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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: August 6, 2004 (Volume 69, Number 151)]
[Proposed Rules]
[Page 47834-47862]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au04-28]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ07

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

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Colorado butterfly plant (Gaura
neomexicana ssp. coloradensis) pursuant to the Endangered Species Act
of 1973, as amended (Act). In total, approximately 8,486 acres (ac)
(3,434 hectares (ha)) along approximately 113.1 stream miles (mi)
(182.2 kilometers (km)) fall within the boundaries of the proposed
critical habitat designation. The proposed critical habitat is located
in Laramie and Platte Counties in Wyoming; Kimball County in Nebraska;
and Weld County in Colorado.

DATES: We will accept comments from all interested parties until
October 5, 2004. We must receive requests for public hearings, in
writing, at the address shown in the ADDRESSES section by September 20,
2004.

ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments and information to the Field
Supervisor,

[[Page 47835]]

U.S. Fish and Wildlife Service, Wyoming Field Office, 4000 Airport
Parkway, Cheyenne, Wyoming 82001.
2. You may hand-deliver written comments to our Office, at the
address given above.
3. You may send comments by electronic mail (e-mail) to
fw6_cobutterflyplant@fws.gov. Please see the Public Comments Solicited
section below for file format and other information about electronic
filing.
4. You may fax your comments to 307/772-2358.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Wyoming Field Office, 4000 Airport Parkway, Cheyenne,
Wyoming, telephone 307/772-2374.

FOR FURTHER INFORMATION CONTACT: Brian Kelly, Field Supervisor, Wyoming
Field Office, 4000 Airport Parkway, Cheyenne, Wyoming (telephone 307/
772-2374; facsimile 307/772-2358).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of Gaura
neomexicana ssp. coloradensis habitat, and what habitat is essential to
the conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities; and
(5) 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.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit Internet comments to
fw6_cobutterflyplant@fws.gov in ASCII file format and avoid the use of
special characters or any form of encryption. Please also include
``Attn: Gaura neomexicana ssp. coloradensis'' in your e-mail subject
header and your name and return address in the body of your message. If
you do not receive a confirmation from the system that we have received
your Internet message, contact us directly by calling our Cheyenne
Ecological Services Field Office at phone number 307/772-2374. Please
note that the Internet address fw6_cobutterflyplant@fws.gov will be
closed out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.

Designation of Critical Habitat Provides Little Additional Protection
to Listed Species

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

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

While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species or 36 percent
of the 1,244 listed species in the United States under the jurisdiction
of the Service have designated critical habitat. We address the habitat
needs of all listed species through conservation mechanisms such as
listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent to sue relative to critical habitat, and to comply
with the growing number of adverse court orders. As a result, listing
petition responses, the Service's own proposals to list critically
imperiled

[[Page 47836]]

species, and final listing determinations on existing proposals are all
significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA). None of these costs result in
any benefit to the species that is not already afforded by the
protections of the Act enumerated earlier, and they directly reduce the
funds available for direct and tangible conservation actions.

Background

We discuss only those topics directly relevant to the designation
of critical habitat in this proposed rule. For more information on
Gaura neomexicana ssp. coloradensis, refer to the final listing rule
published in the Federal Register on October 18, 2000 (65 FR 62302).
Gaura neomexicana ssp. coloradensis is a perennial herb that lives
vegetatively for several years before bearing fruit once and then
dying. Gaura neomexicana ssp. coloradensis occurs on subirrigated,
alluvial (stream deposited) soils on level or slightly sloping
floodplains and drainage bottoms at elevations of 1,524-1,951 meters
(5,000-6,400 ft). Colonies are often found in low depressions or along
bends in wide, active, meandering stream channels a short distance
upslope of the actual channel. The plant requires early- to mid-
succession riparian (river bank) habitat. Gaura neomexicana ssp.
coloradensis is an early successional plant (although probably not a
pioneer) adapted to use stream channel sites that are periodically
disturbed. Historically, flooding was probably the main cause of
disturbances in the plant's habitat, although wildfire and grazing by
native herbivores also may have been important.
Little is known about the historical distribution of Gaura
neomexicana ssp. coloradensis. Prior to 1984, no extensive
documentation of the plant's range had been conducted. In 1979, the
total known population size was estimated in the low hundreds (Dorn
1979). Intensive range-wide surveys from 1984 to 1986 resulted in the
discovery or confirmation of more than 20 populations in Wyoming,
Colorado, and Nebraska, containing approximately 20,000 flowering
individuals (Marriott 1987). Additional surveys since 1992 have
resulted in the discovery of additional populations in Wyoming and
Colorado (Fertig 1994; Floyd 1995b).
Gaura neomexicana ssp. coloradensis is distributed throughout its
occupied range into patchy groups of subpopulations, some of which are
isolated with little or no possibility of interbreeding with other
local populations. The spatial structuring of this subspecies is
commonly referred to as a metapopulation. Local populations exist on a
patch of suitable habitat, and although each has its own, relatively
independent population dynamics, the long-term persistence and
stability of the metapopulation arise from a balance of population
extinctions and colonization to unoccupied patches through dispersal
events (Hanski 1989, Olivieri et al. 1990, Hastings and Harrison 1994).
Balancing local population extinction with new colonization events
is problematic for Gaura neomexicana ssp. coloradensis since naturally
occurring disturbance associated with creation of suitable habitat for
colonization, such as seasonal floods, has been largely curtailed by
water development and flood control. Consequently, what once may have
been a dynamic, but stable, metapopulation, may now be characterized by
a series of local populations with a very low probability of colonizing
new patches, and little opportunity to replace populations that go
extinct. Biological characteristics that may serve to reduce these
negative consequences at least in the short-term for G. n. ssp.
coloradensis include seed banks, delay of stage transition from rosette
to flowering adults under poor habitat conditions, and self-
compatibility. However, the regional persistence of a metapopulation
has been shown to be possible only when the rate of colonization
exceeds the local rate of extinction (Lande 2002). Consequently, the
removal of opportunities for future colonization events poses a
significant threat to long-term metapopulation persistence and species
viability. This highlights the importance of maintaining viability of
as many local populations as possible through conservation.
Most of what is known about Gaura neomexicana ssp. coloradensis and
its conservation is based on surveys and research conducted on
populations located on the WAFB in Cheyenne, Wyoming, from 1984 to
2003. Floyd and Ranker (1998) studied three G. n. ssp. coloradensis
subpopulations at WAFB, Crow Creek, Diamond Creek, and Unnamed
Drainage, from 1992 to 1994. The purpose of their study was to examine
population growth, demographic variability, demographic stage
transition dynamics and the probability of population extinction.
Results suggested that each of the three subpopulations was not stable
but exhibited significant demographic variability both spatially and
temporally, and population growth values were not useful parameters to
describe long-term population dynamics (Floyd and Ranker 1998).
Annual census of flowering plants at WAFB began in 1986, and
continued from 1988 to 2003, within subpopulations located at Crow
Creek, Diamond Creek, and Unnamed Drainage. Census summaries provided
by Heidel (2004a) based on these data show that subpopulations within
these three drainages are characterized by dramatic fluctuations in
size.
Most populations of Gaura neomexicana ssp. coloradensis for which
census or demographic data have been collected exhibit substantial
demographic uncertainty. Some of the observed temporal variation in
subpopulations at WAFB has been correlated with unpredictable
environmental factors such as temperature and precipitation (Floyd and
Ranker 1998; Laursen and Heidel 2003; and Heidel 2004a), and spatial
variation may be attributable, in part, to fine-scale microhabitat
differences in light availability or competition with other herbaceous
vegetation or noxious weeds (Munk et al. 2002; Laursen and Heidel 2003;
and Heidel 2004b). Similar factors may be correlated with some of the
observed demographic variability in less-well-studied populations
throughout the subspecies' range. However, even for the well-studied
subpopulations at WAFB, no clear cause-and-effect relationships have
been found to explain the observed fluctuations in population numbers,
and studies have not accounted for the majority of the observed
demographic uncertainty. Demographic uncertainty, or stochasticity, is
variability in survival and reproduction of individuals due, at

[[Page 47837]]

least in part, to chance or random events (Frankel et al. 1995);
although some chance events may actually be deterministic factors that
are currently not understood (Shaffer 1987).
Some researchers suggest that demographic uncertainty becomes an
important hazard only for small populations (in the range of tens to
hundreds of individuals). While there is no managerial solution for
threats due to stochastic factors, the magnitude of effect of these
threats decreases as population size increases (Shaffer 1987; Frankel
et al. 1995; Lande 2002). Maintaining the maximum number of individuals
within each population, and maintaining the maximum number of
populations within the Gaura neomexicana ssp. coloradensis
metapopulation as a whole, may be the only means with which to maintain
long-term species persistence.
Of the known populations of Gaura neomexicana ssp. coloradensis,
the vast majority occur on private lands managed primarily for
agriculture and livestock. Haying and mowing at certain times of the
year, water development, land conversion for cultivation, competition
with exotic plants, non-selective use of herbicides, and loss of
habitat to urban development are the main threats to these populations
(Mountain West Environmental Services 1985, Marriott 1987, Fertig
1994).
Because of the small, isolated nature of populations and few
numbers present in many of them, the subspecies is much more
susceptible to random events such as fires, insect or disease
outbreaks, or other unpredictable events that could easily eliminate
local populations.

Previous Federal Actions

On October 18, 2000, Gaura neomexicana ssp. coloradensis was
designated as threatened throughout its entire range under the Act (65
FR 62302). On October 4, 2000, the Center for Biological Diversity and
the Biodiversity Legal Foundation filed a complaint in the Federal
District Court for the District of Colorado concerning our failure to
designate critical habitat for the Colorado butterfly plant (Center for
Biological Diversity, et al. v. Norton, et al. (Civ. Action No. 00-D-
1980)). On March 19, 2001, the Court approved a settlement agreement
requiring us to submit a final critical habitat designation for the
Colorado butterfly plant to the Federal Register on or before December
31, 2004. For more information on previous Federal actions concerning
G. n. ssp. coloradensis, refer to the final listing rule (65 FR 62302).

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management considerations
or protection; and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat.
To be included in a critical habitat designation, the habitat must
first be ``essential to the conservation of the species.'' Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life-cycle needs of the species (i.e., areas on which are
found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Occupied habitat may be included in critical habitat only if the
essential features thereon may require special management or
protection. Thus, we do not include areas where existing management is
sufficient to conserve the species. As discussed below, such areas also
may be excluded from critical habitat pursuant to section 4(b)(2).
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographic area presently occupied
by the species only when a designation limited to its present range
would be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, when the best available scientific and
commercial data do not demonstrate that the conservation needs of the
species so require, we will not designate critical habitat in areas
outside the geographic area occupied by the species.
Our Policy on Information Standards under the Act, published in the
Federal Register on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that decisions
made by the Service represent the best scientific and commercial data
available. It requires Service biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat.
Critical habitat designations do not signal that habitat outside
the designation is unimportant to Gaura neomexicana ssp. coloradensis.
Areas outside the critical habitat designation will continue to be
subject to conservation actions that may be implemented under section
7(a)(1), and to the regulatory protections afforded by the section
7(a)(2) jeopardy standard and the section 9 take prohibition, as
determined on the basis of the best available information at the time
of the action. We specifically anticipate that federally funded or
assisted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available to these planning efforts calls for a
different outcome.

Methods

As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best scientific and commercial data available in
determining areas that contain the physical and biological features
that are essential to the conservation of Gaura neomexicana ssp.
coloradensis. This information included data from our files that we
used for listing the species; geologic maps, recent biological surveys
and reports; information funded by the Air Force and other interested
parties, and discussions with botanists.
The long-term probability of the conservation of Gaura neomexicana
ssp. coloradensis is dependent upon the protection of existing
populations, and the maintenance of ecologic functions within these
sites, including connectivity within and between populations within
close geographic proximity to facilitate pollen flow and population
expansion. G. n. ssp. coloradensis is fragmented and patchy in nature
and occurs as a metapopulation. The areas we are

[[Page 47838]]

proposing to designate as critical habitat provide some or all of the
habitat components essential for the conservation of G. n. ssp.
coloradensis.

Criteria Used To Identify Critical Habitat

As previously stated in the Background section of the final listing
rule (65 FR 62302, October 18, 2000), ``Thus, of 26 previously known
populations, 9 may be extirpated; 3 are probably small, but have not
been surveyed since 1992; 4 are still extant, but declining; and 10 are
stable or increasing.'' In our delineation of the critical habitat
units, we selected areas to provide for the conservation of Gaura
neomexicana ssp. coloradensis at the eight sites where all previously
known subpopulations are known to occur. Much of what is known about
the specific physical and biological requirements of G. n. ssp.
coloradensis is described in the Primary Constituent Elements section
of this proposed rule.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We obtained records of Gaura neomexicana ssp. coloradensis
distribution compiled by the Wyoming Natural Diversity Database
(Wyoming Natural Diversity Database 2004) and from the Colorado Natural
Heritage Program (Colorado Natural Heritage Program 1995, 2004).
Database records were received in the form of shape files formatted for
use in ArcView (Environmental Systems Research, Inc. (ESRI)), a
computer GIS program. We created polygons by overlaying current and
historic plant locations from shape files on digital topographic maps.
In other words, we focused on designating units representative of the
known current and historical locations of the plant throughout the
geographic range of the subspecies.
(2) We then evaluated plant locations in relation to potentially
suitable habitat within drainages on the topographic maps. We followed
rough boundaries of suitable habitat from which we could identify
potential critical habitat, and then further refined these boundaries
using corresponding Service National Wetland Inventory maps. A more
refined boundary was then created digitally using a second GIS program,
ArcMap (ESRI). This boundary was then evaluated in relation to primary
constituent elements and adjacent areas containing suitable hydrologic
regimes, soils, and vegetation communities. We avoided land areas
identified as not suitable for G. n. ssp. coloradensis, i.e., those
areas that do not contain primary constituent elements. Such areas were
excluded from the refined boundary to the extent that we could identify
these areas on the map.
In order to determine the outward extent of the proposed critical
habitat, botanists were consulted who had previously conducted field
surveys of Gaura neomexicana ssp. coloradensis and who had a good
working knowledge of habitat requirements for the species. Based on the
information from botanists, we are using the outward extent of the
proposed critical habitat as 300 feet (91 meters) from the center of
the stream within a given stream segment.
(3) We eliminated areas that did not contain the appropriate
vegetation or associated native plant species, as well as features such
as cultivated agriculture fields, housing developments, and other areas
that are unlikely to contribute to the conservation of Colorado
butterfly plant. We used geographic features (ridge lines, valleys,
streams, etc.) or manmade features (roads or obvious land use) that
created an obvious boundary for a unit as unit area boundaries.
(4) Critical habitat designations were then described for
landowners and the public. We mapped using legal descriptions including
township, range, and sections associated with the Public Land Survey
System so that private landowners and the public could see the
proximity of the designation with where they reside.
The Service is working with, and will continue to work with, the
Wyoming Stockgrowers Association, the Wyoming Association of
Conservation Districts, the Wyoming Department of Agriculture, the
Natural Resources Conservation Service in Wyoming and Nebraska, and the
City of Fort Collins in Colorado, to develop conservation agreements
with willing landowners to provide for the conservation of Gaura
neomexicana ssp. coloradensis. These agreements will include specific
on-the-ground actions to alleviate specific threats including--allowing
the Service access to private land to conduct annual monitoring of G.
n. ssp. coloradensis populations to evaluate success of management
actions under the agreement; establishing an adaptive management
approach to evaluate success of management actions under the agreement;
and facilitating the collection of data needed for future recovery of
the species. Through cooperation and communication between landowners
and the Service, such agreements will provide for the conservation
needs of G. n. ssp. coloradensis above and beyond what would be
achievable through the designation of critical habitat on private lands
while meeting the needs of individual landowners. Working cooperatively
with private landowners to protect habitat for G. n. ssp. coloradensis
through conservation agreements is the Service's preferred approach to
protecting the species on private lands. The Service will pursue such
agreements to the fullest extent practicable prior to finalizing
critical habitat. If, prior to finalizing the designation of critical
habitat, the Service determines that the benefits of excluding an area
subject to one of these agreements outweigh the benefits of including
it, the Service will exclude such from the designation. Currently, one
such agreement is in place.
The Service will work with landowners to gain access to private
lands to survey for plant populations. Most of these populations have
not been surveyed since 1998, earlier in some cases, and some may now
be extirpated. The Service is in the process of conducting surveys that
will continue through August of 2004. We will further refine the
designation based on new information.
We propose to designate critical habitat on lands that we have
determined are essential to the conservation of Gaura neomexicana ssp.
coloradensis. These areas have the primary constituent elements
described. While the species was known historically from several
additional locations in northern Colorado and southeastern Wyoming,
these populations are believed to be extirpated (Fertig 1994) and are
not included in the proposed designation.
Much of the survey data on which this proposed designation is based
represents the number of flowering individuals during one point in
time. Because of the annual fluctuation in population size for this
species (ranging from 200 percent), and because the number of flowering
individuals each year depends upon local environmental factors that
vary substantially year to year (e.g., precipitation), it is likely
that other individual plants and subpopulations exist but were not
identified during previous surveys. This is particularly true for those
areas, which contain the primary constituent elements for the species,
that occur between subpopulations. Not only are these areas essential
to achieving the long-term conservation goal of protecting the maximum
number of populations possible, but they are essential in maintaining
gene flow between populations via pollen flow to maintain, and
potentially increase, local population genetic variation.

[[Page 47839]]

In our delineation of the critical habitat units, we selected areas
to provide for the conservation of Gaura neomexicana ssp. coloradensis
in all areas where it is known to occur, except WAFB (see discussion
below on the WAFB's Integrated Natural Resources Management Plan
(INRMP)). All units are essential because G. n. ssp. coloradensis
populations exhibit significant demographic uncertainty, contain very
low genetic variation, and have very little opportunity to colonize new
geographic areas with which to balance local extinction events. We
believe the proposed designation is of sufficient size to maintain
ecological processes and to minimize secondary impacts resulting from
human activities and land management practices occurring in adjacent
areas. We mapped the units with a degree of precision commensurate with
the available information, the size of the unit, and time allotted to
complete this proposal. We anticipate that the boundaries of the units
may be refined based on additional information received during the
comment period and after surveys are completed in August of this year.
Although we are not proposing sites other than where populations
are known to occur, we do not mean to imply that habitat outside the
designation is unimportant or may not be required for recovery of the
species. Areas that support newly discovered populations in the future,
but are outside the critical habitat designation, will continue to be
subject to the applicable prohibitions of section 9 of the Act and the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard. In addition, for such populations discovered on private
lands, the Service will consider entering into conservation agreements
with the landowners similar to the ones contemplated for currently
known populations.
We often exclude non-Federal public lands and private lands that
are covered by an existing operative Habitat Conservation Plan (HCP)
and executed Implementation Agreement (IA) under section 10(a)(1)(B) of
the Act from designated critical habitat because the benefits of
exclusion outweigh the benefits of inclusion as discussed in section
4(b)(2) of the Act. There are no HCPs in place for Gaura neomexicana
ssp. coloradensis at this time. Department of Defense lands with an
approved INRMP also are excluded from critical habitat. We have
approved the INRMP for WAFB, which addresses conservation needs of G.
n. ssp. coloradensis. Consequently, we did not consider habitat
supporting populations located on WAFB for proposed designation as
critical habitat.
Designating critical habitat is one mechanism for providing habitat
protection for Gaura neomexicana ssp. coloradensis populations.
However, the benefits of protecting extant populations through
conservation agreements, by partnering with private landowners on whose
property populations occur, may well outweigh the benefits of
designating critical habitat for this species. Greater protection
results from conservation agreements because these agreements address
the specific types of actions (e.g., indiscriminate application of
herbicides; overgrazing; timing of hay cutting) undertaken by private
landowners that may adversely impact G. n. ssp. coloradensis or its
habitat and that would not involve a Federal nexus subject to
consultation under section 7(a)(2) of the Act. A review of the complete
consultation history of G. n. ssp. coloradensis has revealed that none
of the actions undertaken on private lands resulting in these threats
to the species have ever required consultation under the Act.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements) that
are essential to the conservation of the species, and that may require
special management considerations and protection. These include, but
are not limited to--space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The primary constituent elements for Gaura neomexicana ssp.
coloradensis include those habitat components essential for the
biological needs of rosette growth and development, flower production,
pollination, seed set and fruit production, and genetic exchange. G. n.
ssp. coloradensis typically lives and reproduces on subirrigated,
stream-deposited soils on level or slightly sloping floodplains and
drainage bottoms at elevations of 5,000 to 6,400 feet (1,524 to 1,951
meters). Most colonies are found in low depressions or along bends in
wide, active, meandering stream channels a short distance upslope of
the active channel, and may occur at the base of alluvial ridges at the
interface between riparian meadows and drier grasslands (Fertig 2001).
Average annual precipitation within its range is 13 to 16 in (33 to 41
cm) primarily in the form of rainfall (Fertig 2000). Soils in G. n.
ssp. coloradensis habitat are derived from conglomerates, sandstones,
and tufaceous mudstones and siltstones (i.e., derived from spongy,
porous limestone formed by the precipitation of calcite from the water
of streams and springs) of the Tertiary White River, Arikaree, and
Ogallala formations (Fertig 2000).
Ecological processes that create and maintain Gaura neomexicana
ssp. coloradensis habitat are important primary constituent elements.
Essential habitat components to G. n. ssp. coloradensis occur in areas
where past and present hydrological and geological processes have
created streams, floodplains, and conditions supporting favorable plant
communities. Historically, G. n. ssp. coloradensis habitat has been
maintained along streams by natural flooding cycles that periodically
scour riparian vegetation, rework stream channels and floodplains, and
redistribute sediments to create vegetation patterns favorable to G. n.
ssp. coloradensis. G. n. ssp. coloradensis commonly occurs in
communities including Agrostis stolonifera (redtop) and Poa pratensis
(Kentucky bluegrass) on wetter sites, or Glycyrrhiza lepidota (wild
licorice), Cirsium flodmanii (Flodman's thistle), Grindelia squarrosa
(curlytop gumweed), and Equisetum laevigatum (smooth scouring rush) on
drier sites (Fertig 1994). Both of these habitat types are usually
intermediate in moisture between wet, streamside communities dominated
by Carex spp. (sedges), Juncus spp. (rushes), and Typha spp.
(cattails), and dry upland shortgrass prairie. Where hydrological flows
are controlled to preclude a natural pattern of habitat development,
and other forms of disturbance are curtailed or eliminated, a less
favorable mature successional stage of vegetation will develop,
resulting in the loss of many of these plant associates.
Hydrological processes, and their importance in maintaining the
moisture regime of habitat preferred by Gaura neomexicana ssp.
coloradensis, also have an important direct effect on seed germination
and seedling recruitment. Analysis by Heidel (2004a) demonstrated a
significant positive correlation between census number and net growing
season precipitation 2 years

[[Page 47840]]

prior to census. Important direct effects of moisture on G. n. ssp.
coloradensis establishment and recruitment also have been demonstrated
by the appearance of high numbers of new vegetative plants within 27
days after a 100-year flood event at WAFB on August 1, 1985 (Rocky
Mountain Heritage Task Force 1987 cited in Heidel 2004a).
The long-term availability of favorable Gaura neomexicana ssp.
coloradensis habitat also depends on impacts of drought, fires,
windstorms, herbivory, and other natural events. G. n. ssp.
coloradensis requires open, early- to mid-succession riparian habitat
experiencing periodic disturbance. Periodic disturbance is necessary to
control competing vegetation, and to create open, bare ground for
seedling establishment (Fertig 2001). Salix exigua (coyote willow) and
Cirsium arvense (Canada thistle) may become locally dominant in G. n.
ssp. coloradensis habitat that is not periodically flooded or otherwise
disturbed, resulting in decline of the species. Research has
demonstrated negative impacts on G. n. ssp. coloradensis populations
from competition with locally abundant noxious weeds, forbs, and
grasses (Munk et al. 2002, Heidel 2004b).
Based on our knowledge to date, the primary constituent elements
for Gaura neomexicana ssp. coloradensis consist of, but are not limited
to:
(1) Subirrigated, alluvial soils on level or low-gradient
floodplains and drainage bottoms at elevations of 5,000 to 6,400 feet
(1,524 to 1,951 meters).
(2) A mesic moisture regime, intermediate in moisture between wet,
streamside communities dominated by sedges, rushes, and cattails, and
dry upland shortgrass prairie.
(3) Early- to mid-succession riparian (streambank or riverbank)
plant communities that are open and without dense or overgrown
vegetation (including hayed fields, grazed pasture, other agricultural
lands that are not plowed or disced regularly, areas that have been
restored after past aggregate extraction, areas supporting recreation
trails, and urban/wildland interfaces).
(4) Hydrological and geological conditions that serve to create and
maintain stream channels, floodplains, floodplain benches, and wet
meadows that support patterns of plant communities associated with G.
n. ssp. coloradensis.
Existing features and structures within the boundaries of the
mapped units, such as buildings, roads, parking lots, other paved
areas, lawns, other urban and suburban landscaped areas, regularly
plowed or disced agricultural areas, and other features not containing
any of the primary constituent elements are not considered critical
habitat.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the areas
determined to be essential for conservation may require special
management considerations or protections. For Gaura neomexicana ssp.
coloradensis special management considerations include maintaining
surface or subsurface water flows that provide the essential
hydrological regime that supports the species; appropriate constraints
on application of herbicides used to control noxious weeds; preventing
habitat degradation caused by plant community succession; and
preventing harmful habitat fragmentation from residential and urban
development that detrimentally affects plant-pollinator interactions,
leads to a decline in species reproduction, and increases
susceptibility to non-native plant species. While excessive grazing can
lead to changes in essential habitat conditions (e.g., increases in
soil temperature resulting in loss of moisture, decreases in plant
cover, and increases in non-native species), managing for appropriate
levels of grazing provides an important management tool with which to
maintain open habitat needed by the species.

Proposed Critical Habitat Designation

We are proposing eight units as critical habitat for Gaura
neomexicana ssp. coloradensis. The critical habitat areas described
below constitute our best assessment at this time of the areas
essential for the conservation of G. n. ssp. coloradensis that may
require special management. The eight proposed units are: (1) Tepee
Ring Creek in Wyoming; (2) Bear Creek East in Wyoming; (3) Bear Creek
West in Wyoming; (4) Little Bear Creek/Horse Creek in Wyoming; (5)
Lodgepole Creek West in Wyoming; (6) Lodgepole Creek East in Wyoming
and Nebraska; (7) Borie in Wyoming; and (8) Meadow Springs Ranch in
Colorado.
The approximate area encompassed within each proposed critical
habitat unit is shown in Table 1.

TABLE 1.--Critical Habitat Units Proposed for Gaura neomexicana ssp.
coloradensis
------------------------------------------------------------------------
Critical habitat unit Acres Hectares Stream miles
------------------------------------------------------------------------
1. Tepee Ring Creek......... 107 43 1.5 (2.4 km)
2. Bear Creek East.......... 801 324 11.2 (18 km)
3. Bear Creek West.......... 500 202 7.3 (11.8 km)
4. Little Bear Creek/Horse 2,480 1,004 36.1 (58.1 km)
Creek.
5. Lodgepole Creek West..... 1,067 432 15.0 (24.2 km)
6. Lodgepole Creek East..... 1,683 681 24.8 (40 km)
7. Borie.................... 1,141 462 17.2 (27.7 km)
8. Meadow Springs Ranch..... 707 286 N/A
------------
Total................... 8,486 3,434 113.1 (182 km)
------------------------------------------------------------------------

We present brief descriptions of all units, and reasons why they
are essential for the conservation of Gaura neomexicana ssp.
coloradensis, below.

Unit 1: Tepee Ring Creek

Unit 1 consists of 107 ac (43 ha) along 1.5 stream mi (2.4 km) of
Tepee Ring Creek in Platte County, Wyoming, and is under private
ownership. One subpopulation of Gaura neomexicana ssp. coloradensis has
been found along Tepee Ring Creek in the lower SE corner of T21N R68W
Section 2. Habitat occupied by G. n. ssp. coloradensis is moist meadow
along the stream. Habitat along this stream reach throughout this unit
is primarily identified as PEMA (palustrine emergent temporarily
flooded) wetland intermixed with PEMC (palustrine emergent seasonally
flooded) wetland, according to National Wetlands Inventory terminology
(U.S. Fish and Wildlife Service 1993). Habitat containing primary
constituent elements extends throughout this entire reach, and it is
likely that G. n. ssp.

[[Page 47841]]

coloradensis occurs in Section 1 downstream of the subpopulation in
Section 2. This unit is essential to the conservation of the species
because it represents the northernmost extent of the subspecies' known
range of occurrence, separated by approximately 25 mi (40.3 km) from
the closest population, and likely contains unique genetic variability
not found in other populations.

Unit 2: Bear Creek East

Unit 2 consists of 801 ac (324 ha) along 11.2 stream mi (18 km) of
the South Fork of the Bear Creek and the Bear Creek in Laramie County,
Wyoming. Colonies of Gaura neomexicana ssp. coloradensis have been
found throughout the South Fork Bear Creek from T19N67W Section 25,
extending northeast approximately 13 mi (21 km) to the far eastern edge
of T19N66W Section 11. This unit is primarily under private ownership
but includes some Wyoming State lands. Three main habitat types occur
in this unit--(1) hay field adjacent to streams; (2) upper stream banks
with snowberry; and (3) willow thickets (WNDD 2004). Much of the
habitat in this unit is mowed for hay. Habitat within this stream reach
is primarily identified as PEMC intermixed with PEMA. The primary
constituent elements extend throughout this entire reach in which
several subpopulations of G. n. ssp. coloradensis have been found.
While there are no known locations for G. n. ssp. coloradensis within
Section 36, it is likely that subpopulations occur there because it is
adjacent to, and just upstream of, Section 25 to the north, where a
subpopulation occurs very close to the section border. Proposed
critical habitat on the northern and eastern end of the unit was
extended to include T19N R66W Section 12 because: (a) suitable habitat
with primary constituent elements continues throughout Section 12; (b)
there is a subpopulation of plants at the eastern end of Section 11
very close to Section 12 from which colonization is likely to have
occurred; and (c) Section 12 is downstream of several other populations
serving as likely seed sources. This unit has historically supported a
number of G. n. ssp. coloradensis populations in a variety of habitat
types, and is located at the furthest point downstream within the Bear
Creek drainage. Disconnected from other population gene pools,
subpopulations within this unit likely contain genotypes unique to this
drainage. This unit is essential to the overall objective of
maintaining the maximum number of populations possible for future
species conservation.

Unit 3: Bear Creek West

Unit 3 consists of three stream reaches encompassing a total of 500
ac (202 ha) along 7.3 stream mi (11.8 km) within the Bear Creek
drainage in Laramie County, Wyoming. This unit is primarily under
private ownership, but includes some Wyoming State lands.
Reach 1: Habitat within this reach is semi-moist meadows on flat
benches and streambanks along an intermittent stream. Plants are most
abundant in areas with low thistle density and heavily browsed willow,
and are absent from adjacent, ungrazed areas with dense willow thickets
(WNDD 2004). Subpopulations of Gaura neomexicana ssp. coloradensis have
been found throughout this reach in T18N R68W Sections 8 and 9. Habitat
is primarily PEMC containing primary constituent elements and extends
through Sections 8, 9, and 4 to the northwest. Proposed critical
habitat on the northern and eastern end of the unit was extended to
include Section 4 because: (a) Suitable habitat with primary
constituent elements continues throughout Section 4; (b) there is a
subpopulation of plants at the northern end of Section 9 very close to
Section 4; and (c) Section 4 is downstream of 8 and 9 and it is likely
that these upstream subpopulations have already dispersed seeds into
Section 4. This reach is an important location that has always
supported a large population with good reproduction, and this site has
remained in very good condition with few impacts compared with other
occupied sites.
Reach 2: Habitat within this reach consists of hummocky banks of
loamy clay soil and gravelly, sloping terraces in semi-moist, closely
grazed Poa pratensis (Kentucky bluegrass) / Elymus spp. (wild rye)
streamside meadow at the edge of dense Carex aquatilis (Nebraska sedge)
/ Juncus balticus (Baltic rush) community (WNDD 2004). It is likely
that grazing maintains open habitat for Gaura neomexicana ssp.
coloradensis (WNDD 2004). Subpopulations of G. n. ssp. coloradensis
have been found throughout this reach in T18N R68W Sections 16 and 17.
Habitat is primarily PEMC containing primary constituent elements and
extends through both sections. Nimmo Reservoir in Section 15, adjacent
to Section 16, is likely a barrier to seed dispersal downstream.
Therefore, proposed critical habitat was not extended further. This
location represents the uppermost elevation within the species' known
range of occurrence. Historically it has supported a large population
located in habitat with few threats to its good condition.
Reach 3: Habitat within this reach consists of three types: (1)
Seasonally wet Juncus balticus / Agrostis stolonifera (redtop) / Poa
pratensis community on subirrigated gravelly-sandy soil in low
depressions a distance from the current stream channel; (2) streambank
terraces of dark-brown loamy clay in dense Helianthus nuttallii
(Nuttall's sunflower) / Solidago canadensis (Canada goldenrod ) /
Phleum pratense (timothy) grass community; and (3) grassy terrace
dominated by Agrostis stolonifera, Poa pratensis, Elymus smithii (wild
rye), and Melilotus albus (white sweetclover) on brown clay-loam (WNDD
2004). Populations are small and inside fenced areas where bulls are
kept, but much more common in surrounding upland sites where grazing is
moderate and willow and thistle are not well established; the plants
are less abundant where growth of snowberry is thick (WNDD 2004). The
population within this reach has been growing in years leading up to
the last survey date and is located in habitat in good condition.
One subpopulation of Gaura neomexicana ssp. coloradensis has been
found on the eastern edge of T18N R68W Section 21. Habitat is primarily
PEMA containing primary constituent elements and extends from the
middle of Section 21 through the adjacent Section 22 to the east. There
is a natural break in habitat approximately in the center of Section 21
at which point the PEMA habitat changes to scrub-shrub and continues
upstream (to the southwest) through the remainder of Section 21. We did
not propose critical habitat beyond this natural break. Proposed
critical habitat includes Section 22 to the east because: (a) Suitable
habitat with primary constituent elements continues throughout Section
22; (b) the subpopulation of plants in Section 21 is very close to the
border of Section 22; and (c) Section 22 is downstream of 21 and it is
likely that this upstream subpopulation has dispersed seeds into
Section 22.

Unit 4: Little Bear Creek/Horse Creek

Unit 4 consists of two stream reaches encompassing a total of 2,480
ac (1,004 ha) along 36.1 stream mi (58.1 km) within the Little Bear
Creek and Horse Creek drainages in Laramie County, Wyoming. This unit
is primarily under private ownership, but includes some Wyoming State
lands.
Reach 1: Habitat for Gaura neomexicana ssp. coloradensis within

[[Page 47842]]

this reach occurs in four main types: (1) Moist hay meadows; (2) wild
licorice thickets in sandy, dry stream channels; (3) depressions in
alluvial meadows away from the main stream channel; and (4) moist
meadows and streambanks on alluvium derived from the Ogallala
Formation. Plants appear to be more abundant in hay meadow sites than
other habitat types (WNDD 2004). Subpopulations of G. n. ssp.
coloradensis have been found throughout Little Bear Creek from the
southwest end of Unit 4 in T18N R68W Section 36, extending northeast
approximately 12 stream mi (19 km) to the southwestern corner of T18N
R67W Section 23. It is likely that subpopulations occur within Section
35, the section adjacent to, and just upstream of, Section 36 on Little
Bear Creek, where a subpopulation resides very close to the section
border. Subpopulations also have been found along the Paulson Branch of
Little Bear Creek from T17N R68W Section 2 on the southwest end of Unit
4, extending northwest approximately 5 stream mi (8 km) to Section 31
where it merges with Little Bear Creek. Habitat throughout Little Bear
Creek and the Paulson Branch stream reaches is primarily identified as
PEMC intermixed with PEMA, containing primary constituent elements
throughout. Proposed critical habitat on the northern and eastern end
of the unit was extended to include all of Section 23 because suitable
habitat with primary constituent elements continues throughout this
section and it is likely that the subpopulation in the southwestern
corner of this section has dispersed seeds into the remainder of this
section. This reach has supported a large number of subpopulations with
a moderate to large number of plants over the years. Because this reach
is reproductively isolated from any others, it likely harbors genotypes
unique to the species that could be important to future species
persistence.
Reach 2: Subpopulations occur in several habitat types: (a) Open
meadow on the edge of a marshy, spring-fed pond; (b) subirrigated
meadows and hay fields in a broad alluvial valley among clumps of Poa
pratensis, Equisetum spp. (horsetail), and Carex spp. (sedges); and (c)
Solidago spp. (goldenrod ) / Glycyrrhiza lepidota (wild licorice ) /
Schizachyrium scoparium (little bluestem) community near the creek; and
(d) on the edges of willow thickets and semi-moist meadows, extending
into a right-of-way. The species is absent from wet sites dominated by
Glyceria spp. (mannagrass) and Carex rostrata (beaked sedge) and from
stream banks where vegetation is overgrown by willow, thistle,
sunflower and goldenrod from succession. Land within this reach is used
extensively for hay production. Subpopulations located downstream of
Brunyansky Draw are large and occupy habitat in good condition where
threats are low (WNDD 2004).
Subpopulations of Gaura neomexicana ssp. coloradensis have been
found along Horse Creek from T17N R67W Section 7 on the west end of
this reach, for approximately 4 mi (6 km) to the east into Section 3.
There is an approximate 3-mi (5-km) stretch encompassing Sections 2, 1,
and 6, in which plants have not been found; however, continuing
downstream to the east subpopulations have been found in the following
3 mi (5 km) in T17N R66W Sections 5, 4, and 3, as well as in Section 10
adjacent (to the south) to Section 3. Habitat throughout the majority
of the reach is PEMC and PEMA, intermixed with scrub-shrub through
Sections 2, 1, and 6. It is likely that subpopulations occur within
Sections 2, 1, and 6 since there are several subpopulations both
upstream and downstream of these sections, and habitat with primary
constituent elements also is present; therefore, these sections were
included in the critical habitat proposal. Including these sections
also is important to maintain connection (i.e., gene flow in terms of
pollen dispersal) between subpopulations upstream and downstream.
Proposed critical habitat was not extended beyond the center of
Section 10 on the east end of the reach because primary constituent
elements are no longer present because of changes in habitat.
Subpopulations have been found in Section 16 along a tributary to Horse
Creek. It is likely that other subpopulations of Gaura neomexicana ssp.
coloradensis also occur downstream of Section 16 closer to its point of
merging with Horse Creek, since habitat and primary constituent
elements are present throughout this tributary. Horse Creek is
important to the species because it harbors several subpopulations
throughout many miles of habitat, contributing considerably to the
objective of maximizing the number of individuals and populations for
species conservation.

Unit 5: Lodgepole Creek West

Unit 5 consists of 1,067 ac (432 ha) along 15 stream mi (24.2 km)
of Lodgepole Creek in Laramie County, Wyoming. This unit is primarily
under private ownership, but includes some Wyoming State lands.
Occupied habitat within this unit includes moist meadows, streambanks,
and hayfields and pastures along the creek, primarily areas where the
land slopes gently down to the creek, creating flat, alluvial deposits
below the surrounding hills (WNDD 2004). Some sites are becoming choked
with willows and other vegetation. Ungrazed habitat west of Interstate
25 is being invaded by Salix exigua (sandbar willow) and other forbs.
Subpopulations of Gaura neomexicana ssp. coloradensis have been found
along Lodgepole Creek from T16N 68W Section 24 on the western edge of
this unit, extending 12 stream mi (19 km) east to T15N R66W Section 3.
Habitat throughout this stream reach is primarily identified as PEMC
intermixed with PEMA, containing primary constituent elements
throughout its entirety. Therefore, it is likely that the plant also
occurs in Sections 27 and 28 which occur in the middle of the reach,
adjacent to sections upstream and downstream in which subpopulations
have been found, and in Section 2 on the eastern end just downstream of
a subpopulation in the adjacent Section 3. This unit has supported a
large number of small, and a few large, subpopulations over the years
in a variety of habitat types and land management practices. The number
of subpopulations within the variety of habitat may represent a number
of locally selected genotypes existing under unique conditions,
providing an important contribution to the long-term conservation of
the species.

Unit 6: Lodgepole Creek East

Unit 6 consists of two stream reaches encompassing a total of 1,683
ac (681 ha) along 24.8 stream mi (40 km) of Lodgepole Creek in Laramie
County, Wyoming, and in Kimball County, Nebraska. This unit is
primarily under private ownership with some Wyoming State lands.
Reach 1: Habitat occupied by subpopulations within this reach is
sandy and silty loam alluvium along the creek in mowed and grazed hay
fields and horse pastures. The area is managed for livestock grazing
and hay production, mowed late in the season and used for winter
pasture. The largest subpopulation was found on a heavily grazed
meadow. Although little impact from exotic plant species was found in
1997, spraying herbicides for weed control is likely the greatest
threat to habitat at this site (WNDD 2004).
Subpopulations of Gaura neomexicana ssp. coloradensis have been
found along Lodgepole Creek from Thompson Reservoir Number 2 in T14N

[[Page 47843]]

R62W Section 4 on the eastern edge of this unit, extending
approximately 13 mi (21 km) west to T15N R64W Section 27 on the reach's
western edge. Habitat throughout this stream reach is primarily
identified as PEMC with sparse amounts of PEMA, containing primary
constituent elements throughout its entirety. The only section in which
subpopulations have not been located is T15N 63W Section 28,
approximately in the middle of the reach. Because this section contains
primary constituent elements and populations occur both upstream and
downstream, it is likely that the plant also occurs here. A natural
break in habitat type occurs within the westernmost Section 27, beyond
which primary constituent elements are no longer found and
subpopulations have not been located, providing a logical western
boundary for proposed critical habitat designation. On the eastern
boundary of this reach, subpopulations have been found 0.5 mi (0.8 km)
upstream of Thompson Reservoir Number 2, and, because this portion of
the reach also contains primary constituent elements, plants likely
occur throughout this portion of Section 4 as well. Subpopulations have
not been found downstream of the reservoir, which provides a natural
eastern boundary for the proposed critical habitat. This reach supports
some of the largest populations surveyed, on some of the best habitat
with the fewest impacts.
Reach 2: Habitat within this reach is described as hay meadows with
silty loam alluvium along the creek (WNDD 2004). The site is mowed for
hay, sprayed for Canada thistle, and used for winter grazing.
Subpopulations of Gaura neomexicana ssp. coloradensis have been found
along Lodgepole Creek from T14N R58W Section 8 in western Nebraska,
extending west approximately 4.4 mi (7.1 km) to T14N 60W Section 10 in
Wyoming. One subpopulation was found along Spring Creek approximately
0.75 mi (1.2 km) upstream of its confluence with Lodgepole Creek in
Section 10. Habitat throughout the entire reach is primarily identified
as PEMA intermixed with PEMC, containing primary constituent elements
throughout. It is likely that the plant occurs throughout Section 8 in
Nebraska, just downstream of subpopulations found within the western
portion of this section. Similar to Reach 1, this reach supports some
of the larger populations located on some of the best habitat.

Unit 7: Borie

Unit 7 consists of three stream reaches encompassing a total of
1,141 ac (462 ha) along 17.2 stream mi (27.7 km) along Diamond Creek,
Spring Creek, and Lone Tree Creek in Laramie County, Wyoming. This unit
is primarily under private ownership, with some Wyoming State lands and
lands owned by the city of Cheyenne, Wyoming.
Reach 1: Habitat within this reach is described as silty loam
alluvium along Diamond Creek and a small reservoir in a residential
greenbelt, hayfields, and pastures (WNDD 2004). This site is in close
proximity to a number of roads, a dam, and a housing subdivision, and
is subject to livestock grazing. This population is confluent with
another population downstream along Diamond Creek on WAFB. Hay fields
are intensively plowed and fertilized, and herbicide has been used in
the greenbelt to help control a serious thistle problem. Some plant
mortality has been observed due to herbicide spraying. Subpopulations
of Gaura neomexicana ssp. coloradensis have been found along Diamond
Creek from the eastern boundary of this reach within T14N R67W Section
33, adjacent to WAFB, approximately 3.5 mi (5.6 km) southwest to T13N
R67W Section 6. Subpopulations also have been found along smaller,
unnamed tributaries to Diamond Creek from the eastern edge of T14N 67W
Section 32 approximately 2 mi (3 km) upstream within several small
tributaries in Section 31 and T13N R67W Section 6. Habitat throughout
this entire reach is PEMC intermixed with PEMA, containing primary
constituent elements throughout. Section boundaries on the western edge
of this reach provide easily identifiable boundaries, as does WAFB on
the eastern edge. This reach supports a large number of plants within
several subpopulations, likely harboring considerable genetic variation
contributing to the long-term conservation of this species.
Reach 2: Habitat within this reach is described as the edge of a
field mowed for hay (WNDD 2004). One subpopulation of Gaura neomexicana
ssp. coloradensis has been found along Spring Creek within T13N R67W
Section 18 along the border with Section 17 to the east. Habitat
throughout both sections is PEMC intermixed with PEMA, containing
primary constituent elements throughout. Therefore, it is likely that
plants occur within habitat containing primary constituent elements
upstream of the known subpopulation within Section 18, as well
downstream of the known subpopulation and extend eastward into Section
17. This is the only population within this stream reach, and may
harbor locally adapted genotypes important to the long-term
conservation of the species.
Reach 3: The habitat within this reach is described as marginal
within a meadow that is grazed, and includes an area by a road crossing
that is sprayed for weed control (WNDD 2004). Subpopulations of Gaura
neomexicana ssp. coloradensis have been found along Lone Tree Creek,
from the northwest corner of T13N R67W Section 31, to 5 km (3 mi)
upstream to T13N R68W Section 26. Habitat within this reach is PEMC,
containing primary constituent elements throughout. Section lines
provide a readily identifiable boundary for proposed critical habitat
on the western edge of this reach. Habitat containing primary
constituent elements along Lone Tree Creek extends downstream to the
confluence with Goose Creek within Section 31, and it is likely that
plants occupy this reach or may do so in the future. The confluence
with Goose Creek provides a readily identifiable boundary for proposed
critical habitat on the eastern edge of this reach. Little is known
about this subpopulation that was last surveyed over two decades ago.
However, it is the only population within this creek drainage and
occurs at the southernmost point of the plant's distribution within
Wyoming. It is likely that genetic exchange has not occurred with other
populations, and, therefore, that this population harbors some unique,
locally adapted genotypes that may be important to the species'
persistence.

Unit 8: Meadow Springs Ranch (Colorado)

Unit 8 consists of 707 ac (286 ha) within a wet meadow supported by
groundwater within the Meadow Springs Ranch in Weld County, Colorado,
under ownership of the City of Fort Collins, Colorado. Part of the
ranch is used for sewage sludge treatment, and part is used for
livestock grazing by a lease holder. Colonies of plants have been found
throughout the grazed, subirrigated wetland meadow. Several small
groups of Gaura neomexicana ssp. coloradensis have been found on Meadow
Springs Ranch (T11N R67W Section 19), approximately 0.5 mi (0.8 km)
south of Exit # 293 on the east frontage road off of Interstate
25. This population occurs approximately 8 mi (13 km) from the
southernmost population within Wyoming. This geographically and
reproductively isolated population represents the only known naturally-

[[Page 47844]]

occurring population in Colorado. Therefore, this population represents
a unique group of subpopulations at the periphery of the species'
range, and this area is considered essential to the conservation of the
species.

Land Ownership

The vast majority, approximately 90 percent, of proposed critical
habitat is in private ownership. The private lands are primarily used
for grazing and agriculture. Additionally there are small scattered
tracts of State, county and city lands.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.2, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to: Alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, in a March 15, 2001, decision of the United
States Court Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish
and Wildlife Service et al., F.3d 434), the court found our definition
of adverse modification to be invalid. In response to this decision, we
are reviewing the regulatory definition of adverse modification in
relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist the
agency in eliminating conflicts that may be caused by the proposed
action. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. Through this consultation, the
action agency ensures that the permitted actions do not destroy or
adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of 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 critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect Gaura neomexicana ssp.
coloradensis or its critical habitat will require section 7
consultation. Activities on private or State lands requiring a permit
from a Federal agency, such as a permit from the Army Corps under
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from
the Service, or some other Federal action, including funding (e.g.,
Federal Highway Administration or Federal Emergency Management Agency
funding), also will continue to be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat and actions on non-Federal and private lands that are
not federally funded, authorized, or permitted do not require section 7
consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to Gaura neomexicana ssp. coloradensis. We note that such
activities also may jeopardize the continued existence of the species.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Regulation of activities affecting waters of the United States
by the Army Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization by any Federal agency;
(3) Road construction and maintenance, right-of-way designation,
and regulation funded or permitted by the Federal Highway
Administration;
(4) Voluntary conservation measures by private landowners funded by
the Natural Resources Conservation Service;
(5) Licensing of construction of communication sites by the Federal
Communications Commission;
(6) Funding of activities by the U.S. Environmental Protection
Agency, Department of Energy, Federal Emergency Management Agency,
Federal Highway Administration, or any other Federal agency;
(7) Permitting of natural gas pipeline rights-of-way by the Federal
Energy Regulatory Commission; and,
(8) Management and research activities undertaken on the WAFB by
the U.S. Department of Defense.

[[Page 47845]]

We consider all critical habitat units to be occupied by the
species based on the most recent survey data collected for populations
of Gaura neomexicana ssp. coloradensis. To ensure that their actions do
not jeopardize the continued existence of the species, Federal agencies
already consult with us on activities in areas currently occupied by
the species or if the species may be affected by the action.
Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section
4(b)(2) of the Endangered Species Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations and protection. Therefore, areas within the
geographic area occupied by the species that do not contain the
features essential for the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographic
area occupied by the species that do not require special management
also are not, by definition, critical habitat. To determine whether an
area requires special management, we first determine if the essential
features located there generally require special management to address
applicable threats. If those features do not require special
management, or if they do in general but not for the particular area in
question because of the existence of an adequate management plan or for
some other reason, then the area does not require special management.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and actions will be implemented (i.e., those
responsible for implementing the plan are capable of accomplishing the
objectives, and have an implementation schedule or adequate funding for
implementing the management plan); and (3) the plan provides assurances
that the conservation strategies and measures will be effective (i.e.,
it identifies biological goals, has provisions for reporting progress,
and is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
Section 318 of fiscal year 2004 National Defense Authorization Act
(Pub. L. 108-136) amended section 4 of the Act. This provision
prohibits us from designating 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 INRMP prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if we determine in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.
As described above, we identified habitat essential for the
conservation of Gaura neomexicana ssp. coloradensis in Laramie and
Platte Counties in Wyoming; Kimball County in Nebraska; and Weld County
in Colorado. We have examined the INRMP for the WAFB to determine
coverage for G. n. ssp. coloradensis. The INRMP identifies management
issues related to conservation and enhancement of G. n. ssp.
coloradensis and identifies goals and objectives that involve the
protection of populations and habitat for this species. Some objectives
for achieving those goals include: continue to participate in, and
encourage development of, Cooperative Agreements and Memorandum of
Understanding activities with Federal, State, and local government and
support agencies; promote and support the scientific study and
investigation of federally listed species management, conservation, and
recovery; restrict public access in existing and potential habitat
areas; and increase public education of Federally listed species
through management actions, the WAFB Watchable Wildlife Program, and a
Prairie Ecosystem Education Center (WAFB 2001). Based on the beneficial
measures for G. n. ssp. coloradensis contained in the INRMP for WAFB,
we have not included this area in the proposed designation of critical
habitat for Gaura neomexicana ssp. coloradensis pursuant section
4(a)(3) of the Act. We will continue to work cooperatively with the
Department of the Air Force to assist the WAFB in implementing and
refining the programmatic recommendations contained in this plan that
provide benefits to Gaura neomexicana ssp. coloradensis. The non-
inclusion of WAFB demonstrates the important contributions that
approved INRMPs have to the conservation of the species. As with HCP
exclusions, a related benefit of excluding Department of Defense lands
with approved INRMPs is to encourage continued development of
partnerships with other stakeholders, including States, local
governments, conservation organizations, and private landowners to
develop adequate management plans that conserve and protect Gaura
neomexicana ssp. coloradensis habitat. We found the INRMP provides
benefits for Gaura neomexicana ssp. coloradensis.
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated and revised 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. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species.
In our critical habitat designations, we use both the provisions
outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those
specific areas that are proposed for designation as critical habitat
and those areas that are subsequently designated in a final rule. Lands
we have found do not meet the definition of critical habitat under
section 3(5)(A) or that we have excluded pursuant to section 4(b)(2)
include those covered by the following types of plans if they provide
assurances that the conservation measures they outline will be
implemented and effective: (1) Legally operative HCPs that cover the
species, (2) draft HCPs that cover the species and have undergone
public review and comment (i.e., pending HCPs), (3) Tribal conservation
plans that cover the species, (4) State conservation plans that cover
the species, and (5) National Wildlife Refuge System Comprehensive
Conservation Plans. Currently, no legally operative or draft HCPs,
Tribal conservation plans, State conservation plans, or National
Wildlife Refuge System Comprehensive Conservation Plans cover Gaura
neomexicana ssp. coloradensis.

Economic Analysis

An analysis of the economic impacts of proposing critical habitat
for Gaura neomexicana ssp. coloradensis is being prepared. We will
announce the availability of the draft economic analysis as soon as it
is completed, at which time we will seek public review and comment. At
that time, copies of the draft economic analysis will be available for
downloading from the Internet at http://mountainprairie.fws.gov/species/
plants/cobutterfly/index.htm, or by contacting

[[Page 47846]]

the Wyoming Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

In accordance with our joint policy 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 such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send these peer reviewers
copies of this proposed rule immediately following publication in the
Federal Register. We will invite these peer reviewers to comment,
during the public comment period, on the specific assumptions and
conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing at
least 15 days prior to the close of the public comment period. We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings in the Federal
Register and local newspapers at least 15 days prior to the first
hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? (5) What
else could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to Office of Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street, NW., Washington DC 20240. You may
e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

This document has not been reviewed by the Office of Management and
Budget (OMB), in accordance with Executive Order 12866. The OMB makes
the final determination of significance under Executive Order 12866. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are listed
above in the section on Section 7 Consultation.
The availability of the draft economic analysis will be announced
in the Federal Register and in local newspapers so that it is available
for public review and comments.

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), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the Act
and Executive Order 12866. This draft economic analysis will provide
the required factual basis for the RFA finding. Upon completion of the
draft economic analysis, the Service will publish a notice of
availability of the draft economic analysis of the proposed designation
and reopen the public comment period for the proposed designation for
an additional 30 days. The Service will include with the notice of
availability, as appropriate, an initial regulatory flexibility
analysis or a certification that the rule will not have a significant
economic impact on a substantial number of small entities accompanied
by the factual basis for that determination. The Service has concluded
that deferring the RFA finding until completion of the draft economic
analysis is necessary to meet the purposes and requirements of the RFA.
Deferring the RFA finding in this manner will ensure that the Service
makes a sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (13211) on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed rule to
designate critical habitat for Gaura neomexicana ssp. coloradensis is
not a significant regulatory action under Executive Order 12866, and it
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, 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

[[Page 47847]]

under which $500,000,000 or more is provided annually to State, local,
and tribal governments under entitlement authority,'' if the provision
would ``increase the stringency of conditions of assistance'' or
``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. A Small Government Agency Plan is not
required. State, city and county lands comprise less than 10 percent of
the total proposed designation; the other 90 percent is in private
ownership. Small governments will not be affected at all unless they
proposed an action requiring Federal funds, permits or other
authorization. Any such activity will require that the involved Federal
agency ensure that the action is not likely to adversely modify or
destroy designated critical habitat. However, as discussed above,
Federal agencies are currently required to ensure that such activity is
not likely to jeopardize the species, and no further regulatory impacts
from this proposed designation of critical habitat are anticipated. We
will, however, further evaluate this issue as we conduct our economic
analysis and revise this assessment if appropriate.

Takings

In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. The designation of critical habitat affects only Federal
agency actions. The rule will not increase or decrease the current
restrictions on private property concerning take of Gaura neomexicana
ssp. coloradensis. Because there is no prohibition of take for this
species, and the fact that critical habitat provides no incremental
restrictions, we do not anticipate that property values will be
affected by the proposed critical habitat designation. While real
estate market values may temporarily decline following designation, due
to the perception that critical habitat designation may impose
additional regulatory burdens on land use, we expect any such impacts
to be short term. Additionally, critical habitat designation does not
preclude development of HCPs. Owners of areas that are included in the
designated critical habitat will continue to have opportunity to use
their property in ways consistent with the survival of G. n. ssp.
coloradensis.

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI policy, we requested information from,
and coordinated development of, this proposed critical habitat
designation with appropriate State resource agencies in Wyoming,
Colorado, and Nebraska. The designation of critical habitat in areas
currently occupied by Gaura neomexicana ssp. coloradensis imposes no
additional restrictions to those currently in place and, therefore, has
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the survival of the species are specifically identified.
While making this definition and identification does not alter where
and what federally sponsored activities may occur, it may assist these
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and 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. This proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of Gaura neomexicana ssp. coloradensis.

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. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.

National Environmental Policy Act

It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA 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 assertion was upheld in the courts
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
Ore. 1995), cert. denied 116 S. Ct. 698 (1996). However, when the range
of the species includes States within the Tenth Circuit, such as that
of Gaura neomexicana ssp. coloradensis, pursuant to 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 and notify the public of
the availability of the draft environmental assessment for this
proposal when it is finished.

Government-to-Government Relationship With Tribes

In accordance with the President Clinton's memorandum of April 29,

[[Page 47848]]

1994, ``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally-recognized
Tribes on a government-to-government basis. We have determined that
there are no tribal lands essential for the conservation of Gaura
neomexicana ssp. coloradensis. Consequently, we have not proposed the
designation of critical habitat on Tribal lands and have not undertaken
consultation with any federally-recognized Tribes.

References Cited

A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Wyoming Field Office
(see ADDRESSES section).

Author

The primary author of this package is Tyler Abbott (see ADDRESSES
section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
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]

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

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

2. In Sec. 17.12(h), revise the entry for Gaura neomexicana ssp.
coloradensis under ``FLOWERING PLANTS'' to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Gaura neomexicana ssp. Colorado butterfly U.S.A. (WY, NE, CO) Onagraceae-Evening T 704 17.96(a) NA
coloradensis. plant. Primrose.

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

3. In Sec. 17.96(a), amend paragraph (a) by adding an entry for
Gaura neomexicana ssp. coloradensis in alphabetical order under Family
Onagraceae to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) * * *
Family Onagraceae: Gaura neomexicana ssp. coloradensis (Colorado
butterfly plant)
(1) Critical habitat units are depicted for Laramie County,
Wyoming; Kimball County, Nebraska; and Weld County, Colorado, on the
maps below.
(2) The primary constituent elements of critical habitat for Gaura
neomexicana ssp. coloradensis are the habitat components that provide:
(i) Subirrigated, alluvial soils on level or low-gradient
floodplains and drainage bottoms at elevations of 5,000 to 6,400 feet
(1,524 to 1,951 meters).
(ii) A mesic moisture regime, intermediate in moisture between wet,
streamside communities dominated by sedges, rushes, and cattails, and
dry upland shortgrass prairie.
(iii) Early- to mid-succession riparian (streambank or riverbank)
plant communities that are open and without dense or overgrown
vegetation (including hayed fields, grazed pasture, other agricultural
lands that are not plowed or disced regularly, areas that have been
restored after past aggregate extraction, areas supporting recreation
trails, and urban/wildland interfaces).
(iv) Hydrological and geological conditions that serve to create
and maintain stream channels, floodplains, floodplain benches, and wet
meadows that support patterns of plant communities associated with G.
n. ssp. coloradensis.
(3) Critical habitat does not include man-made structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, roads, parking
lots, other paved areas, lawns, other urban and suburban landscaped
areas, regularly plowed or disced agricultural areas.
(4) The critical habitat is based on U.S. Geological Survey
7.5 quadrangle maps (Borie, Bristol Ridge, Bristol Ridge NE,
Burns, Bushnell, Carr West, Cheyenne North, C S Ranch, Double L Ranch,
Durham, Farthing Ranch, Hillsdale, Hirsig Ranch, Indian Hill, J H D
Ranch, Lewis Ranch, Moffett Ranch, Nimmo Ranch, Pine Bluffs, P O Ranch,
Round Top Lake) and corresponding U.S. Fish and Wildlife Service
National Wetlands Inventory maps. Critical habitat includes areas
occupied by Gaura neomexicana ssp. coloradensis based upon the most
current maps of surveyed subpopulations. Critical habitat also includes
adjacent areas, upstream and downstream, containing suitable hydrologic
regimes, soils, and vegetation communities to allow for seed dispersal
between populations and maintenance of the seed bank. To ease
identification of the critical habitat, the boundaries follow section
lines and major geographical features where feasible. The outward
extent of critical habitat is 300 feet (91 meters) from the center line
of the stream edge (as defined by the ordinary high-water mark). This
amount of land will support the full range of primary constituent
elements essential for persistence of G. n. ssp. coloradensis
populations and should adequately protect the plant and its habitats
from secondary impacts of nearby disturbance.
(5) Note: Index Map follows:BILLING CODE 4310-55-P

[[Page 47849]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.054

[[Page 47850]]

(6) Unit 1: Tepee Ring Creek, Platte County, Wyoming.
(i) This unit consists of 1.5 mi (2.4 km) of Tepee Ring Creek
bounded by the western edge of Sec. 2, T21N R68W, extending downstream
including S2 S2 of Sec. 2; downstream to SW4SW4 Sec. 1, bounded by the
southern line of Sec. 1.
(ii) Note: Map 1 (Unit 1) follows:
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.055

[[Page 47851]]

(7) Unit 2: Bear Creek East, Laramie County, Wyoming.
(i) This unit consists of 11 mi (18 km) of the South Fork of the
Bear Creek. Includes: T19N R67W, NW4 NW4 of Sec. 36; W2 SW4 Sec. 25;
NW4 Sec. 25; NE4 Sec. 25; downstream into T19N R66W, S2 SW4 Sec. 19; N2
SE4 Sec. 19; NW4 Sec. 20; SE4 SW4 Sec. 17; SE4 Sec. 17; S2 NW4 Sec. 16;
N2 NE4 Sec. 16; SE4SE4SE4 Sec. 9; SW4 Sec. 10; S2 NE4 Sec. 10; SW4NE4
Sec. 11; NE4SW4; N2 SE4 Sec. 11; N2 S2 Sec. 12.
(ii) Note: Map 2 (Unit 2) follows:
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.056

[[Page 47852]]

(8) Unit 3: Bear Creek West, Laramie County, Wyoming.
(i) Reach 1 consists of 2.9 stream mi (4.7 km) of an unnamed south
tributary of North Bear Creek in the valley between North Bear Creek
and the North Fork of the South Fork Bear Creek. Includes: T18N R68W,
N2 SW4 Sec. 8; downstream to NW4NW4SE4 Sec. 8; SE4NE4 Sec. 8; NW4NW4
Sec. 9; SE4SW4 Sec. 4; S2 SE4 Sec. 4.
(ii) Reach 2 consists of 2.6 stream mi (4.2 km) of the North Fork
of the South Fork Bear Creek, upstream of Nimmo Reservoir No. 9.
Includes: T18N R68W, SE4SW4 Sec. 17; downstream to N2SW4SE4 Sec. 17;
NW4SE4SE4 Sec. 17; S2 NE4SE4 Sec. 17; NW4SW4 Sec. 16; SE4NW4 Sec. 16;
S2 NE4 Sec. 16.
(iii) Reach 3 consists of 1.7 stream mi (2.8 km) of the South Fork
Bear Creek. Includes: T18N R68W, N2 N2 SE4 Sec. 21; downstream to S2
NW4 Sec. 22; NW4SW4NE4 Sec. 22; SE4NW4NE4 Sec. 22; W2 NE4NE4 Sec. 22.
(iv) Note: Map 3 (Unit 3) follows:

[[Page 47853]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.057

[[Page 47854]]

(9) Unit 4: Little Bear Creek/ Horse Creek, Laramie County,
Wyoming.
(i) Reach 1 consists of 15.6 stream mi (25.1 km) of Little Bear
Creek, which includes approximately 5 stream mi (8 km) of the Paulson
Branch tributary. Little Bear Creek includes: T18N R68W, NW4NW4SW4 Sec.
35; downstream to N2 Sec. 35; N2 Sec. 36. T18N R67W, N2 Sec. 31;
downstream to N2 SW4 Sec. 32; NE4 Sec. 32; NW4NW4NW4 Sec. 33; S2 Sec.
28; NW4SW4 Sec. 27; S2 SE4NW4 Sec. 27; NE4 Sec. 27; SW4 Sec. 28;
SE4SE4NW4 Sec. 28; NE4 Sec. 28. Paulson Branch includes--T18N R68W, N2
SW4 Sec. 2; downstream to S2 NE4 Sec. 2; N2 Sec. 1; T18N 67W, NW4NW4
Sec. 6; SE4SW4 Sec. 31; SE4 Sec. 31.
(ii) Reach 2 consists of 36.1 stream mi (58.1 km) of Horse Creek,
including approximately 2.5 stream mi (4.0 km) of an unnamed tributary
entering from the south just downstream of Brunyansky Draw; and
approximately 1.0 mi (1.6 km) of an unnamed tributary entering on the
far eastern end just east of, and parallel to, Indian Hill Road.
Includes--T17N R67W, S2 SW4 Sec. 7; downstream to SE4 Sec. 7; NW4SW4
Sec. 8; S2 N2 Sec. 8; S2 N2 Sec. 9; NW4 Sec. 10; N2 NE4 Sec. 10; S2 S2
SE4 Sec. 3; N2 N2 NW4 Sec. 11; S2 Sec. 2; NW4SW4 Sec. 1; S2 N2 Sec. 1;
T17N R66W, S2 NW4 Sec. 6; downstream to N2 SE4 Sec. 6; NW4SW4 Sec. 5;
SE4NW4 Sec. 5; SW4NE4 Sec. 5; N2 SE4 Sec. 5; N2 S2 Sec. 4; S2 NE4 Sec.
4; NW4SW4 Sec. 3; S2 N2 Sec. 3; N2 SE4 Sec. 3; W2 SW4 Sec. 2; NE4 Sec.
10.
(iii) Note: Map 4 (Unit 4) follows:

[[Page 47855]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.058

[[Page 47856]]

(10) Unit 5: Lodgepole Creek West, Laramie County, Wyoming.
(i) This unit consists of approximately 15 stream mi (24 km) west
along Lodgepole Creek from State highway 85. Includes: T16N R68W, N2
Sec. 24; downstream to T16N R67W, S2 N2 Sec. 19; S2 N2 Sec. 20; N2 S2
Sec. 20; N2 SW4 Sec. 21; W2 SE4 Sec. 21; N2 NE4 Sec. 28; W2 NW4 Sec.
27; N2 S2 Sec. 27; SW4NE4 Sec. 27; S2 Sec. 26; S2 SW4 Sec. 25; N2 NE4
Sec. 36; T16N R66W, N2 Sec. 31; downstream to SW4NW4 Sec. 32; SW4 Sec.
32; S2 SE4 Sec. 32; SW4SW4 Sec. 33; SE4SE4 Sec. 33; S2 SW4 Sec. 34;
T15N R66W, N2 N2 Sec. 4; downstream to NE4NW4 Sec. 3; N2 NE4 Sec. 3;
NW4 Sec. 2; SE4 Sec. 2.
(ii) Note: Map 5 (Unit 5) follows:

[[Page 47857]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.059

[[Page 47858]]

(11) Unit 6: Lodgepole Creek East, Laramie County, Wyoming and
Kimball County, Nebraska.
(i) Reach 1 consists of 16.9 mi (27.2 km) of Lodgepole Creek from
approximately 3 mi (5 km) northwest of the town of Hillsdale on the
west end of the reach, downstream to Thomas Reservoir No. 2,
approximately 2.5 mi (4.0 km) northeast of the town of Burns. Includes:
T15N R64W, NE4SW4 Sec. 27; downstream to N2 N2 SE4 Sec. 27; S2 S2 NE4
Sec. 27; N2 S2 Sec. 26; S2 S2 N2 Sec. 26; S2 N2 Sec. 25; NW4SW4 Sec.
25; N2 N2 SE4 Sec. 25; T15N R63W, S2 N2 Sec. 30; downstream to
NE4NE4SE4 Sec. 30; N2 SW4 Sec. 29; SE4SE4NW4 Sec. 29; S2 NE4 Sec. 29;
S2 Sec. 28; S2 S2 Sec. 27; N2 N2 Sec. 34; N2 N2 Sec. 35; S2 SE4SE4 Sec.
26; S2 S2 Sec. 25; T15N R62W, SW4SW4 Sec. 30; downstream to N2 Sec. 31;
SW4 Sec. 32; T14N R62W, NE4NE4NW4 Sec. 5; downstream to N2 NE4 Sec. 5;
NW4 Sec. 4; SW4SW4NE4 Sec. 4; S2 Sec. 4.
(ii) Reach 2 consists of 1.4 mi (2.3 km) of Lodgepole Creek in
Wyoming from north of the town of Pine Bluffs extending downstream
approximately 5.5 stream mi (8.9 km) beyond the Wyoming State line into
Kimball County, Nebraska. This reach also includes approximately 1.0
stream mi (1.6 km) of Spring Creek in Wyoming, west of the point of
merging with Lodgepole Creek. In Wyoming, includes: T14N R60W, N2 NW4
Sec. 10; downstream to NW4NE4 Sec. 10; S2 S2 SE4 Sec. 3; SW4SW4 Sec. 2;
NE4NW4 Sec. 11.
(iii) In Nebraska, includes: T14N R59W, N2 N2 SE4 Sec. 11;
downstream to S2 S2 NE4 Sec. 11; S2 S2 NW4 Sec. 12; S2 Sec. 12. T14N
R58W, S2 Sec. 7; downstream to S2 Sec. 8.
(iv) Note: Map 6 (Unit 6) follows:

[[Page 47859]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.060

[[Page 47860]]

(12) Unit 7: Borie, Laramie County, Wyoming.
(i) Reach 1 consists of 9.4 stream mi (15.1 km) along Diamond Creek
west of F.E. Warren Air Force Base and other smaller tributaries
merging from the north. Includes: T14N R67W, N2 Sec. 33; upstream to
NW4SW4 Sec. 33; S2 NE4 Sec. 32; E2 SE4 Sec. 32; SW4 Sec. 32; S2 Sec.
31; T13N R67W, N2 Sec. 5; upstream to NW4NW4SW4 Sec. 5; S2 Sec. 6.
(ii) Reach 2 consists of 2.5 stream mi (4.0 km) of Spring Creek.
Includes: T13N R67W, N2 S2 Sec. 18; downstream to N2 S2 Sec. 17; SW4NW4
Sec. 17.
(iii) Reach 3 consists of 4.4 stream mi (7.1 km) of Lone Tree
Creek, and approximately 1.0 mi (1.6 km) of an unnamed tributary to the
north of Lone Tree Creek. Includes: T13N R68W, N2 NE4 Sec. 26;
downstream to NE4NE4NW4 Sec. 26; N2 Sec. 25; SE4 Sec. 25; T13N R67W,
NW4 Sec. 31; downstream to NE4SW4 Sec. 31.
(iv) Note: Map 7 (Unit 7) follows:

[[Page 47861]]
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.061

[[Page 47862]]

(13) Unit 8: Meadow Springs Ranch, Weld County, Colorado.
(i) This unit consists of 707 ac (286 ha) within the Meadow Springs
Ranch, Weld County, Colorado. Includes: T11N R68W, E2SE4 Sec. 24;
NW4NW4 Sec 25; T11N R67W, SW4 Sec. 19; S2 SE4 Sec. 19; N2 Sec. 30; SE4
Sec. 30; NE4SW4 Sec. 30; W2 NW4 Sec. 29; SW4 Sec. 29; SW4SE4 Sec. 29.
(ii) Note: Map 8 (Unit 8) follows:
[GRAPHIC]
[TIFF OMITTED]
TP06AU04.062

* * * * *

Dated: July 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-17576 Filed 8-5-04; 8:45 am]
BILLING CODE 4310-55-C

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

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