Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Colorado Butterfly Plant, 1940-1970 [05-239]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ07


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

Background

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

Previous Federal Actions

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

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

Summary of Comments and Recommendations

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

Peer Review

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

Peer Review Comments

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

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

State Agencies

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

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

Public Comments

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

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

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

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

[[Page 1947]]

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

Summary of Changes From the Proposed Rule

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

Critical Habitat

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

[[Page 1948]]

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

Methods and Criteria

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

Criteria Used To Identify Critical Habitat

    In our delineation of the critical habitat units, we selected areas 
to provide for the conservation of G. n. ssp. coloradensis at seven 
sites where previously known subpopulations occur. Much of what is 
known about the specific physical and biological requirements of G. n. 
ssp. coloradensis is described in the Primary Constituent Elements 
section.
    The Service worked with the WSA, the Wyoming Association of 
Conservation Districts, the WDA, the NRCS in Wyoming and Nebraska, the 
City of Fort Collins in Colorado, the City of Cheyenne in Wyoming, and 
several individual landowners to develop Wildlife Extension Agreements 
(WEAs) to provide for the conservation of G. n. ssp. coloradensis. 
These WEAs include specific on-the-ground actions to alleviate specific 
threats, such as: allowing the Service access to private land to 
conduct annual monitoring of G. n. ssp. coloradensis populations to 
evaluate success of management actions under the agreement; 
establishing an adaptive management approach to evaluate success of 
management actions under the agreement; and facilitating the collection 
of data needed for future recovery of the species. WEAs provide 
specific measures to address potential threats due to herbicide 
application, livestock grazing, and hay production. Through cooperation 
and communication between lando