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: January 11, 2005 (Volume 70, Number 7)]
[Rules and Regulations]
[Page 1939-1970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja05-11]
[[Page 1940]]

-----------------------------------------------------------------------

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

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

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

-----------------------------------------------------------------------

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

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

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

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

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection
to Species

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

Background

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

Previous Federal Actions

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

[[Page 1941]]

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

Summary of Comments and Recommendations

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

Peer Review

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

Peer Review Comments

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

[[Page 1942]]

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

State Agencies

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

[[Page 1943]]

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

Public Comments

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

[[Page 1944]]

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

[[Page 1945]]

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

[[Page 1946]]

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

[[Page 1947]]

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

Summary of Changes From the Proposed Rule

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

Critical Habitat

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

[[Page 1948]]

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

Methods and Criteria

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

Criteria Used To Identify Critical Habitat

In our delineation of the critical habitat units, we selected areas
to provide for the conservation of G. n. ssp. coloradensis at seven
sites where previously known subpopulations occur. Much of what is
known about the specific physical and biological requirements of G. n.
ssp. coloradensis is described in the Primary Constituent Elements section.
The Service worked with the WSA, the Wyoming Association of
Conservation Districts, the WDA, the NRCS in Wyoming and Nebraska, the
City of Fort Collins in Colorado, the City of Cheyenne in Wyoming, and
several individual landowners to develop Wildlife Extension Agreements
(WEAs) to provide for the conservation of G. n. ssp. coloradensis.
These WEAs include specific on-the-ground actions to alleviate specific
threats, such as: allowing the Service access to private land to
conduct annual monitoring of G. n. ssp. coloradensis populations to
evaluate success of management actions under the agreement;
establishing an adaptive management approach to evaluate success of
management actions under the agreement; and facilitating the collection
of data needed for future recovery of the species. WEAs provide
specific measures to address potential threats due to herbicide
application, livestock grazing, and hay production. Through cooperation
and communication between landowners and the Service, such WEAs 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 WEAs is the Service's preferred approach to
protecting the species on private lands. The Service has pursued such
agreements to the fullest extent practicable prior to finalizing
critical habitat. In several locations throughout the species' known
range of occurrence, the Service has determined that the benefits of
excluding an area from critical habitat designation subject to one of
these agreements outweigh the benefits of including it in the final
critical habitat designation. Currently, 11 such agreements are in
place. Accordingly, the Service has excluded 1,038 ha (2,564 ac) along
59 km (37 mi) of stream from final critical habitat designation
pursuant to section 4(b)(2) of the Act.
The Service has worked with landowners to gain access to private
lands to survey for plant populations. Most of these populations had
not been surveyed since 1998, earlier in some cases. Field surveys were
conducted during the summer of 2004 within 80 percent of all habitat
previously known to be occupied by G. n. ssp. coloradensis.
Reproductively mature G. n. ssp. coloradensis plants were found on
35 of the previously known subpopulation locations, or approximately 60
percent; 24 new subpopulations also were identified, in addition to
many scattered individual plants between subpopulations. Based on
information provided by these surveys, the Service has further refined
the critical habitat designation from the original proposal.
We designate critical habitat on lands on which the PCEs are found.
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 designation.
Much of the survey data on which this 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, or 2004, surveys. This is particularly true
for those areas containing the PCEs 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.
In our delineation of the critical habitat units, we selected areas
to provide for the conservation of G. n. ssp. coloradensis in all areas
where it is known to occur, except WAFB (see discussion in ``Exclusions
From Critical Habitat, Lands Under U.S. Air Force Jurisdiction''
section) and those areas for which WEAs have been secured. All units
are essential because G. n. ssp.

[[Page 1949]]

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 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 and resources.
Although we are not designating 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 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 provides a benefit to G. n. ssp. coloradensis. Consequently, we
did not consider habitat supporting populations located on WAFB for
designation as critical habitat.
Designating critical habitat is one mechanism for providing habitat
protection for G. n. ssp. coloradensis populations. However, the
benefits of protecting extant populations through conservation
agreements, by partnering with private landowners on whose property
populations occur, outweigh the benefits of designating critical
habitat for this species. Greater protection results from conservation
agreements that restrict 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.
The designation of critical habitat, in and of itself, does not provide
similar restrictions. 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. In addition, there is no
mechanism in the critical habitat provisions of the ESA to either
promote voluntary active conservation measures or to require them.

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 designate 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 (PCEs) 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 PCEs 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
1,524 to 1,951 m (5,000 to 6,400 ft). 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 33 to 41 cm (13 to 16 in), 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 G. n. ssp.
coloradensis habitat are important PCEs. 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 G. n. 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 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 G. n. ssp. coloradensis
habitat also depends on impacts of drought, fires, windstorms,
herbivory, and other natural events. G. n. ssp. coloradensis

[[Page 1950]]

requires open, early- to mid-succession riparian habitat experiencing
periodic disturbance. While non-natural disturbance (e.g., road
construction, housing development) may encourage establishment of
noxious weeds, periodic disturbance is necessary to control competing
vegetation, and to create open, bare ground for seedling establishment
(Fertig 2001). Salix exigua (coyote willow), Cirsium arvense (Canada
thistle), and Euphorbia esula (leafy spurge) 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 PCEs for Gaura neomexicana ssp.
coloradensis are:
(1) Subirrigated, alluvial soils on level or low-gradient
floodplains and drainage bottoms at elevations of 1,524 to 1,951 m
(5,000 to 6,400 ft).
(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 that are disced every 5-10 year at a
depth of 8-12 inches, 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 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, landscaped areas, regularly plowed or disced agricultural areas,
and other features not containing any of the PCEs are not critical habitat.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the areas on
which the PCEs are found and which may require special management
considerations or protections. For G. n. ssp. coloradensis, special
management considerations include maintaining existing management
regimes that produce surface or subsurface water flows that provide the
essential hydrological regime that supports the species (PCEs 1, 2, and
4); appropriate application of herbicides used to control noxious weeds
(PCE 3); and preventing harmful habitat fragmentation from residential
and urban development that detrimentally affects plant-pollinator
interactions, local hydrologic patterns and moisture regimes, leads to
a decline in species reproduction, and increases susceptibility to
overgrowth by non-native plant species (PCEs 1, 2, 3, and 4). 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 (PCEs 2 and 3).

Critical Habitat Designation

We are designating seven units as critical habitat for G. n. 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. The 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 (7)
Borie in Wyoming.
The approximate area encompassed within each critical habitat unit
is shown in Table 1.

Table 1.--Final Critical Habitat Units for Gaura neomexicana ssp. coloradensis
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage change from
Critical habitat unit Proposed acres (hectares) Final acres (hectares) proposal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Tepee Ring Creek...................................... 107 (43) 107 (43) 0
Unit 2: Bear Creek East....................................... 801 (324) 358 (145) 55
Unit 3: Bear Creek West....................................... 500 (202) 500 (202) 0
Unit 4: Little Bear Creek/Horse Creek......................... 2,480 (1,004) 807 (327) 67
Unit 5: Lodgepole Creek West.................................. 1,067 (432) 902 (365) 15
Unit 6: Lodgepole Creek East.................................. 1,683 (681) 378 (153) 78
Unit 7: Borie................................................. 1,141 (462) 486 (197) 57
Unit 8: Meadow Springs Ranch.................................. 707 (286) 0 (0) 100
-------------------------------
Total..................................................... 8,486 (3,434) 3,538 (1,432)
--------------------------------------------------------------------------------------------------------------------------------------------------------

The majority of the acreage occurs on privately owned land. We know
of no Federal, tribal, or military lands within these boundaries. There
is a small portion of land within Units 1, 2, 3, 4, 5, 6, and 7 that
are owned by the State of Wyoming. We present brief descriptions of all
units, and reasons why the PCEs essential for the conservation of G. n.
ssp. coloradensis may be in need of special management or protection, below.

Unit 1: Tepee Ring Creek

Unit 1 consists of 43 ha (107 ac) along 2.4 km (1.5 mi) of Tepee
Ring Creek in Platte County, Wyoming, and is under private ownership.
One subpopulation of G. n. ssp. coloradensis has been found along Tepee
Ring Creek in the lower SE corner of T21N R68W Section 2. Habitat 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 (Service 1993). It is likely that G. n. ssp.
coloradensis occurs in Section 1 downstream of the subpopulation in
Section 2, based on presence of PCEs but this area is not included in
this unit. This unit contains areas which represent the northernmost
extent of the subspecies' known range of occurrence. This unit is
separated by approximately 40 km (25 linear mi)

[[Page 1951]]

from the closest population and provides conditions that are conducive
to locally adaptive genetic variability not found in other populations.
This unit may require special management for appropriate levels of
grazing needed to maintain open habitat, and the application of
herbicides used to control noxious weeds.

Unit 2: Bear Creek East

Unit 2 consists of 145 ha (358 ac) along 8 km (5 mi) of the South
Fork of the Bear Creek and the Bear Creek in Laramie County, Wyoming.
Surveys during 2004 revealed reproductively mature G. n. ssp.
coloradensis plants in the South Fork of the Bear Creek from T19N67W
Section 25, extending northeast to Section 17, and within T19N66W
Section 11, bordering Section 12. This unit is primarily under private
ownership. Habitat within this stream reach is primarily identified as
PEMC intermixed with PEMA. Surveys during 2004 revealed that Section 36
on the southwestern end of the originally proposed unit, and Sections
16, 9, 10 and the eastern half of Section 12 contained no G. n. ssp.
coloradensis plants and, that in some areas containing PCEs were not
present. Therefore, these areas were removed from this unit. 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, conditions surrounding subpopulations
within this area are conducive to locally adapted genotypes not found
in other populations. Special management in this unit may require
timing the cutting of hay with fruit and seed set of G. n. ssp.
coloradensis, and for the application of herbicides used to control
noxious weeds.

Unit 3: Bear Creek West

Unit 3 consists of three stream reaches encompassing a total of 202
ha (500 ac) along 11.7 km (7.3 mi) of stream within the Bear Creek
drainage in Laramie County, Wyoming. This unit is primarily under
private ownership, but includes some Wyoming State lands. This unit may
require special management for appropriate levels of grazing needed to
maintain open habitat, and the application of herbicides used to
control noxious weeds.
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). Several subpopulations of G. n. ssp. coloradensis were
found during surveys of 2004 throughout this entire reach. This reach
supports a large population with good reproduction and has good condition.
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). Several
subpopulations of Gaura neomexicana ssp. coloradensis were found during
surveys of 2004 throughout this entire reach. This location represents
the uppermost elevation within the species' known range of occurrence.
Historically it has supported a large population located in habitat
that contains few threats; conditions that remain present today.
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).
Several subpopulations of G. neomexicana ssp. coloradensis were found
during surveys of 2004 throughout this entire reach, including T18N
R68W Section 21 and 22. 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 designate
critical habitat beyond this natural break.

Unit 4: Little Bear Creek/Horse Creek

Unit 4 consists of two stream reaches encompassing a total of 327
ha (807 ac) along 18.8 km (11.7 mi) of stream 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. This unit may require special management for appropriate levels
of grazing needed to maintain open habitat in some areas; special
management to maintain surface or subsurface water flows; and for the
application of herbicides used to control noxious weeds.
Reach 1: Surveys conducted during 2004 found scattered individual
plants and subpopulations of G. n. ssp. coloradensis throughout most of
this reach. One or more PCEs were not present within the portions of
this reach that the Service eliminated from the final critical habitat
designation. Habitat throughout Little Bear Creek and the Paulson
Branch stream reaches is primarily identified as PEMC intermixed with
PEMA. 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, conditions surrounding
resident subpopulations are conducive to locally adapted genetic
variation important to future species persistence.
Reach 2: Surveys conducted during 2004 found many subpopulations
and individual plants of G. n. ssp. coloradensis throughout most of the
Horse Creek drainage originally proposed as critical habitat, including
Brunyansky Draw. One or more of the PCEs was not present within the
Horse Creek drainage west of Interstate 25; therefore, the Service
eliminated this portion of the original proposal from the final
critical habitat designation. With the exception of the far eastern
portion of the originally proposed reach, the remainder of the proposed
reach within Horse Creek was included in a WEA for the conservation of
G. n. ssp. coloradensis, and was dropped from the final critical
habitat designation. While the far eastern end of the proposed
designation was not surveyed during 2004 (permission was not granted by
the landowner), observations during 2004 surveys of adjacent land
revealed the presence of PCEs and suitable habitat. This area is not
included in a WEA, PCEs are present, many subpopulations were found
during 2004 surveys on adjacent land, and the last surveys conducted in
this area found G. n. ssp. coloradensis, this portion of the proposed
critical habitat was included in the final designation. The Service did
not designate critical habitat beyond the center of Section 10 on the
east end of this reach because the PCEs are not present.

Unit 5: Lodgepole Creek West

Unit 5 consists of 365 ha (902 ac) along 20.4 km (12.7 mi) of
Lodgepole Creek in Laramie County, Wyoming. This unit is primarily
under private ownership, but includes some Wyoming

[[Page 1952]]

State lands. Subpopulations of G. n. ssp. coloradensis have been found
along Lodgepole Creek from T16N 68W Section 24 on the western edge of
this unit, extending 19 km (12 mi) of stream east to T15N R66W Section
3. Surveys conducted during 2004 revealed several subpopulations of G.
n. ssp. coloradensis present throughout T16N R67W Sections 19 and 20.
Access was denied for 2004 surveys throughout the remainder of the
unit. We finalized a WEA with the landowner of Sections 19 and 20
because the areas did not contain the PCEs for G. n. ssp. coloradensis.
Sections 19, 20, and 24 were removed from this unit.
Habitat throughout the designated critical habitat stream reach is
primarily identified as PEMC intermixed with PEMA. 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
conditions not found elsewhere, providing an important contribution to
the long-term conservation of the species. This unit may require
special management for appropriate levels of grazing needed to maintain
open habitat in some areas, and management for reduced levels of
grazing in others; special management to maintain surface or subsurface
water flows; and the application of herbicides used to control noxious
weeds.

Unit 6: Lodgepole Creek East

Unit 6 consists of one stream reach encompassing a total of 153 ha
(378 ac) along 8.4 km (5.2 mi) of Lodgepole Creek in Laramie County,
Wyoming. This unit is primarily under private ownership with some
Wyoming State lands.
The area is managed for livestock grazing and hay production, mowed
late in the season and used for winter pasture. Previous surveys found
subpopulations of Gaura neomexicana ssp. coloradensis along Lodgepole
Creek from Thompson Reservoir Number 2 in T14N R62W Section 4 on the
eastern edge of this unit, extending west to T15N R64W Section 27 on
the unit's western edge. However, 2004 surveys found neither
subpopulations nor PCEs east of Section 32; therefore, the eastern end
of this proposed unit was dropped from final critical habitat
designation. Similarly, 2004 surveys found no subpopulations or PCEs
necessary to provide suitable habitat in the entire eastern reach on
the border of Wyoming and Nebraska (Reach 2 of the proposal);
therefore, the Service eliminated the eastern reach of the proposal
from final critical habitat designation.
While 2004 surveys found subpopulations of the G. n. ssp.
coloradensis throughout the originally proposed western reach (Reach 1)
of this unit, WEAs were secured with several landowners throughout this
area. Therefore, these areas were removed from this unit. For those
areas designated as critical habitat, this stream reach is primarily
identified as PEMC with sparse amounts of PEMA. This unit may require
special management for appropriate levels of grazing needed to maintain
open habitat in some areas, and management for reduced levels of
grazing in others; special management to maintain surface or subsurface
water flows; and the application of herbicides used to control noxious
weeds.

Unit 7: Borie

Unit 7 consists of two stream reaches encompassing a total of 197
ha (486 ac) along 12.3 km (7.6 mi) of Diamond Creek and Lone Tree Creek
in Laramie County, Wyoming. This unit is primarily under private
ownership, with some Wyoming State lands. This unit may require special
management for appropriate levels of grazing needed to maintain open
habitat in some areas, and management for reduced levels of grazing in
others; the application of herbicides used to control noxious weeds;
and preventing harmful habitat fragmentation from residential and urban
development.
Reach 1: This population is confluent with another population
downstream along Diamond Creek on WAFB. Subpopulations of G. n. ssp.
coloradensis have been found along Diamond Creek from the eastern
boundary of this reach within T14N R67W Section 33, adjacent to WAFB,
approximately 5.6 km (3.5 mi) of stream 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 3 km (2 mi) upstream within several small tributaries
in Section 31 and T13N R67W Section 6.
Surveys conducted during 2004 found many subpopulations, including
the largest subpopulation within the plant's known distribution,
throughout all areas surveyed with the exception of two 0.8 km (0.5 mi)
stream segments within Reach 1--these stream segments were dropped from
the final critical habitat designation because they did not contain
PCEs. Because a WEA was secured to provide for the conservation needs
of G. n. ssp. coloradensis within T13N R67W Sections 5 and 6, this
portion of Reach 1 of the proposed critical habitat was dropped from
the final designation. Similarly, because a WEA was secured to provide
for the conservation of the only known subpopulation found within Reach
2 of the proposal, and the remainder of the proposed Reach 2 contained
neither G. n. ssp. coloradensis plants nor PCEs, this entire reach was
dropped from the final designation. Habitat throughout this entire
reach is PEMC intermixed with PEMA. This reach supports a large number
of plants within several subpopulations, conducive to the development
of considerable local genetic variation contributing to the
conservation of this species.
Reach 2: This reach was described as Reach 3 in the proposed
critical habitat rule. Subpopulations of G. n. 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.
Because a WEA has been secured to provide for conservation of G. n.
ssp. coloradensis within Sections 25 and 26, this reach has been
reduced in size accordingly for the final critical habitat designation.
This creek segment occurs at the southernmost point of the plant's
distribution within Wyoming, with very little possibility for genetic
exchange between local subpopulations and other populations that may be
in the general area. Conditions are conducive to locally adapted
subpopulations containing genetic variability important to the species'
long-term persistence.

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.
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

[[Page 1953]]

provide conservation recommendations to assist the agency in
eliminating conflicts that may be caused by the proposed action. We may
issue a formal conference report if requested by a Federal agency.
Formal conference reports on proposed critical habitat contain an
opinion that is prepared according to 50 CFR 402.14, as if 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)). 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 their 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 action 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.
Federal activities that may affect G. n. 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 U.S. Army Corps of Engineers 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 may also jeopardize the continued existence of the G. n. ssp.
coloradensis. Federal activities that, when carried out, may adversely
affect critical habitat for the G. n. ssp. coloradensis include, but
are not limited to:
(1) Any action that changes existing water management practices
including regulation of activities affecting waters of the United
States by the Army Corps of Engineers under section 404 of the Clean
Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization by any Federal agency; and,
(3) Road construction and maintenance, right-of-way designation,
and regulation funded or permitted by the Federal Highway
Administration.
We consider all critical habitat units to be occupied by the
species based on the most recent survey data collected for populations
of G. n. ssp. coloradensis. Survey results found subpopulations of
plants, or scattered individual plants, throughout each critical
habitat unit included in this designation. 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. We consider all lands included in this final designation to be
essential to the conservation of the G. n. ssp. coloradensis.

Exclusions From Critical Habitat

Lands Under U.S. Air Force Jurisdiction

As discussed in the proposed rule, Section 318 of fiscal year 2004
National Defense Authorization Act (Pub. L. 108-136) amended the Act to
address the relationship of INRMPs to critical habitat by adding a new
section 4(a)(3)(B). This provision prohibits the Service 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 the Secretary of the Interior determines
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 G. n. ssp. coloradensis in Laramie and Platte Counties
in Wyoming. 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 conclude that the INRMP provides a benefit to the species and have
not included this area in the designation of critical habitat for G. n.
ssp. coloradensis pursuant to 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 G. n.
ssp. coloradensis. The non-inclusion of WAFB demonstrates

[[Page 1954]]

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 G. n. ssp. coloradensis habitat.

Exclusions Under Section 4(b)(2) of the Act

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.

Wildlife Extension Agreements (WEAs)

We are excluding 11 properties from this final critical habitat
designation that have WEAs in place for Gaura neomexicana ssp.
coloradensis because we believe that they are appropriate for exclusion
pursuant to the ``other relevant factor provisions of section 4(b)(2).
Nine of the WEAs are with private landowners in Wyoming, including one
located in Unit 4 (1,300 ac), one in Unit 5 (145 ac), five in Unit 6
(439 ac), and two in Unit 7 (200 ac). Two WEAs are with city
municipalities including the City of Cheyenne, Wyoming (within Unit 7,
200 ac), and the City of Fort Collins, Colorado (all of Unit 8, 280 ac).
The goals of the above WEAs for the properties are similar in
nature and include the following elements:
(1) Monitoring G. n. ssp. coloradensis populations and habitat
conditions. Data collected during monitoring will include the number of
flowering adult plants and habitat condition. Habitat condition in
areas managed primarily for livestock grazing will be evaluated
according to NRCS (2001) rangeland condition assessment methodology.
Data will provide information regarding the effects of land management
activities on Colorado butterfly plant habitat and population growth;
(2) For those areas managed primarily for hay production,
coordinating hay cutting activity with needs of G. n. ssp. coloradensis
seed production. The landowner agrees to inform the Service prior to
the intended first cutting and allow the Service or its designee the
opportunity to conduct Colorado butterfly plant surveys. The landowner
agrees to allow the Service or its designee at least one additional
opportunity to conduct Colorado butterfly plant surveys after the
initial cutting, and prior to any additional cuttings. If three or more
years of data collection reveals that the conservation needs of the
Colorado butterfly plant could substantially benefit from changes in
hay production activities, the landowner agrees to work with the
Service to modify these activities to the extent feasible;
(3) Controlled application herbicides to no closer than 100 feet of
a known subpopulation of G. n. ssp. coloradensis. Some areas included
in WEAs that are occupied by the Colorado butterfly plant also are
occupied by invasive plant species in need of control, such as Canada
thistle and leafy spurge. While herbicide application may be required
to control the spread of these invasive species, the landowner agrees
to the application of herbicides no closer than 100 feet of a known
subpopulation of the Colorado butterfly plant; and
(4) Managing livestock grazing activities in conjunction with
conservation needs of G. n. ssp. coloradensis. It is assumed that the
Colorado butterfly plant requires habitat in average, or above average,
range condition according to the criteria identified above. However, if
it is found that some other grazing intensity or timing of grazing is
beneficial to the Colorado butterfly plant--resulting in above or below
average range condition as defined by the NRCS criteria above--then
that identified range condition will become the new target for that
location to the extent practicable.
(1) Benefits of Inclusion
Designation of critical habitat provides important information on
those habitats and their primary constituent elements that are
essential to the conservation of the species. This information is
particularly important to any Federal agency, State, county, local
jurisdiction, conservation organization, or private landowner that may
be evaluating adverse actions or implementing conservation measures
that involve those habitats. The benefit of a critical habitat
designation would ensure that any actions authorized, funded, or
carried out by a Federal agency would not likely destroy or adversely
modify any critical habitat. All habitats within this designation are
occupied. In the absence of critical habitat, any section 7
consultation for potential adverse effects to the species would not
ensure adverse modification of critical habitat is avoided; however,
the consultation would ensure the proposed action would not jeopardize
the continued existence of the species in the wild.
Where WEAs are in place, our experience indicates that this benefit
is small. Currently approved WEAs are already designed to address
specific threats to provide for the conservation of Gaura neomexicana
ssp. coloradensis and to implement conservation actions on the ground.
Ninety percent of this species' occurrence is on private land, and, as
a federally threatened plant, there are no prohibitions against take
under the Act. The primary threats to the species on private land
(nonselective herbicide use, grazing, and hay mowing) have no Federal
nexus requiring section 7 consultation and so cannot be addressed
through the statutory prohibition on adverse modification of critical
habitat by Federal agency actions. Since the plants were listed in
October 2000, we have no records indicating that section 7 consultation
has been required for any such activities occurring on private lands.
The likelihood that there will be any need to consult on such
activities in the future is low.
(2) Benefits of Exclusion
Section 10(a)(1)(B) of the Act allows non-Federal parties planning
activities that have no Federal nexus, but which could result in the
incidental taking of listed animals, to apply for an incidental take
permit--the application for which includes a Habitat Conservation Plan
(HCP). However, such a process is unnecessary for a threatened plant
such as G. n. ssp. coloradensis because there are no take prohibitions.
Consequently, an HCP is an unduly demanding mechanism by which to
protect the conservation needs of this species, one unlikely to be
undertaken by landowners.
The WEAs, as written, meet the Service's criteria for providing
adequate management protection, as outlined on page 47845 of the
proposed rule (August 6, 2004, 69 FR 47834). First, each agreement
provides a conservation benefit to the species (i.e., the agreement
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 agreement). The WEAs provide that each landowner agrees to spray
herbicide no closer than within 31

[[Page 1955]]

meters (100 feet) of a known subpopulation. The landowner agrees to
allow Service representatives access to the project site for data
collection and monitoring G. n. ssp. coloradensis populations on an
annual basis. Data collected during monitoring will include the number
of flowering adult plants and habitat condition. Habitat condition in
areas managed primarily for livestock grazing will be evaluated
according to NRCS rangeland conditions assessment methodology (NRCS
2001). The Service assumes that G. n. ssp. coloradensis requires
habitat in average, or above average, range condition according to the
criteria identified above. However, while it is known that livestock
grazing is compatible with the habitat needs of G. n. ssp.
coloradensis, the optimal level of grazing and resulting range
conditions, is not known. Therefore, the grazing intensity or timing of
grazing that is found to be optimal for G. n. ssp. coloradensis,
resulting in above or below average range condition as defined by the
NRCS criteria above, will become the new target for that location to
the extent practicable.
For those areas primarily managed for hay production, the landowner
agrees to inform the Service prior to the intended first cutting and
allow the Service or its designee the opportunity to conduct G. n. ssp.
coloradensis surveys. The landowner also agrees to allow the Service or
its designee at least one additional opportunity to conduct G. n. ssp.
coloradensis surveys after the initial cutting, and prior to any
additional cuttings. If three or more years of data collection, as
outlined above, reveals that the conservation needs of G. n. ssp.
coloradensis could benefit from changes in hay production activities,
the landowner agrees to work with the Service to modify these
activities to the extent feasible. For example, the landowner may
modify timing of hay cutting in areas of concentrated subpopulations of
G. n. ssp. coloradensis to allow for seed production, or avoid the
cutting altogether of small areas of subpopulations of the plants.
Secondly, the WEAs provide assurances that the conservation
management strategies and actions will be implemented. Each WEA was
developed by the Wyoming Ecological Services Field Office with each
individual landowner to ensure that all data collection and management
activities were readily achievable during the key July-August flowering
season for this species, while meeting the needs of the landowner. The
Wyoming Field Office is responsible for implementing these agreements
and is fully capable of accomplishing all objectives within each WEA
each year.
Thirdly, each WEA provides assurances that the conservation
strategies and measures will be effective. As outlined in details
above, each WEA contains biological goals appropriate for the
subpopulations on property included in the WEA, as well as provisions
for monitoring, evaluating success, and modifying targets and
management activities as more information becomes available through
data collection. Considering the average lifespan of each plant is
three years, a 15-year term allows for the management and study of five
generations of plants, providing sufficient time to address effects of
long term climatic trends (e.g., drought) and their interactions with
approaches to management.
Lastly, while the Service criteria provide guidance to Service
staff and the public on the nature of agreements highly likely to
result in exclusions, they in no way limit the Secretary's discretion
to exclude areas under the statutory standards, and so we could
properly exclude these areas even if they did not comply with the
Service's criteria for conservation agreements for the reasons set out
below.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act and the recent Federal
District Court decision concerning critical habitat (Center for
Biological Diversity v. Norton, Civ. No. 01-409 TUC DCB D. Ariz. Jan.
13, 2003), we have determined that the benefits of excluding the
properties encompassed by the 11 WEAs, located in portions of Unit 4,
Unit 5, Unit 6, Unit 7, and all of Unit 8s, outweigh the benefits of
including them as critical habitat for G. n. ssp. coloradensis.
Under the WEAs outlined above, the landowners and the Service will
protect G. n. ssp. coloradensis from the key threats to the species on
private lands that would otherwise continue notwithstanding a critical
habitat designation. For example, controlled use of herbicides will
eliminate mortality and increase survival rates of rosettes and
reproductively mature plants. Grazing management will reduce direct
mortality of reproductively mature plants and enable soils to maintain
moisture content necessary for seed germination and rosette recruitment
by eliminating overgrazing. At the same time, grazing will maintain an
early- to mid-successional open habitat necessary for seed germination
and rosette recruitment. Timing hay mowing to facilitate complete
development of fruits and seeds will increase population size and
ensure maintenance of genetic variation within populations. Increased
fruit and seed set also will increase the long term viability of the
population by contributing to the seed bank. Therefore, the WEAs that
include actions to address the conservation needs of the species
provide a biological benefit to the species, especially in light of
concerns related to demographic uncertainty, low genetic variation, and
limited colonization. All of the above allow the Service to manage the
species proactively, instead of waiting for, and responding to, project
level impacts involving a Federal nexus (which, as explained above, are
expected to be infrequent).
In addition, by providing a perceived benefit to the landowner by
exempting their lands from critical habitat in return for entering into
this agreement, we encourage future cooperation in undertaking
voluntary conservation measures for listed species by these and other
landowners. We note again that the ESA has no statutory mechanism to
either encourage or require the ``special management or protection''
that may be needed for the PCEs of listed species on non-Federal land
that might be designated as critical habitat, and these types of
voluntary agreements are currently the only mechanisms for obtaining
these management actions. Because most landowners oppose critical
habitat designation on their lands, such a designation generally
precludes their willingness to undertake conservation measures on
behalf of the species. Yet active conservation measures by landowners
or land managers are generally the only way to conserve the species,
often leaving us with exclusions from critical habitat as the most
practical means of obtaining the ``special management or protection''
the designation was intended to secure.
In conclusion, we find that the exclusion of critical habitat from
portions of Unit 4, Unit 5, Unit 6, Unit 7, and all of Unit 8 would
most likely have a net positive effect on the conservation of G. n.
ssp. coloradensis when compared to the conservation effects of a
critical habitat designation. As described above, the overall benefits
to this species of a critical habitat designation for these properties
are relatively small. In contrast, we believe that this exclusion will
enhance our existing partnership with these landowners, and it will set
an example and provide positive incentives to other

[[Page 1956]]

non-Federal landowners who may be considering implementing conservation
activities on their lands. We conclude that there is a higher
likelihood of beneficial conservation activities occurring in these and
other areas of southeastern Wyoming without designated critical habitat
than there would be with designated critical habitat on these properties.
(4) Conclusion
In considering whether or not exclusion of these properties might
result in the extinction of this species, the Service considered the
impacts to the Gaura neomexicana ssp. coloradensis. For the G. n. ssp.
coloradensis populations located within the Units 4, 5, 6, 7, and 8,
the Service concludes that the WEAs agreed to by the landowners will
provide as much or more net conservation benefits as would be provided
if these properties were designated as critical habitat. These WEAs,
which are described above, will provide tangible proactive conservation
benefits that will reduce the likelihood of extinction for the G. n.
ssp. coloradensis and increase its likelihood of recovery. The
exclusion of these areas will not increase the risk of extinction to
this species, and it may increase the likelihood this species will
recover by encouraging other landowners to implement voluntary
conservation actions as current participants in WEAs have done. In sum,
the above analysis concludes that an exclusion of these properties from
final critical habitat for the G. n. ssp. coloradensis will have a net
beneficial impact with little risk of negative impacts. Therefore, the
exclusion of these lands will not cause extinction and should improve
the chances of conserving the G. n. ssp. coloradensis.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on September 24, 2004. We accepted
comments on the draft analysis until October 25, 2004.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for the G. n. ssp. coloradensis. This information is intended
to assist the Secretary in making decisions about whether the benefits
of excluding particular areas from the designation outweigh the
benefits of including those areas in the designation. This economic
analysis considers the economic efficiency effects that may result from
the designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land-use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
A copy of the final economic analysis with supporting documents are
included in our administrative record and may be obtained by contacting
U.S. Fish and Wildlife Service, Branch of Endangered Species (see
ADDRESSES section) or for downloading from the Internet at
http://mountain-prairie.fws.gov/species/plants/cobutterfly/index.htm.

We received three comment letters on the draft economic analysis of
the proposed designation. Following the close of the comment period, we
considered comments, prepared responses to comments, and prepared a
summary of revisions to economic issues based on final critical habitat
designation (see Responses to Comments section). The economic analysis
indicates that is rule will not have an annual economic effect of $100
million or more. The economic analysis employs a lower and upper
scenario approach to the economic costs. The efficiency costs for the
lower bound scenario are estimated to be $83,890 from 2005 to 2024. The
efficiency costs for the upper bound scenario are estimated to be
$104,690 from 2005 to 2024. The annualized economic effects of this
designation are estimated to be $6,424 (lower bound scenario) and
$8,263 (upper bound scenario). We have excluded 4,948 ac (2,002 ha) of
privately and municipally owned lands analyzed in the draft economic
analysis based on non-economic considerations so the direct economic
impacts of the final designation is likely to be lower than this estimate.

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 final rule easier to understand, including answers to
questions such as the following--(1) Are the requirements in the final
rule clearly stated? (2) Does the final rule contain technical jargon
that interferes with the clarity? (3) Does the format of the final 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 final rule? (5) What else could we do to make this
final rule easier to understand?
Send a copy of any comments on how we could make this final 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

In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific area as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2), if we

[[Page 1957]]

determine that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless we
determine, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
The economic analysis indicates that is rule will not have an
annual economic effect of $100 million or more.

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

Under the Regulatory Flexibility Act (RFA) (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
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of 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. The SBREFA also
amended the RFA to require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number''small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in an area. In
some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect bull trout. Federal agencies also must consult with us if their
activities may affect critical habitat. Therefore, designation of
critical habitat could result in an additional economic impact on small
entities due to the requirement to reinitiate consultation for ongoing
Federal activities.
On the basis of information in our final economic analysis, we have
determined that a substantial number of small entities are not affected
by the critical habitat designation for G. n. ssp. coloradensis.
Therefore, we are certifying that the designation will not have a
significant effect on a substantial number of small entities. The
factual basis for certifying that this rule will not have a significant
economic impact on a substantial number of small entities is as follows.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on G. n. ssp.
coloradensis and its habitat. First, if we conclude, in a biological
opinion, that a proposed action is likely to jeopardize the continued
existence of a species or adversely modify its critical habitat, we can
offer ``reasonable and prudent alternatives.'' Reasonable and prudent
alternatives are alternative actions that can be implemented in a
manner consistent with the scope of the Federal agency's legal
authority and jurisdiction, that are economically and technologically
feasible, and that would avoid jeopardizing the continued existence of
listed species or result in adverse modification of critical habitat. A
Federal agency and an applicant may elect to implement a reasonable and
prudent alternative associated with a biological opinion that has found
jeopardy or adverse modification of critical habitat. An agency or
applicant could alternatively choose to seek an exemption from the
requirements of the Act or proceed without implementing the reasonable
and prudent alternative. However, unless an exemption were obtained,
the Federal agency or applicant would be at risk of violating section
7(a)(2) of the Act if it chose to proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant species,
we may identify reasonable and prudent measures designed to minimize
the amount or extent of take and require the Federal agency or
applicant to implement such measures through non-discretionary terms
and conditions. We also may identify discretionary conservation
recommendations designed to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat, help implement
recovery plans, or to develop information that could contribute to the
recovery of the species.
Based on our experience with consultations pursuant to section 7 of
the Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats

[[Page 1958]]

it faces, as described in the final listing rule and this critical
habitat designation. Within the final critical habitat units, the types
of Federal actions or authorized activities that we have identified as
potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the Army Corps of Engineers under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Regulation of timber harvest, grazing, mining, and recreation
by the Forest Service and Bureau of Land Management;
(4) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Hazard mitigation and post-disaster repairs funded by the
Federal Emergency Management Agency; and
(6) Activities funded by the Environmental Protection Agency, U.S.
Department of Energy, or any other Federal agency.
It is likely that a project proponent could modify a project or
take measures to protect G. n. ssp. coloradensis. The kinds of actions
that may be included if future reasonable and prudent alternatives
become necessary include conservation set-asides, management of
competing nonnative species, restoration of degraded habitat, and
regular monitoring. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule and proposed critical habitat designation. These measures
are not likely to result in a significant economic impact to project
proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. The
most likely Federal involvement could include Army Corps of Engineers
permits, permits we may issue under section 10(a)(1)(B) of the Act,
Federal Highway Administration funding for road improvements,
hydropower licenses issued by the Federal Energy Regulatory Commission,
and regulation of timber harvest, grazing, mining, and recreation by
the Forest Service and Bureau of Land Management. A regulatory
flexibility analysis is not required.
For these reasons, we are certifying that the designation of
critical habitat for G. n. ssp. coloradensis will not have a
significant economic impact on a substantial number of small entities.
Therefore, a regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et. seq.)

Under the SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based enterprises to
compete with foreign-based enterprises. Refer to the final economic
analysis for a discussion of the effects of this determination.

Executive Order 13211

On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This final rule to designate
critical habitat for G. n. ssp. coloradensis 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.), we make 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 under which $500 million or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were--Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal 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 because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, a Small Government Agency Plan is
not required.

[[Page 1959]]

Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with the Department of the Interior and Department
of Commerce policy, we requested information from, and coordinated
development of, this final critical habitat designation with
appropriate State resource agencies in Wyoming, Colorado, and Nebraska.
The designation of critical habitat in areas currently occupied by G.
n. 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. We are designating
areas only in Wyoming. 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 are designating critical habitat in accordance with
the provisions of the Act. This 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 G. n. 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 (Ninth
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 G. n. 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 (Tenth Cir. 1996), we have undertaken a NEPA
analysis for critical habitat designation and have notified the public
of the availability of the Draft EA for the proposed rule when it is
finished. A final EA is available upon request from the Field
Supervisor, Wyoming Fish and Wildlife Office (see ADDRESSES section).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
tribes on a government-to-government basis. We have determined that
there are no tribal lands essential for the conservation of G. n. ssp.
coloradensis. Therefore, designation of critical habitat for the G. n.
ssp. coloradensis has not been designated on tribal lands.

References Cited

A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Wyoming Fish and
Wildlife 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.

Regulation Promulgation

? Accordingly, we proposed 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) * * *

[[Page 1960]]

Family Onagraceae: Gaura neomexicana ssp. coloradensis (Colorado
butterfly plant)
(1) Critical habitat units are depicted for Laramie and Platte
Counties in Wyoming, on the maps below.
(2) The primary constituent elements of critical habitat for Gaura
neomexicana ssp. coloradensis are:
(i) Subirrigated, alluvial soils on level or low-gradient
floodplains and drainage bottoms at elevations of 1,524 to 1,951 meters
(5,000 to 6,400 feet).
(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
Gaura neomexicana 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, aqueducts,
airports, and roads, and the land on which such structures are located.
(4) Final critical habitat units are described below. Data layers
defining map units were created based on U.S. Geological Survey 7.5''
quadrangle maps (Borie, Bristol Ridge, Bristol Ridge NE, Burns,
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 is based on 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 91 meters (300 feet) 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 1961]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.000

(6) Unit 1: Tepee Ring Creek, Platte County, Wyoming.
(i) This unit consists of 2.4 km (1.5 mi) of Tepee Ring Creek
bounded by the western edge of Sec. 2, T21NR68W, extending downstream
including S2S2 of Sec. 2; downstream to SW4SW4 Sec. 1, bounded by the
southern line of Sec. 1.

(ii) Note: Unit 1 (Map 1) follows:

[[Page 1962]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.001

(7) Unit 2: Bear Creek East, Laramie County, Wyoming.
(i) This unit consists of 8 km (5 mi) of the South Fork of the Bear
Creek. Includes T19N R67W, 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; NE4SW4; N2 SE4 Sec. 11; N2 SW4 Sec. 12.

(ii) Note: Unit 2 (Map 2) follows:

[[Page 1963]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.002
[[Page 1964]]

(8) Unit 3: Bear Creek West, Laramie County, Wyoming.
(i) Reach 1 consists of 4.7 km (2.9 mi) 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 4.2 km (2.6 mi) 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; S2NE4SE4 Sec. 17; NW4SW4 Sec. 16; SE4NW4 Sec. 16; S2 NE4 Sec. 16.
(iii) Reach 3 consists of 2.8 km (1.7 mi) of the South Fork Bear
Creek. Includes T18NR68W, N2N2SE4 Sec. 21; downstream to S2NW4 Sec. 22;
NW4SW4NE4 Sec. 22; SE4NW4NE4 Sec. 22; W2 NE4NE4 Sec. 22.

(iv) Note: Unit 3 (Map 3) follows:

[[Page 1965]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.003
[[Page 1966]]

(9) Unit 4: Little Bear Creek/ Horse Creek, Laramie County, Wyoming.
(i) Reach 1 consists of 16 km (10 mi) of Little Bear Creek, which
includes approximately 5 mi (8 km) of the Paulson Branch tributary.
Little Bear Creek includes T18NR68W, NW4NW4SW4 Sec. 35; downstream to
N2 Sec. 35.T18NR67W, N2SW4 Sec. 32; NE4 Sec. 32; NW4NW4NW4 Sec. 33; S2
Sec. 28; NW4SW4 Sec. 27; S2 SE4NW4 Sec. 27. Paulson Branch includes
T18N R68W, N2SW4 Sec. 2; downstream to S2NE4 Sec. 2; N2 Sec. 1;
T18N67W, NW4NW4 Sec. 6; SE4SW4 Sec. 31; SE4 Sec. 31.
(ii) Reach 2 consists of 2.7 km (1.7 mi) of an unnamed tributary to
Horse Creek on the far eastern end just east of, and parallel to,
Indian Hill Road. Includes T17N R66W,W2SW4 Sec. 2; NE4 Sec. 10.

(iii) Note: Unit 4 (Map 4) follows:

[[Page 1967]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.004

(10) Unit 5: Lodgepole Creek West, Laramie County, Wyoming.
(i) This unit consists of approximately 20.4 km (12.7 mi) west
along Lodgepole Creek from State highway 85. Includes T16N R67W, 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, N2N2 Sec. 4;
downstream to NE4NW4 Sec. 3; N2 NE4 Sec. 3; NW4 Sec. 2; SE4 Sec. 2.

(ii) Note: Unit 5 (Map 5) follows:

[[Page 1968]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.005

(11) Unit 6: Lodgepole Creek East, Laramie County, Wyoming.
(i) Consists of 8.4 km (5.2 mi) of Lodgepole Creek from
approximately 3.2 km (2 mi) northeast of the town of Hillsdale on the
west end of the reach, downstream to approximately 0.4 km (0.25 mi)
east of State highway 213, approximately 3.2 km (2 mi) north of the
town of Burns. Includes T15NR64W, N2SW4 Sec. 29; SE4SE4NW4 Sec. 29;
S2NE4 Sec. 29; S2 Sec. 28; S2S2 Sec. 27; N2N2 Sec. 34; N2N2 Sec. 35; S2
SE4SE4 Sec. 26; T15NR62W, N2NW4 SW4 Sec. 32.

(ii) Note: Unit 6 (Map 6) follows:

[[Page 1969]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.006

(12) Unit 7: Borie, Laramie County, Wyoming.
(i) Reach 1 consists of 10.5 km (6.5 mi) along Diamond Creek west
of F.E. Warren Air Force Base and other smaller tributaries merging
from the north. Includes T14NR67W, N2 Sec. 33; upstream to NW4SW4 Sec.
33; S2 NE4 Sec. 32; E2 SE4 Sec. 32; SW4 Sec. 32; SE4 Sec. 31; T13N
R67W, N2N2NE4 Sec. 5.
(ii) Reach 2 consists of 1.7 km (1.1 mi) of Lone Tree Creek.
Includes T13N R67W, NW4 Sec. 31; downstream to NE4SW4 Sec. 31.

(iii) Note: Unit 7 (Map 7) follows:

[[Page 1970]]
[GRAPHIC]
[TIFF OMITTED]
TR11JA05.007

* * * * *

Dated: December 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-239 Filed 1-10-05; 8:45 am]
BILLING CODE 4310-55-C

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

Local Navigation