Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Gunnison Sage-Grouse, 2539-2570 [2012-31666]

Download as PDF Vol. 78 Friday, No. 8 January 11, 2013 Part III Department of the Interior mstockstill on DSK4VPTVN1PROD with Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Gunnison Sage-Grouse; Proposed Rule VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\11JAP3.SGM 11JAP3 2540 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R6–ES–2011–0111; 4500030114] RIN 1018–AX71 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Gunnison Sage-Grouse Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service, propose to designate critical habitat for the Gunnison sagegrouse (Centrocercus minimus) under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act’s protections to this species’ critical habitat. The effect of this regulation is to designate critical habitat for the Gunnison sage-grouse under the Act. In total, approximately 689,675 hectares (ha) (1,704,227 acres (ac)) are being proposed for designation as critical habitat in Chaffee, Delta, Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache, and San Miguel Counties in Colorado, and in Grand and San Juan Counties in Utah. DATES: We will accept comments received or postmarked on or before March 12, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by February 25, 2013. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Keyword box, enter Docket No. FWS–R6–ES– 2011–0111, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, check on the Proposed Rules link to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R6–ES–2011– 0111; Division of Policy and Directives Management; U.S. Fish and Wildlife mstockstill on DSK4VPTVN1PROD with SUMMARY: VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information). The coordinates or plot points or both from which the critical habitat maps are generated are included in the administrative record for this rulemaking and are available at https:// www.fws.gov/coloradoES/, https:// www.regulations.gov at Docket No. FWS–R6–ES–2011–0111, and at the Western Colorado Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this rulemaking will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and/ or at https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Western Colorado Supervisor, U.S. Fish and Wildlife Service, Western Colorado Field Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506–3946; telephone 970–243–2778; facsimile 970–245–6933. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Elsewhere in today’s Federal Register, we propose to list the Gunnison sagegrouse as an endangered species under the Endangered Species Act. Under the Act, critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Designations and revisions of critical habitat can only be completed by issuing a rule. This rule proposes to designate critical habitat for the Gunnison sagegrouse. • Based on our proposal to list the Gunnison sage-grouse as an endangered species, we are proposing critical habitat for the Gunnison sage-grouse under the Endangered Species Act. In total, approximately 689,675 hectares (ha) (1,704,227 acres (ac)) are being proposed for designation as critical habitat, in Chaffee, Delta, Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache, and San Miguel PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Counties in Colorado, and in Grand and San Juan Counties in Utah. The basis for our action. The Act requires that the Service designate critical habitat at the time of listing to the extent prudent and determinable. We have determined that designation is prudent and critical habitat is determinable (see Background section below). We will seek peer review. We are seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available science and application of that science and to provide any additional scientific information to improve this proposed rule. Because we will consider all comments and information received during the comment period, our final determination may differ from this proposal. Information Requested We intend to take any final action resulting from this proposed rule based on the best scientific and commercial data available and after consideration of economic, national security and other relevant impacts and will be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threats outweighs the benefit of designation such that the designation of critical habitat is not prudent. (2) Specific information on: (a) The amount and distribution of Gunnison sage-grouse habitat; (b) What may constitute ‘‘physical or biological features essential to the conservation of the species,’’ within the geographical range currently occupied by the species; (c) Where these features are currently found; (d) Whether any of these features may require special management considerations or protection; (e) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why; and E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules (f) What areas not occupied at the time of listing (or the present time) are essential for the conservation of the species and why. (3) Land use designations and current or planned activities in the areas occupied by the species or proposed to be designated as critical habitat, and possible impacts of these activities on this species and proposed critical habitat. (4) Information on the projected and reasonably likely impacts of climate change on the Gunnison sage-grouse and proposed critical habitat. (5) Any foreseeable economic, national security, or other relevant impacts that may result from designating any areas that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts. (6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and particularly whether the benefits of potentially excluding any specific area outweigh the benefits of including that area as set out in section 4(b)(2) of the Act. For instance, should the proposed designation exclude properties currently enrolled in the Gunnison sage-grouse Candidate Conservation Agreement with Assurances, properties under conservation easement, or properties held by conservation organizations, and why? (7) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments. (8) The likelihood of adverse social reactions to the designation of critical habitat and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(2) of the Act directs that critical habitat designations be made based on VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 the best scientific data available and after consideration of economic and other relevant impacts. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Western Colorado Field Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions Elsewhere in today’s Federal Register, we propose to list the Gunnison sagegrouse as an endangered species under the Endangered Species Act. Please see that proposed listing rule for a complete history of previous Federal actions. On September 9, 2011, the U.S. District Court for the District of Columbia approved a settlement agreement laying out a multi-year listing work plan for addressing candidate species, including the Gunnison sagegrouse. As part of this agreement, the Service agreed to publish a proposed rule in the Federal Register on whether to list Gunnison sage-grouse and designate critical habitat by September 30, 2012. On August 13, 2012, the U.S. District Court for the District of Columbia modified the settlement agreement to extend this original deadline by 3 months, to December 30, 2012. The deadline for the final rule did not change and remains September 30, 2013. The request for an extension was made to allow more time to complete the proposed rule and more opportunity to engage with State and local governments, landowner groups, and other entities to discuss the conservation needs of the species. Accordingly, elsewhere in today’s PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 2541 Federal Register, we propose to list the Gunnison sage-grouse as an endangered species under the Endangered Species Act. Background For more information on Gunnison sage-grouse taxonomy, life history, habitat, and population descriptions and our proposal to list the species as an endangered species under the Act please, refer to the 12-month finding published September 28, 2010 (75 FR 59804) and the proposed rule to list the species as an endangered species that is published elsewhere in today’s Federal Register. Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features: (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with 2542 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographic area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements, (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type), are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species’ life-history processes, are essential to the conservation of the species. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographic area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area formerly occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographic area occupied by a species only when a designation limited to its current range would be VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 inadequate to ensure the conservation of the species. Section 4(b) (2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available, as well as consideration of economic, national security and other relevant impacts. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we determine which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may result in take of the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. 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 (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. There is currently no imminent threat of take attributed to collection or vandalism according to the Factor B analysis in our proposed rule to list the Gunnison sage-grouse as endangered (published elsewhere in today’s Federal Register), and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that designation of critical E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules habitat is prudent for the Gunnison sage-grouse. mstockstill on DSK4VPTVN1PROD with Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Gunnison sagegrouse. Physical and Biological Features In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical and biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. We derive the specific physical and biological features required for Gunnison sage-grouse from studies of this species’ habitat, ecology, and life history as described above in the proposed listing rule and in greater detail in the 12-month finding published September 28, 2010 (75 FR VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 59804), and information presented below. We have determined that the following physical and biological features are essential for Gunnison sagegrouse: Space for Individual and Population Growth and for Normal Behavior Gunnison sage-grouse require large, interconnected expanses of sagebrush plant communities that contain healthy understory composed primarily of native, herbaceous vegetation (Patterson 1952, p. 9; Knick et al. 2003, p. 623; Connelly et al. 2004, pp. 4–15; Knick and Connelly 2011, entire; Pyke 2011, p. 532; Wisdom et al. 2011, entire). Gunnison sage-grouse may use a variety of habitats throughout their life cycle, such as riparian meadows, riparian areas with a shrub component, agricultural lands, and steppe dominated by native grasses and forbs. However, Gunnison sage-grouse are considered sagebrush obligates (Patterson 1952, p. 42; Braun et al. 1976, p. 168; Schroeder et al. 1999, pp. 4–5; Connelly et al. 2000a, pp. 970–972; Connelly et al. 2004, p. 4–1), and the use of non-sagebrush habitats by sagegrouse is dependent on the presence of sagebrush habitats in close proximity (Connelly et al. 2004, p. 4–18 and references therein). Gunnison sage-grouse move seasonally among various habitat types driven by breeding activities, nest and brood-rearing site requirements, seasonal changes in the availability of food resources, and response to weather conditions. In the 2005 Gunnison sagegrouse Rangewide Conservation Plan (RCP), annual Gunnison sage-grouse habitat use was categorized into three seasons: (1) Breeding, (2) summer–late fall, and (3) winter (Gunnison Sagegrouse Rangewide Steering Committee (GSRSC 2005, pp. 27–31)). Sage-grouse exhibit strong site fidelity (loyalty to a particular area) to seasonal habitats, including breeding, nesting, broodrearing, and wintering areas, even when a particular area may no longer be of value (Connelly et al. 2004, p. 3–1). Adult sage-grouse rarely switch interannual use among these seasonal habitats once they have been selected (Berry and Eng 1985, pp. 238–240; Fischer et al. 1993, p. 1039; Young 1994, pp. 42–43; Root 2002, p. 12; Holloran and Anderson 2005, p. 749), limiting the species’ adaptability to habitat changes. The pattern and scale of Gunnison sage-grouse annual movements, and the degree to which a given habitat patch can fulfill the species’ annual habitat needs, are dependent on the arrangement and quality of habitats PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 2543 across the landscape. Habitat structure and quality vary spatially over the landscape; therefore, some areas may provide habitat for a single season, while other areas may provide habitat for one or more seasons (GSRSC 2005, pp. 25–26). In addition, plant community dynamics and disturbance also result in a temporal component of habitat variability. Rangewide, finescale habitat structure data on which to delineate seasonal habitats currently does not exist. A spatially explicit nest site selection model developed for the Gunnison Basin by Aldridge et al. (2011, pp. entire) predicted the location of the best Gunnison sage-grouse nesting habitat. The total area of the predicted best nesting habitat (containing greater than 90 percent of an independent sample of nest locations) amounted to approximately half of the study area (Aldridge et al. 2011, p. 7). However, this model does not predict Gunnison sage-grouse seasonal habitat needs outside of the nesting season. Gunnison sage-grouse make relatively large movements on an annual basis. Maximum Gunnison sage-grouse annual movements in relation to lek capture have been reported as 18.5 km (11.5 mi) (GSRSC 2005, p. J–3), and 17.3 km (10.7 mi) (Saher 2011, pers. comm.), and individual Gunnison sage-grouse location points can be up to 27.9 km (17.3 mi) apart within a given year (Root 2002, pp. 14–15). Individual Gunnison sage-grouse have been documented to move more than 56.3 km (35 mi) to wintering areas in the Gunnison Basin in Colorado (Phillips 2011, pers. comm.). While it is likely that some areas encompassed within these movement boundaries are used only briefly as movement areas, the extent of these movements demonstrate the largescale annual habitat requirements of the species. Therefore, based on the species’ yearround reliance on sagebrush and the various seasonal habitat requirements discussed above, we identify sagebrush plant communities of sufficient size and configuration to encompass all seasonal habitats, including areas used to move between seasonal habitats, for a given population of Gunnison sage-grouse to be a physical or biological feature essential to the conservation of this species. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Food resources used by Gunnison sage-grouse vary throughout the year because of seasonal changes in food availability and specific dietary requirements of breeding hens and E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with 2544 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules chicks. The diet of Gunnison sagegrouse is composed of nearly 100 percent sagebrush in the winter, while forbs, insects, and sagebrush are important dietary components during the remainder of the year (Wallestad et al. 1975, p. 21; Barnett and Crawford 1994, p. 117; Schroeder et al. 1999, p. 5; Young et al. 2000, p. 452). Pre-laying hens are particularly dependent on forbs and the insects supported by native herbaceous understories (Drut et al. 1994, pp. 173– 175). The Gunnison sage-grouse hen pre-laying period is from approximately late-March to early April. Pre-laying habitats for sage-grouse hens need to provide a diversity of vegetation including forbs that are rich in calcium, phosphorous, and protein to meet the nutritional needs of females during the egg development period (Barnett and Crawford 1994, p. 117; Connelly et al. 2000a, p. 970). During the pre-laying period, female sage-grouse select forbs that generally have higher amounts of calcium and crude protein than sagebrush (Barnett and Crawford 1994, p. 117). Forbs and insects are essential nutritional components for sage-grouse chicks (Klebenow and Gray 1968, pp. 81–83; Peterson 1970, pp. 149–151; Johnson and Boyce 1991, p. 90; Connelly et al. 2004, p. 3–3). During the first 3 weeks after hatching, insects are the primary food of chicks (Patterson 1952, p. 201; Klebenow and Gray 1968, p. 81; Peterson 1970, pp. 150–151; Johnson and Boyce 1990, pp. 90–91; Johnson and Boyce 1991, p. 92; Drut et al. 1994, p. 93; Pyle and Crawford 1996, p. 320; Fischer et al. 1996a, p. 194). Diets of 4- to 8-week-old greater sagegrouse chicks were found to have more plant material as the chicks matured (Peterson 1970, p. 151). Succulent forbs are predominant in the diet until chicks exceed 3 months of age, at which time sagebrush becomes a major dietary component (Klebenow 1969, pp. 665– 656; Connelly and Markham 1983, pp. 171–173; Fischer et al. 1996b, p. 871; Schroeder et al. 1999, p. 5). Decreased availability of forbs corresponded to a decrease in the number of chicks per hen and brood size (Barnett and Crawford 1994, p. 117). Gunnison sage-grouse population dynamics appear to be most sensitive to female reproductive success and chick survival (GSRSC 2005, p. G–13). Therefore, habitats that support sagebrush vegetation as well as a vegetative understory composed of native grasses and forbs are essential to key demographic rates. In most areas within the range of Gunnison sage-grouse, the herbaceous VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 understory component of sagebrush plant communities typically dries out as summer progresses into fall. Habitats used by Gunnison sage-grouse in summer through late-fall are typically more mesic than surrounding habitats during this time of year (GSRSC 2005, p. 30). These areas are used primarily for foraging because they provide reliable sources of green, herbaceous vegetation when this resource is seasonally limited on the landscape. Specifically, these areas include: Riparian communities, springs, seeps, mesic meadows, or the margins of irrigated hay meadows and alfalfa fields (GSRSC 2005, p. 30). However, seasonal foraging habitats typically receive use by Gunnison sage-grouse only if they are within 50 m (165 ft.) of surrounding sagebrush plant communities (CSGWG 1997, p. 13). In winter, greater and Gunnison sagegrouse diet is almost exclusively sagebrush (Rasmussen and Griner 1938, p. 855; Batterson and Morse 1948, p. 20; Patterson 1952, pp. 197–198; Wallestad et al. 1975, pp. 628–629; Young et al. 2000, p. 452). Various species of sagebrush can be consumed by sagegrouse (Remington and Braun 1985, pp. 1056–1057; Welch et al. 1988, p. 276, 1991; Myers 1992, p. 55). Habitats used by Gunnison sage-grouse during winter typically consist of 15 to 30 percent sagebrush cover, similar to those used by greater sage-grouse (Connelly et al. 2000a, p. 972; Young et al. 2000, p. 451). However, Gunnison sage-grouse may also use areas with more deciduous, non-sagebrush shrubs during the winter (Young et al. 2000, p. 451). In all suitable winter habitats, the height of sagebrush must be tall enough so that leaves are still exposed when wintering areas are largely covered with snow. Based on the information above, we identify sagebrush plant communities that contain herbaceous vegetation consisting of a diversity and abundance of forbs, insects, and grasses, that fulfill all Gunnison sage-grouse seasonal dietary requirements, to be a physical or biological feature essential to the conservation of this species. We also identify as such features non-sagebrush habitats located adjacent to sagebrush plant communities that are used by Gunnison sage-grouse for foraging during seasonally dry periods. These habitats are generally more mesic than surrounding habitat, and include wet meadows, riparian areas, and irrigated pastures. Cover or Shelter Predation is the most commonly identified cause of direct mortality for sage-grouse during all life stages, and PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Gunnison sage-grouse require sagebrush and herbaceous vegetation yearlong for escape and hiding cover (Schroeder et al. 1999, p. 9; Connelly et al. 2000b, p. 228; GSGRC 2005, p. 138; Connelly et al. 2011, p. 66). Major predators of adult sage-grouse include many species including golden eagles (Aquila chrysaetos), red foxes (Vulpes fulva), and bobcats (Felis rufus) (Hartzler 1974, pp. 532–536; Schroeder et al. 1999, pp. 10–11; Schroeder and Baydack 2001, p. 25; Rowland and Wisdom 2002, p. 14; Hagen 2011, p. 97). Most raptor predation of sage-grouse is on juveniles and older age classes (GSRSC 2005, p. 135). Juvenile sage-grouse also are killed by common ravens (Corvus corax), badgers (Taxidea taxus), red foxes, coyotes (Canis latrans) and weasels (Mustela spp.) (Braun 1995, entire; Schroeder et al. 1999, p. 10). Nest predators include badgers, weasels, coyotes, common ravens, American crows (Corvus brachyrhyncos) and magpies (Pica spp.), elk (Cervus canadensis) (Holloran and Anderson 2003, p. 309), and domestic cows (Bovus spp.) (Coates et al. 2008, pp. 425–426). Ground squirrels (Spermophilus spp.) also have been identified as nest predators (Patterson 1952, p. 107; Schroeder et al. 1999, p. 10; Schroder and Baydack 2001, p. 25), but recent data show that they are physically incapable of puncturing eggs (Holloran and Anderson 2003, p. 309; Coates et al. 2008, p. 426; Hagen 2011, p. 97). Young (1994, p. 37) found the most common predators of Gunnison sage-grouse eggs were weasels, coyotes, and corvids. Nest predation appears to be related to the amount of herbaceous cover surrounding the nest (Gregg et al. 1994, p. 164; Braun 1995, pp. 1–2; DeLong et al. 1995, p. 90; Braun 1998; Coggins 1998, p. 30; Connelly et al. 2000b, p. 975; Schroeder and Baydack 2001, p. 25; Coates and Delehanty 2008, p. 636). Females actively select nest sites with the presence of big sagebrush and grass and forb cover (Connelly et al. 2000, p. 971), and nesting success of greater sage-grouse is positively correlated with these qualities (Schroeder and Baydack 2001, p. 25; Hagen et al. 2007, p. 46). Likewise, reduced herbaceous cover for young chicks can increase their rate of predation (Schroeder and Baydack 2001, p. 27), and high shrub canopy cover at nest sites was related to lower levels of predation by visual predators, such as the common raven (Coates 2007, p. 148). However, herbaceous cover may not be effective in deterring olfactory predators such as badgers (Coates 2007, p. 149). Gunnison sage-grouse nearly exclusively use sagebrush plant communities during the winter season E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with for thermal cover and to meet nutritional needs. Sagebrush stand selection in winter is influenced by snow depth (Patterson 1952, pp. 188– 189; Connelly 1982 as cited in Connelly et al. 2000a, p. 980) and in some areas, topography (Beck 1977, p. 22; Crawford et al. 2004, p. 5). Winter sagebrush use areas are associated with drainages, ridges, or southwest aspects with slopes less than 15 percent (Beck 1977, p. 22). Lower flat areas and shorter sagebrush along ridge tops provide roosting areas. In extreme winter conditions, greater sage-grouse will spend nights and portions of the day burrowed into ‘‘snow burrows’’ (Back et al. 1987, p. 488), and we expect Gunnison sagegrouse to exhibit the same behavior. Hupp and Braun (1989, p. 825) found that most Gunnison sage-grouse feeding activity in the winter occurred in drainages and on slopes with south or west aspects in the Gunnison Basin. During a severe winter in the Gunnison Basin in 1984, less than 10 percent of the sagebrush was exposed above the snow and available to sage-grouse (Hupp, 1987, pp. 45–46). In these conditions, the tall and vigorous sagebrush typical in drainages was an especially important food source. Therefore, based on the information above, we identify sagebrush plant communities consisting of adequate shrub and herbaceous structure to provide year-round escape and hiding cover, as well as areas that provide concealment of nests and broods during the breeding season, and winter season thermal cover to be a physical or biological feature essential to the conservation of this species. Quantitative information on cover can be found in the Primary Constituent Elements for Gunnison Sage-Grouse section below. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Lek Sites—Lek sites (communal breeding areas) can be located on areas of bare soil, wind-swept ridges, exposed knolls, low sagebrush, meadows, and other relatively open sites with good visibility and low vegetation structure (Connelly et al. 1981, pp. 153–154; Gates 1985, pp. 219–221; Klott and Lindzey 1989, pp. 276–277; Connelly et al. 2004, p. 3–7 and references therein). In addition, leks are usually located on flat to gently sloping areas of less than 15 percent grade (Patterson 1952, p. 83; Giezentanner and Clark 1974, p. 218; Wallestad 1975, p. 17; Autenrieth 1981, p. 13). Leks are often surrounded by denser shrub-steppe cover, which is used for escape, and thermal and feeding cover. Leks can be formed VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 opportunistically at any appropriate site within or adjacent to nesting habitat (Connelly et al. 2000a, p. 970). Lek habitat availability is not considered to be a limiting factor for sage-grouse (Schroeder 1997, p. 939). However, adult male sage-grouse demonstrate strong yearly fidelity to lek sites (Patterson 1952, p. 91; Dalke 1963 et al., pp. 817–818), and some Gunnison sagegrouse leks have been used since the 1950s (Rogers 1964, pp. 35–40). Nesting Habitat—Gunnison sagegrouse typically select nest sites under sagebrush cover with some forb and grass cover (Young 1994, p. 38), and successful nests were found in higher shrub density and greater forb and grass cover than unsuccessful nests (Young 1994, p. 39). The understory of productive sage-grouse nesting areas contains native grasses and forbs, with horizontal and vertical structural diversity that provides an insect prey base, herbaceous forage for pre-laying and nesting hens, and cover for the hen while she is incubating (Schroeder et al. 1999, p. 11; Connelly et al. 2000a, p. 971; Connelly et al. 2004, pp. 4–5—4– 8). Shrub canopy and grass cover provide concealment for sage-grouse nests and young and are critical for reproductive success (Barnett and Crawford 1994, pp. 116–117; Gregg et al. 1994, pp. 164–165; DeLong et al. 1995, pp. 90–91; Connelly et al. 2004, p. 4–4). Few herbaceous plants are growing in April when nesting begins, so residual herbaceous cover from the previous growing season is critical for nest concealment in most areas (Connelly et al. 2000a, p. 977). Nesting success for Gunnison sagegrouse is highest in areas where forb and grass covers are found below a sagebrush canopy cover of 15 to 30 percent (Young et al. 2000, p. 451). These numbers are comparable to those reported for the greater sage-grouse (Connelly et al. 2000a, p. 971). Nest success for greater sage-grouse is greatest where grass cover is present (Connelly et al. 2000a, p. 971). Because of the similarities between these two species, we believe that increased nest success in areas of forb and grass cover below the appropriate sagebrush canopy cover is likely the case for Gunnison sage-grouse as well. Female Gunnison sage-grouse exhibit strong fidelity to nesting locations (Young 1994, p. 42; Lyon 2000, p. 20; Connelly et al. 2004, p. 4–5; Holloran and Anderson 2005, p. 747). The degree of fidelity to a specific nesting area appears to diminish if the female’s first nest attempt in that area was unsuccessful (Young 1994, p. 42). However, movement to new nesting PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 2545 areas does not necessarily result in increased nesting success (Connelly et al. 2004, p. 3–6; Holloran and Anderson 2005, p. 748). Brood-rearing Habitat—Early broodrearing habitat is found close to nest sites (Connelly et al. 2000a, p. 971), although individual females with broods may move large distances (Connelly 1982, as cited in Connelly et al. 2000a, p. 971). Young (1994, pp. 41– 42) found that Gunnison sage-grouse with broods used areas with lower slopes than nesting areas, high grass and forb cover, and relatively low sagebrush cover and density. Broods frequently used the edges of hay meadows, but were often flushed from areas found in interfaces of wet meadows and habitats providing more cover, such as sagebrush or willow-alder (Salix-Alnus). By late summer and into the early fall, the birds move from riparian areas to mesic sagebrush plant communities that continue to provide green forbs. During this period, Gunnison sage-grouse can be observed in atypical habitat such as agricultural fields (Commons 1997, pp. 79–81). However, broods in the Gunnison Basin typically do not use hay meadows further away than 50 m (165 ft) from the edge of adjacent sagebrush stands (CSGWG 1997, p. 13). Therefore, based on the information above, we identify sagebrush plant communities with the appropriate shrub and herbaceous vegetation structure to meet all the needs for all Gunnison sagegrouse reproductive activities (including lekking, nesting, and brood-rearing) to be a physical or biological feature essential to the conservation of this species. Habitats Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distributions of the Species Gunnison sage-grouse historically occurred in southwestern Colorado, northwestern New Mexico, northeastern Arizona, and southeastern Utah (Schroeder et al. 2004, pp. 370–371). The maximum Gunnison sage-grouse historical (presettlement) range is estimated to have been approximately 5,534,805 ha (13,676,800 ac) (GSRSC 2005, p. 32); however, only a portion of the historical range would have been occupied at any one time. The current occupied range of Gunnison sage-grouse is approximately 379,464 ha (937,676 ac) in southwestern Colorado and southeastern Utah (CDOW 2009b, p. 1; GSRSC 2005, p. 81). The estimated 93 percent of sagebrush habitat within the presettlement range of the Gunnison sage-grouse had been lost prior to 1960. The majority of the remaining habitat is E:\FR\FM\11JAP3.SGM 11JAP3 2546 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with highly fragmented, although to a lesser extent in the Gunnison Basin than in the remainder of the species’ range. The occupied sagebrush plant communities that are proposed for designation contain physical and biological features that are representative of the historic and geographical distribution of the Gunnison sage-grouse. The unoccupied sagebrush plant communities that are proposed for designation were all likely historically occupied (GSRSC 2005, pp. 32–33) and can allow for the expansion of the current geographic distribution of the species as well as facilitate movements among populations. The extremely limited extent of sagebrush habitat throughout the current range of the species, but especially in the six smaller populations (see the Background section of our proposed listing rule to list the Gunnison sagegrouse as endangered, which is published elsewhere in today’s Federal Register), is a significant factor in causing us to propose areas beyond those that are currently occupied for critical habitat designation. vegetation data collected in the breeding season (Young 1994, Apa 2004), summer-fall (Young 1994, Woods and Braun 1995, Commons 1997, Apa 2004), and winter (Hupp 1987). In addition, these structural habitat values are specific to the Colorado Plateau floristic province and reflect the understory structure and composition specific to the range of Gunnison sage-grouse (GSRSC 2005, p. H–2). As such, these values are based on the most current and comprehensive, rangewide assessment of Gunnison sage-grouse habitat structure. We consider an area critical habitat if its average vegetation values are within the values for the majority of structural categories for any given PCE (Tables 1 and 2). Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the primary constituent elements specific to Gunnison sage-grouse are: Primary Constituent Elements for Gunnison Sage-Grouse Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of Gunnison sage-grouse in areas occupied at the time of listing, focusing on the features’ primary constituent elements (PCEs). We consider primary constituent elements to be the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species’ life-history processes, are essential to the conservation of the species. We only consider those areas as critical habitat if they meet the ‘‘Landscape-scale Primary Constituent Element’’ (PCE 1) because small, isolated patches of sagebrush do not support Gunnison sage-grouse. If an area meets the landscape scale requirement, then a particular site is considered critical habitat if it contains one or more of the ‘‘Site-scale Primary Constituent Elements’’ (PCEs 2–5). For the ‘‘Site-scale Primary Constituent Elements’’ (PCEs 2–5), we adopt the values from the 2005 RCP (GSRSC 2005, Appendix H and references therein). The 2005 RCP provides structural habitat values developed using only Gunnison sagegrouse habitat use data from various Gunnison sage-grouse populations in all seasonal habitats (GSRSC 2005, p. H–2). Source data includes structural Primary Constituent Element 1— Areas with vegetation composed primarily of sagebrush plant communities (at least 25 percent of primarily sagebrush land cover within a 1.5-km (0.9-mi) radius of any given location), of sufficient size and configuration to encompass all seasonal habitats for a given population of Gunnison sage-grouse, and facilitate movements within and among populations. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 Landscape-Scale Primary Constituent Element Site-Scale Primary Constituent Elements Primary Constituent Element 2— Breeding habitat composed of sagebrush plant communities with structural characteristics within the ranges described in Table 1, below. Habitat structure values are average values over a project area. TABLE 1—GUNNISON SAGE-GROUSE STRUCTURAL GUIDELINES FOR BREEDING HABITAT.—Continued Vegetation variable Amount of occurrence in the habitat (2.0–5.9 in) Primary Constituent Element 3— Summer-late fall habitat composed of sagebrush plant communities with structural characteristics within the ranges described in Table 2, below. Habitat structure values are average values over a project area. TABLE 2—GUNNISON SAGE-GROUSE STRUCTURAL GUIDELINES FOR SUMMER-LATE FALL HABITAT. Vegetation variable Sagebrush Canopy Cover. Non-sagebrush Canopy Cover. Total Shrub Canopy Cover. Sagebrush Height ......... Grass Cover .................. Forb Cover .................... Grass Height ................. Forb Height ................... Amount of occurrence in the habitat 5–20 percent 5–15 percent 10–35 percent 25–50 cm (9.8–19.7 in) 10–35 percent 5–35 percent 10–15 cm (3.9–5.9 in) 3–10 cm (1.2–3.9 in) Primary Constituent Element 4— Winter habitat composed of sagebrush plant communities with sagebrush canopy cover between 30 to 40 percent and sagebrush height of 40 to 55 cm (15.8 to 21.7 in). These habitat structure values are average values over a project area. Primary Constituent Element 5— Alternative, mesic habitats used primarily in the summer-late fall season. Special Management Considerations or TABLE 1—GUNNISON SAGE-GROUSE Protection STRUCTURAL GUIDELINES FOR When designating critical habitat, we BREEDING HABITAT. assess whether the specific areas within Amount of occurrence in the habitat Vegetation variable Sagebrush Canopy Cover ... Non-sagebrush Canopy Cover. Total Shrub Canopy Cover Sagebrush Height ................ Grass Cover ........................ Forb Cover .......................... Grass Height ....................... Forb Height .......................... PO 00000 Frm 00008 Fmt 4701 10–25 percent 5–15 percent 15–40 percent 25–50 cm. (9.8–19.7 in). 10–40 percent 5–40 percent 10–15 cm. (3.9–5.9 in). 5–15 cm Sfmt 4702 the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. All areas proposed for designation as critical habitat as described below may require some level of management to address the current and future threats to the physical and biological features essential to the conservation of Gunnison sage-grouse. In all of the described units, special management E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules may be required to ensure that the habitat is able to provide for the biological needs of the species. A detailed discussion of the current and foreseeable threats to Gunnison sage-grouse can found in the proposed listing rule to list the species as endangered, which is published elsewhere in today’s Federal Register, in the section entitled Summary of Factors Affecting the Species. In general, the features essential to the conservation of Gunnison sage-grouse may require special management considerations or protection to reduce the following individual threats and their interactions: Residential and commercial development including associated land-clearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators; improper grazing management, the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; and other activities that result in the loss or degradation of sagebrush plant communities. The largest, overarching threat to Gunnison sage-grouse is habitat fragmentation. The aforementioned activities will require special management consideration not only for the direct effects of the activities on the birds’ habitat and behavior, but also for their indirect effects and how they are cumulatively and individually increasing habitat fragmentation. Special management considerations or protection may be required within areas we are proposing as critical habitat to address these threats. Based on our analysis of threats to Gunnison sagegrouse, management activities that could ameliorate these threats include, but are not limited to: Comprehensive land-use planning and implementation that prevents a net decrease in the extent and quality of Gunnison sagegrouse habitat through the prioritization and protection of habitats and monitoring; protection of lands by fee title acquisition or the establishment of permanent conservation easements; management of recreational use to minimize direct disturbance and habitat loss; invasive weed and invasive native plant species control activities; management of domestic and wild ungulate use so that overall habitat meets or exceeds Gunnison sage-grouse structural habitat guidelines; monitoring and management of predator communities; coordinated and monitored habitat restoration or improvement projects; and implementation of wild fire suppression, particularly in Wyoming VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 big sagebrush plant associations. In some cases, continuing ongoing land management practices may be appropriate and beneficial for Gunnison sage-grouse. For instance, continued irrigation and maintenance of hay and alfalfa fields on private lands near sagebrush habitats may help provide or enhance brood-rearing, mesic habitats for Gunnison sage-grouse. The Service acknowledges the ongoing and proposed conservation efforts of all entities across the range of the Gunnison sage-grouse, such as the Sage Grouse Initiative that is led by the Natural Resources Conservation Service and incorporates many partners to implement conservation actions. The Service is conferencing with Federal agencies to insure a seamless continuation of conservation practices if the species is listed and critical habitat is designated. Such special management activities may be required to protect the physical and biological features and support the conservation of the species by preventing or reducing the loss, degradation, and fragmentation of sagebrush landscapes. Additionally, management of critical habitat lands can increase the amount of suitable habitat and enhance connectivity among Gunnison sage-grouse populations through the restoration of areas that were previously composed of sagebrush plant communities. The limited extent of sagebrush habitats throughout the species’ current range emphasizes the need for additional habitat for the species to be able to expand into, as well as adjust to changes in habitat availability that may result from climate change, along with habitat needed to survive and recover. Criteria Used To Identify Proposed Critical Habitat As required by section 4(b)(2) of the Act, we used the best scientific data available to propose critical habitat. We reviewed available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. As a result of this analysis we are proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing (or at the current time), and areas that were historically occupied but are presently PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 2547 unoccupied, because such areas are essential for the conservation of the species. We based our identification of lands that contain features essential to the conservation of Gunnison sage-grouse on polygons delineated and defined by Colorado Parks and Wildlife (CPW) and the Utah Division of Wildlife Resources (UDWR) the CPW and UDWR as part of the 2005 RCP Habitat Mapping project (GSRSC 2005, p. 54). Gunnison sagegrouse polygons mapped in the 2005 RCP were derived from a combination of telemetry locations, sightings of sagegrouse or sage-grouse sign, local biological expertise, GIS analysis, or other data sources (GSRSC 2005, p. 54; CDOW 2009e, p. 1). We consider polygons designated as ‘‘occupied habitat’’ (GSRSC 2005, p. 54) to be the area occupied by Gunnison sage-grouse at the time of the listing (or at the current time). No males have been observed since 2002 on the Sims Mesa lek, which is located in the Sims Mesa portion of the Cimarron-Cerro SummitSims Mesa population, (see the Background section of our proposed listing rule to list the Gunnison sagegrouse as endangered, which is published elsewhere in today’s Federal Register), and it is likely that this subpopulation has been extirpated (CDOW 2009b, p. 43). However, this lek has been inactive for less than ten years and is not officially designated as historic according to CPW standards (CDOW 2009d, p. 7). Therefore, we consider this area to be currently occupied in this proposal. The 2005 RCP also defined two other habitat categories, ‘‘potential habitat,’’ and ‘‘vacant or unknown habitat’’ (GSRSC 2005, p. 54). Potential habitat is defined as ‘‘unoccupied habitats that could be suitable for occupation of sagegrouse if practical restoration were applied,’’ and is most commonly former ˜ sagebrush areas overtaken by pinonjuniper woodlands. The vacant or unknown habitat category is defined as ‘‘suitable habitat for sage-grouse that is separated (not contiguous) from occupied habitats that either (1) has not been adequately inventoried, or (2) has not had documentation of grouse presence in the past 10 years.’’ These vacant or unknown areas include habitats that contain features essential for the conservation of the species and are currently considered suitable for use by Gunnison sage-grouse or areas where ecological site potential suggest that sagebrush plant associations could occur if practical restoration were applied. The latter situation is most ˜ commonly in areas where pinon-juniper E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with 2548 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules vegetation has expanded from presettlement distributions. Because we lack the detailed habitat data throughout the range of the species, we used the ‘‘potential’’ and ‘‘vacant or unknown’’ habitat polygons as the first criteria for our determination of unoccupied areas that contain features essential for the conservation of Gunnison sage-grouse. We further refined our determination of which unoccupied areas should be designated as critical habitat based on: (1) Adjacency or proximity to currently occupied habitat; (2) ability to provide for connectivity between and within populations; and (3) size of area of vegetation composed primarily of sagebrush plant communities. We limited our consideration of unoccupied areas to those within the potential presettlement habitat of Gunnison sagegrouse as mapped by Schroeder et al. in 2004 and modified in Colorado in the 2005 RCP. We considered unoccupied areas as proposed critical habitat if they are located within approximately 18.5 km (11.5 mi) of occupied habitat based on typical sage-grouse movement distances (Connelly 2000, p. 978; GSRSC 2005, p. J–5) because these areas have the highest likelihood of receiving Gunnison sage-grouse use and potential for occupied habitat expansion. In addition, Knick and Hanser (2011, p. 404) believe that isolated patches of suitable habitats within 18 km (11.2 mi) could provide connectivity among populations. We lack information on how sage-grouse move through landscapes (Knick and Hanser 2011, p. 402). Therefore, we evaluated connectivity potential by visual identification of areas that support a high proportion of sagebrush or shrub cover located along the shortest path between occupied population areas and areas located between occupied subpopulations. Sage-grouse population persistence or extirpation is associated with the amount of sagebrush habitat at large spatial scales (Knick and Connelly 2011, entire). Aldridge et al. (2008, pp. 989– 990) reported that at least 25 percent sagebrush cover within a 30 km (18.6 mi) radius scale was needed for longterm sage-grouse persistence, whereas Wisdom et al. (2011, pp. 465–467) showed that areas with at least 27 percent sagebrush cover within a 18 km (11.2 mi) radius scale had a higher probability of population persistence. No particular spatial scale has been determined to best evaluate sage-grouse suitability. Therefore, we evaluated the ability of unoccupied areas to potentially provide for the landscapescale habitat needs of Gunnison sage- VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 grouse by identifying areas of large size with a high degree of sagebrush cover at several spatial scales. We used moving windows (ESRI ‘‘Neighborhood analysis’’ Tool) applied to sagebrush landcover types isolated from the SWReGAP land cover raster dataset (USGS 2004, entire). We visually assessed the amount of sagebrush at 54 km, 18 km, 5 km, and 1.5 km radii scales (33.6 mi, 11.2 mi, 3.1 mi, and 0.9 mi, respectively) to locate areas where the landscape is dominated by sagebrush land cover. The application of a linear model presented in the 2005 RCP that analyzed the relationship between the mean high count of males on leks and the amount of available habitat of ‘‘average quality’’ in each Gunnison sage-grouse population (GSRSC 2005, p. 197) predicts a habitat area in excess of 100,000 acres is needed to support a population of 500 birds. In the absence of habitat loss, inbreeding depression, and disease, population viability modeling for Gunnison sage-grouse predicted that individual populations greater than 500 birds may be viable (have a low probability of extinction) over a 50-year time period (GSRSC 2005, p. 170). These data suggest that an individual habitat patch, or the cumulative area of two or more smaller habitat patches in close proximity, may need to be in excess of 40,469 ha (100,000 ac) to support a viable population of Gunnison sage-grouse. This model does not take into account the inherent variance in habitat structure and quality over the landscape, and detailed habitat structure and quality data are lacking. As a result we consider the estimated minimum habitat area to be an approximate value. As described in more detail in the proposed listing rule for the Gunnison sage-grouse, which is published elsewhere in today’s Federal Register, there are currently seven populations of this species: (1) Monticello-Dove Creek; ˜ (2) Pinon Mesa; (3) San Miguel Basin; (4) Cerro Summit-Cimarron-Sims Mesa; (5) Crawford; (6) Gunnison Basin; and (7) Poncha Pass. The currently occupied habitat area for four of these populations,the currently occupied ˜ habitat area for the Pinon Mesa, Cerro Summit-Cimarron-Sims Mesa, Crawford, and Poncha Pass populations, which range in size from 8,262 (ha) (20,415 ac) to 15,744 ha (38,904 ac), are thus smaller than the model’s predicted minimum required area. The currently occupied habitat area in two other populations, the Monticello-Dove Creek and the San Miguel Basin populations is 45,275 ha (111,877 ac) and 41,022 ha PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 (101,368 ac), respectively. These areas only slightly exceed the model predicted minimum required area. While correlative in nature, altogether, these data suggest that the currently occupied habitat area for four populations is insufficient for long-term population viability, and may be minimally adequate for two populations. With the exception of the Gunnison Basin population area, proposed critical habitat units (CHUs) for Gunnison sagegrouse collectively contain relatively small, and in some cases, isolated, populations of the species. Thus, we believe all currently occupied areas, as well as some currently unoccupied areas, proposed as critical habitat are essential for the persistence and conservation of the Gunnison sagegrouse and help to meet the landscapescale habitat criteria set forth above. The best available information indicates that, with proper protection and management, the proposed CHUs are sufficient to provide for the conservation of the species. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other manmade structures because such lands lack physical and biological features necessary for Gunnison sage-grouse. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed sites. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. We are proposing for designation as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient elements of physical and biological features to support life-history processes essential to the conservation of the species. We are also proposing lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of Gunnison sage-grouse. Units were proposed for designation based on sufficient elements of physical E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with and biological features being present to support Gunnison sage-grouse lifehistory processes. All units individually contain all of the identified elements of physical and biological features, and each unit as a whole supports multiple life-history processes. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 the public on https:// www.regulations.gov at Docket No. FWS–R6–ES–2011–0111, on our Internet sites [https://www.fws.gov/ coloradoes/], and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). Proposed Critical Habitat Designation We are proposing seven units as critical habitat for Gunnison sagegrouse. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Gunnison sage-grouse. The seven units we propose as critical habitat correspond to the seven Gunnison sage- PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 2549 grouse populations, which include: (1) ˜ Monticello-Dove Creek, (2) Pinon Mesa (3) San Miguel Basin, (4) Cerro SummitCimarron-Sims Mesa, (5) Crawford, (6) Gunnison Basin, and (7) Poncha Pass. For the Cerro Summit-Cimarron-Sims Mesa, Crawford, and Poncha Pass Units, our designation includes all available habitat to the species. We consider approximately 55 percent of the area within the seven units as currently occupied and 45 percent as currently unoccupied. Table 3 shows the occupancy status of each individual unit. Table 4 shows the generalized ownership within each unit. BILLING CODE 4310–55–P E:\FR\FM\11JAP3.SGM 11JAP3 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules 17:30 Jan 10, 2013 Jkt 229001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4725 E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.000</GPH> mstockstill on DSK4VPTVN1PROD with 2550 2551 BILLING CODE 4310–55–C VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.001</GPH> mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules 2552 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with We present below a general description for all of the proposed units, followed by brief descriptions of each individual unit, and reasons why they meet the definition of critical habitat for Gunnison sage-grouse. Unit Descriptions All units were likely historically occupied by Gunnison sage-grouse. As discussed above, we believe that all lands proposed as critical habitat are essential to the conservation of the Gunnison sage-grouse for the following reasons: (1) The loss of sagebrush habitats within the potential presettlement range of Gunnison sage-grouse is associated with a substantial reduction in the species range. (2) Population estimates and population trends for six of seven Gunnison sage-grouse populations (with the exception of the Gunnison Basin population) are declining (CDOW 2010a, pp. 1–3). These populations are currently geographically isolated and may have an effective population size small enough to induce inbreeding depression (as discussed under Factor E of our proposed rule to list the Gunnison sage-grouse as endangered, which is published elsewhere in today’s Federal Register) and loss of adaptive potential, with the assumption that these populations are exhibiting similar demography to the San Miguel population because we only have detailed demography information for this population (Stiver et al. 2008, p. 479). (3) Existing small populations are at higher risk of extirpation due to stochastic events. (4) Currently occupied habitat area for six of the seven populations (with the exception of the Gunnison Basin population) may be less than the minimum amount of habitat necessary for the long-term viability of each population. Designation of critical habitat limited to the Gunnison sage-grouse’s present range would be inadequate to ensure the conservation of the species. We are proposing areas historically occupied, but not known to be currently occupied, for the following reasons: (1) Current population sizes of the six smaller Gunnison sage-grouse populations are at such low levels, they must increase in order to ensure longterm survival (GSRSC 2005, p. G–22). While the occupied portions of the proposed units provide habitat for current populations, currently unoccupied areas will provide habitat for population expansion either through natural means, or by reintroduction, VerDate Mar<15>2010 20:06 Jan 10, 2013 Jkt 229001 thus reducing threats due to naturally occurring events. (2) Population expansion either through natural means or by reintroduction into the units is necessary to increase the long-term viability and decrease the risk of extirpation of the populations through stochastic events, such as fires or drought, as the current, isolated populations are each at high risk of extirpation from such stochastic events (GSRSC 2005, p. G–22), particularly because of their small sizes and restricted ranges. (3) Unoccupied portions of units decrease the geographic isolation of the current geographic distribution of the Gunnison sage-grouse, or i.e., increase the connectivity between habitat that is known to be currently occupied. (4) Unoccupied portions of units are in areas that were occupied in the near past and are located within the historical range of the species such that they will serve as corridors, or movement areas, between currently occupied sites. Most proposed unoccupied subunits lie within 18.5 km of an occupied area. (5) All of the unoccupied portions of the proposed critical habitat units contain one or more of the primary constituent elements essential for the conservation of the Gunnison sagegrouse. We based this determination on information in the 2005 RCP (GSRSC 2005, p. 54). Unit 1: Monticello—Dove Creek Unit 1, the Monticello—Dove Creek Unit, consists of 140,973 ha (348,353 ac) of Federal, State, and private lands in San Juan County, Utah; and Montrose, San Miguel, and Dolores Counties, Colorado. Approximately 17,823 ha (44,043 ac) (12.6 percent) of the land area within the unit is managed by Federal agencies, 1,331 ha (3,290 ac) (0.9 percent) is owned by the State of Colorado and the State of Utah, and the remaining 301,019 ha (121,818 ac) (86.4 percent) is comprised of private lands. Within the Dove Creek, Colorado, portion of the unit, protected lands (via easement or landownership by a conservation organization) occur on 330 ha (815 ac) of private lands within the occupied portion of the unit (CPW 2011c, p. 11; CPW 2012b, p. 6), and no lands are included under the Gunnison sage-grouse CCAA. We consider 45,303 ha (111,945 ac) within this unit to be currently occupied (32.1 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). The occupied portion of the Monticello—Dove Creek Unit contains the physical and biological features PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 essential to the conservation of the Gunnison sage-grouse, but these areas are interspersed within lands in agricultural production. Within the occupied portion of this Unit, approximately 23,220 ha (57,377 ac) or 51 percent of the area is currently in agricultural production (USGS 2004, entire). However, a significant portion of the agricultural lands within the Unit are enrolled in the CRP program and many CRP lands are used by Gunnison sage-grouse (Lupus et al. 2006, pp. 959– 960; Ward 2007, p. 15). Threats to the physical and biological features within the Monticello—Dove Creek Unit include, but are not limited to: A high degree of habitat loss, degradation, and fragmentation resulting from conversion to agriculture; oil and gas production and associated infrastructure; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; and past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide prioritization and protection of crucial seasonal habitats from development; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 95,671 ha (236,408 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitats. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. ˜ Unit 2: Pinon Mesa ˜ Unit 2, the Pinon Mesa Unit, consists of 99,220 ha (245,179 ac) of Federal, State, and private lands in Grand County, Utah; and Mesa County, Colorado. Approximately 62,139 ha (153,548 ac) (62.6 percent) of the land area within the unit is managed by Federal agencies, 30 ha (73 ac) (less than one percent) is owned by the State of Utah, and the remaining 37,052 ha (91,558 ac) (37.3 percent) is comprised of private lands. We consider 15,744 ha (38,905 ac) within this unit to be currently occupied (15.9 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). ˜ The occupied portion of the Pinon Mesa Unit contains the physical and biological features essential to the conservation of the Gunnison sagegrouse. Within the currently occupied lands in the unit, 5,405 ha (13,355 ac) of private lands are largely protected from development through permanent conservation easements or fee title ownership held by various land trust and ranchland conservation organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In addition, approximately 6,828 ha (16,873 ac) are included under the Gunnison sagegrouse CCAA (CPW 2012b, p. 11). Habitat conversion to agriculture is limited to less than 3 percent of the ˜ occupied portion of the Pinon Mesa unit (USGS 2004, entire). Threats to the physical and biological ˜ features within the Pinon Mesa Unit include, but are not limited to: Residential and commercial development including associated landclearing activities for the construction of access roads, utilities, and fences; VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; and past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 83,476 ha (206,274 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 2553 primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. Unit 3: San Miguel Basin Unit 3, the San Miguel Basin Unit, consists of 67,084 ha (165,769 ac) of Federal, State, and local governmentowned lands, and private lands in Montrose, San Miguel, and Ouray counties, Colorado. Approximately 22,597 ha (55,837 ac) (33.7 percent) of the land area within the unit is managed by Federal agencies, 5,908 ha (14,598 ac) (8.8 percent) is owned by the State of Colorado, and the remaining 38,580 ha (95,334 ac) (57.5 percent) is comprised of private lands. We consider 41,023 ha (101,371 ac) within this unit to be currently occupied (61.2 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). The occupied portion of the San Miguel Basin Unit contains the physical and biological features essential to the conservation of the Gunnison sagegrouse. Within the currently occupied lands in the unit, 2,698 ha (6,666 ac) of private lands are largely protected from development through permanent conservation easements or fee title ownership held by various land trust and ranchland conservation organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In addition, approximately 292 ha (722 ac) are included under the Gunnison sagegrouse CCAA. Approximately 15 percent of the occupied range in the San Miguel Basin is currently in agricultural production. Threats to the physical and biological features within the San Miguel Basin Unit include, but are not limited to: Residential and commercial development including associated landclearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; past and present grazing management that degrades or eliminates vegetation structure; and oil and gas development and associated infrastructure, all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide E:\FR\FM\11JAP3.SGM 11JAP3 2554 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 26,061 ha (64,398 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. Unit 4: Cerro Summit—Cimarron—Sims Mesa Unit 4, the Cerro Summit— Cimarron—Sims Mesa Unit, consists of 25,377 ha (62,708 ac) of Federal, State, and local government-owned lands, and VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 private lands in Montrose, Ouray, and Gunnison Counties, Colorado. Approximately 4,171 ha (10,307 ac) (16.4 percent) of the land area within the unit is managed by Federal agencies, 1,645 ha (4,066 ac) (6.5 percent) is owned by the State of Colorado, and the remaining 19,561 ha (48,335 ac) (77.1 percent) is comprised of private lands. We consider 15,038 ha (37,161 ac) within this unit to be currently occupied (59.3 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). The occupied portion of the Cerro Summit—Cimarron—Sims Mesa Unit contains the physical and biological features essential to the conservation of the Gunnison sage-grouse. Within the currently occupied lands within the unit, 1,395 ha (3,447 ac) of private lands are largely protected from development through permanent conservation easements or fee title ownership held by various land trust and ranchland conservation organizations and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6), and no lands are included under the Gunnison sage-grouse CCAA. In the Cerro Summit—Cimarron—Sims Mesa population, approximately 14 percent (5,133 ha (2,077 ac)) of the occupied range is currently in agricultural production (USGS 2004, entire). Threats to the physical and biological features within the Cerro Summit— Cimarron—Sims Mesa Unit include, but are not limited to: Residential and commercial development including associated land-clearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 10,339 ha (25,547 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. We recognize that this proposed critical habitat unit is considerably smaller than the RCP modeled minimum habitat patch size required to support a viable Gunnison sage-grouse population. Nevertheless, this proposed critical habitat unit encompasses all existing and potential Gunnison sagegrouse habitat in the vicinity. As such, in the absence of natural immigration of Gunnison sage-grouse, the population within this critical habitat unit may need to be augmented through the translocation of birds from larger populations or the release of captiveproduced birds. Unit 5: Crawford Unit 5, the Crawford Unit, consists of 39,304 ha (97,123 ac) of Federal, State, E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules and local government-owned lands, and private lands in Delta, Montrose, and Gunnison Counties, Colorado. Approximately 17,731 ha (43,814 ac) (45.1 percent) of the land area within the unit is managed by Federal agencies, 112 ha (277 ac) (0.3 percent) is jointly owned by the State of Colorado and the Federal Government, and the remaining 21,461 ha (53,032 ac) (54.6 percent) is comprised of private lands. We consider 14,170 ha (35,015 ac) within this unit to be currently occupied (36.1 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). The occupied portion of the Crawford Unit contains the physical and biological features essential to the conservation of the Gunnison sagegrouse. Within the currently occupied lands in the unit, 414 ha (1,022 ac) of private lands are largely protected from development through permanent conservation easements or fee title ownership held by various land trust and ranchland conservation organizations and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6. In addition, approximately 1,068 ha (2,639 ac) are included under the Gunnison sagegrouse CCAA. Habitat conversion to agriculture is limited to less than 3 percent of the occupied portion of the Crawford Unit (USGS 2004, entire). Threats to the physical and biological features within the Crawford Mesa Unit include, but are not limited to: Residential and commercial development including associated landclearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; and past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 25,134 ha (62,108 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. Unit 6: Gunnison Basin Unit 6, the Gunnison Basin Unit, consists of 298,173 ha (736,802 ac) of Federal, State, and local governmentowned lands, and private lands in Gunnison, Hinsdale, Montrose, and Saguache Counties, Colorado. Approximately 196,625 ha (485,870 ac) (65.9 percent) of the land area within the unit is managed by Federal agencies, 6,052 ha (14,955 ac) (2.0 percent) is owned by the State of Colorado, 314 ha (777 ac) (less than one percent) is jointly owned by the State of Colorado and the Federal Government, 21 ha (52 ac) (less than one percent) is owned by Gunnison County and the City of Gunnison, and the remaining 95,160 ha (235,145 ac) (31.9 percent) is comprised of private PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 2555 lands. We consider 239,959 ha (592,952 ac) within this unit to be currently occupied (80.5 percent), based on the mapping developed for the 2005 RCP (GSRSC 2005, p. 54). The Gunnison Basin contains the largest expanse of sagebrush plant communities within the presettlement range of Gunnison sagegrouse. The occupied portion of the Gunnison Basin Unit contains the physical and biological features essential to the conservation of the Gunnison sagegrouse. Within the currently occupied lands in the unit, 17,466 ha (43,160 ac) of private lands are largely protected from development through permanent conservation easements or fee title ownership held by various land trust and ranchland conservation organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In addition, approximately 5,012 ha (12,385 ac) are included under the Gunnison sagegrouse CCAA. Threats to the physical and biological features within the Gunnison Basin Unit include, but are not limited to: Residential and commercial development including associated landclearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; and past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: the rangewide prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These E:\FR\FM\11JAP3.SGM 11JAP3 2556 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with unoccupied areas comprise approximately 58,214 ha (143,850 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, particularly with continued direct and functional habitat loss (see discussion under Factor A in the proposed listing rule for the species, which is published elsewhere in today’s Federal Register), these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other populations and within the Gunnison Basin. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. The maintenance and enhancement of interpopulation connectivity is particularly important for the Gunnison Basin because it is the largest population in the species range and is therefore the most likely source of dispersal of Gunnison sage-grouse to other populations. Unit 7: Poncha Pass Unit 7, the Poncha Pass Unit, consists of 19,543 ha (48,292 ac) of Federal, State, and local government owned lands, and private lands in Saguache and Chaffee Counties, Colorado. Approximately 12,257 ha (30,287 ac) (62.7 percent) of the land area within the unit is managed by Federal agencies, 844 ha (2,084 ac) (4.3 percent) is owned by the State of Colorado, and the remaining 6,443 ha (15,921 ac) (33.0 percent) is comprised of private lands. We consider 8,262 ha (20,416 ac) within this unit to be currently occupied (42.3 percent), based on the mapping VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 developed for the 2005 RCP (GSRSC 2005, p. 54). The occupied portion of the Poncha Pass Unit contains the physical and biological features essential to the conservation of the Gunnison sagegrouse. No lands within the currently occupied lands in the unit are protected from development through permanent conservation easements or fee title ownership by conservation organizations, and no lands are included under the Gunnison sagegrouse CCAA (CPW 2011c, p. 11; CPW 2012b, p. 6). Habitat conversion to agriculture is limited to less than 3 percent of the occupied portion of the Poncha Pass (USGS 2004, entire). Threats to the physical and biological features within the Poncha Pass Unit include: Residential and commercial development including associated landclearing activities for the construction of access roads, utilities, and fences; increased recreational use of roads and trails; the proliferation of predators of Gunnison sage-grouse; the spread of invasive plant species and associated changes in sagebrush plant community structure and dynamics; past and present grazing management that degrades or eliminates vegetation structure; all of which can result in the loss, degradation, or fragmentation of sagebrush plant communities. Special management actions that may be needed to address these threats include, but are not limited to: The rangewide prioritization and protection of crucial seasonal habitats subject to future residential and commercial development and increasing recreational use of roads and trails; the control of invasive plant species and restoration of historic plant community structure and dynamics, including altered fire regimes and other natural disturbance factors; and the implementation of grazing regimes that result in proper vegetation structure for Gunnison sage-grouse life-history needs in areas used for domestic and wild ungulate grazing and browsing. Limiting the designation of critical habitat in this unit only to currently occupied areas would be inadequate to ensure the conservation of the species. Accordingly, we propose for designation currently unoccupied areas that we conclude are essential for the conservation of the species. These unoccupied areas comprise approximately 11,281 ha (27,877 ac), consisting of lands defined in the 2005 RCP as potential habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of lands with varying amounts of overall sagebrush cover, or have habitat types suitable for PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 movements and dispersal. These areas are also located adjacent to occupied habitat or are located immediately between surrounding populations. In addition to contributing to the fulfillment of the landscape-scale habitat needs of Gunnison sage-grouse, these areas provide habitat for future population growth and reestablishment of portions of presettlement range, as well as to facilitate or allow movement between other units and within the unit. Some unoccupied habitat areas within this unit consist of lands that recently supported sagebrush-dominant plant communities but are currently in agricultural production or are currently subject to encroachment by coniferous ˜ trees or shrubs, most commonly pinonjuniper or mountain shrub plant communities. These areas require restoration to reestablish or enhance sagebrush communities to support the primary constituent elements of Gunnison sage-grouse nesting or broodrearing habitat. However, in their current state, these areas provide essential habitat for interpopulation movements and reduce population isolation and increase genetic exchange among populations. We recognize that this proposed critical habitat unit is considerably smaller than the RCP modeled minimum habitat patch size required to support a viable Gunnison sage-grouse population. Nevertheless, this proposed critical habitat unit encompasses all existing and potential Gunnison sagegrouse habitat in the vicinity. As such, in the absence of natural immigration of Gunnison sage-grouse, the population within this critical habitat unit may need to be augmented through the translocation of birds from larger populations or the release of captiveproduced birds. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. E:\FR\FM\11JAP3.SGM 11JAP3 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other manmade structures because such lands lack physical and biological features necessary for Gunnison sage-grouse. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed sites. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. Likewise, due to past land uses, vegetation changes, or a number of other natural or manmade factors, some areas within the mapped proposed critical VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 habitat may currently lack the sitespecific physical and biological features (primary constituent elements) necessary to support Gunnison sagegrouse (see section, Primary Constituent Elements for Gunnison Sage-grouse). If critical habitat is designated, for actions involving lands that lack the primary constituent elements for Gunnison sagegrouse, section 7 consultation as it relates to critical habitat would not be required. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 2557 authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for Gunnison sage-grouse. As discussed above, the role of critical habitat is to support lifehistory needs of the species and provide for the conservation of the species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Gunnison sage-grouse. These activities include, but are not limited to: (1) Actions that would result in the loss of sagebrush overstory plant cover or height. Such activities could include, but are not limited to, the removal of native shrub vegetation by any means for any infrastructure construction project; direct conversion to agricultural land use; habitat improvement or restoration projects involving mowing, brush-beating, Dixie harrowing, disking, plowing, or prescribed burning; and fire suppression activities. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of Gunnison sage-grouse. (2) Actions that would result in the loss or reduction in native herbaceous understory plant cover or height, and a reduction or loss of associated arthropod communities. Such activities could include, but are not limited to, livestock grazing, the application of herbicides or insecticides, prescribed burning and fire suppression activities; and seeding of nonnative plant species that would compete with native species for water, nutrients, and space. These E:\FR\FM\11JAP3.SGM 11JAP3 2558 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules activities could eliminate or reduce the quality of the habitat necessary for the growth and reproduction of Gunnison sage-grouse through a reduction in food quality and quantity, and increased exposure to predation. (3) Actions that would result in Gunnison sage-grouse avoidance of an area during one or more seasonal periods. Such activities could include, but are not limited to, the construction of vertical structures such as power lines, fences, communication towers, and buildings; management of motorized and nonmotorized recreational use; and activities such as well drilling, operation, and maintenance, which would entail significant human presence, noise, and infrastructure. These activities could result in the direct and functional loss of habitat if Gunnison sage-grouse avoid or reduce use of otherwise suitable habitat in the vicinity of these structures or concentrated activity centers. Exemptions mstockstill on DSK4VPTVN1PROD with Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resource management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: (1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; (2) A statement of goals and priorities; (3) A detailed description of management actions to be implemented to provide for these ecological needs; and (4) A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108– 136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ‘‘The Secretary shall not VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation. Exclusions Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species. Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 critical habitat designation and related factors. All of the critical habitat united (CHUs) contain private lands. Federal lands with oil and gas leases, grazing permits, rights-of-way for utilities and telecommunications, and recreational uses are included in some units. Several State-owned parcels are included in some units where hunting, wildlife viewing, and other recreational activities occur. The economic analysis will estimate the economic impact of a potential designation of critical habitat on these activities. During the development of a final designation, we will consider economic impacts, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this proposal, we have determined that no lands within the proposed designation of critical habitat for Gunnison sagegrouse are owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not anticipate that he will exercise discretion to exclude any areas from the final designation based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any management plans or conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. We acknowledge and commend landowners who have made significant commitments to manage their lands in a manner that is compatible with the conservation of Gunnison sage-grouse. In this proposed rule, we are seeking input from the public, especially private landowners, as to whether or not the Secretary should exclude lands enrolled under the Gunnison sage-grouse CCAA, E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with lands under permanent conservation easements, or fee title properties with conservation measures applicable to Gunnison sage-grouse from the final critical habitat designation under section 4(b)(2) of the Act. The Service also acknowledges conservation efforts such as participation in the Sage Grouse Initiative that is led by the Natural Resources Conservation Service. (Please see the Information Requested section of this proposed rule for instructions on how to submit comments). A decision as to whether to exclude these lands from the proposed designation will require consideration of several important factors. Enrollment in the CCAA can be withdrawn by the landowner at any time and most lands have been enrolled less than two years. Furthermore, CCAA enrollment eligibility will expire if a final listing determination is made for Gunnison sage-grouse. If the agreed-upon, voluntary land management practices within the conditions of the CCAA are met by the land owner, then the designation of critical habitat on these lands should not result in any additional regulatory requirements. For lands under conservation easement, we lack information to evaluate if conditions or practices incorporated into the easement conditions afford adequate protection to the physical or biological features of Gunnison sagegrouse. Also, because these lands are privately owned, absent a Federal nexus, the designation of critical habitat on these lands will incur no additional regulatory burden beyond the prohibitions of section 9(a)(2) of the Act. In preparing this proposal, we have determined that there are currently no habitat conservation plans (HCPs) for the Gunnison sage-grouse, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on other relevant impacts. Peer Review In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 during this public comment period on our specific assumptions and conclusions in this proposed designation of critical habitat. We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal. Public Hearings Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. Required Determinations Our draft economic analysis will be completed after this proposed rule is published. Therefore, we will defer our Regulatory Flexibility Act (5 U.S.C. 601 et seq.), Energy Supply, Distribution, or Use—Executive Order 13211, Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and Small Business Regulatory Enforcement Fairness Act (SBREFA), findings until after this analysis is done. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 2559 this rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat E:\FR\FM\11JAP3.SGM 11JAP3 2560 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules mstockstill on DSK4VPTVN1PROD with designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify. The Service’s current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service’s current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Gunnison sage-grouse occur in areas with oil and gas activity. These areas are primarily limited to the Monticello— Dove Creek and San Miguel populations. A portion of the Gunnison Basin Unit occurs in an area with high VerDate Mar<15>2010 20:06 Jan 10, 2013 Jkt 229001 geothermal energy development potential. Well pads and their existing infrastructure are within proposed critical habitat units. On Federal lands, entities conducting oil and gas related activities as well as power companies would need to consult within areas designated as critical habitat. Although we do not believe the impacts resulting from this consultation requirement would rise to the level of significant, we will make our finding after the draft economic analysis has been completed. We will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule would significantly or uniquely affect small governments because only a small percentage of the total land ownership falls on small government lands such as those owned by the City of Gunnison and Gunnison County. Therefore, a Small Government Agency Plan is not required. We do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year, that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate. Takings—Executive Order 12630 In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Gunnison sage-grouse in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat for Gunnison sage-grouse would E:\FR\FM\11JAP3.SGM 11JAP3 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules not pose significant takings implications for lands within or affected by the designation. mstockstill on DSK4VPTVN1PROD with Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Colorado and Utah. The designation of critical habitat in areas currently occupied by the Gunnison sage-grouse may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical and biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for caseby-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] However, when the range of the species includes States within the Tenth Circuit, such as that of the Gunnison sage-grouse, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat designation prior to making a final determination of critical habitat and notify the public of the availability of the draft environmental assessment for this proposal when it is finished. Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 2561 (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands that were occupied by the Gunnison sage-grouse at the time of listing that contain the features essential for conservation of the species, and no tribal lands unoccupied by the Gunnison sage-grouse that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for the Gunnison sage-grouse on tribal lands. References Cited A complete list of references cited in this rulemaking is available on the Internet at https://www.regulations.gov and upon request from the Western Colorado Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this package are the staff members of the Western Colorado Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and E:\FR\FM\11JAP3.SGM 11JAP3 2562 Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules recordkeeping requirements, Transportation. 1. The authority citation for part 17 continues to read as follows: ■ Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Scientific name * * Sage-grouse, Gunnison. * * Critical habitat—fish and wildlife. mstockstill on DSK4VPTVN1PROD with * * (b) Birds. * * * * * * * Gunnison Sage-grouse (Centrocercus minimus) (1) Critical habitat units are depicted for Grand and San Juan Counties, Utah, and Chaffee, Delta, Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache, and San Miguel Counties, Colorado, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of Gunnison sage-grouse consist of five components: (i) Landscape-scale Primary Constituent Element. Primary Constituent Element 1—Areas with vegetation composed primarily of sagebrush plant communities (at least 25 percent of primarily sagebrush land cover within a 1.5-km (0.9-mi) radius of any given location), of sufficient size and configuration to encompass all seasonal habitats for a given population of Gunnison sage-grouse, and facilitate movements within and among populations. (ii) Site-scale Primary Constituent Elements. (A) Primary Constituent Element 2— Breeding habitat composed of sagebrush plant communities with structural characteristics within the ranges described in the following table. Habitat VerDate Mar<15>2010 20:06 Jan 10, 2013 Jkt 229001 Status * Amount in habitat Sagebrush Canopy ......... Non-sagebrush Canopy Total Shrub Canopy ....... Sagebrush Height ........... Grass Cover ................... Forb Cover ..................... Grass Height .................. Forb Height ..................... 10–25 percent 5–15 percent 15–40 percent 25–50 cm (9.8–19.7 in) 10–40 percent 5–40 percent 10–15 cm (3.9–5.9 in) 5–15 cm (2.0–5.9 in) (B) Primary Constituent Element 3— Summer-late fall habitat composed of sagebrush plant communities with structural characteristics within the ranges described in the following table. Habitat structure values are average values over a project area. Vegetation variable Amount in habitat Sagebrush Canopy ......... Non-sagebrush Canopy Total Shrub Canopy ....... Sagebrush Height ........... Grass Cover ................... Forb Cover ..................... Grass Height .................. Forb Height ..................... 5–20 percent 5–15 percent 10–35 percent 25–50 cm (9.8–19.7 in) 10–35 percent 5–35 percent 10–15 cm (3.9–5.9 in) 3–10 cm (1.2–3.9 in) (C) Primary Constituent Element 4— Winter habitat composed of sagebrush plant communities with sagebrush canopy cover between 30 to 40 percent and sagebrush height of 40 to 55 cm (15.8 to 21.7 in). These habitat structure values are average values over a project area. Frm 00024 Fmt 4701 When listed * .................... * Vegetation variable Sfmt 4702 * * Critical habitat * * E structure values are average values over a project area. PO 00000 * * (h) * * * * * Entire ...................... * 3. In § 17.95, amend paragraph (b) by adding an entry for ‘‘Gunnison SageGrouse (Centrocercus minimus),’’ in the same alphabetical order that the species appears in the table at § 17.11(h), to read as follows: * * * U.S.A. (AZ, CO, NM, UT). ■ § 17.95 Vertebrate population where endangered or threatened * * Centrocercus minimus. * 2. Amend § 17.11(h) by adding an entry for ‘‘Sage-grouse, Gunnison’’ to Historic range * BIRDS § 17.11 Endangered and threatened wildlife. ■ Species Common name the List of Endangered and Threatened Wildlife in alphabetical order under ‘‘BIRDS’’ to read as follows: PART 17—[AMENDED] * Special rules * * 17.95(b) NA * (D) Primary Constituent Element 5— Alternative, mesic habitats used primarily in the summer-late fall season. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created from a number of geospatial data, including: Polygons generated as part of the Gunnison sage-grouse Rangewide Conservation Plan, Southwest Regional Gap Analysis Project (SWReGAP) land cover data, National Agriculture Imagery Program (NAIP) aerial images, and USGS 7.5 minute quadrangle maps. Critical habitat units were then mapped as shapefiles using Universal Transverse Mercator (UTM) Zone 13N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site, (https:// www.fws.gov/coloradoes/), https:// www.regulations.gov at Docket No. FWS–R6–ES–2011–0111, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Note: Index map follows: BILLING CODE 4310–55–P E:\FR\FM\11JAP3.SGM 11JAP3 (6) Unit 1: Monticello—Dove Creek: San Juan County, Utah, and Montrose, San Miguel, and Dolores Counties, Colorado. VerDate Mar<15>2010 20:06 Jan 10, 2013 Jkt 229001 (i) General Description: 140,973 ha (348,353 ac); 20.4 percent of all critical habitat. (ii) Map of Unit 1, Monticello—Dove Creek: San Juan County, Utah, and PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 2563 Montrose, San Miguel, and Dolores Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.002</GPH> mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules ˜ (7) Unit 2: Pinon Mesa: Grand County, Utah, and Mesa County, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 99,220 ha (245,179 ac); 14.4 percent of all critical habitat. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 ˜ (ii) Map of Unit 2, Pinon Mesa: Grand County, Utah, and Mesa County, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.003</GPH> mstockstill on DSK4VPTVN1PROD with 2564 (8) Unit 3: San Miguel Basin: Montrose, San Miguel, and Ouray Counties, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 67,084 ha (165,769 ac); 9.7 percent of all critical habitat. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 2565 (ii) Map of Unit 3, San Miguel Basin: Montrose, San Miguel, and Ouray Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.004</GPH> mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules (9) Unit 4: Cerro Summit-CimarronSims Mesa: Montrose, Ouray, and Gunnison Counties, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 25,377 ha (62,708 ac); 3.7 percent of all critical habitat. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 (ii) Map of Unit 4, Cerro SummitCimarron-Sims Mesa: Montrose, Ouray, and Gunnison Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.005</GPH> mstockstill on DSK4VPTVN1PROD with 2566 (10) Unit 5: Crawford: Delta, Montrose, and Gunnison Counties, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 39,304 ha (97,123 ac); 5.7 percent of all critical habitat. PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 2567 (ii) Map of Unit 5, Crawford: Delta, Montrose, and Gunnison Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.006</GPH> mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules (11) Unit 6: Gunnison Basin: Gunnison, Saguache, Montrose, and Hinsdale Counties, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 298,173 ha (736,802 ac); 43.2 percent of all critical habitat. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 (ii) Map of Unit 6, Gunnison Basin: Gunnison, Saguache, Montrose, and Hinsdale Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.007</GPH> mstockstill on DSK4VPTVN1PROD with 2568 (12) Unit 7: Poncha Pass: Saguache and Chaffee Counties, Colorado. VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 (i) General Description: 19,543 ha (48,292 ac); 2.8 percent of all critical habitat. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 2569 (ii) Map of Unit 7, Poncha Pass: Saguache and Chaffee Counties, Colorado, follows: E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.008</GPH> mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules * * Federal Register / Vol. 78, No. 8 / Friday, January 11, 2013 / Proposed Rules * * Dated: December 13, 2012. Michael J. Bean, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2012–31666 Filed 1–10–13; 8:45 am] BILLING CODE 4310–55–C VerDate Mar<15>2010 17:30 Jan 10, 2013 Jkt 229001 PO 00000 Frm 00032 Fmt 4701 Sfmt 9990 E:\FR\FM\11JAP3.SGM 11JAP3 EP11JA13.009</GPH> mstockstill on DSK4VPTVN1PROD with 2570

Agencies

[Federal Register Volume 78, Number 8 (Friday, January 11, 2013)]
[Proposed Rules]
[Pages 2539-2570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31666]

[[Page 2539]]

Vol. 78

Friday,

No. 8

January 11, 2013

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; Designation of Critical
Habitat for Gunnison Sage-Grouse; Proposed Rule

Federal Register / Vol. 78 , No. 8 / Friday, January 11, 2013 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2011-0111; 4500030114]
RIN 1018-AX71

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Gunnison Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for the Gunnison sage-grouse (Centrocercus minimus)
under the Endangered Species Act of 1973, as amended (Act). If we
finalize this rule as proposed, it would extend the Act's protections
to this species' critical habitat. The effect of this regulation is to
designate critical habitat for the Gunnison sage-grouse under the Act.
In total, approximately 689,675 hectares (ha) (1,704,227 acres (ac))
are being proposed for designation as critical habitat in Chaffee,
Delta, Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache,
and San Miguel Counties in Colorado, and in Grand and San Juan Counties
in Utah.

DATES: We will accept comments received or postmarked on or before
March 12, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. We must receive requests
for public hearings, in writing, at the address shown in the FOR
FURTHER INFORMATION CONTACT section by February 25, 2013.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R6-ES-
2011-0111, which is the docket number for this rulemaking. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, check on the Proposed Rules link to locate this document. You
may submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R6-ES-2011-0111; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Information Requested section below for more information).
The coordinates or plot points or both from which the critical
habitat maps are generated are included in the administrative record
for this rulemaking and are available at https://www.fws.gov/coloradoES/
, https://www.regulations.gov at Docket No. FWS-R6-ES-2011-0111, and at
the Western Colorado Field Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we may
develop for this rulemaking will also be available at the Fish and
Wildlife Service Web site and Field Office set out above, and may also
be included in the preamble and/or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Patty Gelatt, Western Colorado
Supervisor, U.S. Fish and Wildlife Service, Western Colorado Field
Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946;
telephone 970-243-2778; facsimile 970-245-6933. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Elsewhere in today's Federal
Register, we propose to list the Gunnison sage-grouse as an endangered
species under the Endangered Species Act. Under the Act, critical
habitat shall be designated, to the maximum extent prudent and
determinable, for any species determined to be an endangered or
threatened species under the Act. Designations and revisions of
critical habitat can only be completed by issuing a rule.
This rule proposes to designate critical habitat for the Gunnison
sage-grouse.
Based on our proposal to list the Gunnison sage-grouse as
an endangered species, we are proposing critical habitat for the
Gunnison sage-grouse under the Endangered Species Act. In total,
approximately 689,675 hectares (ha) (1,704,227 acres (ac)) are being
proposed for designation as critical habitat, in Chaffee, Delta,
Dolores, Gunnison, Hinsdale, Mesa, Montrose, Ouray, Saguache, and San
Miguel Counties in Colorado, and in Grand and San Juan Counties in
Utah.
The basis for our action. The Act requires that the Service
designate critical habitat at the time of listing to the extent prudent
and determinable. We have determined that designation is prudent and
critical habitat is determinable (see Background section below).
We will seek peer review. We are seeking comments from
knowledgeable individuals with scientific expertise to review our
analysis of the best available science and application of that science
and to provide any additional scientific information to improve this
proposed rule. Because we will consider all comments and information
received during the comment period, our final determination may differ
from this proposal.

Information Requested

We intend to take any final action resulting from this proposed
rule based on the best scientific and commercial data available and
after consideration of economic, national security and other relevant
impacts and will be as accurate and as effective as possible.
Therefore, we request comments or information from the public, other
concerned governmental agencies, Native American tribes, the scientific
community, industry, or any other interested parties concerning this
proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, including whether
there are threats to the species from human activity, the degree of
which can be expected to increase due to the designation, and whether
that increase in threats outweighs the benefit of designation such that
the designation of critical habitat is not prudent.
(2) Specific information on:
(a) The amount and distribution of Gunnison sage-grouse habitat;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why; and

[[Page 2541]]

(f) What areas not occupied at the time of listing (or the present
time) are essential for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
areas occupied by the species or proposed to be designated as critical
habitat, and possible impacts of these activities on this species and
proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Gunnison sage-grouse and proposed critical
habitat.
(5) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any areas that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and particularly whether the benefits of
potentially excluding any specific area outweigh the benefits of
including that area as set out in section 4(b)(2) of the Act. For
instance, should the proposed designation exclude properties currently
enrolled in the Gunnison sage-grouse Candidate Conservation Agreement
with Assurances, properties under conservation easement, or properties
held by conservation organizations, and why?
(7) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(8) The likelihood of adverse social reactions to the designation
of critical habitat and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(2) of the Act directs that
critical habitat designations be made based on the best scientific data
available and after consideration of economic and other relevant
impacts.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We request
that you send comments only by the methods described in the ADDRESSES
section.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Western Colorado Field Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

Elsewhere in today's Federal Register, we propose to list the
Gunnison sage-grouse as an endangered species under the Endangered
Species Act. Please see that proposed listing rule for a complete
history of previous Federal actions.
On September 9, 2011, the U.S. District Court for the District of
Columbia approved a settlement agreement laying out a multi-year
listing work plan for addressing candidate species, including the
Gunnison sage-grouse. As part of this agreement, the Service agreed to
publish a proposed rule in the Federal Register on whether to list
Gunnison sage-grouse and designate critical habitat by September 30,
2012. On August 13, 2012, the U.S. District Court for the District of
Columbia modified the settlement agreement to extend this original
deadline by 3 months, to December 30, 2012. The deadline for the final
rule did not change and remains September 30, 2013. The request for an
extension was made to allow more time to complete the proposed rule and
more opportunity to engage with State and local governments, landowner
groups, and other entities to discuss the conservation needs of the
species. Accordingly, elsewhere in today's Federal Register, we propose
to list the Gunnison sage-grouse as an endangered species under the
Endangered Species Act.

Background

For more information on Gunnison sage-grouse taxonomy, life
history, habitat, and population descriptions and our proposal to list
the species as an endangered species under the Act please, refer to the
12-month finding published September 28, 2010 (75 FR 59804) and the
proposed rule to list the species as an endangered species that is
published elsewhere in today's Federal Register.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such

[[Page 2542]]

designation does not require implementation of restoration, recovery,
or enhancement measures by non-Federal landowners. Where a landowner
seeks or requests Federal agency funding or authorization for an action
that may affect a listed species or critical habitat, the consultation
requirements of section 7(a)(2) would apply, but even in the event of a
destruction or adverse modification finding, the obligation of the
Federal action agency and the landowner is not to restore or recover
the species, but to implement reasonable and prudent alternatives to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements, (such as
roost sites, nesting grounds, seasonal wetlands, water quality, tide,
soil type), are the elements of physical or biological features that,
when laid out in the appropriate quantity and spatial arrangement to
provide for a species' life-history processes, are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species. For
example, an area formerly occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation. We
designate critical habitat in areas outside the geographic area
occupied by a species only when a designation limited to its current
range would be inadequate to ensure the conservation of the species.
Section 4(b) (2) of the Act requires that we designate critical
habitat on the basis of the best scientific and commercial data
available, as well as consideration of economic, national security and
other relevant impacts. Further, our Policy on Information Standards
Under the Endangered Species Act (published in the Federal Register on
July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515
of the Treasury and General Government Appropriations Act for Fiscal
Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information
Quality Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we determine which areas should be designated as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge.
We recognize that critical habitat designated at a particular point
in time may not include all of the habitat areas that we may later
determine are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be needed for
recovery of the species. Areas that are important to the conservation
of the species, both inside and outside the critical habitat
designation, will continue to be subject to: (1) Conservation actions
implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may result in take of the species. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of this species. 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 (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
There is currently no imminent threat of take attributed to
collection or vandalism according to the Factor B analysis in our
proposed rule to list the Gunnison sage-grouse as endangered (published
elsewhere in today's Federal Register), and identification and mapping
of critical habitat is not expected to initiate any such threat. In the
absence of finding that the designation of critical habitat would
increase threats to a species, if there are any benefits to a critical
habitat designation, then a prudent finding is warranted. Here, the
potential benefits of designation include: (1) Triggering consultation
under section 7 of the Act, in new areas for actions in which there may
be a Federal nexus where it would not otherwise occur because, for
example, it is or has become unoccupied or the occupancy is in
question; (2) focusing conservation activities on the most essential
features and areas; (3) providing educational benefits to State or
county governments or private entities; and (4) preventing people from
causing inadvertent harm to the species. Therefore, because we have
determined that the designation of critical habitat will not likely
increase the degree of threat to the species and may provide some
measure of benefit, we find that designation of critical

[[Page 2543]]

habitat is prudent for the Gunnison sage-grouse.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat. When
critical habitat is not determinable, the Act allows the Service an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Gunnison sage-grouse.
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical and biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical and biological features required
for Gunnison sage-grouse from studies of this species' habitat,
ecology, and life history as described above in the proposed listing
rule and in greater detail in the 12-month finding published September
28, 2010 (75 FR 59804), and information presented below. We have
determined that the following physical and biological features are
essential for Gunnison sage-grouse:

Space for Individual and Population Growth and for Normal Behavior

Gunnison sage-grouse require large, interconnected expanses of
sagebrush plant communities that contain healthy understory composed
primarily of native, herbaceous vegetation (Patterson 1952, p. 9; Knick
et al. 2003, p. 623; Connelly et al. 2004, pp. 4-15; Knick and Connelly
2011, entire; Pyke 2011, p. 532; Wisdom et al. 2011, entire). Gunnison
sage-grouse may use a variety of habitats throughout their life cycle,
such as riparian meadows, riparian areas with a shrub component,
agricultural lands, and steppe dominated by native grasses and forbs.
However, Gunnison sage-grouse are considered sagebrush obligates
(Patterson 1952, p. 42; Braun et al. 1976, p. 168; Schroeder et al.
1999, pp. 4-5; Connelly et al. 2000a, pp. 970-972; Connelly et al.
2004, p. 4-1), and the use of non-sagebrush habitats by sage-grouse is
dependent on the presence of sagebrush habitats in close proximity
(Connelly et al. 2004, p. 4-18 and references therein).
Gunnison sage-grouse move seasonally among various habitat types
driven by breeding activities, nest and brood-rearing site
requirements, seasonal changes in the availability of food resources,
and response to weather conditions. In the 2005 Gunnison sage-grouse
Rangewide Conservation Plan (RCP), annual Gunnison sage-grouse habitat
use was categorized into three seasons: (1) Breeding, (2) summer-late
fall, and (3) winter (Gunnison Sage-grouse Rangewide Steering Committee
(GSRSC 2005, pp. 27-31)). Sage-grouse exhibit strong site fidelity
(loyalty to a particular area) to seasonal habitats, including
breeding, nesting, brood-rearing, and wintering areas, even when a
particular area may no longer be of value (Connelly et al. 2004, p. 3-
1). Adult sage-grouse rarely switch inter-annual use among these
seasonal habitats once they have been selected (Berry and Eng 1985, pp.
238-240; Fischer et al. 1993, p. 1039; Young 1994, pp. 42-43; Root
2002, p. 12; Holloran and Anderson 2005, p. 749), limiting the species'
adaptability to habitat changes.
The pattern and scale of Gunnison sage-grouse annual movements, and
the degree to which a given habitat patch can fulfill the species'
annual habitat needs, are dependent on the arrangement and quality of
habitats across the landscape. Habitat structure and quality vary
spatially over the landscape; therefore, some areas may provide habitat
for a single season, while other areas may provide habitat for one or
more seasons (GSRSC 2005, pp. 25-26). In addition, plant community
dynamics and disturbance also result in a temporal component of habitat
variability. Rangewide, fine-scale habitat structure data on which to
delineate seasonal habitats currently does not exist. A spatially
explicit nest site selection model developed for the Gunnison Basin by
Aldridge et al. (2011, pp. entire) predicted the location of the best
Gunnison sage-grouse nesting habitat. The total area of the predicted
best nesting habitat (containing greater than 90 percent of an
independent sample of nest locations) amounted to approximately half of
the study area (Aldridge et al. 2011, p. 7). However, this model does
not predict Gunnison sage-grouse seasonal habitat needs outside of the
nesting season.
Gunnison sage-grouse make relatively large movements on an annual
basis. Maximum Gunnison sage-grouse annual movements in relation to lek
capture have been reported as 18.5 km (11.5 mi) (GSRSC 2005, p. J-3),
and 17.3 km (10.7 mi) (Saher 2011, pers. comm.), and individual
Gunnison sage-grouse location points can be up to 27.9 km (17.3 mi)
apart within a given year (Root 2002, pp. 14-15). Individual Gunnison
sage-grouse have been documented to move more than 56.3 km (35 mi) to
wintering areas in the Gunnison Basin in Colorado (Phillips 2011, pers.
comm.). While it is likely that some areas encompassed within these
movement boundaries are used only briefly as movement areas, the extent
of these movements demonstrate the large-scale annual habitat
requirements of the species.
Therefore, based on the species' year-round reliance on sagebrush
and the various seasonal habitat requirements discussed above, we
identify sagebrush plant communities of sufficient size and
configuration to encompass all seasonal habitats, including areas used
to move between seasonal habitats, for a given population of Gunnison
sage-grouse to be a physical or biological feature essential to the
conservation of this species.

Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements

Food resources used by Gunnison sage-grouse vary throughout the
year because of seasonal changes in food availability and specific
dietary requirements of breeding hens and

[[Page 2544]]

chicks. The diet of Gunnison sage-grouse is composed of nearly 100
percent sagebrush in the winter, while forbs, insects, and sagebrush
are important dietary components during the remainder of the year
(Wallestad et al. 1975, p. 21; Barnett and Crawford 1994, p. 117;
Schroeder et al. 1999, p. 5; Young et al. 2000, p. 452).
Pre-laying hens are particularly dependent on forbs and the insects
supported by native herbaceous understories (Drut et al. 1994, pp. 173-
175). The Gunnison sage-grouse hen pre-laying period is from
approximately late-March to early April. Pre-laying habitats for sage-
grouse hens need to provide a diversity of vegetation including forbs
that are rich in calcium, phosphorous, and protein to meet the
nutritional needs of females during the egg development period (Barnett
and Crawford 1994, p. 117; Connelly et al. 2000a, p. 970). During the
pre-laying period, female sage-grouse select forbs that generally have
higher amounts of calcium and crude protein than sagebrush (Barnett and
Crawford 1994, p. 117).
Forbs and insects are essential nutritional components for sage-
grouse chicks (Klebenow and Gray 1968, pp. 81-83; Peterson 1970, pp.
149-151; Johnson and Boyce 1991, p. 90; Connelly et al. 2004, p. 3-3).
During the first 3 weeks after hatching, insects are the primary food
of chicks (Patterson 1952, p. 201; Klebenow and Gray 1968, p. 81;
Peterson 1970, pp. 150-151; Johnson and Boyce 1990, pp. 90-91; Johnson
and Boyce 1991, p. 92; Drut et al. 1994, p. 93; Pyle and Crawford 1996,
p. 320; Fischer et al. 1996a, p. 194). Diets of 4- to 8-week-old
greater sage-grouse chicks were found to have more plant material as
the chicks matured (Peterson 1970, p. 151). Succulent forbs are
predominant in the diet until chicks exceed 3 months of age, at which
time sagebrush becomes a major dietary component (Klebenow 1969, pp.
665-656; Connelly and Markham 1983, pp. 171-173; Fischer et al. 1996b,
p. 871; Schroeder et al. 1999, p. 5).
Decreased availability of forbs corresponded to a decrease in the
number of chicks per hen and brood size (Barnett and Crawford 1994, p.
117). Gunnison sage-grouse population dynamics appear to be most
sensitive to female reproductive success and chick survival (GSRSC
2005, p. G-13). Therefore, habitats that support sagebrush vegetation
as well as a vegetative understory composed of native grasses and forbs
are essential to key demographic rates.
In most areas within the range of Gunnison sage-grouse, the
herbaceous understory component of sagebrush plant communities
typically dries out as summer progresses into fall. Habitats used by
Gunnison sage-grouse in summer through late-fall are typically more
mesic than surrounding habitats during this time of year (GSRSC 2005,
p. 30). These areas are used primarily for foraging because they
provide reliable sources of green, herbaceous vegetation when this
resource is seasonally limited on the landscape. Specifically, these
areas include: Riparian communities, springs, seeps, mesic meadows, or
the margins of irrigated hay meadows and alfalfa fields (GSRSC 2005, p.
30). However, seasonal foraging habitats typically receive use by
Gunnison sage-grouse only if they are within 50 m (165 ft.) of
surrounding sagebrush plant communities (CSGWG 1997, p. 13).
In winter, greater and Gunnison sage-grouse diet is almost
exclusively sagebrush (Rasmussen and Griner 1938, p. 855; Batterson and
Morse 1948, p. 20; Patterson 1952, pp. 197-198; Wallestad et al. 1975,
pp. 628-629; Young et al. 2000, p. 452). Various species of sagebrush
can be consumed by sage-grouse (Remington and Braun 1985, pp. 1056-
1057; Welch et al. 1988, p. 276, 1991; Myers 1992, p. 55). Habitats
used by Gunnison sage-grouse during winter typically consist of 15 to
30 percent sagebrush cover, similar to those used by greater sage-
grouse (Connelly et al. 2000a, p. 972; Young et al. 2000, p. 451).
However, Gunnison sage-grouse may also use areas with more deciduous,
non-sagebrush shrubs during the winter (Young et al. 2000, p. 451). In
all suitable winter habitats, the height of sagebrush must be tall
enough so that leaves are still exposed when wintering areas are
largely covered with snow.
Based on the information above, we identify sagebrush plant
communities that contain herbaceous vegetation consisting of a
diversity and abundance of forbs, insects, and grasses, that fulfill
all Gunnison sage-grouse seasonal dietary requirements, to be a
physical or biological feature essential to the conservation of this
species. We also identify as such features non-sagebrush habitats
located adjacent to sagebrush plant communities that are used by
Gunnison sage-grouse for foraging during seasonally dry periods. These
habitats are generally more mesic than surrounding habitat, and include
wet meadows, riparian areas, and irrigated pastures.

Cover or Shelter

Predation is the most commonly identified cause of direct mortality
for sage-grouse during all life stages, and Gunnison sage-grouse
require sagebrush and herbaceous vegetation yearlong for escape and
hiding cover (Schroeder et al. 1999, p. 9; Connelly et al. 2000b, p.
228; GSGRC 2005, p. 138; Connelly et al. 2011, p. 66). Major predators
of adult sage-grouse include many species including golden eagles
(Aquila chrysaetos), red foxes (Vulpes fulva), and bobcats (Felis
rufus) (Hartzler 1974, pp. 532-536; Schroeder et al. 1999, pp. 10-11;
Schroeder and Baydack 2001, p. 25; Rowland and Wisdom 2002, p. 14;
Hagen 2011, p. 97). Most raptor predation of sage-grouse is on
juveniles and older age classes (GSRSC 2005, p. 135). Juvenile sage-
grouse also are killed by common ravens (Corvus corax), badgers
(Taxidea taxus), red foxes, coyotes (Canis latrans) and weasels
(Mustela spp.) (Braun 1995, entire; Schroeder et al. 1999, p. 10). Nest
predators include badgers, weasels, coyotes, common ravens, American
crows (Corvus brachyrhyncos) and magpies (Pica spp.), elk (Cervus
canadensis) (Holloran and Anderson 2003, p. 309), and domestic cows
(Bovus spp.) (Coates et al. 2008, pp. 425-426). Ground squirrels
(Spermophilus spp.) also have been identified as nest predators
(Patterson 1952, p. 107; Schroeder et al. 1999, p. 10; Schroder and
Baydack 2001, p. 25), but recent data show that they are physically
incapable of puncturing eggs (Holloran and Anderson 2003, p. 309;
Coates et al. 2008, p. 426; Hagen 2011, p. 97). Young (1994, p. 37)
found the most common predators of Gunnison sage-grouse eggs were
weasels, coyotes, and corvids.
Nest predation appears to be related to the amount of herbaceous
cover surrounding the nest (Gregg et al. 1994, p. 164; Braun 1995, pp.
1-2; DeLong et al. 1995, p. 90; Braun 1998; Coggins 1998, p. 30;
Connelly et al. 2000b, p. 975; Schroeder and Baydack 2001, p. 25;
Coates and Delehanty 2008, p. 636). Females actively select nest sites
with the presence of big sagebrush and grass and forb cover (Connelly
et al. 2000, p. 971), and nesting success of greater sage-grouse is
positively correlated with these qualities (Schroeder and Baydack 2001,
p. 25; Hagen et al. 2007, p. 46). Likewise, reduced herbaceous cover
for young chicks can increase their rate of predation (Schroeder and
Baydack 2001, p. 27), and high shrub canopy cover at nest sites was
related to lower levels of predation by visual predators, such as the
common raven (Coates 2007, p. 148). However, herbaceous cover may not
be effective in deterring olfactory predators such as badgers (Coates
2007, p. 149).
Gunnison sage-grouse nearly exclusively use sagebrush plant
communities during the winter season

[[Page 2545]]

for thermal cover and to meet nutritional needs. Sagebrush stand
selection in winter is influenced by snow depth (Patterson 1952, pp.
188-189; Connelly 1982 as cited in Connelly et al. 2000a, p. 980) and
in some areas, topography (Beck 1977, p. 22; Crawford et al. 2004, p.
5). Winter sagebrush use areas are associated with drainages, ridges,
or southwest aspects with slopes less than 15 percent (Beck 1977, p.
22). Lower flat areas and shorter sagebrush along ridge tops provide
roosting areas. In extreme winter conditions, greater sage-grouse will
spend nights and portions of the day burrowed into ``snow burrows''
(Back et al. 1987, p. 488), and we expect Gunnison sage-grouse to
exhibit the same behavior. Hupp and Braun (1989, p. 825) found that
most Gunnison sage-grouse feeding activity in the winter occurred in
drainages and on slopes with south or west aspects in the Gunnison
Basin. During a severe winter in the Gunnison Basin in 1984, less than
10 percent of the sagebrush was exposed above the snow and available to
sage-grouse (Hupp, 1987, pp. 45-46). In these conditions, the tall and
vigorous sagebrush typical in drainages was an especially important
food source.
Therefore, based on the information above, we identify sagebrush
plant communities consisting of adequate shrub and herbaceous structure
to provide year-round escape and hiding cover, as well as areas that
provide concealment of nests and broods during the breeding season, and
winter season thermal cover to be a physical or biological feature
essential to the conservation of this species. Quantitative information
on cover can be found in the Primary Constituent Elements for Gunnison
Sage-Grouse section below.

Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring

Lek Sites--Lek sites (communal breeding areas) can be located on
areas of bare soil, wind-swept ridges, exposed knolls, low sagebrush,
meadows, and other relatively open sites with good visibility and low
vegetation structure (Connelly et al. 1981, pp. 153-154; Gates 1985,
pp. 219-221; Klott and Lindzey 1989, pp. 276-277; Connelly et al. 2004,
p. 3-7 and references therein). In addition, leks are usually located
on flat to gently sloping areas of less than 15 percent grade
(Patterson 1952, p. 83; Giezentanner and Clark 1974, p. 218; Wallestad
1975, p. 17; Autenrieth 1981, p. 13). Leks are often surrounded by
denser shrub-steppe cover, which is used for escape, and thermal and
feeding cover. Leks can be formed opportunistically at any appropriate
site within or adjacent to nesting habitat (Connelly et al. 2000a, p.
970). Lek habitat availability is not considered to be a limiting
factor for sage-grouse (Schroeder 1997, p. 939). However, adult male
sage-grouse demonstrate strong yearly fidelity to lek sites (Patterson
1952, p. 91; Dalke 1963 et al., pp. 817-818), and some Gunnison sage-
grouse leks have been used since the 1950s (Rogers 1964, pp. 35-40).
Nesting Habitat--Gunnison sage-grouse typically select nest sites
under sagebrush cover with some forb and grass cover (Young 1994, p.
38), and successful nests were found in higher shrub density and
greater forb and grass cover than unsuccessful nests (Young 1994, p.
39). The understory of productive sage-grouse nesting areas contains
native grasses and forbs, with horizontal and vertical structural
diversity that provides an insect prey base, herbaceous forage for pre-
laying and nesting hens, and cover for the hen while she is incubating
(Schroeder et al. 1999, p. 11; Connelly et al. 2000a, p. 971; Connelly
et al. 2004, pp. 4-5--4-8). Shrub canopy and grass cover provide
concealment for sage-grouse nests and young and are critical for
reproductive success (Barnett and Crawford 1994, pp. 116-117; Gregg et
al. 1994, pp. 164-165; DeLong et al. 1995, pp. 90-91; Connelly et al.
2004, p. 4-4). Few herbaceous plants are growing in April when nesting
begins, so residual herbaceous cover from the previous growing season
is critical for nest concealment in most areas (Connelly et al. 2000a,
p. 977).
Nesting success for Gunnison sage-grouse is highest in areas where
forb and grass covers are found below a sagebrush canopy cover of 15 to
30 percent (Young et al. 2000, p. 451). These numbers are comparable to
those reported for the greater sage-grouse (Connelly et al. 2000a, p.
971). Nest success for greater sage-grouse is greatest where grass
cover is present (Connelly et al. 2000a, p. 971). Because of the
similarities between these two species, we believe that increased nest
success in areas of forb and grass cover below the appropriate
sagebrush canopy cover is likely the case for Gunnison sage-grouse as
well.
Female Gunnison sage-grouse exhibit strong fidelity to nesting
locations (Young 1994, p. 42; Lyon 2000, p. 20; Connelly et al. 2004,
p. 4-5; Holloran and Anderson 2005, p. 747). The degree of fidelity to
a specific nesting area appears to diminish if the female's first nest
attempt in that area was unsuccessful (Young 1994, p. 42). However,
movement to new nesting areas does not necessarily result in increased
nesting success (Connelly et al. 2004, p. 3-6; Holloran and Anderson
2005, p. 748).
Brood-rearing Habitat--Early brood-rearing habitat is found close
to nest sites (Connelly et al. 2000a, p. 971), although individual
females with broods may move large distances (Connelly 1982, as cited
in Connelly et al. 2000a, p. 971). Young (1994, pp. 41-42) found that
Gunnison sage-grouse with broods used areas with lower slopes than
nesting areas, high grass and forb cover, and relatively low sagebrush
cover and density. Broods frequently used the edges of hay meadows, but
were often flushed from areas found in interfaces of wet meadows and
habitats providing more cover, such as sagebrush or willow-alder
(Salix-Alnus). By late summer and into the early fall, the birds move
from riparian areas to mesic sagebrush plant communities that continue
to provide green forbs. During this period, Gunnison sage-grouse can be
observed in atypical habitat such as agricultural fields (Commons 1997,
pp. 79-81). However, broods in the Gunnison Basin typically do not use
hay meadows further away than 50 m (165 ft) from the edge of adjacent
sagebrush stands (CSGWG 1997, p. 13).
Therefore, based on the information above, we identify sagebrush
plant communities with the appropriate shrub and herbaceous vegetation
structure to meet all the needs for all Gunnison sage-grouse
reproductive activities (including lekking, nesting, and brood-rearing)
to be a physical or biological feature essential to the conservation of
this species.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
Gunnison sage-grouse historically occurred in southwestern
Colorado, northwestern New Mexico, northeastern Arizona, and
southeastern Utah (Schroeder et al. 2004, pp. 370-371). The maximum
Gunnison sage-grouse historical (presettlement) range is estimated to
have been approximately 5,534,805 ha (13,676,800 ac) (GSRSC 2005, p.
32); however, only a portion of the historical range would have been
occupied at any one time. The current occupied range of Gunnison sage-
grouse is approximately 379,464 ha (937,676 ac) in southwestern
Colorado and southeastern Utah (CDOW 2009b, p. 1; GSRSC 2005, p. 81).
The estimated 93 percent of sagebrush habitat within the presettlement
range of the Gunnison sage-grouse had been lost prior to 1960. The
majority of the remaining habitat is

[[Page 2546]]

highly fragmented, although to a lesser extent in the Gunnison Basin
than in the remainder of the species' range.
The occupied sagebrush plant communities that are proposed for
designation contain physical and biological features that are
representative of the historic and geographical distribution of the
Gunnison sage-grouse. The unoccupied sagebrush plant communities that
are proposed for designation were all likely historically occupied
(GSRSC 2005, pp. 32-33) and can allow for the expansion of the current
geographic distribution of the species as well as facilitate movements
among populations. The extremely limited extent of sagebrush habitat
throughout the current range of the species, but especially in the six
smaller populations (see the Background section of our proposed listing
rule to list the Gunnison sage-grouse as endangered, which is published
elsewhere in today's Federal Register), is a significant factor in
causing us to propose areas beyond those that are currently occupied
for critical habitat designation.
Primary Constituent Elements for Gunnison Sage-Grouse
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of Gunnison sage-grouse in areas occupied at the time of
listing, focusing on the features' primary constituent elements (PCEs).
We consider primary constituent elements to be the elements of physical
and biological features that, when laid out in the appropriate quantity
and spatial arrangement to provide for a species' life-history
processes, are essential to the conservation of the species.
We only consider those areas as critical habitat if they meet the
``Landscape-scale Primary Constituent Element'' (PCE 1) because small,
isolated patches of sagebrush do not support Gunnison sage-grouse. If
an area meets the landscape scale requirement, then a particular site
is considered critical habitat if it contains one or more of the
``Site-scale Primary Constituent Elements'' (PCEs 2-5).
For the ``Site-scale Primary Constituent Elements'' (PCEs 2-5), we
adopt the values from the 2005 RCP (GSRSC 2005, Appendix H and
references therein). The 2005 RCP provides structural habitat values
developed using only Gunnison sage-grouse habitat use data from various
Gunnison sage-grouse populations in all seasonal habitats (GSRSC 2005,
p. H-2). Source data includes structural vegetation data collected in
the breeding season (Young 1994, Apa 2004), summer-fall (Young 1994,
Woods and Braun 1995, Commons 1997, Apa 2004), and winter (Hupp 1987).
In addition, these structural habitat values are specific to the
Colorado Plateau floristic province and reflect the understory
structure and composition specific to the range of Gunnison sage-grouse
(GSRSC 2005, p. H-2). As such, these values are based on the most
current and comprehensive, rangewide assessment of Gunnison sage-grouse
habitat structure. We consider an area critical habitat if its average
vegetation values are within the values for the majority of structural
categories for any given PCE (Tables 1 and 2).
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to Gunnison sage-grouse are:
Landscape-Scale Primary Constituent Element
Primary Constituent Element 1--Areas with vegetation composed
primarily of sagebrush plant communities (at least 25 percent of
primarily sagebrush land cover within a 1.5-km (0.9-mi) radius of any
given location), of sufficient size and configuration to encompass all
seasonal habitats for a given population of Gunnison sage-grouse, and
facilitate movements within and among populations.
Site-Scale Primary Constituent Elements
Primary Constituent Element 2--Breeding habitat composed of
sagebrush plant communities with structural characteristics within the
ranges described in Table 1, below. Habitat structure values are
average values over a project area.

Table 1--Gunnison Sage-Grouse Structural Guidelines for Breeding
Habitat.
------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover.................. 10-25 percent
Non-sagebrush Canopy Cover.............. 5-15 percent
Total Shrub Canopy Cover................ 15-40 percent
Sagebrush Height........................ 25-50 cm.
(9.8-19.7 in).
Grass Cover............................. 10-40 percent
Forb Cover.............................. 5-40 percent
Grass Height............................ 10-15 cm.
(3.9-5.9 in).
Forb Height............................. 5-15 cm
(2.0-5.9 in)
------------------------------------------------------------------------

Primary Constituent Element 3--Summer-late fall habitat composed of
sagebrush plant communities with structural characteristics within the
ranges described in Table 2, below. Habitat structure values are
average values over a project area.

Table 2--Gunnison Sage-Grouse Structural Guidelines for Summer-Late Fall
Habitat.
------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover................ 5-20 percent
Non-sagebrush Canopy Cover............ 5-15 percent
Total Shrub Canopy Cover.............. 10-35 percent
Sagebrush Height...................... 25-50 cm
(9.8-19.7 in)
Grass Cover........................... 10-35 percent
Forb Cover............................ 5-35 percent
Grass Height.......................... 10-15 cm
(3.9-5.9 in)
Forb Height........................... 3-10 cm
(1.2-3.9 in)
------------------------------------------------------------------------

Primary Constituent Element 4--Winter habitat composed of sagebrush
plant communities with sagebrush canopy cover between 30 to 40 percent
and sagebrush height of 40 to 55 cm (15.8 to 21.7 in). These habitat
structure values are average values over a project area.
Primary Constituent Element 5--Alternative, mesic habitats used
primarily in the summer-late fall season.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. All areas proposed for designation as critical habitat as
described below may require some level of management to address the
current and future threats to the physical and biological features
essential to the conservation of Gunnison sage-grouse. In all of the
described units, special management

[[Page 2547]]

may be required to ensure that the habitat is able to provide for the
biological needs of the species.
A detailed discussion of the current and foreseeable threats to
Gunnison sage-grouse can found in the proposed listing rule to list the
species as endangered, which is published elsewhere in today's Federal
Register, in the section entitled Summary of Factors Affecting the
Species. In general, the features essential to the conservation of
Gunnison sage-grouse may require special management considerations or
protection to reduce the following individual threats and their
interactions: Residential and commercial development including
associated land-clearing activities for the construction of access
roads, utilities, and fences; increased recreational use of roads and
trails; the proliferation of predators; improper grazing management,
the spread of invasive plant species and associated changes in
sagebrush plant community structure and dynamics; and other activities
that result in the loss or degradation of sagebrush plant communities.
The largest, overarching threat to Gunnison sage-grouse is habitat
fragmentation. The aforementioned activities will require special
management consideration not only for the direct effects of the
activities on the birds' habitat and behavior, but also for their
indirect effects and how they are cumulatively and individually
increasing habitat fragmentation.
Special management considerations or protection may be required
within areas we are proposing as critical habitat to address these
threats. Based on our analysis of threats to Gunnison sage-grouse,
management activities that could ameliorate these threats include, but
are not limited to: Comprehensive land-use planning and implementation
that prevents a net decrease in the extent and quality of Gunnison
sage-grouse habitat through the prioritization and protection of
habitats and monitoring; protection of lands by fee title acquisition
or the establishment of permanent conservation easements; management of
recreational use to minimize direct disturbance and habitat loss;
invasive weed and invasive native plant species control activities;
management of domestic and wild ungulate use so that overall habitat
meets or exceeds Gunnison sage-grouse structural habitat guidelines;
monitoring and management of predator communities; coordinated and
monitored habitat restoration or improvement projects; and
implementation of wild fire suppression, particularly in Wyoming big
sagebrush plant associations. In some cases, continuing ongoing land
management practices may be appropriate and beneficial for Gunnison
sage-grouse. For instance, continued irrigation and maintenance of hay
and alfalfa fields on private lands near sagebrush habitats may help
provide or enhance brood-rearing, mesic habitats for Gunnison sage-
grouse. The Service acknowledges the ongoing and proposed conservation
efforts of all entities across the range of the Gunnison sage-grouse,
such as the Sage Grouse Initiative that is led by the Natural Resources
Conservation Service and incorporates many partners to implement
conservation actions. The Service is conferencing with Federal agencies
to insure a seamless continuation of conservation practices if the
species is listed and critical habitat is designated.
Such special management activities may be required to protect the
physical and biological features and support the conservation of the
species by preventing or reducing the loss, degradation, and
fragmentation of sagebrush landscapes. Additionally, management of
critical habitat lands can increase the amount of suitable habitat and
enhance connectivity among Gunnison sage-grouse populations through the
restoration of areas that were previously composed of sagebrush plant
communities. The limited extent of sagebrush habitats throughout the
species' current range emphasizes the need for additional habitat for
the species to be able to expand into, as well as adjust to changes in
habitat availability that may result from climate change, along with
habitat needed to survive and recover.

Criteria Used To Identify Proposed Critical Habitat

As required by section 4(b)(2) of the Act, we used the best
scientific data available to propose critical habitat. We reviewed
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we considered whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. As
a result of this analysis we are proposing to designate critical
habitat in areas within the geographical area occupied by the species
at the time of listing. We also are proposing to designate specific
areas outside the geographical area occupied by the species at the time
of listing (or at the current time), and areas that were historically
occupied but are presently unoccupied, because such areas are essential
for the conservation of the species.
We based our identification of lands that contain features
essential to the conservation of Gunnison sage-grouse on polygons
delineated and defined by Colorado Parks and Wildlife (CPW) and the
Utah Division of Wildlife Resources (UDWR) the CPW and UDWR as part of
the 2005 RCP Habitat Mapping project (GSRSC 2005, p. 54). Gunnison
sage-grouse polygons mapped in the 2005 RCP were derived from a
combination of telemetry locations, sightings of sage-grouse or sage-
grouse sign, local biological expertise, GIS analysis, or other data
sources (GSRSC 2005, p. 54; CDOW 2009e, p. 1). We consider polygons
designated as ``occupied habitat'' (GSRSC 2005, p. 54) to be the area
occupied by Gunnison sage-grouse at the time of the listing (or at the
current time). No males have been observed since 2002 on the Sims Mesa
lek, which is located in the Sims Mesa portion of the Cimarron-Cerro
Summit-Sims Mesa population, (see the Background section of our
proposed listing rule to list the Gunnison sage-grouse as endangered,
which is published elsewhere in today's Federal Register), and it is
likely that this subpopulation has been extirpated (CDOW 2009b, p. 43).
However, this lek has been inactive for less than ten years and is not
officially designated as historic according to CPW standards (CDOW
2009d, p. 7). Therefore, we consider this area to be currently occupied
in this proposal.
The 2005 RCP also defined two other habitat categories, ``potential
habitat,'' and ``vacant or unknown habitat'' (GSRSC 2005, p. 54).
Potential habitat is defined as ``unoccupied habitats that could be
suitable for occupation of sage-grouse if practical restoration were
applied,'' and is most commonly former sagebrush areas overtaken by
pi[ntilde]on-juniper woodlands. The vacant or unknown habitat category
is defined as ``suitable habitat for sage-grouse that is separated (not
contiguous) from occupied habitats that either (1) has not been
adequately inventoried, or (2) has not had documentation of grouse
presence in the past 10 years.'' These vacant or unknown areas include
habitats that contain features essential for the conservation of the
species and are currently considered suitable for use by Gunnison sage-
grouse or areas where ecological site potential suggest that sagebrush
plant associations could occur if practical restoration were applied.
The latter situation is most commonly in areas where pi[ntilde]on-
juniper

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vegetation has expanded from presettlement distributions.
Because we lack the detailed habitat data throughout the range of
the species, we used the ``potential'' and ``vacant or unknown''
habitat polygons as the first criteria for our determination of
unoccupied areas that contain features essential for the conservation
of Gunnison sage-grouse. We further refined our determination of which
unoccupied areas should be designated as critical habitat based on: (1)
Adjacency or proximity to currently occupied habitat; (2) ability to
provide for connectivity between and within populations; and (3) size
of area of vegetation composed primarily of sagebrush plant
communities. We limited our consideration of unoccupied areas to those
within the potential presettlement habitat of Gunnison sage-grouse as
mapped by Schroeder et al. in 2004 and modified in Colorado in the 2005
RCP. We considered unoccupied areas as proposed critical habitat if
they are located within approximately 18.5 km (11.5 mi) of occupied
habitat based on typical sage-grouse movement distances (Connelly 2000,
p. 978; GSRSC 2005, p. J-5) because these areas have the highest
likelihood of receiving Gunnison sage-grouse use and potential for
occupied habitat expansion. In addition, Knick and Hanser (2011, p.
404) believe that isolated patches of suitable habitats within 18 km
(11.2 mi) could provide connectivity among populations. We lack
information on how sage-grouse move through landscapes (Knick and
Hanser 2011, p. 402). Therefore, we evaluated connectivity potential by
visual identification of areas that support a high proportion of
sagebrush or shrub cover located along the shortest path between
occupied population areas and areas located between occupied
subpopulations.
Sage-grouse population persistence or extirpation is associated
with the amount of sagebrush habitat at large spatial scales (Knick and
Connelly 2011, entire). Aldridge et al. (2008, pp. 989-990) reported
that at least 25 percent sagebrush cover within a 30 km (18.6 mi)
radius scale was needed for long-term sage-grouse persistence, whereas
Wisdom et al. (2011, pp. 465-467) showed that areas with at least 27
percent sagebrush cover within a 18 km (11.2 mi) radius scale had a
higher probability of population persistence. No particular spatial
scale has been determined to best evaluate sage-grouse suitability.
Therefore, we evaluated the ability of unoccupied areas to potentially
provide for the landscape-scale habitat needs of Gunnison sage-grouse
by identifying areas of large size with a high degree of sagebrush
cover at several spatial scales. We used moving windows (ESRI
``Neighborhood analysis'' Tool) applied to sagebrush landcover types
isolated from the SWReGAP land cover raster dataset (USGS 2004,
entire). We visually assessed the amount of sagebrush at 54 km, 18 km,
5 km, and 1.5 km radii scales (33.6 mi, 11.2 mi, 3.1 mi, and 0.9 mi,
respectively) to locate areas where the landscape is dominated by
sagebrush land cover.
The application of a linear model presented in the 2005 RCP that
analyzed the relationship between the mean high count of males on leks
and the amount of available habitat of ``average quality'' in each
Gunnison sage-grouse population (GSRSC 2005, p. 197) predicts a habitat
area in excess of 100,000 acres is needed to support a population of
500 birds. In the absence of habitat loss, inbreeding depression, and
disease, population viability modeling for Gunnison sage-grouse
predicted that individual populations greater than 500 birds may be
viable (have a low probability of extinction) over a 50-year time
period (GSRSC 2005, p. 170). These data suggest that an individual
habitat patch, or the cumulative area of two or more smaller habitat
patches in close proximity, may need to be in excess of 40,469 ha
(100,000 ac) to support a viable population of Gunnison sage-grouse.
This model does not take into account the inherent variance in habitat
structure and quality over the landscape, and detailed habitat
structure and quality data are lacking. As a result we consider the
estimated minimum habitat area to be an approximate value.
As described in more detail in the proposed listing rule for the
Gunnison sage-grouse, which is published elsewhere in today's Federal
Register, there are currently seven populations of this species: (1)
Monticello-Dove Creek; (2) Pi[ntilde]on Mesa; (3) San Miguel Basin; (4)
Cerro Summit-Cimarron-Sims Mesa; (5) Crawford; (6) Gunnison Basin; and
(7) Poncha Pass. The currently occupied habitat area for four of these
populations,the currently occupied habitat area for the Pi[ntilde]on
Mesa, Cerro Summit-Cimarron-Sims Mesa, Crawford, and Poncha Pass
populations, which range in size from 8,262 (ha) (20,415 ac) to 15,744
ha (38,904 ac), are thus smaller than the model's predicted minimum
required area. The currently occupied habitat area in two other
populations, the Monticello-Dove Creek and the San Miguel Basin
populations is 45,275 ha (111,877 ac) and 41,022 ha (101,368 ac),
respectively. These areas only slightly exceed the model predicted
minimum required area. While correlative in nature, altogether, these
data suggest that the currently occupied habitat area for four
populations is insufficient for long-term population viability, and may
be minimally adequate for two populations.
With the exception of the Gunnison Basin population area, proposed
critical habitat units (CHUs) for Gunnison sage-grouse collectively
contain relatively small, and in some cases, isolated, populations of
the species. Thus, we believe all currently occupied areas, as well as
some currently unoccupied areas, proposed as critical habitat are
essential for the persistence and conservation of the Gunnison sage-
grouse and help to meet the landscape-scale habitat criteria set forth
above. The best available information indicates that, with proper
protection and management, the proposed CHUs are sufficient to provide
for the conservation of the species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other man-made structures because such
lands lack physical and biological features necessary for Gunnison
sage-grouse. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed sites. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical and biological features
in the adjacent critical habitat.
We are proposing for designation as critical habitat lands that we
have determined are occupied at the time of listing and contain
sufficient elements of physical and biological features to support
life-history processes essential to the conservation of the species. We
are also proposing lands outside of the geographical area occupied at
the time of listing that we have determined are essential for the
conservation of Gunnison sage-grouse.
Units were proposed for designation based on sufficient elements of
physical

[[Page 2549]]

and biological features being present to support Gunnison sage-grouse
life-history processes. All units individually contain all of the
identified elements of physical and biological features, and each unit
as a whole supports multiple life-history processes.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document in the rule portion. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
https://www.regulations.gov at Docket No. FWS-R6-ES-2011-0111, on our
Internet sites [https://www.fws.gov/coloradoes/], and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).

Proposed Critical Habitat Designation

We are proposing seven units as critical habitat for Gunnison sage-
grouse. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for Gunnison sage-grouse. The seven units we propose as
critical habitat correspond to the seven Gunnison sage-grouse
populations, which include: (1) Monticello-Dove Creek, (2) Pi[ntilde]on
Mesa (3) San Miguel Basin, (4) Cerro Summit-Cimarron-Sims Mesa, (5)
Crawford, (6) Gunnison Basin, and (7) Poncha Pass. For the Cerro
Summit-Cimarron-Sims Mesa, Crawford, and Poncha Pass Units, our
designation includes all available habitat to the species. We consider
approximately 55 percent of the area within the seven units as
currently occupied and 45 percent as currently unoccupied. Table 3
shows the occupancy status of each individual unit. Table 4 shows the
generalized ownership within each unit.
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We present below a general description for all of the proposed
units, followed by brief descriptions of each individual unit, and
reasons why they meet the definition of critical habitat for Gunnison
sage-grouse.

Unit Descriptions

All units were likely historically occupied by Gunnison sage-
grouse. As discussed above, we believe that all lands proposed as
critical habitat are essential to the conservation of the Gunnison
sage-grouse for the following reasons:
(1) The loss of sagebrush habitats within the potential
presettlement range of Gunnison sage-grouse is associated with a
substantial reduction in the species range.
(2) Population estimates and population trends for six of seven
Gunnison sage-grouse populations (with the exception of the Gunnison
Basin population) are declining (CDOW 2010a, pp. 1-3). These
populations are currently geographically isolated and may have an
effective population size small enough to induce inbreeding depression
(as discussed under Factor E of our proposed rule to list the Gunnison
sage-grouse as endangered, which is published elsewhere in today's
Federal Register) and loss of adaptive potential, with the assumption
that these populations are exhibiting similar demography to the San
Miguel population because we only have detailed demography information
for this population (Stiver et al. 2008, p. 479).
(3) Existing small populations are at higher risk of extirpation
due to stochastic events.
(4) Currently occupied habitat area for six of the seven
populations (with the exception of the Gunnison Basin population) may
be less than the minimum amount of habitat necessary for the long-term
viability of each population.
Designation of critical habitat limited to the Gunnison sage-
grouse's present range would be inadequate to ensure the conservation
of the species. We are proposing areas historically occupied, but not
known to be currently occupied, for the following reasons:
(1) Current population sizes of the six smaller Gunnison sage-
grouse populations are at such low levels, they must increase in order
to ensure long-term survival (GSRSC 2005, p. G-22). While the occupied
portions of the proposed units provide habitat for current populations,
currently unoccupied areas will provide habitat for population
expansion either through natural means, or by reintroduction, thus
reducing threats due to naturally occurring events.
(2) Population expansion either through natural means or by
reintroduction into the units is necessary to increase the long-term
viability and decrease the risk of extirpation of the populations
through stochastic events, such as fires or drought, as the current,
isolated populations are each at high risk of extirpation from such
stochastic events (GSRSC 2005, p. G-22), particularly because of their
small sizes and restricted ranges.
(3) Unoccupied portions of units decrease the geographic isolation
of the current geographic distribution of the Gunnison sage-grouse, or
i.e., increase the connectivity between habitat that is known to be
currently occupied.
(4) Unoccupied portions of units are in areas that were occupied in
the near past and are located within the historical range of the
species such that they will serve as corridors, or movement areas,
between currently occupied sites. Most proposed unoccupied subunits lie
within 18.5 km of an occupied area.
(5) All of the unoccupied portions of the proposed critical habitat
units contain one or more of the primary constituent elements essential
for the conservation of the Gunnison sage-grouse. We based this
determination on information in the 2005 RCP (GSRSC 2005, p. 54).

Unit 1: Monticello--Dove Creek

Unit 1, the Monticello--Dove Creek Unit, consists of 140,973 ha
(348,353 ac) of Federal, State, and private lands in San Juan County,
Utah; and Montrose, San Miguel, and Dolores Counties, Colorado.
Approximately 17,823 ha (44,043 ac) (12.6 percent) of the land area
within the unit is managed by Federal agencies, 1,331 ha (3,290 ac)
(0.9 percent) is owned by the State of Colorado and the State of Utah,
and the remaining 301,019 ha (121,818 ac) (86.4 percent) is comprised
of private lands. Within the Dove Creek, Colorado, portion of the unit,
protected lands (via easement or landownership by a conservation
organization) occur on 330 ha (815 ac) of private lands within the
occupied portion of the unit (CPW 2011c, p. 11; CPW 2012b, p. 6), and
no lands are included under the Gunnison sage-grouse CCAA. We consider
45,303 ha (111,945 ac) within this unit to be currently occupied (32.1
percent), based on the mapping developed for the 2005 RCP (GSRSC 2005,
p. 54).
The occupied portion of the Monticello--Dove Creek Unit contains
the physical and biological features essential to the conservation of
the Gunnison sage-grouse, but these areas are interspersed within lands
in agricultural production. Within the occupied portion of this Unit,
approximately 23,220 ha (57,377 ac) or 51 percent of the area is
currently in agricultural production (USGS 2004, entire). However, a
significant portion of the agricultural lands within the Unit are
enrolled in the CRP program and many CRP lands are used by Gunnison
sage-grouse (Lupus et al. 2006, pp. 959-960; Ward 2007, p. 15).
Threats to the physical and biological features within the
Monticello--Dove Creek Unit include, but are not limited to: A high
degree of habitat loss, degradation, and fragmentation resulting from
conversion to agriculture; oil and gas production and associated
infrastructure; the proliferation of predators of Gunnison sage-grouse;
the spread of invasive plant species and associated changes in
sagebrush plant community structure and dynamics; and past and present
grazing management that degrades or eliminates vegetation structure;
all of which can result in the loss, degradation, or fragmentation of
sagebrush plant communities. Special management actions that may be
needed to address these threats include, but are not limited to: The
rangewide prioritization and protection of crucial seasonal habitats
from development; the control of invasive plant species and restoration
of historic plant community structure and dynamics, including altered
fire regimes and other natural disturbance factors; and the
implementation of grazing regimes that result in proper vegetation
structure for Gunnison sage-grouse life-history needs in areas used for
domestic and wild ungulate grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 95,671 ha
(236,408 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse,

[[Page 2553]]

these areas provide habitat for future population growth and
reestablishment of portions of presettlement range, as well as to
facilitate or allow movement between other units and within the unit.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitats. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.

Unit 2: Pi[ntilde]on Mesa

Unit 2, the Pi[ntilde]on Mesa Unit, consists of 99,220 ha (245,179
ac) of Federal, State, and private lands in Grand County, Utah; and
Mesa County, Colorado. Approximately 62,139 ha (153,548 ac) (62.6
percent) of the land area within the unit is managed by Federal
agencies, 30 ha (73 ac) (less than one percent) is owned by the State
of Utah, and the remaining 37,052 ha (91,558 ac) (37.3 percent) is
comprised of private lands. We consider 15,744 ha (38,905 ac) within
this unit to be currently occupied (15.9 percent), based on the mapping
developed for the 2005 RCP (GSRSC 2005, p. 54).
The occupied portion of the Pi[ntilde]on Mesa Unit contains the
physical and biological features essential to the conservation of the
Gunnison sage-grouse. Within the currently occupied lands in the unit,
5,405 ha (13,355 ac) of private lands are largely protected from
development through permanent conservation easements or fee title
ownership held by various land trust and ranchland conservation
organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In
addition, approximately 6,828 ha (16,873 ac) are included under the
Gunnison sage-grouse CCAA (CPW 2012b, p. 11). Habitat conversion to
agriculture is limited to less than 3 percent of the occupied portion
of the Pi[ntilde]on Mesa unit (USGS 2004, entire).
Threats to the physical and biological features within the
Pi[ntilde]on Mesa Unit include, but are not limited to: Residential and
commercial development including associated land-clearing activities
for the construction of access roads, utilities, and fences; increased
recreational use of roads and trails; the proliferation of predators of
Gunnison sage-grouse; the spread of invasive plant species and
associated changes in sagebrush plant community structure and dynamics;
and past and present grazing management that degrades or eliminates
vegetation structure; all of which can result in the loss, degradation,
or fragmentation of sagebrush plant communities. Special management
actions that may be needed to address these threats include, but are
not limited to: The rangewide prioritization and protection of crucial
seasonal habitats subject to future residential and commercial
development and increasing recreational use of roads and trails; the
control of invasive plant species and restoration of historic plant
community structure and dynamics, including altered fire regimes and
other natural disturbance factors; and the implementation of grazing
regimes that result in proper vegetation structure for Gunnison sage-
grouse life-history needs in areas used for domestic and wild ungulate
grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 83,476 ha
(206,274 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse, these areas provide habitat for future population
growth and reestablishment of portions of presettlement range, as well
as to facilitate or allow movement between other units and within the
unit. Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.

Unit 3: San Miguel Basin

Unit 3, the San Miguel Basin Unit, consists of 67,084 ha (165,769
ac) of Federal, State, and local government-owned lands, and private
lands in Montrose, San Miguel, and Ouray counties, Colorado.
Approximately 22,597 ha (55,837 ac) (33.7 percent) of the land area
within the unit is managed by Federal agencies, 5,908 ha (14,598 ac)
(8.8 percent) is owned by the State of Colorado, and the remaining
38,580 ha (95,334 ac) (57.5 percent) is comprised of private lands. We
consider 41,023 ha (101,371 ac) within this unit to be currently
occupied (61.2 percent), based on the mapping developed for the 2005
RCP (GSRSC 2005, p. 54).
The occupied portion of the San Miguel Basin Unit contains the
physical and biological features essential to the conservation of the
Gunnison sage-grouse. Within the currently occupied lands in the unit,
2,698 ha (6,666 ac) of private lands are largely protected from
development through permanent conservation easements or fee title
ownership held by various land trust and ranchland conservation
organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In
addition, approximately 292 ha (722 ac) are included under the Gunnison
sage-grouse CCAA. Approximately 15 percent of the occupied range in the
San Miguel Basin is currently in agricultural production.
Threats to the physical and biological features within the San
Miguel Basin Unit include, but are not limited to: Residential and
commercial development including associated land-clearing activities
for the construction of access roads, utilities, and fences; increased
recreational use of roads and trails; the proliferation of predators of
Gunnison sage-grouse; the spread of invasive plant species and
associated changes in sagebrush plant community structure and dynamics;
past and present grazing management that degrades or eliminates
vegetation structure; and oil and gas development and associated
infrastructure, all of which can result in the loss, degradation, or
fragmentation of sagebrush plant communities. Special management
actions that may be needed to address these threats include, but are
not limited to: The rangewide

[[Page 2554]]

prioritization and protection of crucial seasonal habitats subject to
future residential and commercial development and increasing
recreational use of roads and trails; the control of invasive plant
species and restoration of historic plant community structure and
dynamics, including altered fire regimes and other natural disturbance
factors; and the implementation of grazing regimes that result in
proper vegetation structure for Gunnison sage-grouse life-history needs
in areas used for domestic and wild ungulate grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 26,061 ha
(64,398 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse, these areas provide habitat for future population
growth and reestablishment of portions of presettlement range, as well
as to facilitate or allow movement between other units and within the
unit.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.

Unit 4: Cerro Summit--Cimarron--Sims Mesa

Unit 4, the Cerro Summit--Cimarron--Sims Mesa Unit, consists of
25,377 ha (62,708 ac) of Federal, State, and local government-owned
lands, and private lands in Montrose, Ouray, and Gunnison Counties,
Colorado. Approximately 4,171 ha (10,307 ac) (16.4 percent) of the land
area within the unit is managed by Federal agencies, 1,645 ha (4,066
ac) (6.5 percent) is owned by the State of Colorado, and the remaining
19,561 ha (48,335 ac) (77.1 percent) is comprised of private lands. We
consider 15,038 ha (37,161 ac) within this unit to be currently
occupied (59.3 percent), based on the mapping developed for the 2005
RCP (GSRSC 2005, p. 54).
The occupied portion of the Cerro Summit--Cimarron--Sims Mesa Unit
contains the physical and biological features essential to the
conservation of the Gunnison sage-grouse. Within the currently occupied
lands within the unit, 1,395 ha (3,447 ac) of private lands are largely
protected from development through permanent conservation easements or
fee title ownership held by various land trust and ranchland
conservation organizations and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6),
and no lands are included under the Gunnison sage-grouse CCAA. In the
Cerro Summit--Cimarron--Sims Mesa population, approximately 14 percent
(5,133 ha (2,077 ac)) of the occupied range is currently in
agricultural production (USGS 2004, entire).
Threats to the physical and biological features within the Cerro
Summit--Cimarron--Sims Mesa Unit include, but are not limited to:
Residential and commercial development including associated land-
clearing activities for the construction of access roads, utilities,
and fences; increased recreational use of roads and trails; the
proliferation of predators of Gunnison sage-grouse; the spread of
invasive plant species and associated changes in sagebrush plant
community structure and dynamics; past and present grazing management
that degrades or eliminates vegetation structure; all of which can
result in the loss, degradation, or fragmentation of sagebrush plant
communities. Special management actions that may be needed to address
these threats include, but are not limited to: The rangewide
prioritization and protection of crucial seasonal habitats subject to
future residential and commercial development and increasing
recreational use of roads and trails; the control of invasive plant
species and restoration of historic plant community structure and
dynamics, including altered fire regimes and other natural disturbance
factors; and the implementation of grazing regimes that result in
proper vegetation structure for Gunnison sage-grouse life-history needs
in areas used for domestic and wild ungulate grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 10,339 ha
(25,547 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse, these areas provide habitat for future population
growth and reestablishment of portions of presettlement range, as well
as to facilitate or allow movement between other units and within the
unit.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.
We recognize that this proposed critical habitat unit is
considerably smaller than the RCP modeled minimum habitat patch size
required to support a viable Gunnison sage-grouse population.
Nevertheless, this proposed critical habitat unit encompasses all
existing and potential Gunnison sage-grouse habitat in the vicinity. As
such, in the absence of natural immigration of Gunnison sage-grouse,
the population within this critical habitat unit may need to be
augmented through the translocation of birds from larger populations or
the release of captive-produced birds.

Unit 5: Crawford

Unit 5, the Crawford Unit, consists of 39,304 ha (97,123 ac) of
Federal, State,

[[Page 2555]]

and local government-owned lands, and private lands in Delta, Montrose,
and Gunnison Counties, Colorado. Approximately 17,731 ha (43,814 ac)
(45.1 percent) of the land area within the unit is managed by Federal
agencies, 112 ha (277 ac) (0.3 percent) is jointly owned by the State
of Colorado and the Federal Government, and the remaining 21,461 ha
(53,032 ac) (54.6 percent) is comprised of private lands. We consider
14,170 ha (35,015 ac) within this unit to be currently occupied (36.1
percent), based on the mapping developed for the 2005 RCP (GSRSC 2005,
p. 54).
The occupied portion of the Crawford Unit contains the physical and
biological features essential to the conservation of the Gunnison sage-
grouse. Within the currently occupied lands in the unit, 414 ha (1,022
ac) of private lands are largely protected from development through
permanent conservation easements or fee title ownership held by various
land trust and ranchland conservation organizations and CPW (CPW 2011c,
p. 11; CPW 2012b, p. 6. In addition, approximately 1,068 ha (2,639 ac)
are included under the Gunnison sage-grouse CCAA. Habitat conversion to
agriculture is limited to less than 3 percent of the occupied portion
of the Crawford Unit (USGS 2004, entire).
Threats to the physical and biological features within the Crawford
Mesa Unit include, but are not limited to: Residential and commercial
development including associated land-clearing activities for the
construction of access roads, utilities, and fences; increased
recreational use of roads and trails; the proliferation of predators of
Gunnison sage-grouse; the spread of invasive plant species and
associated changes in sagebrush plant community structure and dynamics;
and past and present grazing management that degrades or eliminates
vegetation structure; all of which can result in the loss, degradation,
or fragmentation of sagebrush plant communities. Special management
actions that may be needed to address these threats include, but are
not limited to: The rangewide prioritization and protection of crucial
seasonal habitats subject to future residential and commercial
development and increasing recreational use of roads and trails; the
control of invasive plant species and restoration of historic plant
community structure and dynamics, including altered fire regimes and
other natural disturbance factors; and the implementation of grazing
regimes that result in proper vegetation structure for Gunnison sage-
grouse life-history needs in areas used for domestic and wild ungulate
grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 25,134 ha
(62,108 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse, these areas provide habitat for future population
growth and reestablishment of portions of presettlement range, as well
as to facilitate or allow movement between other units and within the
unit.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.

Unit 6: Gunnison Basin

Unit 6, the Gunnison Basin Unit, consists of 298,173 ha (736,802
ac) of Federal, State, and local government-owned lands, and private
lands in Gunnison, Hinsdale, Montrose, and Saguache Counties, Colorado.
Approximately 196,625 ha (485,870 ac) (65.9 percent) of the land area
within the unit is managed by Federal agencies, 6,052 ha (14,955 ac)
(2.0 percent) is owned by the State of Colorado, 314 ha (777 ac) (less
than one percent) is jointly owned by the State of Colorado and the
Federal Government, 21 ha (52 ac) (less than one percent) is owned by
Gunnison County and the City of Gunnison, and the remaining 95,160 ha
(235,145 ac) (31.9 percent) is comprised of private lands. We consider
239,959 ha (592,952 ac) within this unit to be currently occupied (80.5
percent), based on the mapping developed for the 2005 RCP (GSRSC 2005,
p. 54). The Gunnison Basin contains the largest expanse of sagebrush
plant communities within the presettlement range of Gunnison sage-
grouse.
The occupied portion of the Gunnison Basin Unit contains the
physical and biological features essential to the conservation of the
Gunnison sage-grouse. Within the currently occupied lands in the unit,
17,466 ha (43,160 ac) of private lands are largely protected from
development through permanent conservation easements or fee title
ownership held by various land trust and ranchland conservation
organizations, and CPW (CPW 2011c, p. 11; CPW 2012b, p. 6). In
addition, approximately 5,012 ha (12,385 ac) are included under the
Gunnison sage-grouse CCAA.
Threats to the physical and biological features within the Gunnison
Basin Unit include, but are not limited to: Residential and commercial
development including associated land-clearing activities for the
construction of access roads, utilities, and fences; increased
recreational use of roads and trails; the proliferation of predators of
Gunnison sage-grouse; the spread of invasive plant species and
associated changes in sagebrush plant community structure and dynamics;
and past and present grazing management that degrades or eliminates
vegetation structure; all of which can result in the loss, degradation,
or fragmentation of sagebrush plant communities. Special management
actions that may be needed to address these threats include, but are
not limited to: the rangewide prioritization and protection of crucial
seasonal habitats subject to future residential and commercial
development and increasing recreational use of roads and trails; the
control of invasive plant species and restoration of historic plant
community structure and dynamics, including altered fire regimes and
other natural disturbance factors; and the implementation of grazing
regimes that result in proper vegetation structure for Gunnison sage-
grouse life-history needs in areas used for domestic and wild ungulate
grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These

[[Page 2556]]

unoccupied areas comprise approximately 58,214 ha (143,850 ac),
consisting of lands defined in the 2005 RCP as potential habitat or
vacant or unknown habitat (GSRSC 2005, p. 54). These areas consist of
lands with varying amounts of overall sagebrush cover, or have habitat
types suitable for movements and dispersal. These areas are also
located adjacent to occupied habitat or are located immediately between
surrounding populations. In addition to contributing to the fulfillment
of the landscape-scale habitat needs of Gunnison sage-grouse,
particularly with continued direct and functional habitat loss (see
discussion under Factor A in the proposed listing rule for the species,
which is published elsewhere in today's Federal Register), these areas
provide habitat for future population growth and reestablishment of
portions of presettlement range, as well as to facilitate or allow
movement between other populations and within the Gunnison Basin.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.
The maintenance and enhancement of interpopulation connectivity is
particularly important for the Gunnison Basin because it is the largest
population in the species range and is therefore the most likely source
of dispersal of Gunnison sage-grouse to other populations.

Unit 7: Poncha Pass

Unit 7, the Poncha Pass Unit, consists of 19,543 ha (48,292 ac) of
Federal, State, and local government owned lands, and private lands in
Saguache and Chaffee Counties, Colorado. Approximately 12,257 ha
(30,287 ac) (62.7 percent) of the land area within the unit is managed
by Federal agencies, 844 ha (2,084 ac) (4.3 percent) is owned by the
State of Colorado, and the remaining 6,443 ha (15,921 ac) (33.0
percent) is comprised of private lands. We consider 8,262 ha (20,416
ac) within this unit to be currently occupied (42.3 percent), based on
the mapping developed for the 2005 RCP (GSRSC 2005, p. 54).
The occupied portion of the Poncha Pass Unit contains the physical
and biological features essential to the conservation of the Gunnison
sage-grouse. No lands within the currently occupied lands in the unit
are protected from development through permanent conservation easements
or fee title ownership by conservation organizations, and no lands are
included under the Gunnison sage-grouse CCAA (CPW 2011c, p. 11; CPW
2012b, p. 6). Habitat conversion to agriculture is limited to less than
3 percent of the occupied portion of the Poncha Pass (USGS 2004,
entire).
Threats to the physical and biological features within the Poncha
Pass Unit include: Residential and commercial development including
associated land-clearing activities for the construction of access
roads, utilities, and fences; increased recreational use of roads and
trails; the proliferation of predators of Gunnison sage-grouse; the
spread of invasive plant species and associated changes in sagebrush
plant community structure and dynamics; past and present grazing
management that degrades or eliminates vegetation structure; all of
which can result in the loss, degradation, or fragmentation of
sagebrush plant communities. Special management actions that may be
needed to address these threats include, but are not limited to: The
rangewide prioritization and protection of crucial seasonal habitats
subject to future residential and commercial development and increasing
recreational use of roads and trails; the control of invasive plant
species and restoration of historic plant community structure and
dynamics, including altered fire regimes and other natural disturbance
factors; and the implementation of grazing regimes that result in
proper vegetation structure for Gunnison sage-grouse life-history needs
in areas used for domestic and wild ungulate grazing and browsing.
Limiting the designation of critical habitat in this unit only to
currently occupied areas would be inadequate to ensure the conservation
of the species. Accordingly, we propose for designation currently
unoccupied areas that we conclude are essential for the conservation of
the species. These unoccupied areas comprise approximately 11,281 ha
(27,877 ac), consisting of lands defined in the 2005 RCP as potential
habitat or vacant or unknown habitat (GSRSC 2005, p. 54). These areas
consist of lands with varying amounts of overall sagebrush cover, or
have habitat types suitable for movements and dispersal. These areas
are also located adjacent to occupied habitat or are located
immediately between surrounding populations. In addition to
contributing to the fulfillment of the landscape-scale habitat needs of
Gunnison sage-grouse, these areas provide habitat for future population
growth and reestablishment of portions of presettlement range, as well
as to facilitate or allow movement between other units and within the
unit.
Some unoccupied habitat areas within this unit consist of lands
that recently supported sagebrush-dominant plant communities but are
currently in agricultural production or are currently subject to
encroachment by coniferous trees or shrubs, most commonly pi[ntilde]on-
juniper or mountain shrub plant communities. These areas require
restoration to reestablish or enhance sagebrush communities to support
the primary constituent elements of Gunnison sage-grouse nesting or
brood-rearing habitat. However, in their current state, these areas
provide essential habitat for interpopulation movements and reduce
population isolation and increase genetic exchange among populations.
We recognize that this proposed critical habitat unit is
considerably smaller than the RCP modeled minimum habitat patch size
required to support a viable Gunnison sage-grouse population.
Nevertheless, this proposed critical habitat unit encompasses all
existing and potential Gunnison sage-grouse habitat in the vicinity. As
such, in the absence of natural immigration of Gunnison sage-grouse,
the population within this critical habitat unit may need to be
augmented through the translocation of birds from larger populations or
the release of captive-produced birds.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.

[[Page 2557]]

Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other manmade structures because such lands
lack physical and biological features necessary for Gunnison sage-
grouse. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed sites. Therefore, if the critical habitat
is finalized as proposed, a Federal action involving these lands would
not trigger section 7 consultation with respect to critical habitat and
the requirement of no adverse modification unless the specific action
would affect the physical and biological features in the adjacent
critical habitat.
Likewise, due to past land uses, vegetation changes, or a number of
other natural or manmade factors, some areas within the mapped proposed
critical habitat may currently lack the site-specific physical and
biological features (primary constituent elements) necessary to support
Gunnison sage-grouse (see section, Primary Constituent Elements for
Gunnison Sage-grouse). If critical habitat is designated, for actions
involving lands that lack the primary constituent elements for Gunnison
sage-grouse, section 7 consultation as it relates to critical habitat
would not be required.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Gunnison sage-grouse. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Gunnison sage-grouse. These activities include,
but are not limited to:
(1) Actions that would result in the loss of sagebrush overstory
plant cover or height. Such activities could include, but are not
limited to, the removal of native shrub vegetation by any means for any
infrastructure construction project; direct conversion to agricultural
land use; habitat improvement or restoration projects involving mowing,
brush-beating, Dixie harrowing, disking, plowing, or prescribed
burning; and fire suppression activities. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of Gunnison sage-grouse.
(2) Actions that would result in the loss or reduction in native
herbaceous understory plant cover or height, and a reduction or loss of
associated arthropod communities. Such activities could include, but
are not limited to, livestock grazing, the application of herbicides or
insecticides, prescribed burning and fire suppression activities; and
seeding of nonnative plant species that would compete with native
species for water, nutrients, and space. These

[[Page 2558]]

activities could eliminate or reduce the quality of the habitat
necessary for the growth and reproduction of Gunnison sage-grouse
through a reduction in food quality and quantity, and increased
exposure to predation.
(3) Actions that would result in Gunnison sage-grouse avoidance of
an area during one or more seasonal periods. Such activities could
include, but are not limited to, the construction of vertical
structures such as power lines, fences, communication towers, and
buildings; management of motorized and nonmotorized recreational use;
and activities such as well drilling, operation, and maintenance, which
would entail significant human presence, noise, and infrastructure.
These activities could result in the direct and functional loss of
habitat if Gunnison sage-grouse avoid or reduce use of otherwise
suitable habitat in the vicinity of these structures or concentrated
activity centers.

Exemptions

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

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. All of the critical habitat united (CHUs) contain private
lands. Federal lands with oil and gas leases, grazing permits, rights-
of-way for utilities and telecommunications, and recreational uses are
included in some units. Several State-owned parcels are included in
some units where hunting, wildlife viewing, and other recreational
activities occur. The economic analysis will estimate the economic
impact of a potential designation of critical habitat on these
activities.
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this proposal, we have
determined that no lands within the proposed designation of critical
habitat for Gunnison sage-grouse are owned or managed by the Department
of Defense, and, therefore, we anticipate no impact on national
security. Consequently, the Secretary does not anticipate that he will
exercise discretion to exclude any areas from the final designation
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any management plans or conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
We acknowledge and commend landowners who have made significant
commitments to manage their lands in a manner that is compatible with
the conservation of Gunnison sage-grouse. In this proposed rule, we are
seeking input from the public, especially private landowners, as to
whether or not the Secretary should exclude lands enrolled under the
Gunnison sage-grouse CCAA,

[[Page 2559]]

lands under permanent conservation easements, or fee title properties
with conservation measures applicable to Gunnison sage-grouse from the
final critical habitat designation under section 4(b)(2) of the Act.
The Service also acknowledges conservation efforts such as
participation in the Sage Grouse Initiative that is led by the Natural
Resources Conservation Service. (Please see the Information Requested
section of this proposed rule for instructions on how to submit
comments).
A decision as to whether to exclude these lands from the proposed
designation will require consideration of several important factors.
Enrollment in the CCAA can be withdrawn by the landowner at any time
and most lands have been enrolled less than two years. Furthermore,
CCAA enrollment eligibility will expire if a final listing
determination is made for Gunnison sage-grouse. If the agreed-upon,
voluntary land management practices within the conditions of the CCAA
are met by the land owner, then the designation of critical habitat on
these lands should not result in any additional regulatory
requirements. For lands under conservation easement, we lack
information to evaluate if conditions or practices incorporated into
the easement conditions afford adequate protection to the physical or
biological features of Gunnison sage-grouse. Also, because these lands
are privately owned, absent a Federal nexus, the designation of
critical habitat on these lands will incur no additional regulatory
burden beyond the prohibitions of section 9(a)(2) of the Act.
In preparing this proposal, we have determined that there are
currently no habitat conservation plans (HCPs) for the Gunnison sage-
grouse, and the proposed designation does not include any tribal lands
or trust resources. We anticipate no impact on tribal lands,
partnerships, or HCPs from this proposed critical habitat designation.
Accordingly, the Secretary does not propose to exercise his discretion
to exclude any areas from the final designation based on other relevant
impacts.

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on our specific
assumptions and conclusions in this proposed designation of critical
habitat.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.

Required Determinations

Our draft economic analysis will be completed after this proposed
rule is published. Therefore, we will defer our Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), Energy Supply, Distribution, or Use--
Executive Order 13211, Unfunded Mandates Reform Act (2 U.S.C. 1501 et
seq.), and Small Business Regulatory Enforcement Fairness Act (SBREFA),
findings until after this analysis is done.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat

[[Page 2560]]

designation, but the per-entity economic impact is not significant, the
Service may certify. Likewise, if the per-entity economic impact is
likely to be significant, but the number of affected entities is not
substantial, the Service may also certify.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. Gunnison sage-grouse occur in areas with oil and gas
activity. These areas are primarily limited to the Monticello--Dove
Creek and San Miguel populations. A portion of the Gunnison Basin Unit
occurs in an area with high geothermal energy development potential.
Well pads and their existing infrastructure are within proposed
critical habitat units. On Federal lands, entities conducting oil and
gas related activities as well as power companies would need to consult
within areas designated as critical habitat. Although we do not believe
the impacts resulting from this consultation requirement would rise to
the level of significant, we will make our finding after the draft
economic analysis has been completed. We will further evaluate this
issue as we conduct our economic analysis, and review and revise this
assessment as warranted.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because only a small percentage of
the total land ownership falls on small government lands such as those
owned by the City of Gunnison and Gunnison County. Therefore, a Small
Government Agency Plan is not required. We do not believe that this
rule would significantly or uniquely affect small governments because
it would not produce a Federal mandate of $100 million or greater in
any year, that is, it is not a ``significant regulatory action'' under
the Unfunded Mandates Reform Act. However, we will further evaluate
this issue as we conduct our economic analysis, and review and revise
this assessment if appropriate.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Gunnison sage-grouse in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this proposed designation of critical habitat for
Gunnison sage-grouse would

[[Page 2561]]

not pose significant takings implications for lands within or affected
by the designation.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
federalism impact summary statement is not required. In keeping with
Department of the Interior policy, we requested information from, and
coordinated development of, this proposed critical habitat designation
with appropriate State resource agencies in Colorado and Utah. The
designation of critical habitat in areas currently occupied by the
Gunnison sage-grouse may impose nominal additional regulatory
restrictions to those currently in place and, therefore, may have
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
because the areas that contain the physical and biological features
essential to the conservation of the species are more clearly defined,
and the elements of the features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.

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

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

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

Clarity of the Rule

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

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the Gunnison sage-grouse at the time of listing that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the Gunnison sage-grouse that are essential for the
conservation of the species. Therefore, we are not proposing to
designate critical habitat for the Gunnison sage-grouse on tribal
lands.

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov and upon request from the
Western Colorado Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this package are the staff members of the
Western Colorado Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

[[Page 2562]]

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec. 17.11(h) by adding an entry for ``Sage-grouse,
Gunnison'' to the List of Endangered and Threatened Wildlife in
alphabetical order under ``BIRDS'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
BIRDS

* * * * * * *
Sage-grouse, Gunnison............ Centrocercus minimus U.S.A. (AZ, CO, NM, Entire............. E ........... 17.95(b) NA
UT).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (b) by adding an entry for
``Gunnison Sage-Grouse (Centrocercus minimus),'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *
Gunnison Sage-grouse (Centrocercus minimus)
(1) Critical habitat units are depicted for Grand and San Juan
Counties, Utah, and Chaffee, Delta, Dolores, Gunnison, Hinsdale, Mesa,
Montrose, Ouray, Saguache, and San Miguel Counties, Colorado, on the
maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of
Gunnison sage-grouse consist of five components:
(i) Landscape-scale Primary Constituent Element. Primary
Constituent Element 1--Areas with vegetation composed primarily of
sagebrush plant communities (at least 25 percent of primarily sagebrush
land cover within a 1.5-km (0.9-mi) radius of any given location), of
sufficient size and configuration to encompass all seasonal habitats
for a given population of Gunnison sage-grouse, and facilitate
movements within and among populations.
(ii) Site-scale Primary Constituent Elements.
(A) Primary Constituent Element 2--Breeding habitat composed of
sagebrush plant communities with structural characteristics within the
ranges described in the following table. Habitat structure values are
average values over a project area.

------------------------------------------------------------------------
Vegetation variable Amount in habitat
------------------------------------------------------------------------
Sagebrush Canopy.......................... 10-25 percent
Non-sagebrush Canopy...................... 5-15 percent
Total Shrub Canopy........................ 15-40 percent
Sagebrush Height.......................... 25-50 cm
(9.8-19.7 in)
Grass Cover............................... 10-40 percent
Forb Cover................................ 5-40 percent
Grass Height.............................. 10-15 cm
(3.9-5.9 in)
Forb Height............................... 5-15 cm
(2.0-5.9 in)
------------------------------------------------------------------------

(B) Primary Constituent Element 3--Summer-late fall habitat
composed of sagebrush plant communities with structural characteristics
within the ranges described in the following table. Habitat structure
values are average values over a project area.

------------------------------------------------------------------------
Vegetation variable Amount in habitat
------------------------------------------------------------------------
Sagebrush Canopy.......................... 5-20 percent
Non-sagebrush Canopy...................... 5-15 percent
Total Shrub Canopy........................ 10-35 percent
Sagebrush Height.......................... 25-50 cm
(9.8-19.7 in)
Grass Cover............................... 10-35 percent
Forb Cover................................ 5-35 percent
Grass Height.............................. 10-15 cm
(3.9-5.9 in)
Forb Height............................... 3-10 cm
(1.2-3.9 in)
------------------------------------------------------------------------

(C) Primary Constituent Element 4--Winter habitat composed of
sagebrush plant communities with sagebrush canopy cover between 30 to
40 percent and sagebrush height of 40 to 55 cm (15.8 to 21.7 in). These
habitat structure values are average values over a project area.
(D) Primary Constituent Element 5--Alternative, mesic habitats used
primarily in the summer-late fall season.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created from a number of geospatial data, including: Polygons generated
as part of the Gunnison sage-grouse Rangewide Conservation Plan,
Southwest Regional Gap Analysis Project (SWReGAP) land cover data,
National Agriculture Imagery Program (NAIP) aerial images, and USGS 7.5
minute quadrangle maps. Critical habitat units were then mapped as
shapefiles using Universal Transverse Mercator (UTM) Zone 13N
coordinates. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site,
(https://www.fws.gov/coloradoes/), https://www.regulations.gov at Docket
No. FWS-R6-ES-2011-0111, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4310-55-P

[[Page 2563]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.002

(6) Unit 1: Monticello--Dove Creek: San Juan County, Utah, and
Montrose, San Miguel, and Dolores Counties, Colorado.
(i) General Description: 140,973 ha (348,353 ac); 20.4 percent of
all critical habitat.
(ii) Map of Unit 1, Monticello--Dove Creek: San Juan County, Utah,
and Montrose, San Miguel, and Dolores Counties, Colorado, follows:

[[Page 2564]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.003

(7) Unit 2: Pi[ntilde]on Mesa: Grand County, Utah, and Mesa County,
Colorado.
(i) General Description: 99,220 ha (245,179 ac); 14.4 percent of
all critical habitat.
(ii) Map of Unit 2, Pi[ntilde]on Mesa: Grand County, Utah, and Mesa
County, Colorado, follows:

[[Page 2565]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.004

(8) Unit 3: San Miguel Basin: Montrose, San Miguel, and Ouray
Counties, Colorado.
(i) General Description: 67,084 ha (165,769 ac); 9.7 percent of all
critical habitat.
(ii) Map of Unit 3, San Miguel Basin: Montrose, San Miguel, and
Ouray Counties, Colorado, follows:

[[Page 2566]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.005

(9) Unit 4: Cerro Summit-Cimarron-Sims Mesa: Montrose, Ouray, and
Gunnison Counties, Colorado.
(i) General Description: 25,377 ha (62,708 ac); 3.7 percent of all
critical habitat.
(ii) Map of Unit 4, Cerro Summit-Cimarron-Sims Mesa: Montrose,
Ouray, and Gunnison Counties, Colorado, follows:

[[Page 2567]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.006

(10) Unit 5: Crawford: Delta, Montrose, and Gunnison Counties,
Colorado.
(i) General Description: 39,304 ha (97,123 ac); 5.7 percent of all
critical habitat.
(ii) Map of Unit 5, Crawford: Delta, Montrose, and Gunnison
Counties, Colorado, follows:

[[Page 2568]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.007

(11) Unit 6: Gunnison Basin: Gunnison, Saguache, Montrose, and
Hinsdale Counties, Colorado.
(i) General Description: 298,173 ha (736,802 ac); 43.2 percent of
all critical habitat.
(ii) Map of Unit 6, Gunnison Basin: Gunnison, Saguache, Montrose,
and Hinsdale Counties, Colorado, follows:

[[Page 2569]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.008

(12) Unit 7: Poncha Pass: Saguache and Chaffee Counties, Colorado.
(i) General Description: 19,543 ha (48,292 ac); 2.8 percent of all
critical habitat.
(ii) Map of Unit 7, Poncha Pass: Saguache and Chaffee Counties,
Colorado, follows:

[[Page 2570]]

[GRAPHIC] [TIFF OMITTED] TP11JA13.009

* * * * *

Dated: December 13, 2012.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2012-31666 Filed 1-10-13; 8:45 am]
BILLING CODE 4310-55-C

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