Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Preble's Meadow Jumping Mouse in Colorado, 78430-78483 [2010-30571]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78430-78483]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30571]



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Part III





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 in Colorado; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0013; MO 92210-0-0009]
RIN 1018-AW45


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the Preble's Meadow Jumping Mouse in Colorado

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
revised critical habitat for the Preble's meadow jumping mouse (Zapus 
hudsonius preblei) (PMJM) in Colorado, where it is listed as threatened 
in a Significant Portion of the Range (SPR) under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 411 
miles (mi) (662 kilometers (km)) of rivers and streams and 34,935 acres 
(ac) (14,138 hectares (ha)) fall within the boundaries of revised 
critical habitat in Boulder, Broomfield, Douglas, El Paso, Jefferson, 
Larimer, and Teller Counties.

DATES: This rule becomes effective on January 14, 2011.

ADDRESSES: This final rule, the economic analysis, the environmental 
assessment, comments and materials received, and supporting 
documentation we used in preparing this final rule, are available for 
viewing on the Internet at https://www.regulations.gov (see Docket No. 
FWS-R6-ES-2009-0013) and also by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Colorado Ecological 
Services Office, 134 Union Boulevard, Suite 670, Lakewood, CO 80225; 
telephone 303-236-4773; facsimile 303-236-4005.

FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S. 
Fish and Wildlife Service, Colorado Ecological Services Office (see 
ADDRESSES). If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics relevant to the 
designation of revised critical habitat in this final rule. For 
additional information on the biology of this subspecies, see our 
October 8, 2009, proposed rule to revise the designation of critical 
habitat for the PMJM (74 FR 52066); our July 10, 2008, final rule to 
amend the listing for the PMJM to specify over what portion of its 
range the subspecies is threatened (73 FR 39789); and our May 13, 1998, 
final rule to list the PMJM as threatened (63 FR 26517).

Previous Federal Actions

    On August 22, 2003, the City of Greeley filed a complaint in the 
U.S. District Court for the District of Colorado challenging our June 
23, 2003, designation of critical habitat for the PMJM (68 FR 37275) 
(City of Greeley, Colorado v. United States Fish and Wildlife Service 
et al., Case No. 03-CV-01607-AP). On December 9, 2003, the Mountain 
States Legal Foundation filed a complaint in the U.S. District Court 
for the District of Wyoming challenging our 1998 listing of the PMJM 
and designation of critical habitat for the PMJM (Mountain States Legal 
Foundation v. Gale E. Norton et al., Case No. 03-cv-250-J). That 
complaint was later expanded to include our July 10, 2008, final rule 
to amend the listing for the PMJM to specify over what portion of its 
range the subspecies is threatened (73 FR 39789) and transferred to the 
U.S. District Court for the District of Colorado (Mountain States Legal 
Foundation v. Ken Salazar et al., Case No. 1:08-cv-2775-JLK). These 
lawsuits challenged the validity of the information and reasoning we 
used to designate critical habitat for the PMJM.
    On July 20, 2007, we announced that we would review our June 23, 
2003, designation of critical habitat for the PMJM (68 FR 37275) after 
questions were raised about the integrity of scientific information we 
used and whether the decision we made was consistent with the 
appropriate legal standards (Service 2007a). Based on our review of the 
previous critical habitat designation, we determined that it was 
necessary to revise critical habitat. This rule incorporates those 
revisions that we found appropriate.
    On July 10, 2008, we amended the listing for the PMJM to specify 
over what portion of its range the subspecies is threatened (73 FR 
39789), and determined that the listing of the PMJM is limited to the 
SPR in Colorado. Upon that determination, all critical habitat 
designated in 2003 within the State of Wyoming was removed from the 
regulations at 50 CFR 17.95 for this species.
    On April 16, 2009, we reached a settlement agreement with the City 
of Greeley in which we agreed to reconsider our critical habitat 
designation for the PMJM. The settlement stipulated that we submit to 
the Federal Register a proposed rule for revised critical habitat by 
September 30, 2009, and a final rule for revised critical habitat by 
September 30, 2010 (U.S. District Court, District of Colorado 2009a). 
On June 16, 2009, an order was issued granting Mountain States Legal 
Foundation a motion to dismiss their claims on the 1998 listing and 
2008 final determination without prejudice, and stayed their challenge 
to the 2003 critical habitat designation pursuant to the City of 
Greeley settlement (U.S. District Court, District of Colorado 2009b).
    On October 8, 2009, we published a proposed rule in the Federal 
Register to revise the designation of critical habitat for the PMJM (74 
FR 52066), and accepted public comments for 60 days (from October 8 to 
December 7, 2009). On May 27, 2010, we opened a second comment period 
of 30 days (from May 27 to June 28, 2010) and requested comments on our 
draft economic analysis (DEA) (Industrial Economics 2010a), draft 
environmental assessment, amended Required Determinations section of 
the proposed rule, and any other part of our proposed revised critical 
habitat designation (75 FR 29700). On August 9, 2010, an agreement with 
the City of Greeley extended the date for submission of the final rule 
for revised critical habitat to the Federal Register to December 1, 
2010 (U.S. District Court, District of Colorado 2010).
    For additional information about previous Federal actions 
concerning the PMJM, see our July 10, 2008, rule for the PMJM to 
specify over what portion of its range the subspecies is threatened (73 
FR 39789).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of revised critical habitat for the PMJM during the two 
comment periods. The first comment period, associated with the 
publication of the proposed rule to revise the designation of critical 
habitat for the PMJM (74 FR 52066) opened on October 8, 2009, and 
closed on December 7, 2009. We opened a second comment period on our 
DEA, draft environmental assessment, amended Required Determinations 
section of the proposed rule, and any other part of our proposed 
revised critical habitat designation (75 FR 29700) on May 27, 2010, and 
closed it on June 28, 2010. We also contacted peer reviewers; 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties, and invited

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them to comment on the proposed rule and supporting documents.
    We received 45 comments in response to the proposed rule. Comments 
were received from 2 peer reviewers, 1 Federal agency, 1 State agency, 
and 8 local governmental entities, 7 non-government organizations, and 
18 private individuals (including 14 via similar post cards). Thirty-
seven comments were received during the October 8 to December 7, 2009, 
comment period. Eight comments were received during the May 27 to June 
28, 2010, comment period, all but one from entities that had commented 
previously. We received no requests for public hearings. All 
substantive comments have been either incorporated into the final 
determination or are addressed below.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we solicited expert opinions from three 
knowledgeable individuals with scientific expertise that included 
familiarity with the species, the geographic region in which the 
species occurs, and conservation biology principles. We received 
responses from two of the peer reviewers that we contacted. The peer 
reviewers generally agreed that we relied on the best scientific 
information available, accurately described the species and its habitat 
requirements, and concurred that our critical habitat proposal was well 
supported. The peer reviewers provided additional suggestions to 
improve the final critical habitat rule. Recommended editorial 
revisions and clarifications have been incorporated into the final rule 
as appropriate. We respond to all substantive comments below.

Comments From Peer Reviewers

    (1) Comment: One peer reviewer commented that upstream and adjacent 
habitat, beyond designated critical habitat, requires management to 
decrease potential for catastrophic wildfire and flooding, and to 
maintain appropriate stream flow and channel integrity.
    Our Response: We agree. Federal agencies are directed, under 
section 7(a)(1) of the Act (16 U.S.C. 1531 et seq.), to utilize their 
authorities to carry out programs for the conservation of endangered 
and threatened species. Proactive management on U.S. Forest Service 
(USFS) and other Federal lands upstream or outward from designated 
critical habitat should consider implications to the PMJM and its 
critical habitat. In addition, section 7(a)(2) of the Act requires 
every Federal agency to insure that any action it authorizes, funds, or 
carries out is not likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse modification of 
designated critical habitat. The activity does not have to take place 
within PMJM habitat or critical habitat to be subject to section 7 
consultation. In considering the effects of a proposed action, the 
Federal agency looks at both the direct and indirect effects of an 
action on the species or critical habitat. Indirect effects are caused 
by the proposed action, are later in time, and are reasonably certain 
to occur. If, for example, management activities on Federal land, or a 
Federal permit or Federal funding for an activity upstream of critical 
habitat, may result in increased runoff, sedimentation, or channel 
alteration within critical habitat, those effects must be considered by 
the Federal agency. Outside of Federal lands and when no Federal nexus 
is present, cooperative conservation efforts with State and local 
government, and private property owners are the most effective means of 
addressing appropriate land management.
    (2) Comment: One peer reviewer commented that we should have 
emphasized the relationship of ``subshrub cover'' (low-growing woody 
shrubs or perennial plants with a woody base) and plant species 
richness with the presence of PMJM.
    Our Response: We agree that these concepts are important to PMJM 
habitat. Low shrub cover and species richness are correlated with 
occupancy of riparian corridors by the PMJM. These relationships may be 
significant and are described in Clippinger (2002, p. 73). The primary 
constituent elements (PCEs) of critical habitat for the PMJM are 
described more broadly and include riparian corridors, in part, 
``containing dense, riparian vegetation consisting of grasses, forbs, 
or shrubs, or any combination thereof.'' We believe that this final 
rule appropriately captures the importance of the low, diverse 
vegetative cover essential to the conservation of PMJM.
    (3) Comment: One peer reviewer maintained that our explanation of 
why Buffalo Creek and Wigwam Creek (Jefferson County) were not included 
as proposed critical habitat should be better supported.
    Our Response: Areas along both Buffalo Creek and Wigwam Creek have 
been subject to catastrophic fires. These events caused subsequent 
flooding and increased sedimentation of these streams. Trapping efforts 
targeting PMJM have not been conducted in these areas since the fires; 
however, it is unlikely that severely burned areas are currently 
occupied by the PMJM. The areas remain degraded and for at least the 
near future will not support the PCEs necessary for the conservation of 
the PMJM in the appropriate quantity and spatial arrangement to support 
inclusion as critical habitat. Given the extent of critical habitat 
proposed elsewhere in this subdrainage, we conclude that it is not 
necessary or appropriate to designate critical habitat in these 
degraded stream reaches.
    (4) Comment: One peer reviewer suggested that our failure to 
propose critical habitat on the Big Thompson River, North Fork of the 
Big Thompson River, and Little Thompson River was based more on issues 
of land ownership than on science.
    Our Response: All three of these rivers are within the Big Thompson 
River subdrainage (subdrainages equate to U.S. Geological Survey 8-
digit hydrological unit boundaries and are hereafter referred to as 
HUCs). Within this HUC we are designating Buckhorn Creek (Unit 3) and 
Cedar Creek (Unit 4) as critical habitat, but we identified no other 
areas that merited designation. Public lands, especially undeveloped 
Federal lands and other public lands currently devoted to conservation, 
are more likely to support viable PMJM populations, both currently and 
in the future. We made our determinations after examining both quality 
of existing habitat and land ownership, and prioritized designation of 
Federal lands within this HUC.

Public Comments

Biological Concerns and Methodology
    (5) Comment: One commenter stated that proposed critical habitat 
should be expanded to reflect understanding of genetic diversity within 
the PMJM.
    Our Response: Our designation of revised critical habitat 
incorporates current knowledge of genetic diversity in the PMJM. 
Genetic analysis has revealed significant differences between PMJM 
populations in northern and southern portions of the range (King et al. 
2006, pp. 4337-4338). The Preble's Meadow Jumping Mouse Recovery Team 
(Jackson 2009, pers. comm.) concluded that recovery populations 
outlined in the Working Draft of a Recovery Plan (PMJM Recovery Team 
2003), and included in the Preliminary Draft Recovery Plan (Draft Plan) 
(Service 2003a), were spread north and south to provide adequate 
representation of the genetic differences in northern and

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southern portions of the range examined in King et al. (2006). This 
same approximate distribution in populations north and south is 
reflected in this revised critical habitat designation.
    (6) Comment: One commenter urged the Service to consider the value 
of expanding proposed critical habitat to provide habitat linkage for 
PMJM populations north and south of Denver, and among other drainages 
where critical habitat was proposed.
    Our Response: Potential connectivity of critical habitat was 
considered consistent with our conservation strategy and that proposed 
in the Draft Plan. In most cases, revised critical habitat units exceed 
minimum reach lengths for large, medium, and small populations proposed 
in the Draft Plan. All designated critical habitat units and subunits 
exceed 3 mi (5 km) in stream length, the minimum length of stream the 
Draft Plan prescribes for a small recovery population. In some cases, 
we chose not to link stream reaches through the designation of marginal 
habitat, or not to substantially extend critical habitat to encompass a 
larger PMJM population, where multiple smaller recovery populations are 
consistent with our conservation strategy.
    (7) Comment: One commenter requested that, before designating 
revised critical habitat, the Service should consult with scientists 
regarding how climate change may affect PMJM movement, habitat needs, 
and habitat connectivity. For example, it was suggested that we should 
consider potential effects of changes in precipitation and earlier 
spring runoff.
    Our Response: Variability in existing climate models suggests 
uncertainty as to future climate change and potential effects in 
Colorado, where the PMJM is listed. We have considered the potential 
impact of future climate change on the PMJM, and we believe that our 
revised designation adequately addresses likely climate change 
scenarios by designating critical habitat areas throughout the north-
south range of the PMJM in Colorado that vary in elevation and in 
stream size (see Climate Change, below). In the Big Thompson River and 
Upper South Platte River drainages, we are designating critical habitat 
units in excess of those recovery populations called for in the Draft 
Plan to provide resilience, should climate change reduce the value of 
lower elevation habitats currently occupied by the PMJM. These units, 
the Cache La Poudre Unit (Unit 2) and the Upper South Platte Unit (Unit 
11), are centered on Federal lands and include reaches extending to the 
highest elevation the PMJM is currently known to occupy in Colorado. 
If, in the future, a clearer picture of the effects of climate change 
on the PMJM is developed, further revision of critical habitat may be 
appropriate (see also Climate Change, below).
    (8) Comment: One commenter stated that both sites where trapping 
has documented PMJM presence since 2003, and sites of earlier captures, 
should be included in designated critical habitat.
    Our Response: Not all areas where the PMJM is known to occur in 
Colorado are being designated as revised critical habitat. See our 
response to comment 44. We incorporated the best scientific and 
commercial information available into this final rule, including 
information regarding all locations where PMJM have been trapped since 
our 2003 final rule. These more recent capture locations did not 
significantly expand the known distribution of the PMJM in Colorado. 
However, we did consider each new capture location and its potential 
significance prior to our proposing revised critical habitat for the 
PMJM.
    (9) Comment: One commenter stated that the Draft Plan for the PMJM, 
which was cited as a basis for the Service's conservation strategy and 
certain decisions regarding proposed designation of revised critical 
habitat, is 6 years old and does not include current data.
    Our Response: The 2003 Draft Plan (Service 2003a) provides a 
conservation strategy for the PMJM. It was developed primarily by the 
PMJM Recovery Team and refined through comments and additional 
information we received. Information on range, occupancy, populations, 
and habitat characteristics were used in developing the Draft Plan. 
Recent review by the current PMJM Recovery Team has verified that 
concepts and strategies incorporated into the Draft Plan remain 
appropriate (Jackson 2010, pers. comm.). However, we also incorporated 
new data, as appropriate, in developing our proposal and this final 
rule, including trapping results, genetic and morphometric confirmation 
of species identification, and changes to habitat.
    (10) Comment: One commenter pointed out that the Service has not 
proposed critical habitat to address all recovery populations called 
for in the Draft Plan, including HUCs where the PMJM is known to occur.
    Our Response: While the conservation strategy underlying our 
proposed revision of critical habitat was informed by the Draft Plan 
and the ongoing recovery planning process, areas we are designating as 
revised critical habitat in this rule will not be identical to areas 
ultimately designated as recovery populations. The Draft Plan 
designated location of certain recovery populations in HUCs where PMJM 
are known to be present. However, in some HUCs within the likely range 
of the PMJM, there is little or no available information on the 
existence of PMJM populations or the extent of occupied habitat. In 
these cases, the Draft Plan only applied standard criteria to achieve 
recovery of the species. For example, the Draft Plan required, at 
minimum, three small recovery populations or one medium recovery 
population in several HUCs, but only if the HUC was found to be 
occupied by the PMJM. Since we have determined that the conservation of 
the PMJM can be achieved by designating critical habitat in areas that 
are known to support the species, rather than in areas with no 
confirmed occupancy by the species, we are designating no critical 
habitat in HUCs where occupancy has not been confirmed. In other cases, 
such as the Kiowa HUC in Elbert County, trapping efforts have been 
limited to sites of human development, and, while there is confirmed 
occurrence of the PMJM, it is not sufficient to inform us of 
distribution or abundance within the HUC. We exercised our professional 
judgment and determined that those limited areas of confirmed 
occurrence of the PMJM in and near human development are not essential 
to the conservation of the PMJM. We are not designating such sites as 
critical habitat.
    (11) Comment: One commenter stated that areas of critical habitat 
should be designated in excess of recovery goals suggested in the Draft 
Plan.
    Our Response: In two HUCs, we are designating critical habitat 
units beyond those recovery populations that the Draft Plan specifies. 
We are designating critical habitat capable of supporting a large PMJM 
population independent of, and in addition to, the large recovery 
populations proposed in the Draft Plan along the Cache la Poudre River 
(Unit 2) in the Cache La Poudre River HUC and designated reaches of the 
Upper South Platte River and its tributaries (Unit 10) in excess of 
recovery goals for the Upper South Platte River HUC. In other HUCs, we 
did not identify or designate additional areas that met the definition 
of critical habitat in excess of recovery goals stated in the Draft 
Plan.
    (12) Comment: Multiple commenters stated that the outward extent of 
proposed critical habitat did not accurately reflect limits of PMJM 
habitat. One commenter stated that distance outward from riparian 
vegetation is a much better predictor of PMJM habitat than is our use 
of distance

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from the stream edge, based on stream order (a classification of 
streams by relative size). Another commenter stated that floodplain 
plus 100 meters should be used as the outward boundary of critical 
habitat on reaches where floodplain mapping is available.
    Our Response: We believe that the outward extent of critical 
habitat we are designating includes all PCEs required by the PMJM and 
effectively protects habitat essential to the conservation of the PMJM. 
We agree that site-specific assessment of habitat components, including 
extent of riparian vegetation, is a more precise method of designating 
critical habitat (see our response to comment 14 below). However, site-
specific mapping of PMJM habitat in Colorado is not generally 
available. Land use and recent site history complicate efforts to 
accurately assess and map riparian habitat limits. Floodplain mapping 
is not available for most foothill streams designated as PMJM critical 
habitat. Where limits of the designated 100-year floodplain have been 
mapped, floodplain limits are often revised, especially in the Colorado 
Front Range development corridor, where filling of the floodplain may 
occur and flood levels are altered by development. We used the best 
available scientific and commercial information with respect to 
determining the outward extent of PMJM critical habitat.
    (13) Comment: One commenter suggested that the Service should 
provide detail on the development of the average floodplain widths used 
to designate outward limits of critical habitat for streams of 
different order and stated that the calculation needs to be based on a 
sufficient sample of sites across PMJM range to be meaningful.
    Our Response: The estimates of average floodplain width based on 
stream order that we use in this designation of critical habitat were 
previously developed in conjunction with our June 23, 2003, designation 
of critical habitat for the PMJM (68 FR 37275). We believe that a 
sufficient number of representative streams were examined to provide an 
appropriate estimation of average floodplain width as related to stream 
order.
    (14) Comment: One commenter stated that the Riparian Conservation 
Zone (RCZ) mapping, developed as part of the approved Douglas County 
Habitat Conservation Plan (HCP), corresponds better to appropriate 
outward limits of critical habitat than do the boundaries that the 
Service proposed for revised critical habitat, and that critical 
habitat boundaries should align with county-wide HCP boundaries for 
consistency and to avoid confusion.
    Our Response: We agree that it is preferable that critical habitat 
boundaries match HCP boundaries where HCP boundaries accurately reflect 
limits of habitat essential to the conservation of the PMJM. RCZ 
boundaries in the Douglas County HCP were developed based on 
conservation strategies for the PMJM provided in the Draft Plan. After 
consideration, we are designating the outward boundaries of revised 
critical habitat on non-Federal lands in Douglas County to correspond 
to the boundaries developed for RCZ (see the Delineation of Critical 
Habitat Boundaries section).
Procedural and Legal Issues
    (15) Comment: Two commenters stated that the Service cannot propose 
a critical habitat revision prior to analysis of alternatives under the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), a 
draft economic analysis (DEA), and a Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) analysis. They stated that the environmental and 
economic impacts of the proposed action must be considered prior to the 
proposal.
    Our Response: By Service policy, we draft and circulate the NEPA, 
DEA, and Regulatory Flexibility Act analyses between the proposed and 
final critical habitat designation. Comments on the entire proposal, 
including the draft environmental assessment, DEA, and Regulatory 
Flexibility Act analysis, were accepted for 30 days following the May 
27, 2010, publication making available these documents (75 FR 29700). 
The information provided in these documents and comments regarding them 
were fully considered prior to this final rule, in accordance with 
applicable regulations and statutes.
    (16) Comment: Two commenters stated that the Service 
inappropriately proposed critical habitat in areas where the PMJM was 
not known to exist at the time of listing.
    Our Response: Section 3(5)(A) of the Act defines critical habitat, 
in part, as those specific areas within the geographic area occupied by 
the species at the time of listing, and specific areas outside the 
geographic area occupied by the species at the time of listing upon 
determination that such areas are essential for the conservation of the 
species. Our designation constitutes our best assessment of areas 
determined to be within the geographical area occupied at the time of 
listing that contain the physical and biological features essential to 
the conservation of the PMJM that may require special management, and 
those additional areas not occupied at the time of listing, but that 
have been determined to be essential to the conservation of the PMJM. 
Management and protection of all the areas is necessary to achieve the 
conservation of PMJM. Therefore, we are also designating areas that 
were not known to be occupied at the time of listing, but which were 
subsequently identified as being occupied, and which we have determined 
to be essential to the conservation of the PMJM in our Preliminary 
Draft Recovery Plan (Service 2003a). We have based our critical habitat 
designation on the best currently available scientific information.
    (17) Comment: One commenter stated that only areas ``indispensible 
and absolutely necessary'' to the PMJM should be designated as critical 
habitat and that the Service should include only the ``minimum amount 
of habitat needed to avoid short-term jeopardy'' (citing Middle Rio 
Grande Conservancy District v. Babbitt). Based on this reasoning, they 
asserted that we could not tie critical habitat to the Draft Plan, 
which addresses long-term recovery.
    Our Response: Within the range of the listed species, critical 
habitat is defined to include areas occupied at the time of listing on 
which are found those physical or biological features essential to the 
conservation of the species, and which may require special management 
considerations or protection, and those additional areas not occupied 
at the time of listing but that have been determined to be essential to 
the conservation of the species. Conservation is defined in the Act as 
the use of all methods and procedures which are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Limiting designation of 
critical habitat to avoiding ``short-term jeopardy'' would not meet the 
Act's intent that critical habitat provide for the conservation (e.g., 
recovery) of the species.
    (18) Comment: One commenter expressed the concern that details of 
all existing HCPs involving the PMJM were not readily available for 
public review and that all HCPs should be available on the Service's 
``ECOS'' Web site and the Service's Mountain-Prairie Region Web site.
    Our Response: Most HCPs that address the PMJM have been available 
to the public on our ECOS Web site. When we were made aware that 
certain HCPs were not posted, we provided the commenter the requested 
materials as expeditiously as possible.

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    (19) Comment: One commenter stated that Geographic Information 
System (GIS) data depicting proposed critical habitat boundaries should 
have been made available for public review.
    Our Response: We provided GIS depictions of proposed critical 
habitat when requested. Additionally, we believe that the legal 
description of stream reaches and outward distances from streams that 
we provided in our proposal to revise the designation of critical 
habitat were adequate to identify the areas proposed.
    (20) Comment: One commenter recommended that we incorporate a 
provision in our critical habitat designation that would exclude from 
critical habitat areas covered by future HCPs, when completed.
    Our Response: The basis for exclusions from critical habitat under 
section 4(b)(2) of the Act is explained in ``Exclusions'' below. We 
cannot make a determination now to exclude areas covered by HCPs that 
may be developed sometime in the future, because we have no way to 
evaluate the effectiveness, and determine whether the benefits of 
exclusion outweigh the benefits of inclusion, of plans that do not yet 
exist and have not been implemented. If, in the future, we determine 
that changes in designated critical habitat for the PMJM are 
appropriate, we have the option to revise critical habitat.
    (21) Comment: One commenter asked us to confirm that the existing 
special 4(d) rule, which exempts take of PMJM under section 9 of the 
Act for specified activities, including ditch maintenance and any 
continued use of perfected water rights, is not affected by the 
designation of critical habitat.
    Our Response: The 4(d) rule for the PMJM (see 50 CFR 17.40 (l)) 
provides certain exemptions from the take prohibitions found in section 
9 of the Act. Take prohibitions under section 9 are not affected by the 
designation of critical habitat. The primary regulatory effects of a 
critical habitat designation under the Act are triggered through the 
provisions of section 7 of the Act, which applies only to activities 
conducted, authorized, or funded by a Federal agency. In limited cases, 
an activity that is excluded from take provisions under the 4(d) rule 
may require a Federal permit or involve Federal funding. In these 
cases, while take would be exempted under the 4(d) rule, section 7 
consultation would still occur to ensure that Federal actions would not 
jeopardize the PMJM or result in destruction or adverse modification of 
its critical habitat.
    (22) Comment: One commenter stated that under the Act, the Service 
must re-consult on any projects within newly designated critical 
habitat that previously underwent section 7 consultation.
    Our Response: For Federal actions, the lead Federal agency 
determines whether their action may affect designated PMJM critical 
habitat. This applies to projects previously consulted on under section 
7 where the Federal agency has retained discretionary involvement or 
control over the action. Federal agencies may sometimes need to request 
reinitiation of consultation on actions for which formal consultation 
has been completed (see 50 CFR 402.16).
Comments on Specific Units
    (23) Comment: One commenter requested us to connect critical 
habitat Units 1 (North Fork of the Cache la Poudre River) and 2 (Cache 
la Poudre River) in Larimer County.
    Our Response: The Milton Seaman Reservoir at the downstream extent 
of Unit 1 is a barrier to PMJM movement and effectively prevents 
linking of the two units. We do not believe that it is biologically 
necessary or possible to link these two units. See also our response to 
Comment 6.
    (24) Comment: One commenter called for us to exclude the area 
proposed as critical habitat in Unit 1 (North Fork of the Cache la 
Poudre River) on the mainstem of the North Fork of the Cache la Poudre 
River upstream of the Milton Seaman Reservoir and within the footprint 
of the proposed reservoir expansion.
    Our Response: We have not excluded this reach from designated 
critical habitat. This area includes Federal and State property that 
would potentially be inundated by the City of Greeley's proposed 
expansion of the Milton Seaman Reservoir. Expansion under the currently 
proposed plan would inundate about 3 mi (5 km) of the river. In 2002, 
the City of Greeley contended that the reach in question supported only 
patches of willow shrub, had little habitat for the PMJM, and did not 
meet the definition of critical habitat (Kolanz 2003). In our on June 
23, 2003, designation of critical habitat (68 FR 37275), we concluded 
the area in question supported those physical or biological features 
essential to the conservation of the species, and may require special 
management considerations or protection. We stated that, within the 
reach in question, some habitat components appeared discontinuous, and 
PMJM habitat was, at that time, of lower quality than habitat upstream 
of this reach, due to heavy grazing. However, we concluded that the 
area in question did include the requisite PCEs to support the PMJM, 
and its designation as critical habitat was essential for the 
conservation of the large PMJM population along the North Fork of the 
Cache la Poudre River. The Service chose not to exclude this reach from 
critical habitat in 2003. This prompted the legal actions by the City 
of Greeley addressed in ``Previous Federal Actions'' above.
    The City of Greeley, in a letter dated May 20, 2009, outlined its 
concerns regarding designation of critical habitat in this area, and 
requested exclusion of the area from revised critical habitat under 
section 4(b)(2) of the Act (Kolanz 2009a). The City of Greeley also 
submitted a report by ERO Resources Corporation (ERO) assessing the 
area to be inundated by the proposed reservoir expansion (ERO 2008). 
ERO concluded that of the approximately 165 ac (66.8 ha) of designated 
critical habitat that would be inundated, only about 26 acres were of 
moderate to high quality for the PMJM. Non-habitat and low-quality 
habitat were attributed to the dominant upland vegetation and steep 
slopes, while the moderate- to high-quality habitat was associated with 
the narrow riparian corridor (ERO 2008, pp. 11-12). In our October 8, 
2009, proposal to revise the designation of critical habitat for the 
PMJM (74 FR 52066), we again determined that the area met the 
definition of critical habitat, that it included physical and 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection. Three other letters from the City of Greeley followed, two 
within public comment periods for the proposed revised critical 
habitat, expanding on the City of Greeley's concerns (Kolanz, 2009b, 
2009c, 2010).
    Consistent with previously stated concerns over habitat quality, 
the City of Greeley contended that the area in question is not 
essential to the conservation of the PMJM. The City of Greeley pointed 
out that it was not mapped as PMJM habitat in our proposal to establish 
special regulations for the conservation of the PMJM (December 3, 1998, 
63 FR 66777), and was not shown to be ``occupied'' by PMJM in a recent 
Colorado Division of Wildlife (CDOW) database. The reach in question is 
part of the USFS Greyrock Grazing Allotment, which extends from Milton 
Seaman Reservoir, approximately 3 mi (5 km) upstream, and includes 
lands owned primarily by the USFS (about 2 mi (3 km) of the stream), as 
well as State lands, City of Greeley lands, and private lands (USFS

[[Page 78435]]

2008). The USFS 2008 Biological Assessment for management of the 
Greyrock Grazing Allotment explains the history of the site and past 
habitat limitations (USFS 2008). Heavy livestock grazing for many 
decades drastically reduced riparian shrubs and trees. In the last 7 
years, riparian habitat quality has significantly improved in the 
reach. Following removal of grazing along the North Fork of the Cache 
la Poudre River, a notable increase in willow growth and a tall, dense 
herbaceous component of the plant community was observed in the 
riparian zone in 2007. With no further livestock grazing in the reach 
through 2010, a lush riparian community has developed that provides 
PCEs essential to the support of the PMJM, in quantity and spatial 
arrangement that suggests riparian habitat is now of high quality. 
Upland habitat in the reach has been slower to recover following heavy 
grazing, and weed control efforts are needed. While the PMJM had been 
documented upstream in this drainage, the reach above Milton Seaman 
Reservoir had not been trapped to establish whether the PMJM was 
present until 2010, when a limited trapping effort by the USFS captured 
a jumping mouse within the proposed reservoir expansion area (USFS 
2010). The CDOW database will be updated accordingly. Restoration of 
habitat in this reach has advanced to the point where grazing will 
again take place on the allotment. Carefully managed grazing will 
maintain or improve PMJM habitat in this allotment into the future. The 
USFS has informally consulted with the Service over management of this 
allotment and we have concluded that carefully managed grazing will 
maintain or improve PMJM habitat on the allotment into the future.
    The City of Greeley also stated that designation of critical 
habitat in this area would create significant financial burden on the 
City. Our DEA (section 5.3) assigns a low incremental cost ($20,000 to 
$38,000) to the designation of critical habitat for the Halligan 
Reservoir and Milton Seaman Reservoir projects. However, additional 
costs could be incurred should designation of critical habitat affect 
regulatory approval of the proposed project, and cause the City of 
Greeley to pursue a more costly alternative. Because of their 
speculative nature, these costs were not included in the DEA (see our 
response to Comment 56), but we discuss them in the FEA and here. Under 
section 7 of the Act, the Service will evaluate whether any proposed 
alternative for Milton Seaman Reservoir expansion under permit review 
by the U.S. Army Corps of Engineers (Corps) will jeopardize the PMJM or 
result in destruction or adverse modification of its designated 
critical habitat. Under the City of Greeley's worst case scenario, our 
designation of critical habitat and subsequent consultation regarding 
the reservoir project could result in a finding of ``destruction or 
adverse modification of critical habitat'' by the Service, or could 
result in the Corps denying a permit under the Clean Water Act (33 
U.S.C. 1251 et seq.), based on the proposed project not being the 
``least damaging practicable alternative.'' To be attributable to our 
designation of critical habitat, an outcome and any resultant costs 
would have to differ from the results of regulatory review of the same 
project with no critical habitat designation. For example, the outcome 
would have to differ from the result of Service consultation in the 
absence of critical habitat that results in a jeopardy determination, 
or in the absence of critical habitat, the Corps denying a permit based 
on the presence of the PMJM, combined with an array of other 
considerations. The question of whether regulatory review under 
scenarios with or without critical habitat would produce different 
results contributes to the speculative nature of costs attributable to 
critical habitat designation. Factors relevant to possible future 
Service and Corps regulatory determinations follow.
    Substantial planning has taken place between the City of Greeley, 
the Service, The Nature Conservancy, and other entities, to address 
potential impacts to the PMJM and its habitat from the planned 
reservoir expansion. The City of Greeley has expressed an interest in 
implementing conservation measures to offset impact of the proposed 
project to the PMJM prior to project construction. Conservation 
measures have been identified that could serve to offset project 
impacts to the PMJM, should the planned project move forward. These 
conservation measures are targeted at PMJM populations and supporting 
ecological processes in critical habitat Unit 1, which includes the 
reservoir expansion area. Further development of conservation measures 
and their incorporation into plans for proposed reservoir expansion 
could help maintain the value of this critical habitat unit to the 
recovery of the PMJM and reduce or eliminate the possibility of a 
jeopardy or adverse modification determination by the Service.
    Our designation of critical habitat for the PMJM should be 
considered by the Corps as indicative of the high natural resource 
value of the lands designated. A decision that the area does not meet 
the definition of critical habitat would imply a lesser resource value. 
However, if the Service were to exclude the reach in question from 
critical habitat for reasons of relevant non-biological factors 
(economic, social, etc.), it would not change our determination that 
the area meets the definition of critical habitat, nor would it change 
the inherent resource value of the reach or its contribution to the 
conservation and recovery of the PMJM. Therefore, from a resource 
perspective, the Corps' assessment of the value of this reach and its 
role in their consideration of issuing a permit to the City of Greeley 
may not differ between the cases of critical habitat designation and 
exclusion from designation based on non-biological factors.
    Any future Milton Seaman Reservoir expansion may differ from the 
project currently proposed. The City of Greeley is an active 
participant in the Halligan-Seaman Water Management Project. To 
efficiently manage their supplies, the cities of Fort Collins and 
Greeley have proposed the Halligan-Seaman Water Management Project as a 
regional water storage and management project on the North Fork of the 
Cache la Poudre River. Both cities and their partners are working 
together to increase water storage capacity for their communities 
through coordinated enlargements of Halligan and Milton Seaman 
reservoirs. The participants are using an innovative Shared Vision 
Planning process, which brings together stakeholders in a collaborative 
planning and model building exercise. The Service is supportive of this 
process, has participated as resources allow, and anticipates that its 
results will inform the Halligan-Seaman Water Management Project. The 
eventual proposal for Milton Seaman Reservoir expansion may vary from 
the proposal currently envisioned, to facilitate coordinated management 
of these reservoirs.
    Onsite alternatives to the project currently proposed by the City 
of Greeley may result from the Halligan-Seaman Water Management 
Project. Such alternatives could reduce the probability of a Service 
determination of adverse modification of critical habitat, or Corps 
permit denial based on presence of critical habitat. Any such 
alternatives could, however, also result in less water storage or 
storage at a higher cost.
    The most costly possible result of our designation of critical 
habitat would be a case where the City of Greeley would have to abandon 
expansion plans for the Milton Seaman Reservoir, and develop

[[Page 78436]]

storage options at one or more alternate sites. Assuming a current 
estimated cost of $116 million for the proposed project (Kolanz 2010, 
p. 4) and the Corps' estimated costs of alternate storage cited in the 
DEA (up to 8 times the cost of storage through Milton Seaman Reservoir 
expansion), additional cost due to designation of critical habitat 
could range to $812 million. The Corps' estimates relate to comparative 
costs incurred by other Front Range Colorado water projects (Peter, 
pers. comm. 2010).
    Under the scenarios above, the additional cost to the City of 
Greeley associated with critical habitat designation upstream of the 
Milton Seaman Reservoir could range from $20,000 to as high as $812 
million. We have considered both the potential costs due to designation 
of critical habitat, and the relative likelihood of their occurrence, 
when evaluating the City of Greeley's request for exclusion.
    The reach of river above the Milton Seaman Reservoir is part of 
critical habitat Unit 1, established to be consistent with a large 
recovery population along the North Fork of the Cache La Poudre River 
and its tributaries, as designated in the Draft Plan. The entire reach 
of the North Fork between the Halligan Reservoir to the north and 
Milton Seaman Reservoir to the south is within this unit. The two 
reservoirs create barriers to PMJM movement along the river, and the 
population of PMJM between the reservoirs and on adjoining tributaries 
is thought to be relatively isolated from populations elsewhere. The 
City of Greeley contends that loss of up to 3 mi (5 km) of the 
approximately 88 mi (140 km) in this critical habitat unit will have 
little relative impact on the unit's ability to conserve and recover 
the PMJM. We do not know the extent of habitat needed to support a 
large recovery population as described in the Draft Plan. At a minimum, 
a total of 50 mi (80 km) of connected streams and tributaries is 
suggested for a large PMJM population in the Draft Plan. But the Draft 
Plan bases size of PMJM recovery populations on the numbers of PMJM 
present, not the extent of habitat. Until such time as population 
estimates for the area are developed, we will not know whether 50 mi 
(80 km), or even 88 mi (140 km), of streams will be sufficient. In this 
context, loss of 3 of the 88 mi (5 of the 140 km) may significantly 
impact the ability of the critical habitat unit to support a large 
population and meet the recovery goal outlined in the Draft Plan.
    The City of Greeley suggested that an exclusion would support 
ongoing Federal and local cooperation in the development of water 
resources in the drainage. Water use and storage issues continue to 
generate close scrutiny in Colorado. The Milton Seaman Reservoir 
expansion, Halligan Reservoir expansion, and other proposed projects 
have both their proponents and critics. While an exclusion could lead 
to the continuation and strengthening of partnerships between the City 
of Greeley, certain other public and private entities, and the Service, 
it would likely alienate others. Despite our decision not to exclude 
the area above Milton Seaman Reservoir from critical habitat 
designation, we anticipate a continued working relationship with the 
City of Greeley to address both their needs and those of the PMJM.
    If approved, the proposed reservoir expansion would occur well in 
the future. The required review under NEPA and the permit issuance by 
the Corps under the section 404 of the Clean Water Act, necessary for 
reconstruction of the reservoir's dam, are likely to take years. 
Because of this, considerable uncertainty exists regarding when and in 
what form an expansion of Milton Seaman Reservoir might occur. Given 
the uncertainties regarding timing, design, and future conservation 
commitments associated with reservoir expansion, exclusion of the area, 
even if it should be determined to be appropriate someday in the 
future, is premature.
    Exclusion of this reach from critical habitat would do little to 
relieve the costs of regulatory review and associated permitting 
(delays, administrative costs, consulting costs, and cost of developing 
additional conservation measures) for the City of Greeley. The area of 
the proposed expansion includes Federal land owned by the USFS. All 
alternatives impacting this land will involve USFS approval. In 
addition, any dam replacement or reconstruction would require a permit 
from the Corps under the Clean Water Act. Even without critical 
habitat, section 7 review appears unavoidable. Exclusion from critical 
habitat would not alleviate the need for section 7 consultation, or 
appreciably increase the administrative costs involved.
    Designation of critical habitat (the identification of lands that 
are necessary for the conservation of the species) is beneficial in the 
recovery planning for a species. In this case, the Draft Plan has 
helped inform critical habitat designation by designating a large 
recovery population in this area. This final rule may, in turn, 
contribute to the development of a final recovery plan for the North 
Fork of the Cache La Poudre River.
    We have determined that this portion of the North Fork of the Cache 
la Poudre River contains the physical and biological features essential 
to the conservation of the PMJM in accordance with 4(a)(3) of the Act. 
We conclude that it is inappropriate to exclude this reach from 
critical habitat under section 4(b)(2) of the Act.
    (25) Comment: Two commenters pointed out that critical habitat 
proposed along Spring Brook and South Boulder Creek in Unit 5 (South 
Boulder Creek), Boulder County, is discontinuous as mapped.
    Our Response: PMJM have been found on both Spring Brook and South 
Boulder Creek. Spring Brook has been diverted into a canal; therefore, 
it does not follow its historical course directly into South Boulder 
Creek. The limits of critical habitat we are designating for the two 
reaches are separated by approximately 100 ft (30 m) through a rural 
residential upland area which may not contain the physical and 
biological features essential for the conservation of PMJM, as defined. 
However, we do not believe that this discontinuity significantly 
affects the species' ability to move between these portions of this 
critical habitat unit.
    (26) Comment: The City of Boulder requested that we coordinate with 
the City to ``fine tune'' the boundaries of Unit 5 (South Boulder 
Creek) to expedite regulatory review of future projects with a Federal 
nexus.
    Our Response: As in other units, based on the scale of our mapping, 
there may be some areas within the general boundaries of designated 
critical habitat in Unit 5 that do not support PCEs required by the 
PMJM. For example, specific areas that support existing buildings, 
roads, and parking lots are not considered critical habitat. These 
areas are excluded by text in this rule. We will continue to be 
available to work with the City of Boulder to determine boundaries of 
areas that do not meet the definition of critical habitat.
    (27) Comment: The U.S. Department of Energy (DOE) commented that it 
controls much of the ``Rocky Flats Site,'' described by the Service as 
the Rocky Flats National Wildlife Refuge (NWR) (Unit 6), in Jefferson 
and Broomfield Counties, and noted that proposed critical habitat would 
include portions of DOE's Central Operable Unit (COU) of 1,300 ac (530 
ha), where a former facility processed and manufactured nuclear 
weapons. Many DOE operational maintenance and monitoring activities 
continue to take place within the COU under closure and cleanup 
agreements. The DOE urged the Service to exclude the COU from

[[Page 78437]]

designation of critical habitat within this unit because designation 
could adversely impact actions required under these agreements.
    Our Response: We have modified this final rule to more accurately 
reflect DOE presence on the Rocky Flats Site. The Rocky Flats Site 
(Unit 6) is managed by the Service (Rocky Flats NWR) and DOE (the 
Central Operating Unit and certain other lands). Buildings and other 
structures at the site have been decommissioned and demolished, and the 
disturbed areas have been restored, or are undergoing restoration. 
Clean-up and closure of the COU was completed in 2005. Many operational 
maintenance and monitoring activities continue to take place in the 
COU, to maintain the CERCLA (the Comprehensive Environmental Response, 
Compensation, and Liability Act, also known as Superfund, 42 U.S.C. 
9601 et seq.) and RCRA (Resource Conservation and Recovery Act, 42 
U.S.C. 6901 et seq.) remedies implemented in accordance with the Rocky 
Flats Management Agreement.
    The final Rocky Flats NWR Comprehensive Conservation Plan (CCP) was 
announced in the Federal Register on April 18, 2005 (70 FR 20164). The 
CCP outlines the management direction and strategies for NWR 
operations, habitat restoration, and visitor services, for a period of 
15 years. The CCP provides a vision for the NWR; guidance for 
management decisions; and the goals, objectives, and strategies to 
achieve the NWR's vision and purpose. One objective of the CCP is to 
protect, maintain, and improve approximately 1,000 ac (400 ha) of PMJM 
habitat on the NWR. A programmatic section 7 consultation with DOE for 
their cleanup and maintenance activities was completed in 2004 (Service 
2004c). This consultation addressed removal of manmade structures in 
and adjacent to PMJM habitat, and ongoing operations in the COU in 
support of the CERCLA/RCRA remedy.
    We invited information and comments on potential exclusion of the 
Rocky Flats Site in part because of the previous exclusion of the site 
from critical habitat in our June 23, 2003, final rule (68 FR 37275). 
That exclusion appeared at odds with the recent interpretation of 
critical habitat designation on Federal lands. Federal agencies have an 
affirmative conservation mandate under section 7(a)(1) of the Act to 
contribute to the conservation of listed species. On the Rocky Flats 
Site, as with other Federal lands, we anticipate that effective land 
management strategies can and will be employed by Federal agencies to 
conserve PMJM populations. We have determined that lands on the Rocky 
Flats Site are essential to the conservation of the species. 
Designation of critical habitat on the Rocky Flats Site highlights the 
importance of the area to the PMJM, while encouraging the NWR and DOE 
to provide a consistent and effective approach to conserve the PMJM. 
These lands require special management considerations or protection, as 
evidenced by and incorporated in management plans and the programmatic 
consultation referenced above. Potential effects to habitat on the site 
that may be addressed under programs, practices, and activities within 
the authority and jurisdiction of Federal land management agencies 
include, but are not limited to, weed management, wildland fire 
management, recreation, construction and maintenance of roads and 
trails, and operational maintenance and monitoring activities within 
the COU. For the above reasons, we conclude that the entire Rocky Flats 
site, including the COU, contains the physical and biological features 
essential to the conservation of the PMJM and merits designation as 
critical habitat.
    (28) Comment: One commenter requested that the easternmost portion 
of the Rocky Flats Site (Unit 6) in Jefferson and Broomfield Counties, 
the site of proposed roadway expansion along Indiana Street, be 
excluded from critical habitat, because it is planned for development. 
They cited the Rocky Flats National Wildlife Refuge Act of 2001, and 
Rocky Flats National Wildlife Refuge Comprehensive Conservation Plan 
and Environmental Impact Statement (CCP/EIS) as addressing the roadway 
expansion and anticipating its future construction in spite of 
potential PMJM presence. Two other commenters urged that the specific 
area in question be included in designated critical habitat.
    Our Response: The areas in question contain the physical and 
biological features essential to conservation of the PMJM and have not 
been excluded from critical habitat. Should project plans for the road 
expansion go forward, the Service has concluded that subsequent 
environmental review, including compliance with the Act, will be 
required of any future project proponent to address any impacts to the 
PMJM, its habitat, and designated critical habitat. The Service has 
made no conclusions as to how any transfer of Federal land or roadway 
expansion would affect the PMJM. The Service only found that transfer 
of a corridor up to 300-ft (92-m) wide would not adversely affect 
management of the NWR (Service 2004, p. 191).
    (29) Comment: Denver Water requested exclusion of their properties 
covered under the Denver Water HCP, provided maps of their properties, 
and pointed out apparent Service mapping errors.
    Our Response: The eight properties in question include a total of 
approximately 250 ac (113 ha) in 4 critical habitat units (Units 5, 7, 
9, and 10). We have excluded these properties from critical habitat 
designation under section 4(b)(2) of the Act (see the Exclusions 
section below), and corrected maps and acreages as appropriate.
    (30) Comment: Douglas County requested exclusion of non-Federal 
lands within Douglas County based on their 2006 HCP.
    Our Response: We have not excluded the non-Federal lands in Douglas 
County. On May 11, 2006, we issued a section 10 incidental take permit 
that covers the PMJM for the Douglas County HCP (Service 2006a). The 
Douglas County HCP addresses only specified activities conducted by 
Douglas County and the towns of Castle Rock and Parker, within Douglas 
County, Colorado, on private and other non-Federal lands within the 
RCZ, as mapped by Douglas County. Impacts to the RCZ associated with 
the covered activities are mitigated by the permanent protection of 
portions of the RCZ and the restoration of habitat from temporary 
impacts. Stream segments totaling 15 mi (24 km) in length and 1,132 ac 
(458 ha) of the RCZ have been permanently protected as part of the 
Douglas County HCP. Management plans exist or are in development for 
these protected properties (Dougherty 2009). The majority of proposed 
critical habitat in Units 8 and 9, and a small amount of non-Federal 
property in Unit 10 are within the boundaries of the Douglas County 
HCP.
    While the Douglas County HCP includes the extensive mapped RCZ that 
encompasses areas believed to support the PMJM, the plan does not 
provide a means by which habitat within these zones will be effectively 
managed into the future. Only about 5 percent of the lands within the 
RCZ are set aside for conservation under the plan. The vast majority of 
lands in the RCZ receive no specific protection under the HCP. 
Potential impacts to physical and biological features essential to the 
PMJM from entities other than Douglas County and the cities of Parker 
and Castle Rock, including those by private landowners, are not 
addressed in the plan.

[[Page 78438]]

    (31) Comment: One commenter proposed that we link the two subunits 
proposed in Unit 8 (Cherry Creek), Douglas County.
    Our Response: The Draft Plan calls for a medium recovery population 
in Lower South Platte--Cherry Creek HUC. Each of the two subunits 
appears large enough to support a medium recovery population. We 
determined that linking them was not appropriate, after considering the 
variable quality of intervening habitat on private lands and 
determining that a much larger critical habitat unit with more reaches 
in low-quality habitat would not provide additional benefit to the 
PMJM.
    (32) Comment: One commenter stated that we should limit the 
downstream extent of designated critical habitat along Plum Creek in 
Unit 9 (West Plum Creek), Douglas County, to the point of maximum 
reservoir storage under the U.S. Army Corps of Engineers' (Corps') 
Chatfield Reservoir Reauthorization Project preferred alternative 
(maximum storage at 5,444 feet (ft) (1,660 meters (m)) in elevation).
    Our Response: The reach in question is federally owned, has been 
documented to support the PMJM, and has PCEs of appropriate quantity 
and spatial arrangement to qualify as critical habitat. We have 
determined that Plum Creek downstream to Chatfield Reservoir contains 
the physical and biological features essential to the conservation of 
the PMJM, and we have identified no basis to exclude this area from 
critical habitat under section 4(b)(2) of the Act. Substantial planning 
has taken place to address potential impacts to the PMJM should the 
reservoir expansion proceed, in part because proposed expansion of 
reservoir storage capacity would impact existing critical habitat on 
the Upper South Platte River (Unit 10). While designation of critical 
habitat along Plum Creek will provide additional regulatory protection 
to PMJM habitat in the area, the project sponsors are developing 
alternatives to address impacts to designated critical habitat on Plum 
Creek should the planned project move forward.
    (33) Comment: One commenter stated that we should exclude the 
Penley Ranch property along Indian Creek, Unit 9 (West Plum Creek) from 
critical habitat, on the basis that trapping conducted in 2007 did not 
document the PMJM on the property and the Service agreed at the time 
the PMJM was ``not likely to be present'' on the site. The commenter 
further stated that if the property was not excluded, we should develop 
more appropriate (less extensive) site-specific boundaries of critical 
habitat on the site.
    Our Response: While the PMJM was not captured during the 2007 
trapping effort, habitat on the site appeared to support the physical 
and biological features essential to the conservation of the PMJM. We 
concurred in 2007 that the PMJM was not likely present and that a 
proposed rural residential development on the property would not be 
likely to adversely affect the PMJM. We stated that our concurrence was 
valid only for one year. The residential development proposed did not 
take place. Captures of the PMJM have occurred in areas of comparable 
or lower quality habitat downstream on Indian Creek. PCEs are present 
along this reach of Indian Creek. While no further trapping efforts 
have taken place, we believe that the PMJM likely uses the reach, at a 
minimum as a movement corridor, and may occupy portions of the 
property. We therefore conclude that this reach of Indian Creek is 
occupied and merits designation as critical habitat. Indian Creek on 
the Penley Ranch is within the RCZ established under the Douglas County 
HCP. Outward extent of critical habitat on the property is being 
designated consistent with the boundaries of the Douglas County RCZ 
(see the Delineation of Critical Habitat Boundaries section below). See 
also related comment 61 and our response.
    (34) Comment: One commenter stated that the upstream extent of 
critical habitat along Bear Creek in Unit 9 (West Plum Creek) should 
terminate at the Lake Waconda Dam, as the lake