Recreation Area (Army Corps of Engineers' property), 
and Colorado Division of Wildlife's Woodhouse Ranch property.
    This unit is located in the Upper South Platte HUC, and we propose 
to designate it as critical habitat to address the large recovery 
population designated for this area in the Preliminary Draft Recovery 
Plan (Service 2003a). Aside from a portion of Plum Creek, the area 
remains rather rural and includes habitat components likely to support 
relatively high densities of the PMJM. Pressure for expanded suburban 
and rural development is occurring within the area.
Unit 10: Upper South Platte River, Douglas, Jefferson, and Teller 
Counties.
    Unit 10 encompasses approximately 3,353 ac (1,357 ha) on 35 mi (57 
km) of streams within the 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 (Army Corps of Engineers' property). The Bear Creek Subunit 
includes Bear Creek and West Bear Creek, tributaries to the South 
Platte River on National Forest System lands. 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

[[Page 52082]]

centered on Federal lands of the Pike-San 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.
    This unit is located in the same Upper South Platte HUC as West 
Plum Creek, where a large recovery population has been designated 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. 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, both of 
which have been verified from the same trapping effort in the subunit 
(Schorr et al. 2007).
Unit 11: Monument Creek, El Paso County.
    Unit 11 is located in the Arkansas River drainage. It encompasses 
approximately 3,419 ac (1,383 ha) on 39 mi (62 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 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.
    This unit is located in the Fountain Creek HUC and we are proposing 
it as critical habitat to address the large recovery population 
designated for this area in the Preliminary Draft Recovery 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. Development 
pressure is extremely high on some private lands within the unit. 
Development has resulted in changes in flows from increased stormwater 
runoff and has affected stream channels and associated riparian systems 
(Mihlbachler 2007).

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 5th and 9th Circuit Courts 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, 442F (5th Cir 2001)), and we do not rely 
on this regulatory definition when analyzing 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 the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. Conference reports provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. We may issue a 
formal conference report if requested by a Federal agency. Formal 
conference reports on proposed critical habitat contain an opinion that 
is prepared according to 50 CFR 402.14, as if we had designated 
critical habitat. We may adopt the formal conference report as the 
biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations 
in a conference report or opinion are advisory.
    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 such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us in most cases. 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 designated critical habitat; or (2) A biological opinion for 
Federal actions that are likely to adversely affect listed species or 
designated critical habitat.
    An exception to the concurrence process referred to in (1) above 
occurs in consultations involving 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). The agreements allow the USFS 
and the BLM the opportunity to make ``not likely to adversely affect'' 
determinations for projects implementing the National Fire Plan. 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 staff 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.
    If 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:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action,
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
    <bullet> Are economically and technologically feasible, and
    <bullet> Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying its critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or

[[Page 52083]]

relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    When we issue a biological opinion concluding that a project is not 
likely to jeopardize a listed species or adversely modify its critical 
habitat but may result in incidental take of listed animals, we provide 
an incidental take statement that specifies the impact of such 
incidental taking on the species. We then define ``reasonable and 
prudent measures'' considered necessary or appropriate to minimize the 
impact of such taking. Reasonable and prudent measures are binding 
measures the action agency must implement to receive an exemption to 
the prohibition against take contained in section 9 of the Act. These 
reasonable and prudent measures are implemented through specific 
``terms and conditions'' that must be followed by the action agency or 
passed along by the action agency as binding conditions to an 
applicant. Reasonable and prudent measures, along with the terms and 
conditions that implement them, cannot alter the basic design, 
location, scope, duration, or timing of the action under consultation 
and may involve only minor changes (50 CFR 402.14). We may provide the 
action agency with additional conservation recommendations, which are 
advisory and not intended to carry binding legal force.
    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 will 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 U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from us under section 10(a)(1)(B) 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) also will be 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.

Application of the ``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 would retain its current ability 
for the primary constituent element(s) to be functionally established. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the physical and biological features to an extent that 
appreciably reduces the conservation value of critical habitat for the 
PMJM. Generally, the conservation role of the proposed revised PMJM 
critical habitat units is to support viable populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, 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 the changes to inputs of water, sediment and nutrients, 
or 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.
    Federal actions not affecting listed species or critical habitat 
and actions on non-Federal lands that are not federally funded or 
permitted do not require section 7 consultation.
    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.

Application of Section 4(a)(3) of the Endangered Species Act

    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.''
    The Sikes Act of 1997 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)

[[Page 52084]]

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:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) 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.
    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 
range of the PMJM and that contain those features essential to the 
species' conservation for exemption under the authority of section 
4(a)(3)(B) of the Act.
U.S. Air Force Academy
    The U.S. Air Force Academy (Academy) in El Paso County, Colorado, 
is the lone Department of Defense property in the area of the proposed 
revised critical habitat. The Academy has a completed INRMP that 
contains those features essential to the species' conservation. The 
Academy has completed an INRMP (U.S. Air Force 1998), a 1999 
``Conservation and Management Plan for the Prebles Meadow Jumping Mouse 
at the U.S. Air Force Academy'' (U.S. Air Force 1999), and the Service 
completed a 2000 programmatic section 7 consultation addressing certain 
activities at the Academy that may affect the PMJM (Service 2000). The 
Conservation and Management Plan provides guidance for Air Force 
management decisions. Following its initial 5-year duration, the 
Conservation and Management Plan was renewed and extended annually 
(Linner 2007). The plan was based upon the most current scientific 
knowledge available at the time that it was developed. Research 
regarding the PMJM is ongoing at the Academy, and we anticipate that an 
update to the Conservation and Management Plan will be finalized in 
2009.
    The Academy's INRMP describes habitats found at the Academy, 
including habitats used by the PMJM (U.S. Air Force 1998). It addresses 
management concerns, 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 provides for modification of management actions when 
appropriate. We have reviewed these measures and have concluded that 
they address the four criteria identified above. As a result, such 
lands are not included in the proposed designation.

Application of Section 4(b)(2) of the Endangered Species 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, as well as the legislative history, is 
clear that the Secretary has broad discretion regarding which factor(s) 
to use and how much weight to give to any factor (Department of the 
Interior, 2008).
    We are updating the previous economic analysis of the impacts of 
the proposed designation of revised critical habitat, which will be 
available for public review and comment when it is complete. Based on 
public comment on that document, on the proposed designation itself, 
and on the information in the revised final economic analysis, the 
Secretary may exclude from critical habitat additional areas beyond 
those identified in this assessment under the provisions of section 
4(b)(2) of the Act. This also is addressed in our implementing 
regulations at 50 CFR 424.19.
    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.) analysis we will conduct also may disclose other impacts we may 
consider in our analysis under section 4(b)(2) of the Act. 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, 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.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits 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 than a critical habitat designation would 
provide.
    In the case of the PMJM, the benefits of critical habitat include 
public awareness of the PMJM's presence and the importance of habitat 
protection, and in cases where a Federal action exists, increased 
habitat protection for the PMJM due to the protection from adverse 
modification or destruction of critical habitat.
    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

[[Page 52085]]

extinction, we will not exclude it from the designation.
Conservation Partnerships on Non-Federal 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 non-Federal 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. In the past decade, we encouraged non-Federal landowners 
to enter into conservation agreements, based on a view that we can 
achieve greater species conservation on non-Federal 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 the possible 
consequences of encouraging endangered species to their property. 
Mounting evidence suggests that some regulatory actions by the Federal 
government, while well-intentioned 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 threatened or 
endangered 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).
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that landowners 
will support and carry out conservation actions (Main et al. 1999, p. 
1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude 
of this negative outcome is greatly amplified in situations where 
active management measures (such as reintroduction, fire management, 
and control of invasive species) are necessary for species conservation 
(Bean 2002, pp. 3-4). We believe that the judicious exclusion of 
specific areas of non-federally owned lands from critical habitat 
designations can contribute to species recovery and provide a superior 
level of conservation than critical habitat alone.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome 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. Thus 
the benefits of excluding areas that are covered by partnerships or 
voluntary conservation efforts can often be high.
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 and 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 HCP-covered 
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.
    The information provided in the previous section applies to the 
following discussions of potential exclusions under section (4)(b)(2) 
of the Act. We are considering the exclusion of lands covered by such 
plans. Portions of the proposed revised critical habitat units and 
their subunits may warrant

[[Page 52086]]

exclusion from the proposed 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. In this revised proposed rule, we are seeking input from the 
stakeholders in these HCPs and the public as to whether or not we 
should exclude these areas from the final revised critical habitat 
designation. We also are asking for public comment on the possible 
exclusion of proposed critical habitat within the El Paso County HCP 
planning area; this HCP is currently under development. Below is a 
brief description of each plan and the lands within the units proposed 
as revised critical habitat that relate to each plan.
Douglas County Habitat Conservation Plan
    On May 11, 2006, we issued a section 10 incidental take permit for 
the Douglas County HCP (Service 2006a). This permit covers the PMJM. 
The Douglas County HCP covers specified activities conducted by Douglas 
County and the Towns of Castle Rock and Parker, on private and non-
Federal lands within a Riparian Conservation Zone (RCZ) as mapped by 
Douglas County. The activities covered by the Douglas County HCP 
include construction, use, maintenance, and closure of roads, bridges, 
trails, and recreational facilities; maintenance and repair of existing 
structures and facilities; emergency activities; habitat improvements 
that benefit the RCZ; and other necessary County or town public 
improvements. These activities are subject to conditions and best 
management practices to minimize impacts to known or potential PMJM 
habitat.
    The RCZ depicts the geographic limits of known or potential PMJM 
habitat over 283 stream mi (456 km) and over 18,000 ac (7,000 ha) in 
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). In addition, the Douglas County HCP 
establishes an impact cap of 430 ac (174 ha) of the RCZ. The permanent 
impacts associated with the covered activities are distributed 
throughout Douglas County and the RCZ and may permanently affect 308 ac 
(125 ha) of the RCZ (about 1.6 percent of the RCZ) over the 10-year 
life of the permit. However, in the period from permit issuance in May 
2006, through May 2009, only about 12 ac (5 ha) of impacts have been 
documented (Dougherty 2009).
    A related issue on which we seek comment is the potential 
modification of outward boundaries of proposed critical habitat within 
the RCZ to conform to Douglas County's mapped RCZ boundaries. While 
boundaries of the proposed critical habitat units include standard 
distances outward from streams (varying based on stream order), the RCZ 
represents a site-specific attempt to map boundaries of PMJM habitat.
    Proposed critical habitat Units 8 and 9 are within the boundaries 
of the Douglas County HCP; a small amount of non-Federal property in 
Unit 10 is also within the boundaries of the Douglas County HCP. 
Protected properties serving as mitigation under the Douglas County HCP 
that are all or in part within Unit 8 include the Nelson Ranch and 
Dupont Property; those all or in part within Unit 9 include the Prairie 
Canyon Ranch, Greenland Ranch, and Lake Gulch Property.
Livermore Area Habitat Conservation Plan
    On May 11, 2006, we issued a section 10 incidental take permit for 
the Livermore Area HCP (Service 2006b). This permit covers the PMJM. 
The Livermore Area is located in northern Larimer County (Colorado) in 
the Laramie Foothills, near the Wyoming border. The Livermore Area HCP 
planning area includes approximately 750 square mi (1,940 square km) 
and 796 mi (1,282 km) of streams including a PMJM ``conservation zone'' 
estimated at approximately 201 mi (324 km) of stream and 21,320 ac 
(8,570 ha). The HCP cites protection of 71 mi (114 km) of stream, 
mostly on State lands managed for the conservation of their natural 
resources, but also on private lands held by The Nature Conservancy and 
managed for the protection of biodiversity, or on private lands where 
owners have placed conservation easements on their properties to ensure 
their protection in perpetuity. It is not clear what proportion of 
these areas support the PMJM.
    Local landowners and public agencies holding land within the 
boundaries of the Livermore Area HCP may opt for coverage under the HCP 
and receive incidental take permits for activities consistent with the 
Livermore Area HCP. The Livermore Area HCP is designed to support 
current land uses, including ranching and farming. However, inclusion 
of landowners is optional, and they may choose to pursue land uses 
inconsistent with those specified in the Livermore Area HCP. Many of 
the private landowners represent large land holdings that potentially 
support the PMJM and other sensitive species. These large holdings are 
managed primarily for ranching and other agricultural uses. Most of the 
rivers, creeks, and tributaries in the Livermore Area are located on 
these properties. The Livermore Area HCP includes proposed critical 
habitat within Unit 1.
Eagle's Nest Open Space Habitat Conservation Plan
    We issued Larimer County a section 10 incidental take for an HCP on 
their Eagle's Nest Open Space (ENOS) property located in the Laramie 
Foothills region of Larimer County (Service 2004b). This permit covers 
the PMJM. 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 
Poudre River. There are approximately 264 ac (107 ha) of PMJM habitat 
on the ENOS HCP. Less than 3 ac (1 ha) can be permanently affected by a 
river access area and trail under the ENOS HCP.
    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 majority of the riparian zone 
will be managed for PMJM conservation. Habitat restoration and 
enhancement will be employed to offset impacts to PMJM habitat at a 
minimum ratio of 1.5:1. The ENOS HCP includes proposed critical habitat 
in Unit 1.
Denver Water Habitat Conservation Plan
    On May 1, 2003, we issued a section 10 incidental take permit to 
Denver Water for their HCP (Service 2003b). This permit covers the 
PMJM. Denver Water owns various properties (including easements), 
facilities, and infrastructure within the PMJM's range. 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. The HCP promotes implementation of applicable best management 
practices to benefit the

[[Page 52087]]

PMJM that avoid, minimize, and eliminate impacts to occupied and 
potential PMJM habitat. Where 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. The Denver Water 
HCP includes proposed critical habitat within Units 5, 6, 9, and 10.
Struther's Ranch Habitat Conservation Plan
    We issued a section 10 incidental take permit for the Struthers 
Ranch residential development consistent with the Struther's Ranch HCP 
on December 12, 2003 (Service 2003c). This permit covers the PMJM. The 
site supported approximately 49 ac (20 ha) of PMJM habitat. 
Approximately 35.5 ac (14.4 ha) of undeveloped land along Black Forest 
Creek was withdrawn from cattle grazing, returned to a more natural 
condition, and is maintained as a preserve with conservation measures 
to restore and enhance vegetation for wildlife.
    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 is 
designed to minimize the possibility of future severe flooding events, 
substantially improve remaining PMJM habitat, and minimize any adverse 
effects resulting from developed areas nearby. 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. The Struther's Ranch HCP includes portions of proposed 
critical habitat Unit 11.
Other Habitat Conservation Plans
    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 in Black Forest, El Paso County 
(Service 2002b). Under the HCP, 0.561 ac (0.252 ha) of PMJM habitat was 
permitted to be disturbed and 4.515 ac (1.828 ha) of the property was 
placed in a conservation easement and deeded to El Paso County to be 
managed according to specific requirements laid out in the HCP. The 
permit expires November 19, 2012. The Lefever Property is within 
proposed critical habitat Unit 11.
    On July 23, 2002, we approved an HCP, and we issued a section 10 
incidental take permit covering the PMJM for a single family residence 
on the Dahl Property, Thunderbird Estates, in Colorado Springs, El Paso 
County (Service 2002c). Under the HCP, 0.15 ac (0.06 ha) of upland PMJM 
habitat was permitted to be disturbed 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 planting. The take permit expired July 
29, 2007; however, preservation of PMJM habitat continues in 
perpituity. The Dahl Property is within proposed critical habitat Unit 
11.
Proposed El Paso County Habitat Conservation Plan
    El Paso County, in coordination with the Service, is developing a 
countywide HCP for the PMJM. We have no assurance as to if, when, or in 
what form this HCP will be completed and approved, or an incidental 
take permit under section 10 issued. Any countywide plan would likely 
cover most or all of the area in proposed critical habitat Unit 11.
Other Properties
    For the following properties, currently proposed as critical 
habitat, we invite comment regarding potential exclusion from revised 
critical habitat under section 4(b)(2) of the Act.
Rocky Flats National Wildlife Refuge
    Rocky Flats NWR is located in Jefferson County and covers 
approximately 6,262 ac (2,534 ha), of which approximately 5,900 ac 
(2,388 ha) forms an undeveloped buffer zone around a central formerly 
industrialized portion. The site was a nuclear industrial facility for 
the DOE between 1951 and the end of the Cold War. Buildings and other 
structures at the site have been decommissioned and demolished, and the 
disturbed areas have been or are undergoing restoration. A programmatic 
section 7 consultation on cleanup activities was completed by the 
Service in 2004 (Service 2004c). This consultation addressed removal of 
manmade structures in and adjacent to PMJM habitat. The site became the 
Rocky Flats NWR in 2005.
    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. All of proposed critical habitat Unit 6 is within 
Rocky Flats NWR.
Proposed Expansion of the Milton Seaman Reservoir
    Portions of critical habitat Unit 1 are within the footprint of the 
planned expansion area of Milton Seaman Reservoir along the North Fork 
of the Cache la Poudre River in Larimer County. Expansion under the 
existing plan would inundate 2.96 mi (4.77 km) within critical habitat 
designated on June 23, 2003 (68 FR 37275), that also is included in 
this revised proposal. The proposed reservoir expansion is not planned 
until about 2029. 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 under section 4(2)(b) of the 
Act (Kolanz, in litt., 2009). The letter contended that the area in 
question is not essential to the conservation of the species and that 
designation would create significant financial burden on the City of 
Greeley. In addition, the letter cited Federal and local cooperation in 
the development of water resources in the drainage, that impacts from 
inundation would be offset by mitigation, and that reservoir expansion 
would not result in extinction of the PMJM.

Economic Analysis

    We conducted an analysis of the potential economic impacts of 
designating critical habitat for the PMJM in 2003 when we designated 
critical habitat (68 FR 37275; June 23, 2003). We will update that 
analysis with any new information that may be available in addition to 
considering the economic impacts on lands that are proposed in this 
revision but that were not previously proposed. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available on the Internet 
at www.regulations.gov, on the Internet at http://www.fws.gov/mountain-prairie/species/mammals/Preble/, or by contacting the Colorado 
Ecological Services Office directly (see FOR FURTHER INFORMATION 
CONTACT).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on

[[Page 52088]]

July 1, 1994 (59 FR 34270), we will be obtaining the expert opinions of 
at least three appropriate independent specialists regarding this 
proposed rule. The purpose of peer review is to ensure that our 
proposed designation of revised critical habitat is based on 
scientifically sound data, assumptions, and analyses. We will invite 
these peer reviewers to comment during this public comment period on 
our specific assumptions and conclusions in this proposed designation.

Public Hearings

    The Act provides for one or more public hearings on this proposal 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication. Send your request to the mailing address listed 
in the FOR FURTHER INFORMATION CONTACT section. We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register and local newspapers 
at least 15 days before the first hearing.

Required Determinations

Regulatory Planning and Review - Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
E.O. 12866. The 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

    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), 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    We conducted a draft analysis of the economic impacts for our 
previous proposed critical habitat designation and made it available to 
the public on January 28, 2003 (68 FR 4160). We issued an addendum to 
the economic analysis on June 3, 2003 (Service 2003d). The costs 
associated with critical habitat for the PMJM, across the entire area 
considered for designation (areas later designated or excluded), were 
primarily a result of the potential effect of critical habitat on 
residential development (almost 80 percent), followed by 
transportation, and other activities, including agriculture (Service 
2003d, pp. 1-2). We estimated the economic impact to be between $79 and 
$183 million over the next 10 years (Service 2003d, p. 1). We presented 
an analysis of the effects of critical habitat on small business and 
certified that the designation would not have a significant effect on a 
substantial number of small entities in our June 23, 2003, designation 
of critical habitat (68 FR 37275).
    While we do not believe our revised designation, as proposed in 
this document, would result in a significant impact on a substantial 
number of small business entities based on the previous designation, we 
are initiating new analyses to more thoroughly evaluate potential 
economic impacts of this revision to critical habitat. Therefore, we 
defer the RFA finding until completion of the draft economic analysis 
prepared under section 4(b)(2) of the Act and E.O. 12866. The draft 
economic analysis will provide the required factual basis for the RFA 
finding. Upon completion of the draft economic analysis, we will 
announce its availability in the Federal Register and reopen the public 
comment period for the proposed revised designation. We will include 
with this announcement, as appropriate, an initial regulatory 
flexibility analysis or a certification that the rule will not have a 
significant economic impact on a substantial number of small entities 
accompanied by the factual basis for that determination. We conclude 
that deferring the RFA finding until completion of the draft economic 
analysis is necessary to meet the purposes and requirements of the RFA. 
Deferring the RFA finding in this manner will ensure that we make a 
sufficiently informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (1) This rule would 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. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 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; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal

[[Page 52089]]

funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed above 
onto State governments.
    (2) Based in part on an analysis conducted for the 2003 designation 
of critical habitat and extrapolated to this proposed revised 
designation, we do not expect this rule to significantly or uniquely 
affect small governments. Small governments would be affected only to 
the extent that any programs having Federal funds, permits, or other 
authorized activities must ensure that their actions will not adversely 
affect the critical habitat. Therefore, a Small Government Agency Plan 
is not required. However, as we conduct our economic analysis for the 
revised rule, we will further evaluate this issue and revise this 
assessment if appropriate.

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 revised 
critical habitat for the PMJM in a takings implications assessment. The 
takings implications assessment concludes that this proposed 
designation of revised critical habitat for the PMJM does not pose 
significant takings implications for lands within or affected by the 
proposed designation.

Federalism - Executive Order 13132

    In accordance with E.O. 13132, this proposed 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 2003 critical habitat designation with appropriate 
State resource agencies in Colorado and Wyoming. We used the 
information gathered in that coordination effort in this revised 
proposal. We believe that the designation of revised critical habitat 
for the PMJM would have little incremental impact on State and local 
governments and their activities. The designation of critical habitat 
in areas currently occupied by the PMJM imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments because the 
areas that contain the physical and biological features essential to 
the conservation of the species are more clearly defined, and the PCEs 
necessary to support the life processes 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 
case-by-case consultations under section 7 of the Act to occur).

Civil Justice Reform - Executive Order 12988

    In accordance with E.O. 12988, (Civil Justice Reform), the Office 
of the Solicitor has determined that the rule does not unduly burden 
the judicial system and that it meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We propose designating revised critical 
habitat in accordance with the provisions of the Act. This proposed 
rule uses standard property descriptions and identifies the physical 
and biological features essential to the conservation of the species 
within the designated areas to assist the public in understanding the 
habitat needs of the PMJM.

Paperwork Reduction Act of 1995

    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.

National Environmental Policy Act

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et 
seq.) in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the Circuit Court of the United States for the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 516 U.S. 1042 (1996)). However, when the range of the species 
includes States within the tenth circuit, such as that of the PMJM, 
under the tenth circuit ruling in Catron County Board of Commissioners 
v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
will undertake a NEPA analysis for revised critical habitat designation 
and notify the public of the availability of a NEPA document for this 
proposal.

Clarity of the Rule

    We are required by E.O. 12866 and E.O. 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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. Tribal lands in

[[Page 52090]]

Colorado are not included in this proposed designation, and the PMJM is 
not believed to exist on or near tribal lands.

Energy Supply, Distribution, or 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. The E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this proposed rule to significantly affect energy 
supplies, distribution, or use based on the economic analysis we 
completed for the July 17, 2002, proposed PMJM critical habitat rule 
(67 FR 47154). Therefore, this action is not a significant energy 
action, and no Statement of Energy Effects is required. However, we 
will further evaluate this issue as we conduct our economic analysis, 
and review and revise this assessment as warranted.

References Cited

    A complete list of all references cited in this rulemaking is 
available online at http://www.fws.gov/mountain-prairie/species/mammals/Preble/, or upon request from the Field Supervisor, Colorado 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT 
section).

Author(s)

    The primary author(s) 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.

Proposed Regulation Promulgation

    Accordingly, for the reasons we have stated in the preamble, we 
propose to 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 Sec.  17.95(a), revise the entry for ``Preble's Meadow 
Jumping Mouse (Zapus hudsonius preblei)'' to read as follows:

Sec.  17.95 Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Preble's Meadow Jumping Mouse (Zapus hudsonius preblei)
    (1) Critical habitat units are depicted for Colorado. Maps and 
descriptions follow.
    (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 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; and
    (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) Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, parking lots, other paved 
areas, lawns, other urban and suburban landscaped areas, regularly 
plowed or disked agricultural areas, and other features not containing 
any of the PCEs are not considered critical habitat.
    (4) Note: Index map of critical habitat for the Preble's meadow 
jumping mouse follows:
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    (5) Map Unit 1: North Fork Cache la Poudre River, Larimer County, 
Colorado.
    (i) This unit consists of 88.3 mi (142.1 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). 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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    (6) Map Unit 2: Cache la Poudre River, Larimer County, Colorado.
    (i) This unit consists of 50.6 mi (81.5 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 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:
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    (7) Map 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:
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    (8) 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 (7)(ii) of this 
entry.
    (9) 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 54W, T.1S., 
R.70W., Sec. 3) upstream to near Eldorado Springs, Colorado (39 56 7N 
105 16 16W, T.1S., R.70W., Sec. 30). Also Spring Brook from the 
Community Ditch near Eldorado Springs (39 55 59N 105 16 10W, T.1S., 
R.70W., Sec. 30) upstream to South Boulder Diversion Canal (39 55 11N 
105 16 12W, T.1S., R.70W., Sec. 31).
    (ii) Note: Map of Units 5, 6, and 7 follows:
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    (10) Unit 6: Rocky Flats NWR and Ralston Creek, 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) Subunit Woman Creek 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) Subunit Walnut Creek 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) Subunit Rock Creek 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). 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. 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 (9)(ii) of this 
entry.
    (11) Unit 7: Ralston Creek, Jefferson County, Colorado.
    (i) This unit consists of 8.7 mi (13.9 km) of streams. Ralston 
Creek from 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 (9)(ii) of this 
entry.
    (12) 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) Subunit Lake Gulch 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) Subunit Antelope Creek including Antelope Creek 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:
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    (13) Unit 9: West Plum Creek, Douglas County, Colorado.
    (i) This unit consists of 93.9 mi (151.1 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). 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 33N 
104 55 29W, 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 7,600 ft (2,317 m) elevation (39 13 57N 105 06 06W, 
T.9S., R.68W., Sec. 29). 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:
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    (14) Unit 10: Upper South Platte River, Douglas, Jefferson, and 
Teller Counties, Colorado.
    (i) This unit consists of four subunits including 35.2 mi (56.6 km) 
of rivers and streams as follows:
    (A) Subunit South Platte River north segment, on the border of 
Jefferson County and Douglas County from Chatfield Lake (39 31 35N 105 
04 49W, T.6S., R.69W., Sec. 14) upstream to the boundary of U.S. Army 
Corps of Engineers property (39 29 33N 105 05 15W, T.6S., R.69W., south 
boundary Sec. 26.
    (B) Subunit Bear Creek, 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) Subunit South Platte River south segment, on the border of 
Jefferson County and Douglas County from Nighthawk (39 21 05N 105 10 
23W, T.8S., R.70W., Sec. 13) upstream to (39 17 27N 105 12 24W, T.9S., 
R.70W., Sec. 3). Includes Sugar Creek, Douglas County from its 
confluence with South Platte River at Oxyoke (39 18 22N 105 11 47W, 
T.8S., R.70W., Sec. 35) upstream to 7,600 ft (2,317 m) elevation (39 18 
28N 105 08 07W, T.8S., R.69W., Sec. 32). Includes Gunbarrel Creek, 
Jefferson County from its confluence with South Platte River at Oxyoke 
(39 18 22N 105 11 47W, T.8S., R.70W., Sec. 35) upstream to (39 18 41N 
105 14 34W, T.8S., R.70W., Sec. 32).
    (D) Subunit Trout Creek, 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:
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    (15) Unit 11: Monument Creek, El Paso County, Colorado.
    (i) This unit consists of 38.6 mi (62.0 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). 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). 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 an unnamed tributary from the property boundary of the 
U.S. Air Force Academy (39 02 30N 104 50 23W, T.12S., R.67W., Sec. 1) 
upstream to 6,800 ft (2,230 m) elevation (39 02 45N 104 49 57W, T.11S., 
R.67W., Sec. 36). 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 35W, T.11S., R.67W., Sec 22) 
upstream to Highway 105 (39 05 35N 104 51 30 W, T.11S., R.67W., Sec 
14).
    (ii) Note: Map of Unit 11 follows:
BILLING CODE 4310-55-S

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[GRAPHIC] [TIFF OMITTED] TP08OC09.014

* * * * *

    Dated: September 28, 2009
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-24113 Filed 10-7-09; 8:45 am]
BILLING CODE 4310-55-C