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DEPARTMENT OF THE INTERIOR provisions of the special rule not rule, administered by the Utah Division relating to these amendments remain of Wildlife Resources (UDWR), was Fish and Wildlife Service unchanged. established in 1984, and amended in 1991. Since that time, we have 50 CFR Part 17 DATES: The effective date of this rule is September 4, 2012. evaluated the take authorized by this [Docket No. FWS–R6–ES–2011–0030: rule and the methods used to implement ADDRESSES: This final rule is available FXES11130900000C6–123–FF09E30000: it. 92220–1113–0000–C6] on the Internet at http:// www.regulations.gov, Docket No. FWS– We considered the available RIN 1018–AW02 R6–ES–2011–0030. Comments and information and public and peer review materials received, as well as supporting comments, and we revise the Endangered and Threatened Wildlife documentation used in the preparation established exemptions to prohibited and Plants; Revising the Special Rule of this rule, are available for public take. We are revising the regulations for for the Utah Prairie Dog inspection, by appointment, during where take is allowed to occur, who may permit take, the amount of take that AGENCY: Fish and Wildlife Service, normal business hours at: U.S. Fish and Wildlife Service, Utah Ecological may be permitted, and methods of take Interior. that may be permitted. We include a ACTION: Final rule. Services Field Office, 2369 West Orton Circle, West Valley City, UT 84119; take exemption for areas where Utah SUMMARY: Under the Endangered telephone 801–975–3330; facsimile prairie dogs create serious human safety Species Act of 1973, as amended (ESA), 801–975–3331. Persons who use a hazards or disturb the sanctity of we, the U.S. Fish and Wildlife Service telecommunications device for the deaf significant human cultural and human (Service/USFWS), revise our special (TDD) may call the Federal Information burial sites. We also provide an regulations for the conservation of the Relay Services (FIRS) at 800–877–8339. exemption for incidental take for Utah prairie dog. We are revising our otherwise legal activities associated FOR FURTHER INFORMATION CONTACT: with standard agricultural practices. special regulations to provide limits to Larry Crist, Field Supervisor, Utah This amendment is largely consistent the allowable take, including limits to Ecological Services Field Office, 2369 with past and current practices and where permitted take can occur— West Orton Circle, Suite 50, West Valley permitting as administered by the agricultural lands, properties within 0.8 City, UT 84119 (telephone 801–975– UDWR and Utah Code (R657–19–6, kilometers (km) (0.5 miles (mi)) of 3330; facsimile 801–975–3331). R657–19–7) under the 1984 special rule, conservation lands, and areas where Individuals who are hearing-impaired or as amended in 1991 (hereafter referred Utah prairie dogs cause serious human speech-impaired may call the Federal to as ‘‘the previous special rules’’). Utah safety hazards or disturb the sanctity of Information Relay Service (FIRS) at prairie dog populations have remained significant human cultural or human 800–877–8339. burial sites; the amount of take that can stable to increasing throughout SUPPLEMENTARY INFORMATION: be permitted; methods of take that can implementation of these special rules, be permitted; and seasonal limitations Executive Summary as implemented under the UDWR on direct lethal take. We are also permit system. Purpose of the Regulatory Action allowing entities other than the Utah Summary of the Major Provisions of the Division of Wildlife Resources to permit Under the ESA, we revise our Regulatory Action take. We are also issuing new incidental previous special rule for the take exemptions for otherwise legal conservation of the Utah prairie dog in Table 1 describes the previous 1984 activities associated with standard the Code of Federal Regulations (CFR) at special rules, as amended in 1991, and agricultural practices. All other 50 CFR 17.40(g). The previous special this final rule.

TABLE 1—COMPARISON OF THE PREVIOUS SPECIAL RULE AND PRACTICE (1991) AND THIS FINAL RULE

Previous rule and practice (1991) Final rule (2012) *

Who Can Allow Take ...... UDWR ...... UDWR, or other entities with the Service’s written approval. Add that no permit is needed where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites. Written approval from the Service is sufficient in these circumstances. Where Direct Take Is Allowed ...... Existing Special Rule—private lands .. Retain agricultural lands. Utah Code—agricultural lands ...... Add properties where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites. Add properties within 0.8 km (0.5 mi) of conservation lands. Amount of Rangewide Direct Take Al- 6,000 animals annually ...... The upper annual permitted take limit of 6,000 animals annu- lowed. ally is removed. The upper permitted take limit may not exceed 10 percent of the estimated rangewide population annually; and, on agri- cultural lands, may not exceed 7 percent of the estimated annual rangewide population annually. Take in areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites does not contribute to the take allow- ance. Site-specific Limits on Amount of Di- No restrictions specified ...... Add limits for agricultural lands and properties within 0.8 km rect Take. (0.5 mi) of conservation lands.

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TABLE 1—COMPARISON OF THE PREVIOUS SPECIAL RULE AND PRACTICE (1991) AND THIS FINAL RULE—Continued

Previous rule and practice (1991) Final rule (2012) *

Add that there are no limits on the amount of direct take where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites. Timing of Allowed Direct Take ...... June 1 to December 31 ...... June 15 to December 31 seasonal limits on agricultural lands and properties neighboring conservation lands. Add that there is no timing restriction where prairie dogs create serious human safety hazards or disturb the sanctity of sig- nificant human cultural or human burial sites, except that translocations will be conducted before lethal measures of control are allowed. Methods Allowed to Implement Direct Existing Special Rule—no restrictions Add restrictions on methods of allowed take on agricultural Take. specified. lands and properties within 0.8 km (0.5 mi) of conservation lands to conform to Utah Code. Utah Code—limited to firearms and Add that no restrictions on methods to implement direct take trapping, and chemical toxicants are applied to areas where prairie dogs create serious specifically prohibited. human safety hazards or disturb the sanctity of significant human cultural or human burial sites, except that translocations will be conducted before lethal measures of control are allowed. Service Ability to Further Restrict Di- The Service may immediately prohibit Unchanged. rect Take. or restrict such taking as appro- priate for the conservation of the species. Incidental Take for Agricultural Activi- Not authorized ...... Provide an exemption for incidental take for otherwise legal ac- ties. tivities associated with standard agricultural practices.

Special Rules Under ESA Section 4(d) that apply to other threatened species On February 3, 2003, we received a that do not apply to the threatened petition to reclassify the Utah prairie A 4(d) special rule functions by species at issue. In the interest of dog from threatened to endangered prescribing those regulations that are providing a clear rule with simple (Forest Guardians 2003, entire). The necessary and advisable to conserve a language, we will be using ‘‘exempt’’ petition was based in part on threats to threatened species. We have elected to and ‘‘allow’’ in order to convey that this the species associated with the previous extend all prohibitions under section 9 Utah prairie dog 4(d) rule will not 4(d) special rules (Forest Guardians of the ESA (16 U.S.C. 1531 et seq.) to prohibit certain actions. It is important 2003, pp. 104–108). On February 21, threatened species through a ‘‘blanket to note that this use of language is for 2007 (72 FR 7843), we found that the 4(d) rule’’ unless otherwise specified in clarity only. The 4(d) rule will still petition did not provide substantial a separate 4(d) rule (see 50 CFR 17.31). function by prescribing the regulations scientific or commercial information Section 9 prohibitions make it illegal for necessary and advisable to conserve the indicating that reclassification may be any person subject to the jurisdiction of Utah prairie dog. warranted. This decision was the United States to take (including challenged by WildEarth Guardians in harass, harm, pursue, shoot, wound, Background litigation (described below). kill, trap, capture, or collect; or attempt Previous Federal Actions On February 4, 2005, we received a any of these), import or export, ship in petition under the Administrative interstate commerce in the course of The Utah prairie dog (Cynomys Procedure Act (APA) requesting that we commercial activity, or sell or offer for parvidens) was listed as an endangered issue a rule to restrict the translocation sale in interstate or foreign commerce species on June 4, 1973 (38 FR 14678), of Utah prairie dogs and to terminate the any wildlife species listed as pursuant to the Endangered Species special 4(d) rule allowing regulated take endangered, without written Conservation Act of 1969. On January 4, of Utah prairie dogs (Forest Guardians authorization. It also is illegal under 1974, this listing was incorporated into 2005, entire). On April 6, 2005, we section 9(a)(1) of the ESA to possess, the ESA of 1973, as amended (39 FR acknowledged receipt of this petition. sell, deliver, carry, transport, or ship 1158; see page 1175). On February 23, 2009, we issued a final any such wildlife that is taken illegally. On May 29, 1984, the Service decision in which we denied the We have the option of creating reclassified the Utah prairie dog from petitioned action (USFWS 2009, entire). tailored 4(d) regulations rather than endangered to threatened (49 FR 22330) However, this response acknowledged using the blanket 4(d) rule. In those and developed a special rule under that we had initiated a process to amend cases, the species-specific 4(d) section 4(d) of the ESA, applying the the special 4(d) rule and that we regulation replaces the blanket prohibitions for threatened animals (50 anticipated that a proposed amended regulation. Because the blanket rule CFR 17.31) to the Utah prairie dog special 4(d) rule would be published in effectively extends all available except: allowing regulated take of up to the Federal Register for public comment prohibitions to threatened species, 5,000 animals annually on private lands (USFWS 2009, p. 1). This decision also separate 4(d) rules could be viewed as in Iron County, Utah. On June 14, 1991, was challenged by WildEarth ‘‘exempting,’’ ‘‘allowing,’’ or we amended the special rule to allow Guardians. ‘‘permitting’’ acts that would otherwise regulated take of up to 6,000 animals On September 28, 2010, United States be prohibited under the blanket rule. As annually on private lands throughout District Court for the District of a result, there may be some prohibitions the species’ range (56 FR 27438). Columbia vacated and remanded our

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February 21, 2007 (72 FR 7843), not- take. We reopened the comment period from their burrows ranges from 3.64 substantial petition finding back to us for 30 days, ending May 29, 2012, and pups to 5.5 pups (Pizzmenti and Collier for further consideration (WildEarth we considered and incorporated as 1975, p. 2; Elmore et al. 1976, p. 6; Guardians v. Salazar, Case 1:08-cv- appropriate all comments for this final Wright-Smith 1978, p. 10; Mackley 01596–CKK (D.D.C.), 2010). In the same rule. 1988, pp. 8–9; Hoogland 2001, p. 923). order, the court upheld our February 23, Young prairie dogs depend almost Species Information 2009, decision on the APA petition. entirely on nursing while in their This ruling noted that although the level Prairie dogs belong to the Sciuridae burrow (Hoogland 2003, p. 236). The of take allowed in the 1991 special rule family of rodents, which also includes young emerge above ground by may not be biologically sound, some squirrels, chipmunks, and marmots. approximately mid-June, and by that permitted take is advantageous to the There are five species of prairie dogs, all time they are no longer dependent on Utah prairie dogs’ recovery. The court of which are native to North America, their mother and primarily forage on specifically noted that controlled take and all of which have non-overlapping their own (Hoogland 2003, p. 236). can stimulate population growth, reduce geographic ranges (Hoogland 2003, p. Because of the relatively large litter high-density populations prone to 232). The Utah prairie dog is the sizes, the observed summer population decimation by plague, and, smallest species of prairie dog, with numbers of prairie dogs are much consequently, curb the species’ boom- individuals that are typically 250 to 400 greater than the number of animals seen and-bust population cycle. The court millimeters (mm) (10 to 16 inches (in.)) above ground in the spring. declined to weigh in on the precise level long (Hoogland 1995, p. 8)). Weight Prairie dog pups attain adult size by of take that should be permitted, varies from 300 to 900 grams (g) (0.66 October and reach sexual maturity at the concluding that this is a matter squarely to 2.0 pounds (lb)) in the spring and 500 age of 1 year (Wright-Smith 1978, p. 9). within the Service’s technical and to 1,500 g (1.1 to 3.3 lb) in the late Less than 50 percent of Utah prairie scientific expertise. summer and early fall (Hoogland 1995, dogs survive to breeding age (Hoogland On June 2, 2011 (76 FR 31906), we p. 8). Utah prairie dogs range in color 2001, p. 919). Male Utah prairie dogs announced a proposed rule to revise our from cinnamon to clay. The Utah prairie frequently cannibalize juveniles, which 4(d) special regulations for the dog is distinguished from other prairie may eliminate 20 percent of the litter conservation of the Utah prairie dog. dog species by a relatively short (30 to (Hoogland 2003, p. 238). After the first Our proposed rule included limits to the 70 mm (1.2 to 2.8 in.)) white- or gray- year, female survivorship is higher than allowable take, and new incidental take tipped tail (Pizzimenti and Collier 1975, male survivorship, though still low for exemptions for otherwise legal activities p. 1; Hoogland 2003, p. 232) and a black both sexes. Only about 20 percent of associated with standard agricultural ‘‘eyebrow’’ above each eye. They are females and less than 10 percent of practices. We sought comments from the closely related to the white-tailed males survive to age 4 (Hoogland 2001, public and other agencies regarding the prairie dog (Hoogland 1995, p. 8). Figures 1 and 2, pp. 919–920). Utah scope and implementation of the special Life History prairie dogs rarely live beyond 5 years rule. We also sought independent peer of age (Hoogland 2001, p. 919). The sex review of the science in the proposed Utah prairie dogs are hibernators and ratio of juveniles at birth is 1:1, but the rule to ensure that our final rule is based spend 4 to 6 months underground each adult sex ratio is skewed toward on scientifically sound data, year during the harsh winter months, females, with adult female:adult male assumptions, and analyses. We although they are seen above ground sex ratios varying from 1.8:1 (Mackley requested public and peer review during mild weather (Hoogland 1995, 1988, pp. 1, 6–7) to 2:1 (Wright-Smith comments be received or postmarked on pp. 18–19). Adult males cease surface 1978, p. 8). or before August 1, 2011. activity during August and September, Natal dispersal (movement of first- On June 21, 2011 (76 FR 36053), we and females follow suit several weeks year animals away from their area of announced our revised 90-day finding later. Juvenile prairie dogs remain above birth) and breeding dispersal on a petition to reclassify the Utah ground 1 to 2 months longer than adults (movement of a sexually mature prairie dog from threatened to and usually go into hibernation by late individual away from the areas where it endangered under the ESA. As we November. Emergence from hibernation copulated) are comprised mostly of concluded in our 90-day finding usually occurs in late February or early male prairie dogs. Thus, individual published on February 21, 2007, we March (Hoogland 2003, p. 235). male prairie dogs have a high mortality found that the February 3, 2003, petition Mating begins 2 to 5 days after the rate through predation. Young male did not present substantial information females emerge from hibernation, and Utah prairie dogs disperse in the late indicating that reclassifying the Utah can continue through early April summer, with average dispersal events prairie dog from threatened to (Hoogland 2003, p. 236). Female Utah of 0.56 kilometers (km) (0.35 mile (mi)) endangered may be warranted. prairie dogs come into estrus (period of and long distance dispersal events of up Therefore, we did not initiate a status greatest female reproductive to 1.7 km (1.1 mi) (Mackley 1988, p. 10). review in response to the February 3, responsiveness, usually coinciding with Most dispersers move to adjacent 2003, petition. ovulation) and are sexually receptive for territories (Hoogland 2003, p. 239). On April 26, 2012 (77 FR 24195), we several hours for only 1 day during the Utah prairie dogs are organized into notified the public that we were making breeding season (Hoogland 2003, p. social groups called clans, consisting of changes to our proposed rule of June 2, 235). However, on average 97 percent of an adult male, several adult females, 2011, to revise the 4(d) special rule for adult female Utah prairie dogs are in and their offspring (Wright-Smith 1978, the Utah prairie dog. These changes breeding condition each year and p. 38; Hoogland 2001, p. 918). Clans included allowing take where Utah successfully produce a litter (Mackley maintain geographic territorial prairie dogs cause serious human safety 1988, pp. 1, 9). boundaries, which only the young hazards or disturb the sanctity of The young are born after a 28- to 30- regularly cross, although all animals use significant human cultural or human day gestation period, in April or May common feeding grounds. Prairie dog burial sites, allowing entities other than (Hoogland 2003, p. 236). Litters range in colonies may contain one or several the UDWR to permit take, and changes size from 1 to 7 pups; mean observed clans. Colonies are groups of animals to the seasonal and numeric limits for litter size after emergence of juveniles with associated mounds, burrows, and

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food resources that are within calling type formations where moist herbaceous (Crocker-Bedford and Spillett 1981, p. distance. These units are genetically vegetation is available (Collier 1975, p. 17). Overall, Utah prairie dog densities similar and vulnerable to local 43; Crocker-Bedford and Spillett 1981, are approximately twice as high at sites catastrophes including epizootic disease p. 24). Plentiful high-quality food found associated with agriculture compared to outbreaks. in swales enables prairie dogs to attain sites not associated with agriculture Major predators include coyotes a large body mass, thus enhancing (Crocker-Bedford and Spillett 1981, pp. (Canis latrans), badgers (Taxidea taxis), survival and increasing litter sizes and 16, 23, 26). While we believe that the long-tailed weasels (Mustela frenata), juvenile growth rates (Hoogland 2001, p. valley bottoms have probably always various raptor species (Buteo spp., 923). supported more prairie dogs than Aquila chrysaetos), and snakes (Crotalus Soil characteristics are an important surrounding drier sites, it is likely that spp., Pituophus spp.) (Hoogland 2001, factor in the location of Utah prairie dog the high densities and abundances p. 922). In established colonies, colonies (Collier 1975, p. 53). A well- occurring in these areas are unnaturally predators probably do not exert a drained area is necessary for home augmented by today’s agricultural controlling influence on numbers of burrows. The soil should be deep practices (Collier 1975, pp. 43, 53; prairie dogs (Collier and Spillett 1972, enough to allow burrowing to depths Crocker-Bedford and Spillett 1981, pp. p. 36). sufficient to provide protection from 15–17, 22). Utah prairie dog populations are predators and insulation from susceptible to sylvatic plague (Yersinia environmental and temperature Distribution and Abundance pestis), a bacterium introduced to the extremes. Prairie dogs must be able to The Utah prairie dog is the North American continent in 1899 inhabit a burrow system 1 meter (m) (3.3 westernmost member of the genus (Cully 1993, p. 38). Plague occurs in feet (ft)) underground without becoming Cynomys. Historically, the species’ prairie dog colonies as enzootic and wet. distribution extended much farther epizootic events. Enzootic plague is an Prairie dogs are predominantly north than it does today (Collier 1975, infection that is persistent in the herbivores, though they also eat insects pp. 15–17; Pizzimenti and Collier 1975, population over time and causes a low (Crocker-Bedford and Spillett 1981, p. 8; p. 1). Utah prairie dog populations rate of mortality. Epizootic plague Hoogland 2003, p. 238). Grasses are the declined dramatically when control occurs when the disease spreads from staple of their annual diet (Crocker- programs to eradicate the species were enzootic hosts to more susceptible Bedford and Spillett 1981, p. 8; initiated in the 1920s. The actual animals, resulting in a rapidly spreading Hasenyager 1984, p. 27), but other numeric population reduction is not die-off cycle (Barnes 1993, pp. 28–32; plants are selected during different known, because historical population Cully and Williams 2001, pp. 898–899; times of the year. Utah prairie dogs only figures were not scientifically derived Gage and Kosoy 2005, p. 506). During select shrubs when they are in flower, (Collier and Spillett 1973, pp. 83–84). epizootic plague events, large numbers and then only eat the flowers (Crocker- However, poisoning is estimated to have of animals can die within a few days Bedford and Spillet 1981, p. 8). Forbs removed prairie dogs from (Lechleitner et al. 1962, entire; Cully are consumed in the spring. Forbs also approximately 8,094 hectares (ha) 1993, p. 39). Plague results in local may be crucial for the survival of prairie (20,000 acres (ac)) of their range prior to extirpations, reduced colony sizes, dogs during drought (Collier 1975, p. 1963 (Collier and Spillett 1972, pp. 33– increased variation in local population 48). 35). Other factors that resulted in the sizes, and increased distances between Utah prairie dogs prefer areas with historical decline of Utah prairie dogs colonies (Cully and Williams 2001, p. deep, productive soils. These are the were drought, habitat alteration from 895). same areas preferred by agricultural conversion of lands to agricultural There is a limited understanding of producers. Agricultural tilling practices crops, unregulated shooting, and disease the variables that determine when create unusually deep, soft soils (Collier and Spillett 1972, pp. 32–35). sylvatic plague will impact prairie dog optimum for burrowing; irrigation The species’ range is now limited to populations. Enzootic plague may be increases vegetation productivity; and the southwestern quarter of Utah in influenced by factors including genetics, plantings of favored moist forb species Iron, Beaver, Washington, Garfield, prairie dog immunity and physiologic (such as alfalfa) likely make these areas Wayne, Piute, Sevier, and Kane state, and interactions with other more productive than they were Counties (USFWS 2012, p. 1.3–3). The bacteria (Gage and Kosoy 2005, p. 509). historically (Collier 1975, pp. 42–43). Utah prairie dog has the most restricted The factors that result in epizootic Additionally, Utah prairie dogs grow range of the four prairie dog species in plague outbreaks are still being faster and attain larger body weights the United States. researched, but may include host (Crocker-Bedford and Spillett 1981, p. The best available information density, flea density, and climatic 1), and thus have higher overwinter concerning Utah prairie dog habitat and conditions (Cully 1989, p. 49; Parmenter survival, in alfalfa crops versus native population trends comes from survey et al. 1999, pp. 818–820; Cully and habitats (Crocker-Bedford and Spillett and mapping efforts conducted by the Williams 2001, pp. 899–901; Enscore et 1981, p. 16). Reproduction and weaning UDWR annually since 1976. These al. 2002, p. 192; Stapp et al. 2004, pp. of young also may be more successful in surveys (hereafter referred to as 236–237; Gage and Kosoy 2005, pp. 509, agricultural areas that provide abundant ‘‘counts’’ or ‘‘spring counts’’) count 513; Ray and Collinge 2005, pp. 204, forage resources that are otherwise adult Utah prairie dogs on all known 206–208; Stenseth et al. 2006, entire; unavailable in drier native habitats and accessible colonies annually, in Sna¨ll et al. 2008, pp. 244–246; Biggins (Crocker-Bedford and Spillett 1981, p. April and May, after the adults have et al. 2010, pp. 21–24). 17). Similarly, colonies in agricultural emerged, but before the young are above areas expand more rapidly than those in ground in June (see Life History). Some Habitat Requirements and Food Habits native habitats (Crocker-Bedford and non-Federal lands with active Utah Utah prairie dogs occur in semiarid Spillett 1981, p. 16). Finally, predator prairie dog colonies are not surveyed shrub-steppe and grassland habitats mortality is generally low for Utah due to lack of access. However, we (McDonald 1993, p. 4; Roberts et al. prairie dogs in agricultural fields (see believe that over 90 percent of prairie 2000, p. 2; Bonzo and Day 2003, p. 1). Life History) because farmers control dog colonies are known and annually Within these habitats, they prefer swale- badgers and coyotes in these areas surveyed (Brown 2010, pers. comm.).

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Therefore, actual rangewide prairie dog prairie dogs (i.e., where prairie dogs are period on the June 2, 2011, proposed numbers may be somewhat higher than seen or heard or where active burrows rule, we received a total of 10 comment reported, though probably not or other signs are found). letters. Following the end of that public substantially higher. The UDWR has mapped 24,142 ha comment period, we also received a Utah prairie dog surveys are (59,656 ac) of habitat rangewide (UDWR comment letter from the State of Utah. completed in the spring (‘‘spring 2010a, entire). The Utah prairie dog During the public comment period on counts’’) by visually scanning each occurs in three geographically our April 26, 2012, revision to the colony area and counting the numbers identifiable areas within southwestern proposed rule, we received a total of 11 of prairie dogs observed. Biologists Utah, which are identified as recovery comment letters. spend approximately 8 to 10 weeks with units in our Final Revised Recovery All substantive information provided 3 to 5 people per week surveying prairie Plan (USFWS 2012, pp. 1.3–3, 3.2–1), during the comment periods (and dog colonies in the field each year in including: (1) Awapa Plateau; (2) including the State of Utah’s comment accordance with our survey protocol Paunsaugunt, and (3) West Desert. The letter) was either incorporated directly (USFWS 2012, Appendix H). Only 40 to Awapa Plateau recovery unit into this final determination or is 60 percent of Utah prairie dogs are encompasses portions of Piute, Garfield, addressed below. above ground at any one time (USFWS Wayne, and Sevier Counties. The 2012, p. 1.3–4). Therefore, spring counts Paunsaugunt recovery unit is primarily Peer Review represent approximately 50 percent of in western Garfield County, with small In accordance with our peer review the adult population. Total rangewide areas in Iron and Kane Counties. The policy published on July 1, 1994 (59 FR population estimates are larger than the West Desert recovery unit is primarily 34270), we solicited expert opinion estimated adult population because they in Iron County, but extends into from six knowledgeable individuals include reproduction and juveniles. southern Beaver County and northern with scientific expertise that included Based on the male to female ratio, Washington County. Table 2 provides familiarity with prairie dog ecology, number of breeding females, average information on each recovery unit, population modeling, and lethal control litter size, and observed spring count including average percentage of the total of prairie dogs. We received comments versus total spring population (see the rangewide population and average from four of the peer reviewers. Life History section) (Wright-Smith percentage of prairie dogs occurring on We reviewed all comments we 1978, p. 8; Mackley 1988, pp. 1, 6–9; non-Federal land (averages for 2000 to received from the peer reviewers for Hoogland 2001, pp. 919–920; 923), the 2009). Additional information on each substantive issues and new information total population estimate (adults and recovery unit’s distribution, abundance, regarding the Utah prairie dog. In juveniles) can be calculated from spring and trends can be found in our Final × general, the peer reviewers agreed with counts as follows: [(2 spring adult Revised Recovery Plan (USFWS 2012, the value of having a special rule for count) × 0.67 (proportion of adult section 1.3.2). × Utah prairie dogs. They raised some females) 0.97 (proportion of breeding concern regarding our use of the females) × 4 (average number of young TABLE 2—POPULATION AND OCCU- available prairie dog population models per breeding female)] plus (2 × spring PANCY DATA FOR EACH RECOVERY and our interpretation of available data. adult count). Thus, the total population UNIT However, the peer reviewers did not estimate (adults and juveniles) is about provide specific information on how 7.2 × the spring count. Hereafter Average they would improve the final rule based whenever we refer to ‘‘total rangewide Average percentage on the available information. Peer population estimate’’ or ‘‘total percentage of prairie reviewer comments are addressed in the population estimate’’ we mean the Recovery unit of dogs rangewide occurring on following summary and incorporated calculated Utah prairie dog population population non-federal into the final rule as appropriate. based on the occurrence of both adult land and juvenile animals. Peer Reviewer Comments It should be noted that spring count Awapa Plateau 8.9 47.6 surveys and total population estimates Paunsaugunt ..... 16.9 71.0 (1) Comment: One peer reviewer are not censuses. Rather, they are West Desert ...... 74.2 85.1 stated that we should specify that the mean litter size is really the mean designed to monitor population trends Note: Averages calculated from 2000 to over time. Based on the spring counts, 2009. Source: UDWR 2009, 2010b. observed litter size after emergence of the rangewide population trends for the juveniles from their burrows. Summary of Comments and Utah prairie dog are stable to increasing Our Response: We updated the Life Recommendations over the last 30 years (see Application History section of the rule accordingly. of the Utah Prairie Dog Special Rule In our proposed rule published on (2) Comment: One peer reviewer Through the Present, below). June 2, 2011 (76 FR 31906), we recommended that we add the In addition to population trend requested that all interested parties definition for ‘‘colony’’ to the rule. information, the UDWR surveys provide submit written comments on the Our Response: We added descriptions information on the amount of mapped proposal by August 1, 2011. Similarly, of Utah prairie dog clans and colonies and occupied habitat across the species’ in our revision to the proposed rule on in the Life History section of the rule. range. We define mapped habitat as all April 26, 2012 (77 FR 24915), we (3) Comment: The peer reviewers areas within the species’ range that were requested that all interested parties stated their support for various facets of identified and delineated as being submit written comments on the the rule, including agreement that we occupied by Utah prairie dogs in any proposal by May 29, 2012. We contacted used most of the pertinent literature, year since 1972. These areas may or may appropriate Federal and State agencies, agreement with our conclusion that not be occupied by prairie dogs in any scientific experts and organizations, and landowner and community support is given year. The database of all mapped other interested parties and invited important for species recovery, and habitat is maintained by the UDWR and them to comment on the proposal. We appreciation that the rule recognizes the updated annually. Occupied habitats are did not receive any requests for a public role of the State in managing the Utah defined as areas that support Utah hearing. During the public comment prairie dog.

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Our Response: We retained the was not a significant relationship this represents the best available discussions relevant to these points in between rangewide reported take under information, we reviewed the literature our final rule. the 1984 and 1991 special rules and the to determine relative impacts based on (4) Comment: One peer reviewer total rangewide spring counts the colony size. Populations of Gunnison’s stated that the data presented in Figure following year (Brown 2012). This prairie dogs, even in the presence of 1 demonstrates weak support for what is information combined with 25 years of enzootic plague, showed strong called a fluctuating harvest-rate model. stable to increasing population trends population growth rates with no risk of Our Response: We agree with the peer indicate that these levels of take are not extinction as long as their initial reviewer and did not intend to imply negatively impacting the rangewide population sizes were greater than or that Figure 1 (i.e., the permitting process Utah prairie dog population. equal to 50 animals (CDOW 2007, p. under the previous 1984 and 1991 (7) Comment: One peer reviewer was 128). Accordingly, our final rule states special rules) showed a fluctuating concerned that our 10 percent take limit that a minimum spring count of 7 harvest-rate model. To the contrary, the is higher than actual take that has been animals (total population estimate of 50 previous special rules essentially used a reported under the prior special rules. animals) in each colony is required for potentially fixed rate harvest-model in Our Response: Although our the issuance of any permits under this which 6,000 animals could be taken allowable take of up to 10 percent is rule. In addition, we added a provision annually regardless of the Utah prairie higher than actual take, available to the rule that directs permitting dog spring count data. We clarified the modeling on other prairie dog species biologists to consider colony size when rule accordingly (see Limiting the (Reeve and Vosburgh 2006, p. 123; issuing permits (see Limiting the Amount and Distribution of Direct Take Colorado Division of Wildlife (CDOW) Amount and Distribution of Direct Take That Can Be Permitted). 2007, p. 135) shows that fluctuating That Can Be Permitted). Because we (5) Comment: One peer reviewer harvest rates of 20 to 25 percent of the have stable to increasing rangewide questioned our observation (based on 25 population are sustainable, and our 10 Utah prairie dog populations under the years of data) that colony extinction has percent take limit is much less than previous rules, it is reasonable to not increased under our previous these rates. In addition, it is likely that assume that restricting permits to even special rules. This peer reviewer said actual harvest will always be much less larger colony sizes under this final rule that an assessment of metapopulation than permitted harvest, as our will result in continued positive dynamics of this species is necessary, experience over the past 25 years shows, population trends. including when colonies go extinct from and we added this information to Table (10) Comment: One peer reviewer and control, disease, or natural predation, 3. The special rule allows us to modify a couple of commenters stated that the and how often and how quickly are they or discontinue take in the future should available literature does not have an recolonized. we experience population effects that accurate assessment of plague risk Our Response: While metapopulation are inconsistent with Utah prairie dog related to colony density. They stated dynamics are important to long-term conservation. that there is not sufficient evidence to conservation of a species, we do not (8) Comment: One peer reviewer support our conclusion that taking Utah believe this type of an assessment is recommended that we consider a spatial prairie dogs will lower plague risk by needed for analyzing the effects of our analysis of prairie dog demographics maintaining lower densities. Another special rule. We believe our 25 years of and the associated impacts of take in peer reviewer recommended that we prairie dog population information and different parts of the species’ range. This consider plague as a factor when take levels under the previous special reviewer questioned the potential long- evaluating the sustainability of a given rules—this is what actually happened term impacts across the species’ range of level of take. on the ground, including the resulting a spatially clustered take of Our Response: We agree that colony stable to increasing rangewide prairie comparatively higher intensity in one density and plague are not always dog populations—provides a robust portion of the range, compared to a directly related. We revised the rule to dataset on which we can predict future more uniform and widespread include additional literature regarding effects associated with this special rule. distribution of removal. plague dynamics in prairie dog In addition, we are not aware of any Our Response: We added a populations, particularly noting that colonies that have been extirpated due requirement to the rule that take will be there are a variety of factors that play a to implementation of our special rules. spatially distributed across the three role in the occurrence and extent of (6) Comment: One peer reviewer Recovery Units, based on the enzootic and epizootic plague events. concluded that a visual inspection of distribution of the annual total Thus, we are not able to conclude that the line graph presented in Figure 1 rangewide count within each Recovery reducing prairie dog population suggests that high levels of actual take Unit (see Limiting the Amount and densities will always result in the under the existing special rules are Distribution of Direct Take That Can Be reduction of plague occurrence or correlated with declines in population Permitted, ‘‘Agricultural Lands,’’ significance. Plague is considered a abundance in following years. below). factor when evaluating a given level of Therefore, the peer reviewer inferred (9) Comment: A couple of peer take to the extent that annual take is that the data suggest that existing levels reviewers stated that smaller based on a percentage of the estimated of take may be having a larger impact on populations are more susceptible to annual population of prairie dogs. Utah prairie dog population abundance localized extinction and that colony size Fluctuations in prairie dog populations than acknowledged in the proposed rule should be considered when permitting due to plague outbreaks could affect the revision. Thus, the peer reviewer take. total amount of authorized take in a concluded that our 10 percent take limit Our Response: We agree that smaller given year. is likely not viable long term. populations are more susceptible to (11) Comment: One peer reviewer Our Response: Based on this localized extinction. As described in our recommended that we consider how comment, we ran a regression analysis rule, available modeling on the impacts competition for resources (e.g., how (a statistical technique for the of shooting to prairie dogs was reduced competition can promote investigation of relationships between completed on other prairie dog species, higher reproductive success and variables) on the available data. There not Utah prairie dogs. However, because survivorship) and plague (e.g.,

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controlling density can reduce the their ability to contribute to Utah prairie will vary based on colony size, and impact of plague) can be balanced to dog metapopulation dynamics and another peer reviewer recommended the achieve optimal demographic recovery. We added information to the most important factor in population robustness for long-term conservation of rule that explains how conservation stability is seasonal restrictions on Utah prairie dogs. lands are selected. shooting. Our Response: This special 4(d) rule (15) Comment: A couple of peer Our Response: The UDWR has used is not intended to evaluate all reviewers recommended that we more this same within-colony take limit conservation aspects for the Utah prairie closely analyze the applicability of under the previous special rules, and, as dog. Under the revised Utah prairie dog available population models to the Utah described in the rule, the affected Recovery Plan, we consider all prairie dog, in particular a model used colonies remain viable. Based on the demographic and metapopulation by the CDOW (now Colorado Parks and peer review comments, we further dynamics in our efforts to recover the Wildlife) (2007). One peer reviewer gave evaluated the possible correlation of species. The special 4(d) rule does an example—there is clearly some level actual take and declines in population consider how implementation of some of interaction between prairie dogs and abundance at a sample of colonies that level of prairie dog control can agricultural activity in Colorado as there have had numerous take permits under positively affect populations by is in Utah, which means that the results our previous special rules. Although we reducing competition for resources and of the analysis in CDOW (2007) may only had small sample sizes, our reducing the potential for plague have a greater degree of relevance than regression analysis of the available data outbreaks in some scenarios (see what is stated in the proposed rule showed that there is no correlation Limiting Where Take is Allowed, revision. between actual take in 1 year and spring ‘‘Conservation Benefits of Allowing Our Response: We evaluated the counts the following year at specific Take on Specific Lands,’’ below). available prairie dog population models colonies (Brown 2012); the permitted (12) Comment: One peer reviewer in both our proposed and final rules (see take in these situations was determined requested that we provide some Limiting the Amount and Distribution of by UDWR using one-half of a colony’s information regarding the time and Direct Take That Can Be Permitted; estimated annual production. However, effort expended to conduct annual Reeve and Vosburgh 2006, entire; we agree that the overall impact of spring count surveys. CDOW 2007, entire). We considered within-colony take may vary based on Our Response: The UDWR estimates these models in light of expected colony size. We added a condition to that surveys require 8 to 10 weeks, with differences between habitats and the rule that colony size will be taken 3 to 5 biologists annually. We added behaviors of the various prairie dog into consideration by the permitting this information to the rule. species; we do not believe that the biologist when evaluating the (13) Comment: A couple of peer models are strictly applicable to Utah permittee’s property and determining reviewers recommended we use mean prairie dogs. In addition, we considered appropriate take levels. No take can be litter size of 3.88 juveniles instead of the these models in conjunction with our authorized if the spring count at a 4 juveniles used in our population own data showing 25 years of stable to colony is less than 7 (population estimate calculation in the ‘‘Distribution increasing rangewide Utah prairie dog estimate = 50). In addition, the rule and Abundance’’ section of the rule. populations with implementation of provides seasonal restrictions on take. Mean litter size of 3.88 juveniles is similar special rules that have allowed (17) Comment: One peer reviewer was supported by the literature. take on agricultural lands. We concerned that development of the take Our Response: Based on the available reevaluated these models for this final limits was based on evaluation of literature, we conclude that the use of rule and made a couple of changes to information and modeling of other 4 juveniles is appropriate in our the rule, including an increased prairie dog species, not Utah prairie population estimate calculation. We minimum colony size (spring count = 7 dogs. included additional citations in the rule animals) for permitting, and a change in Our Response: We acknowledge in the that show litter sizes varying from 1 to the dates when shooting is allowed rule that literature from species other 8 pups, with means varying from 3.64 (June 15 to December 31). We agree with than Utah prairie dogs was used in to 5.5. the peer reviewer that there are likely support of the rule revision. However, (14) Comment: One peer reviewer some similarities between prairie dogs this is the best available information questioned whether maintaining prairie and agricultural activity in Colorado and is appropriate to review because of dogs at baseline populations on private and Utah. However, implementation of the similarity in activities; the models lands adjacent to conservation lands this rule is largely for colonies occurring addressed recreational shooting of would be sufficient to maintain a on agricultural lands, whereas the prairie dogs, and we evaluated functioning metapopulation across the available models include a broad range controlled lethal take. In addition, we boundary between private land and of habitat types for prairie dog species are able to compare the results of these conservation property land. in other States. models with over 25 years of data Our Response: The selection and (16) Comment: Two peer reviewers specific to the Utah prairie dog under establishment of conservation lands expressed concern that the proposed the previous special rules. takes into consideration spatial rule had a percent take per colony (18) Comment: One peer reviewer distribution, colony size, colony higher than previously experienced, and recommended including gas cartridges, persistence, and connectivity between questioned if this amount of within- anticoagulants, and explosive devices as habitats. We make our decisions on the colony take would be viable for the long prohibited take methods. contribution of these lands to recovery term. Two peer reviewers supported our Our Response: We revised the for the Utah prairie dog including the requirement that within-colony take document to prohibit the use of gas assumption that the nearby properties would be limited to one-half of a cartridges, anticoagulants, and explosive (within 0.8 km (0.5 mile) of the colony’s estimated annual production devices to control prairie dogs on conservation land) would be maintained (approximately 36 percent of estimated agricultural lands and properties within at baseline prairie dog populations. total population). One peer reviewer 0.8 km (0.5 mi) of conservation lands. Therefore, the conservation lands recommended we consider that the These techniques were not employed by themselves are initially assessed for impact of percent within-colony take UDWR under the previous rule and are

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explicitly prohibited by this rule prairie dogs) versus estimated recovery efforts and prairie dog conflicts because they do not allow control agents population sizes (adults and juveniles). are reduced in some public gathering to target a specific number of prairie (23) Comment: The State of Utah areas. However, excluding all areas dogs or track actual take. recommended that the rule should where there are impacts to recreation (19) Comment: One peer reviewer allow for entities other than the UDWR only rather than serious health and recommended that we require any shot to issue permits for control of Utah safety concerns is not consistent with prairie dogs be disposed of by burying prairie dogs. recovery of the Utah prairie dog. them outside of the colony boundary. Our Response: We revised the special Our Response: We evaluated the rule to allow for other entities to Comments From Elected Officials potential effects to the environment of evaluate and permit properties for take, (28) Comment: One commenter lead in the draft and final if those entities are approved in writing thought that fence specifications should environmental assessments. We by our agency. be provided on a case-by-case basis determined that the use of lead shot for (24) Comment: The State of Utah was instead of relying on a one-size-fits-all prairie dog control would not have concerned that the inclusion of two fence. significant effects to the environment maximum annual take limits—6,000 Our Response: We agree that fencing based largely on the limited area in animals and 10 percent of the estimated specifications will not be the same for which 4(d) permits and lethal take are rangewide population—may be each situation. Our final rule does not authorized. Therefore, we did not confusing to some readers. preclude site-specific prairie-dog-proof require measures such as disposing of Our Response: We removed the upper fence designs. For example, the most shot prairie dogs in a specific manner. limit of 6,000 animals from the final recent fence designs at the Parowan rule. The maximum allowable total Airport and Paragonah Cemetery are Comments From States annual permitted take will be no more different because of site-specific needs. (20) Comment: The State of Utah and than 10 percent of the estimated (29) Comment: One commenter several commenters expressed support rangewide population. requested that the seasonal sex and for the revised rule and recommended (25) Comment: The State of Utah weight limits of translocated prairie its final adoption and implementation. suggested that the cumulative annual dogs be removed for sites under this They concluded that the rule is vital to take be 10 percent of the rangewide special rule given the severity of our continued success of working with population regardless of the source (i.e., impacts to human safety or disruption private landowners and the recovery of agricultural lands or conservation to cultural or burial sites. the Utah prairie dogs, and that lands). Our Response: We have revised the cooperative efforts between landowners Our Response: We retained a final rule to remove the seasonal sex and wildlife agencies offer the best hope 7 percent take on agricultural lands and and weight limits for translocations for recovery of the species. the remaining take (totaling 10 percent) from fenced sites. Any prairie dogs not Our Response: We agree that the rule to lands within 0.8 km (0.5 mi) of Utah removed from these areas would be is necessary and advisable to address prairie dog conservation lands. We allowed to be lethally removed continued conflicts between landowners determined the 7 percent take limit on following the translocation effort; and Utah prairie dogs by providing for agricultural lands based on evaluating therefore, the sex and weight of the ecologically based population control the permitted and actual levels under animals is not meaningful. that also alleviates some of the impacts the previous rules (56 FR 27438, June (30) Comment: One commenter that prairie dogs can cause to 14, 1991; 49 FR 22330, May 29, 1984). wanted to know what criteria we would agricultural operations, the safety of (26) Comment: The State of Utah use to determine the areas where prairie operation such as airports, and the asked for clarification whether all dogs create safety hazards or disturb the sanctity of significant human cultural agricultural lands within 0.5 mile of a sanctity of significant human cultural or and human burial sites. conservation property automatically fall human burial sites under this rule. (21) Comment: The State of Utah into the Properties Near Conservation Our Response: Because there are found that one section of the proposed Lands take category. likely to be differing circumstances rule said 7 percent of 10 percent is the Our Response: We added a statement resulting in the need for take at certain take limit for agricultural lands. This to the rule (see Limiting Where Take is sites, the criteria will be determined equals 0.7 percent of overall rangewide Allowed) clarifying that all private largely on a site-specific basis. However, population and conflicts with the properties within 0.8 km (0.5 mi) the rule is clear in stating that take will 7 percent estimate elsewhere. automatically fall into the Properties only be allowed in areas where a Our Response: We fixed this sentence Near Conservation Lands take category. credible, serious public safety hazard or to reflect that 7 percent of the rangewide (27) Comment: The State of Utah and harm to significant human cultural or population can be authorized for take on a couple of commenters recommended human burial sites can be clearly agricultural lands. expanding the rule to include take demonstrated. We certainly agree that (22) Comment: The State of Utah said authorization for areas such as prairie dogs are a concern at the that the terms ‘‘annual rangewide cemeteries, schools, athletic facilities, Parowan Airport and Paragonah population’’ and ‘‘estimated golf course, airports, and ballparks. Cemetery, and we have already helped population’’ were not always clearly Our Response: We modified the rule to meet the needs of fencing at these defined in the proposed rule. The to allow control on areas where prairie locations. commenter recommended that we dogs are creating serious human safety (31) Comment: One commenter asked clarify throughout the rule that the hazards or disturbing the sanctity of what we would do if the number of estimated population is number of significant human cultural or human prairie dogs within a fenced area is animals occurring in late spring and burial sites. Lethal take in all cases is ‘‘more than small’’—will lethal take still summer when both adults and juveniles only a last resort and is only allowable be allowed? The rule states that ‘‘these are present above ground. after all practicable measures to resolve sites are relatively small areas, would be Our Response: We revised the text to the conflict are implemented. We agree fenced, and prairie dogs would be ensure clarity in the use of terms with the commenters that the species removed by translocation prior to the associated with spring counts (adult benefits when the public supports permitting of lethal take. Thus we

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expect that the numbers of Utah prairie not be in the cemetery. We also agree and eastern Utah, is the white-tailed dogs lethally removed would be small.’’ that there should be a standard for fence prairie dog (Cynomys leucurus). The Our Response: The intent of this specifications, recognizing site-specific Gunnison’s prairie dog (Cynomys discussion in the rule is to identify in differences. As such, we have worked gunnisoni) occurs in the southeastern part why we believe these areas are not with the Utah Prairie Dog Recovery portion of the State. The best available important for the conservation of the Implementation Team to develop prairie scientific and commercial information Utah prairie dog. We can expect that dog-proof fencing specifications. indicates that the Utah prairie dog meets properly maintained fencing will keep the definition of a threatened species Public Comments out the majority of prairie dogs. Thus, under the ESA. lethal take will be allowed as long as the (35) Comment: One commenter (37) Comment: One commenter stated conditions of the rule are followed. If questioned the science and intentions that climate change may become a real numerous prairie dogs are breaching the behind the ‘‘4(d) program.’’ This threat to Utah prairie dogs based on fence, we would inspect the fence to commenter believes that this action is work that is being done on black-tailed determine why the breaches are simply political and is being done and Gunnison’s prairie dogs in similarly occurring, at which time some fence because of the ‘‘big money in arid grasslands. maintenance may be required in order agribusiness.’’ The commenter does not Our Response: We agree that climate for lethal take to be allowed to continue. believe that killing prairie dogs is change may impact Utah prairie dogs. (32) Comment: One commenter advantageous to the species. The Our Utah Prairie Dog Final Revised supported giving local government commenter also stated that this action Recovery Plan (USFWS 2012, pp. 1.7– entities, such as counties, management requires an environmental impact 15) discusses climate change. In authority under this rule. statement. addition, our use of an annual limit Our Response: The ability for entities Our Response: Under section 4(d) of based on a percentage of the total other than UDWR to permit take was the ESA, we are required to issue estimated annual Utah prairie dog added in this final rule. protective regulations deemed necessary population takes into account changes (33) Comment: One commenter said and advisable to provide for the in prairie dog numbers across the that we should not limit within-colony conservation of listed threatened species’ range due to climate change or take on agricultural lands. If an entire species. This 4(d) rule is based on the other factors. colony is not translocated, then the best available science and is a regulatory (38) Comment: One commenter stated remaining animals will continue tool to assist in species conservation. that it is very important that prairie dogs causing damage, and it is inevitable the This rule is intended to relieve prairie on agricultural lands and lands adjacent numbers will continue to increase. dog population pressures in to conservation areas are allowed to be Our Response: It is not the intent of overcrowded portions of the range as taken. this rule to extirpate colonies that occur well as alleviate some impacts to Our Response: We agree with this on agricultural lands. The intent of this agricultural operations, properties comment. The ability to take prairie special rule is to support the within 0.8 km (0.5 mi) of prairie dog dogs in these areas is included in the conservation of the Utah prairie dog by conservation lands, and areas where rule (see Limiting Where Take is managing unnaturally high populations human safety or the sanctity of Allowed). that occur in areas such as agricultural significant human cultural or human (39) Comment: One commenter stated lands. We conclude in this rule that our burial sites is a concern. We evaluated that maintaining healthy predator ability to manage these populations will the effects of our action in accordance populations on grazing land is assist with recovery efforts for the Utah with the National Environmental Policy important to controlling Utah prairie prairie dog. Act by completing an environmental dogs in areas where they are not (34) Comment: A couple of assessment. We solicited public wanted. Predators can naturally and commenters, including one elected comments on our environmental effectively control prairie dog official, were concerned that two fences assessment (77 FR 24915, April 26, populations so that there is no need for have already been constructed at the 2012). Based on the comments we human control. Paragonah Cemetery in accordance with received, we completed a finding of no Our Response: We agree that Service specifications, and now they are significant impact. Therefore, we will predators can naturally control Utah being asked to build a third fence, 6 feet not develop an environmental impact prairie dog populations, and this is deep. The uncertainty in adequate fence statement on our action, and do not described in the rule (see ‘‘Life History’’ specifications erodes trust between the believe an environmental impact and ‘‘Habitat Requirements and Food government and local communities. statement is required. Habits’’). However, we do not have the Our Response: The Service was not (36) Comment: One commenter stated ability to manage predators on the asked to review and approve the prior that we are wasting time and money properties to which this rule applies; fences at the cemetery, one of which is working on Utah prairie dog issues private agricultural lands are managed above ground, and the other which is 18 because the animals occur everywhere, systems that usually include predator inches below ground. Regardless, the including central and eastern Utah. removal. existing fence is ineffective at keeping Specifically, this commenter stated that (40) Comment: One commenter prairie dogs out of the cemetery. The our range data are inaccurate because recommended that we revise our timing Service and State of Utah have offered Utah prairie dogs occur in Emery and of permitted take to be June 1 in the to fund and construct a new fence at the Carbon Counties. West Desert recovery unit and July 1 on cemetery that will be a more effective Our Response: As described in the the Awapa Plateau and Paunsaugunt prairie dog barrier. Under this rule, after rule, the distribution of the Utah prairie recovery units. the fence is constructed, the City of dog is limited to the southwestern Our Response: We reviewed the Paragonah will be given a permit to quarter of Utah in Iron, Beaver, available literature and discussed these lethally take any prairie dogs that Washington, Garfield, Wayne, Piute, dates with the Utah Prairie Dog breach the fence at any time during the Sevier, and Kane Counties. The species Recovery Team members. We concluded year, following an initial translocation that occurs in Carbon and Emery that the date of permitted take should be effort. We agree that prairie dogs should Counties, and other portions of central changed to June 15, particularly to

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accommodate higher elevations where to expand and protect populations and placed on every resident in the county prairie dog pups often emerge from their recover the Utah prairie dog. because people who have prairie dogs dens later as compared to lower (43) Comment: One commenter agreed on their property have successfully elevations, and we changed the date in that agricultural lands tend to support petitioned the State to have the value of this final rule. high numbers of prairie dogs. However, their property reduced. (41) Comment: A few commenters this commenter stated that prairie dog Our Response: We acknowledge expressed concern that allowing take of populations do not increase to the same prairie dogs can have economic and up to 6,000 prairie dogs annually is too high levels on grazing land. Therefore, physical impacts. These impacts large of a number because the annual the justification that we use for control contributed to the listing of the species, count of prairie dogs does not reach cannot be applied to both situations. because prairie dogs were controlled these levels. They were concerned that Our Response: We agree that in many heavily by humans prior to listing. the take was too high given other cases prairie dog populations do not Many private properties are likely to be aspects of the species’ status, including increase on grazing lands to the same developed, particularly in the urban declines in Utah prairie dog populations degree as they do on agricultural lands, areas. Development of private lands over the last century, small colony sizes, particularly if those are public results in the permanent loss of prairie poor habitat conditions, overgrazing, rangelands without improvements. dog habitats and populations. Therefore, habitat fragmentation, and plague. One However, under this rule, we more we believe that retaining the prohibition commenter stated that Utah prairie dog specifically define agricultural lands on for take on private lands except where populations have declined dramatically which control can be considered; see allowed by this rule is necessary and in the last 100 years, and thus the level Limiting Where Take is Allowed. Many advisable for the conservation of the of take provided in the rule is too great. of the pasturelands that fall under this species. The mechanism to authorize Our Response: This rule limits the category are improved landscapes, take on private lands that are not amount of annual take to a maximum of which likely result in increased prairie included in this rule is the ESA section 10 percent of the rangewide population. dog populations. In addition, to ensure 10(a)(1)(B) process and implementation The upper limit of 6,000 animals is not that we only consider control under of HCPs. included in the final rule. Based on the proper conditions, the rule requires that (46) Comment: One commenter stated best available science and models, we we verify the land is being physically or that it is absurd to consider prairie dogs believe this take limit is consistent with economically impacted by prairie dogs. as endangered or threatened because recovery goals for the species. The Utah (44) Comment: One commenter their total estimated population is about prairie dog rangewide population trend requested information on how we 34,000 animals on Federal land. A is stable to increasing over the last 30 estimate rangewide prairie dog couple of commenters also were years. populations. This commenter suggested (42) Comment: One commenter stated that pups should not be included in the concerned that we only count numbers that Utah prairie dog recovery efforts estimate because many do not survive of prairie dogs on Federal lands toward have not been successful over the last 25 their first year. recovery. years. This commenter also stated that Our Response: The equation for Our Reponse: Rangewide (public and our primary goal should be to expand estimating Utah prairie dog population private lands) prairie dog spring counts Utah prairie dog populations. This size is included in the ‘‘Distribution and were as high as 7,527 animals in 1989 commenter urged us to implement more Abundance’’ section of the rule. The (summer population estimate = 54,194) strategic solutions that work with total population estimate includes and a low spring count of 1,866 animals landowners to implement more strategic juveniles. The commenter is correct in in 1976 (summer population estimate = solutions to compensate for lost income stating that many pups do not survive 13,435). The average spring count on all and encourage support for Utah prairie their first year, so for recovery purposes lands for the past 34 years is 4,187 dog recovery, instead of implementing we rely heavily on spring counts (adults animals (summer population estimate = outdated lethal control methods. only) to determine population trends. 30,150). The species is listed as Our Response: This rule emphasizes We included the calculation for total threatened primarily based on threats control of Utah prairie dog in certain population estimate (adults and from development and plague. Plague locations that we have determined are juveniles) in the rule because it helps affects the species rangewide. not essential to the recovery of the Utah the reader to understand that the rule Development affects the species largely prairie dog. However, our recovery allows control on agricultural lands on non-Federal lands through effort is a multi-phased approach to during the summer months when residential and commercial species’ conservation on a landscape impacts from prairie dogs can increase development. Over 70 percent of the scale. Our new Utah Prairie Dog Final dramatically due to the high numbers of Utah prairie dog population occurs on Revised Recovery Plan describes many animals on the landscape. non-Federal lands that will likely be of the ongoing and newer strategic (45) Comment: A few commenters developed in the foreseeable future. To conservation solutions on public and stated that the rule should be expanded recover the Utah prairie dog, we need private lands, including conservation to allow all private property owners to both robust population numbers and banks, Utah prairie dog Habitat Credit remove prairie dogs from their lands protection from the threats, in the form Exchange (a market-based form of because of the high degree of economic of permanent habitat protection. In this mitigation banking), safe harbor and physical impacts (i.e., prairie dog regard, private lands are counted toward program, Utah prairie dog Recovery mounds), as well as human safety recovery when they are permanently Implementation Program, habitat issues, associated with the presence of protected through acquisitions or conservation planning, translocations, prairie dogs. For example, many people conservation easements. plague management, and habitat cannot find a buyer for their property if (47) Comment: One commenter asked conservation plans (HCPs) (USFWS it has prairie dogs on it or adjoins a lot why the Federal government cannot 2012, section 1.9). We believe that the with prairie dogs. Many people are move the prairie dogs to Federal land sum of all of these efforts, including forced to purchase and install prairie and manage them there, allowing allowing control on lands as identified dog fencing to keep prairie dogs off their homeowners to rid their properties of under this rule, will cumulatively work lot. There also is a shifting tax burden these animals.

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Our Response: The Utah prairie dog (50) Comment: One commenter agreed specific situations where there is a recovery effort includes a 2-tiered with the idea of controlling animals that credible concern. approach of establishing and managing intrude into areas such as cemeteries (54) Comment: One commenter prairie dogs on Federal lands and and airports, and that these prairie dogs questioned the constitutionality of this protecting existing colonies on private should either be killed or translocated to 4(d) rule and Federal regulation of the lands where willing landowners agree to Federal lands. Utah prairie dog, based on the conservation easements or fee title Our Response: The final rule allows Commerce Clause. purchases. Because most of the Utah for both lethal take and translocation of Our Response: We believe this 4(d) prairie dog population exists on private prairie dogs from areas where prairie rule is constitutional. The courts have lands, recovery will be achieved in dogs create human safety hazards (e.g., issued several rulings on the substantially less time if we are able to airports) or disturb the sanctity of constitutionality of the ESA under the protect some of the most important significant human cultural or human Commerce Clause. The final colonies in these areas. burial sites. environmental assessment evaluates the (48) Comment: One commenter (51) Comment: One commenter stated effects of this final rule to the human recommended that prairie dogs be that they would like to be able to trap environment, including thinned via relocation where they are in and translocate prairie dogs in public socioeconomics. areas where the safety of visitors is conflict with landowners. Application of the Utah Prairie Dog being compromised, such as in public Our Response: The special rule allows Special Rule Through the Present and encourages live-trapping and parking areas, public event seating areas, livestock corrals, and non- As explained above in the Special translocation of prairie dogs from the Rules Under ESA Section 4(d) section, lands where take is authorized (see irrigated pastureland. One related comment from elected officials said that under section 4(d) of the ESA, the Limiting Methods Allowed to Implement the requirement of a fence should not be Secretary of the Interior may extend to Direct Take). a precedent for all private property a threatened species those protections (49) Comment: One commenter stated owners. The commenters stated that provided to an endangered species as that our proposed revisions to the fencing areas is not always feasible. deemed necessary and advisable to special rule are flawed because they Our Response: We added language to provide for the conservation of the require ‘‘all practicable measures’’ to be the final rule to allow filling of burrows species. When the Utah prairie dog was taken to remove and keep prairie dogs and translocations of animals from areas reclassified from endangered to out of airports and cemeteries. A couple where Utah prairie dogs create human threatened status in 1984, we issued a of commenters did not believe that safety hazards or disturb the sanctity of special rule applying all of the ESA’s fencing is practical because the fence significant human cultural or human prohibitions to the Utah prairie dog would need to be several feet burial sites, but where fencing of these except for take occurring in specific subterranean, a few feet high areas is not practicable. However, a delineated portions of the Cedar and aboveground, and of a material that prairie-dog proof fence must first be Parowan Valleys in Iron County, Utah, cannot be chewed through; open gates constructed before we would authorize when permitted by the UDWR and in would need to be monitored; and the lethal take in these areas under this final accordance with the laws of the State of fencing is expensive. One commenter rule. Utah, provided that such take did not said that acceptable fence specification (52) Comment: One commenter was exceed 5,000 animals annually and that should be made clear to everyone. A concerned that the shortened timeframe such take was confined to the period couple of commenters expressed for direct take (changing the start date from June 1 to December 31 (49 FR concern about who would pay for for take from June 1 to June 15) would 22330, May 29, 1984). The rule required fencing and the maintenance of that be problematic. quarterly reporting by UDWR and fence. Our Response: The purpose of this allowed us to immediately prohibit or Our Response: We agree that no fence special rule is to provide for the long- restrict such taking as appropriate for is likely to be completely impermeable term conservation of the Utah prairie the conservation of the species if we to prairie dogs, and our rule dog. Therefore, the specifications of the received substantive evidence that the acknowledges this issue. We have special rule are based on the biological allowed take was having an effect that worked with the Utah Prairie Dog needs of the species. Additionally, we was inconsistent with the conservation Recovery Implementation Team to consider the 15-day change to be a of the Utah prairie dog (49 FR 22330, develop fencing specifications that meet relatively minor alteration to the rule. May 29, 1984). some of the commenters’ concerns— (53) Comment: One commenter In 1991, we amended the special rule fencing 6 feet below ground and 3 feet expressed concern that the take (56 FR 27438, June 14, 1991), expanding above ground with prairie-dog proof allowance for human safety, cultural, the authorized taking area to include all materials. Long-term monitoring and and burial sites would be unnecessarily private land within the species’ range, maintenance of any fence is necessary constrained to ‘‘only areas where a and raised the maximum allowable take for that fence to maintain its credible, serious public safety hazard or to 6,000 animals annually (50 CFR functionality, regardless of the intended harm to significant human cultural or 17.40(g)). The rule required UDWR to purpose of that fence, e.g., prairie dogs human burial sites could be clearly maintain records on permitted take and or livestock. We, and the State of Utah, demonstrated.’’ make them available to the Service upon have provided funding and equipment Our Response: We do not believe that request (50 CFR 17.40(g)). Under this to complete prairie-dog proof barriers at this constraint is impractical or rule, we retained the ability to the Parowan Airport and Paragonah burdensome. The ability to control immediately prohibit or restrict such Cemetery. We will continue to assist prairie dogs in these situations is take as appropriate for the conservation with funding as it is available to meet certainly important to local of the species if we received substantive both community and recovery needs for communities, and as such we believe it evidence that the permitted take was this species; however, we also anticipate also is beneficial for Utah prairie dog having an effect that was inconsistent that local communities and private recovery efforts. However, we intend with the conservation of the species (50 entities also may fund fencing projects. that the rule is only applied in site- CFR 17.40(g)).

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Both rules (49 FR 22330, May 29, that also alleviated some of the impacts (range equals 1.8 to 13.0 percent); actual 1984; 56 FR 27438, June 14, 1991) were to agricultural operations (49 FR 22330, take averaged 2.6 percent of the total intended to relieve Utah prairie dog May 29, 1984; 56 FR 27438, June 14, rangewide estimated population (range population pressures in overcrowded 1991). The rules expressed concern that equals 0.9 to 5.3 percent). Table 3 portions of the range that could not without control actions, these factors provides detailed information on otherwise be relieved. The rules could have a substantially negative permitted and reported take as a percent indicated that agricultural practices effect on populations and reverse the of the total rangewide population from were making the habitat more recovery progress made since listing (49 1985 to 2010 (UDWR 2010b, 2011, productive than it was historically, thus FR 22330, May 29, 1984; 56 FR 27440, entire; Day 2012, pers. comm.). allowing the prairie dog population to June 14, 1991). The 1991 rule referenced Reported take was always well below achieve unnaturally high densities. We data that demonstrated that Utah prairie permitted take, averaging 48 percent of concluded that the resulting dog population levels in areas with overpopulation pressures increased the controlled take increased 88 percent permitted take across 25 years. As risk of sylvatic plague (Yersinia pestis) during the first 4 years (1985–1989) of previously described, UDWR could have outbreaks (see ‘‘Habitat Requirements implementation of the special rule (56 permitted take of up to 6,000 prairie and Food Habits,’’ above; 49 FR 22333, FR 27438, June 14, 1991). dogs annually under the 1991 special May 29, 1984; 56 FR 27439–27440, June In practice, and under Utah State rule, regardless of the spring count data. 14, 1991). We also concluded that Code (R657–19–6, R657–19–7), the Figure 1 illustrates annual rangewide removing individuals during summer UDWR permitted taking only by population estimates from 1985 to 2010 when populations were highest would shooting or trapping on agricultural with a population trend line. reduce competition in overpopulated lands where prairie dogs are causing Throughout implementation of the areas and result in increased overwinter damage and limits the number of previous special rules (49 FR 22330, survival among remaining animals (49 animals taken on an individual colony May 29, 1984; 56 FR 27438, June 14, to no more than half of a colony’s FR 22334, May 29, 1984; 56 FR 27439– 1991; 50 CFR 17.40(g)), both the estimated productivity for that year. 27441, June 14, 1991). rangewide population estimates and Finally, these rules were necessary Over time, UDWR has permitted fewer and advisable to address the growing than 6,000 animals every year for the numbers of prairie dogs in individual conflicts between landowners and last 25 years. Annual permitted take colonies subject to control remain stable prairie dogs by providing for amounts averaged 5.7 percent of the to increasing (Figure 1; Day 2010, pers. ecologically based population control total rangewide population estimate comm.).

TABLE 3—AMOUNT OF UTAH PRAIRIE DOG TAKE PERMITTED AND REPORTED UNDER THE ESA 4(d) RULE BY UDWR, 1985–2010 [UDWR 2010b, 2011; Day 2012, pers. comm.]

Permitted Reported take take Reported Spring Rangewide Permitted percentage of Reported percentage of take Year * count population take rangewide take rangewide percentage estimate population population of permitted estimate estimate take

1985 ...... 3,299 23,753 845 3.6 426 1.8 50 1986 ...... 4,400 31,680 2,040 6.4 1,247 3.9 61 1987 ...... 4,771 34,351 975 2.8 370 1.1 38 1988 ...... 4,640 33,408 2,415 7.2 528 1.6 22 1989 ...... 7,527 54,194 3,050 5.6 838 1.5 27 1991 ...... 4,492 32,342 4,200 13.0 1,632 5.0 39 1992 ...... 4,067 29,282 3,520 12.0 1,543 5.3 44 1993 ...... 3,954 28,469 1,050 3.7 599 2.1 57 1994 ...... 3,702 26,654 1,190 4.5 779 2.9 65 1995 ...... 3,576 25,747 630 2.4 461 1.8 73 1996 ...... 3,917 28,202 520 1.8 436 1.5 84 1997 ...... 4,359 31,385 1,065 3.4 589 1.9 55 1998 ...... 5,106 36,763 1,220 3.3 717 1.9 59 1999 ...... 5,068 36,490 2,496 6.8 1,233 3.4 49 2000 ...... 5,892 42,422 3,700 8.7 1,386 3.3 37 2001 ...... 4,223 30,406 3,719 12.2 1,626 5.3 43 2002 ...... 4,933 35,518 3,781 10.6 1,760 4.9 46 2003 ...... 3,729 26,849 2,620 9.8 1,195 4.4 45 2004 ...... 4,102 29,534 1,360 4.6 363 1.2 27 2005 ...... 5,375 38,700 1,470 3.8 673 1.7 46 2006 ...... 5,524 39,773 1,060 2.7 343 0.9 32 2007 ...... 5,991 43,135 944 2.2 482 1.1 51 2008 ...... 5,791 41,695 1,204 2.9 561 1.3 47 2009 ...... 5,827 41,954 1,532 3.6 558 1.3 36 2010 ...... 5,648 40,666 1,870 4.7 1,425 3.6 76

AVG ...... 4,796 34,535 1,939 5.7 814 2.6 48 * In 1990, colonies on private lands were not counted, due to staffing and budget limitations. Thus, these incomplete estimates are excluded from this table. In addition, take from 1985 to 1990 occurred only on non-Federal lands in Cedar and Parowan Valleys, Iron County. Take from 1991 to present was authorized on non-Federal lands rangewide.

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BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C Permitting Take Cultural and Burial Sites, below) when Utah prairie dogs are determined, with Amendments to the 4(d) Special Rule Agricultural Lands for Utah Prairie Dogs the written approval of the Service, to The previous special rules (49 FR be presenting serious human safety Based on new scientific information 22330, May 29, 1984; 56 FR 27438, June hazards (e.g., airport safety areas, and 25 years of available data, we 14, 1991) allowed take of Utah prairie recreational sports fields, nursing amend the previous 4(d) special rule. dogs when permitted by UDWR. Under homes, schools), or disturbing the This amendment clarifies the previous these rules, UDWR biologists were sanctity of a significant human cultural special rules, by more specifically required to count Utah prairie dogs, or human burial site sites (e.g., public determine extent of damage, determine identifying locations and situations cemetery, sacred Tribal sites) if these level of take, and issue permits to where lethal take is allowed because we lands are determined not necessary for applicants who requested the ability to the conservation of the species. No have determined it to be compatible control prairie dogs on their lands. At with recovery of the species; these are permit would be required in these the time the previous rules were instances. agricultural lands, properties within 0.8 published, UDWR biologists were likely km (0.5 mi) of conservation lands, and the only persons with the expertise to Limiting Where Take Is Allowed areas where Utah prairie dogs create perform these permitting tasks. serious human safety hazards or disturb The 1991 special rule allowed take on However, we now have a larger private lands anywhere within the range the sanctity of significant human partnership effort, in the form of the of the Utah prairie dog. However, in cultural or human burial sites. We also Utah Prairie Dog Recovery practice and in accordance with Utah are providing a take exemption for Implementation Program, in which Code (R657–19–6, R657–19–7), UDWR members of other State, Federal, Tribal, otherwise legal activities associated permitted take only on agricultural and local entities and the public are with standard agricultural practices. In lands where prairie dogs were causing working together on various programs to these circumstances, imposing the take damage. In this revision to the special facilitate the species’ recovery (USFWS prohibitions is not considered necessary rule, we limit the locations where take 2012, p. 1.9–11). Because of this and advisable for the conservation of the is allowed to agricultural lands, private partnership, we can reasonably assume Utah prairie dog. In fact, allowing take property within 0.8 km (0.5 mi) of that other entities may hire biologists or in these specific situations likely will conservation lands, and areas where individuals with expertise in Utah result in greater conservation gains for Utah prairie dogs create serious human the Utah prairie dog than would the prairie dogs, and that these individuals may be available to conduct many of the safety hazards or disturb the sanctity of application of all section 9 prohibitions permitting responsibilities previously significant human cultural or human (see Limiting Where Take Is Allowed undertaken by the UDWR. Approved burial sites. and Incidental Take From Normal permitting entities would at a minimum Agricultural Lands Agricultural Practices, below). We also be required to employ a sufficient are providing limits to the amount and number of professional wildlife Permitting entities will issue permits methods of take that may be allowed. biologists to conduct all permitting for direct take on agricultural lands. Finally, we are providing the responsibilities; request and complete This is consistent with UDWR’s opportunity for entities other than permitting training from the UDWR for permitting procedures under the UDWR to evaluate and permit control staff assigned to permitting; complete previous special rules. However, this on lands specified under this rule. the USFWS’s annual Utah prairie dog revision provides a specific definition for agricultural lands for clarification Our amendments are largely survey training; and maintain a purposes. Specifically, the above consistent with the past practices and complete reporting and tracking system for take, including annual reports on the activities are exempted from the take permitting as administered by UDWR prohibition only on lands meeting the under the previous special rules. Utah number and location of permits issued, spring population counts and Utah Farmland Assessment Act of 1969 prairie dog populations have remained boundaries of permitted colonies, definition of agricultural lands (Utah stable to increasing throughout number of animals allowed to be taken, Code Annotated Sections 59–2–501 implementation of the previous special number of animals actually taken, through 59–2–515). Thus, to be rules as implemented under the UDWR method of take, and method of disposal considered agricultural land under this permit system (see Figure 1). Our of all Utah prairie dogs taken. Thus, this amendment, lands must: (1) Meet the amendments are necessary and special rule allows, with the Service’s general classification of irrigated, advisable to ensure sufficient written approval, other entities to dryland, grazing land, orchard, or conservation for Utah prairie dogs and perform the UDWR permitting and meadow; (2) be capable of producing the species’ continuing stable-to- reporting tasks for control activities. For crops or forage; (3) be at least 2 increasing, long-term population trends. simplicity, this rule refers throughout to contiguous ha (5 contiguous ac) (smaller Below we describe the restrictions on ‘‘permitting entities,’’ and thus applies parcels may qualify where devoted to direct take and the new take provisions. to UDWR or other permitting entities agriculture use in conjunction with This regulation extends the should those entities take over specific other eligible acreage under identical legal ownership); (4) be managed in prohibitions in section 9(a)(1) of the responsibilities under this special rule. such a way that there is a reasonable ESA to Utah prairie dogs on all other Safety Hazards, Human Cultural and expectation of profit; (5) have been lands across the species’ range, where Burial Sites devoted to agricultural use for at least 2 not specifically exempted by this 4(d) Take would be allowed where Utah successive years immediately preceding rule. We have determined that the prairie dogs create serious human safety the year in which application is made; regulation of take in the areas specified hazards or disturb the sanctity of and (6) meet State average annual (per- in this 4(d) rule is necessary and significant human cultural or human acre) production requirements. Limiting advisable for the conservation of the burial sites (see Limiting Where Take is permitted take to agricultural lands is Utah prairie dog. Allowed, Safety Hazards, Human consistent with the justification

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provided in the previous special rules Conservation lands are generally Safety Hazards, Human Cultural and for the species (as summarized above). selected or approved by the Recovery Burial Sites Additionally, agricultural operators Team, taking into consideration spatial Take is allowed in areas where Utah must demonstrate to the permitting distribution, colony size, colony prairie dogs are determined, with the entity that their land is being physically persistence, connectivity between written approval of the Service, to be or economically impacted by Utah habitats, and their ability to contribute presenting serious human safety hazards prairie dogs. Before an application can to the species’ recovery (USFWS 2012, (e.g., airport safety areas, recreational be approved, the permitting entity must p. 3.5–4). Conservation lands may sports fields, nursing homes, schools), conduct a visual census of the include, but are not limited to, non- or disturbing the sanctity of significant applicant’s property to verify that the Federal properties set aside as human burial or human cultural sites if land is being physically or economically conservation banks, fee title purchased these lands are determined not impacted by Utah prairie dogs. The properties, properties under necessary for the conservation of the visual census will count prairie dogs on conservation easements, or properties species. Significant human burial sites the applicant’s property and determine subject to a safe harbor agreement. In may include public cemeteries and a total population estimate (adults and order to be recognized as Utah prairie tribal burial grounds (for example, as juveniles) for the colony. A minimum dog conservation land, a description of described by the Native American spring count of seven animals is required to ensure that permits are the parcel must be submitted to the Graves Protection and Repatriation Act; authorized only where resident prairie permitting entity, accompanied by Pub. L. 101–601; 25 U.S.C. 3001–3013). dogs have become established on documentation that clearly defines the Significant human cultural sites may agricultural lands (Day 2011, pers. conservation benefits to the Utah prairie include sacred tribal sites such as Pow comm.). Thus, lands being minimally dog. In addition, documentation must Wow grounds and sacred structures. No impacted by dispersing prairie dogs are be available describing the location of permit is required in these instances not covered. These restrictions are all private properties within 0.8 km (0.5 once written approval is received from consistent with past UDWR practice. mi) of the conservation land parcel; the the Service. Utah prairie dog populations have baseline populations of prairie dogs on Take will only be allowed by the remained stable to increasing the private properties (the highest Service in areas where a credible, throughout implementation of the estimated population size (adults and serious public safety hazard or harm to previous special rules and past juveniles) of the last 5 years prior to the significant human cultural or human practices, as implemented under the establishment of the conservation burial sites could be clearly UDWR permit system. As described property); and the methods of Utah documented. Areas of serious human below, we also have concluded that prairie dog control that will be allowed safety concern do not include public allowing take on agricultural lands on the private properties. If no UDWR rangelands or properties being benefits Utah prairie dog conservation surveys were conducted during the developed for residential, commercial, efforts (see ‘‘Conservation Benefits of previous 5-year period prior to or transportation uses. In addition, we Allowing Take on Specific Lands’’). establishment of the conservation do not intend for this rule to be used to Therefore, consistent with past practice property, then the baseline population eliminate prairie dogs because of and data that indicate these restrictions is the estimated total (summer) concerns regarding plague transmission will support the ongoing conservation of population size on that property as to humans, unless this disease becomes the species, we adopt these restrictions. determined in the first survey a proven human safety issue in the future, and directly linked to the Properties Near Conservation Lands conducted after the establishment of the conservation property. The amount of presence of Utah prairie dogs. Permitting entities will be allowed to permitted take on properties within 0.8 To reduce hazards, prairie dog burrows may be filled with dirt if they issue permits for direct take on private km (0.5 mi) of conservation lands, are directly creating human hazards or properties within 0.8 km (0.5 mi) of discussed further below, will be limited disturbing the sanctity of significant Utah prairie dog conservation lands. All each year to the number of animals that human cultural or human burial sites. private properties within 0.8 km (0.5 exceed the baseline estimated Utah prairie dogs also may be mi) of conservation lands automatically population size (adults and juveniles) translocated from these sites to fall into this category even if they also (see Limiting the Amount and approved translocation sites by properly are agricultural lands. Although the Distribution of Direct Take That Can Be trained personnel using a Service- 1991 special rule already allowed for Permitted, ‘‘Properties Near approved translocation protocol. Lethal take in this situation (i.e., take was Conservation Lands,’’ below). allowed on private lands across the take in approved situations is species’ range), such take was not As described below (see considered a last resort, and is only previously authorized by UDWR ‘‘Conservation Benefits of Allowing allowable after all practicable measures practice or Utah Code (R657–19–6, Take on Specific Lands’’), we find that to resolve the conflict are implemented. R657–19–7). However, we believe the this addition to the special rule is All practicable measures means, with continuation of this provision in our prudent for the conservation of Utah respect to these situations, the: (1) rulemaking is important for Utah prairie prairie dogs. We can lose recovery Construction of prairie-dog proof fence, dog recovery efforts. Permitting take in opportunities for the species if nearby above and below grade to specifications this manner on private property within landowners believe that activities on approved by the Service, around the 0.8 km (0.5 mi) of conservation lands their lands will be encumbered in the area in which there is concern, and (2) promotes landowner and community future if prairie dogs migrate from translocation of Utah prairie dogs out of support for Utah prairie dog recovery on conservation lands to nearby properties. the area in which there is a concern. non-Federal lands. This change to the 4(d) rule should Translocations will include all animals Conservation lands are areas set aside greatly facilitate conservation that can be captured within the fenced for the preservation of Utah prairie dogs opportunities by removing opposition to area, regardless of the weight or sex of and are managed specifically or those efforts by other stakeholders that that animal. Lethal take is allowed only primarily toward that purpose. could be affected. to remove prairie dogs that remain in

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these areas after the measures to fence as previously described (see ‘‘Life benefits of prairie dog conservation and translocate are successfully carried History’’), there are a variety of factors outweigh the costs to the landowner and out. Despite our best engineering efforts, that play a role in the occurrence and communities, and if control programs prairie-dog proof fences may still be extent of enzootic and epizootic plague that address landowner concerns and breached by prairie dogs. The local events, and thus we are not able to opposition are available when needed communities or private entities are conclude that reducing prairie dog (Elmore and Messmer 2006, p. 13). required to maintain the fence, fix any population densities will always result Some producers are interested in breaches, and modify the fences as in the reduction of plague occurrence or working with us on habitat and range necessary to limit access of prairie dogs its resulting impacts to prairie dog improvement projects that benefit in order for the lethal take authorization colonies. livestock and Utah prairie dogs to be sustained long term. These We have concluded that allowing simultaneously, or participating in circumstances will be certified in some control of Utah prairie dogs will conservation easements that benefit the writing by the Service following any increase the participation of landowners species (Elmore and Messmer 2006, pp. necessary site visits and coordination and local communities in the species’ 10–11, 13). However, agricultural with the requesting entity. As stated conservation and recovery. Until producers want the ability to control or above, no permit will be required to recently, Utah prairie dog recovery translocate prairie dogs to minimize allow take under these conditions. efforts focused on habitat enhancements levels of damage (Elmore and Messmer and translocation of the animals to 2006, pp. 10, 13). Similarly, local Conservation Benefits of Allowing Take Federal lands (USFWS 1991, pp. 19–33). communities want the ability to control on Specific Lands Consequently, recovery was largely Utah prairie dogs in specific situations Overall, continuing to allow dependent on achieving sufficient where they cause serious human safety permitted take on agricultural lands, population numbers on Federal lands, concerns or disturb the sanctity of lands within 0.8 km (0.5 mi) of without considering the potential for human cultural or human burial sites. conservation lands, and lands where conservation benefits that could be Our recent experiences show that if Utah prairie dogs create serious human achieved on private lands. We now have we are mindful of landowner, safety concerns or disturb the sanctity of concluded that recovery will be community, and safety needs, and if we significant human cultural or human achieved more rapidly if we increase provide mechanisms to control Utah burial sites is critical to facilitating the conservation efforts on private and other prairie dogs where they conflict with species’ recovery. As previously non-Federal lands (where the majority certain human land uses or create described, Utah prairie dogs can reach of the species’ occupied habitat occurs). serious safety hazards, we can improve unnaturally high densities and Our new Utah Prairie Dog Revised landowner and local community abundance on agricultural lands Recovery Plan emphasizes conservation support for the species’ conservation. because of increased forage quantity and efforts on private and other non-Federal For example, in a 2005 safe harbor quality, and lower predator numbers lands (USFWS 2012, p. 2.3–2). agreement, a landowner agreed to (see ‘‘Habitat Requirements and Food New or increased Federal regulations restore habitat and allow the Habits’’ section, above). If prairie dog can be disincentives for recovery efforts. establishment of a new colony of prairie populations on agricultural lands are These disincentives may be nearly dogs on his property through left uncontrolled, the consequent insurmountable for State, Tribal, and translocations (USFWS 2005, entire), crowding may result in diminished private landowners. Many agricultural but conditioned his willingness to forage resources, leading to decreased producers feel that Utah prairie dogs accept translocated animals on the fact reproduction and survival or increased impact their operations through loss of that his safe harbor agreement allowed emigration (Crocker-Bedford and forage for their cattle; equipment him to control animals if they impacted Spillett 1981, pp. 21–22; Reeve and damage from driving across burrows; his livestock operations (USFWS 2005, Vosburgh 2006 pp. 122–123). livestock injury if animals step in pp. 5–6). Between 2005 and 2007, we Controlling populations by removing burrows; and decreased crop yields completed five individual Utah prairie some prairie dogs decreases competition (e.g., prairie dogs eat crop vegetation dog safe harbor agreements, all of which for limited food resources, consequently such as alfalfa) (Elmore and Messmer include the ability for a landowner to resulting in increased reproduction and 2006, p. 9). Local communities and control some prairie dogs where they decreased mortality (Cully 1997, pp. congressional representatives are may impact their agricultural activities. 153–156; Reeve and Vosburgh 2006, pp. concerned regarding safety and These five safe harbor agreements 122–123). sacredness issues associated with provide habitat improvements for Utah Controlled removal also may help prairie dogs that occur respectively prairie dogs on 1,230 ac (497 ha) of mediate the potential for plague along airport runways and in local habitat. outbreaks on prairie dog colonies in cemeteries. In addition, we expect that Additionally, there may be some situations. High animal densities increased focus on establishing and opportunities to protect Utah prairie can play a role in facilitating the managing non-Federal conservation dogs and their habitats through fee-title transmission of the disease between lands will likely increase the size and purchase or conservation easements individuals (Cully 1989, p. 49; extent of prairie dog colonies on and with willing landowners. We are more Anderson and Williams 1997, p. 730; adjacent to these conservation lands. likely to gain community support for Gage and Kosoy 2005, pp. 509 and 519– Thus, as recovery becomes more and these land protection mechanisms if we 520). Therefore, allowing control on more successful on non-Federal lands, can provide regulatory flexibility for agricultural lands may enhance the regulatory relief will become neighboring landowners. For example, long-term conservation of the Utah increasingly important. in 2001, the UDWR and Iron County prairie dog on these lands by To achieve recovery, we will need to purchased 73 ha (180 ac) in Parowan maintaining more sustainable create incentives for private landowners Valley, and renamed the area as the populations (i.e., more natural animal and local communities to participate in Parowan Valley Wildlife Management densities are less likely to degrade their prairie dog habitat improvement and Area, designating it for the protection of forage resources, and less likely to have protection measures. We can achieve a large Utah prairie dog colony. At the large-scale plague outbreaks). However, this only if we demonstrate that the time, there was concern that

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neighboring landowners would be agreements and conservation easements practices, as implemented under the negatively impacted if prairie dog to conserve Utah prairie dog habitats on UDWR’s permit system. management activities resulted in the private or other non-Federal lands are Limiting the Amount and Distribution of growth and expansion of the existing likely tools that will be employed under Direct Take That Can Be Permitted prairie dog colony. Therefore, to support this new HCP. We believe that local the purchase and protection of this support for any conservation lands set Agricultural Lands important colony, we worked with the aside for the species in association with The 1991 special rule allowed UDWR landowner to allow the control of HCPs, especially in urban or agricultural to permit take for a maximum of 6,000 prairie dogs (above a 2001 baseline areas, will be greatly enhanced by our animals annually, without additional number on each property) for properties ability to control the expansion of restrictions as long as such take was not within 0.8 km (0.5 mi) of the Parowan colonies onto neighboring lands. having an effect that was inconsistent Valley Wildlife Management Area. Many of the enrolled conservation with Utah prairie dog conservation. A Because of the issuance of this permit, lands will likely be in or adjacent to set maximum take limit such as this the local community supported the agricultural production. The goal in establishing conservation lands is to could be considered a fixed harvest rate. purchase and management of the According to recent literature, we increase prairie dog populations. As property for conservation of the Utah now conclude that fixed harvest rates prairie dog. such, we believe there will be site- can lead to extirpation of prairie dog Another opportunity to promote the specific needs to control some animals colonies, at least in the case of black- use of conservation easements is the adjacent to the enrolled conservation Utah Prairie Dog Habitat Credit lands, on nearby agricultural and other tailed prairie dogs (Reeve and Vosburgh Exchange program (hereafter referred to private properties. Our ability to 2006, pp. 123–125). This colony loss as the ‘‘habitat credit exchange’’) or provide sufficient control measures is will occur more rapidly with larger similar conservation banking essential if we are to gain increased fixed annual harvests (Reeve and opportunities. The credit exchange interest on the part of private Vosburgh 2006, pp. 123–125). allows a program administrator (in this landowners and local communities in From 1985 through 2010, the total case, the Panoramaland Resource the long-term conservation of the Utah estimated rangewide population of Utah Conservation and Development Council, prairie dog. prairie dogs (including juveniles) ranged Inc.) to enroll willing landowners in a Collectively, the available information from 23,753 to 54,194 animals (see Utah prairie dog conservation bank that indicates it is prudent to limit where Table 3, above). Thus, since 1991, if is beneficial to landowners, developers, take may be permitted to: (1) UDWR had authorized the maximum and prairie dogs. A pilot program Agricultural lands being physically or amount of allowed take (6,000 animals), implemented in 2010 pays landowners economically impacted by Utah prairie it would have represented 11 to 26 to protect properties in perpetuity with dogs when the spring count on the percent of the total estimated annual conservation easements that conserve agricultural lands is seven or more rangewide population (adults and Utah prairie dogs. Conservation on individuals (see Limiting the Amount juveniles). The UDWR has never private lands can then be used to and Distribution of Direct Take That authorized the 1991 rule’s maximum mitigate development in Utah prairie Can Be Permitted, ‘‘Agricultural Lands,’’ allowed take (6,000 animals). Actual dog habitat. The habitat credit exchange, below), (2) private properties within 0.8 reported take has always been or other conservation banking km (0.5 mi) of Utah prairie dog considerably below the maximum opportunities, can help us promote conservation lands, and (3) locations allowance. We do not know if a fixed mitigation in a way that provides a net where Utah prairie dogs present serious amount of 6,000 animals would benefit to the species by incorporating human safety hazards or disturb the negatively affect Utah prairie dog private lands and protecting prairie dogs sanctity of significant human cultural or populations over time. Therefore, when on these lands with perpetual human burial sites—e.g., airport safety considered alongside the specific conservation easements (Environmental areas, recreational sports fields, existing data for the Utah prairie dog, Defense 2009, p. 1). Again, we believe cemeteries, sacred Tribal sites. Limiting the information from available literature that we are more likely to gain the existing take authority to these that pertains to harvest of prairie dogs community support for these land locations is consistent with UDWR’s in general seems to indicate that protection mechanisms if we can permitting practices under the previous additional safeguards are prudent. provide regulatory flexibility for special rules. Prairie dogs in these areas According to the literature, a neighboring landowners. achieve population densities and fluctuating harvest rate based on a The protection of many conservation abundances higher than their percentage of the known population can lands will occur as mitigation required counterparts in native semiarid help ensure maintenance of a to obtain incidental take permits under grassland communities. In addition, sustainable population, with no risk of section 10(a)(1)(B) and their associated allowing take on private property within extinction (Reeve and Vosburgh 2006, p. HCPs. The existing Iron County HCP 0.8 km (0.5 mi) of conservation lands 123). Available models indicate that allows the use of mitigation banks to and areas with safety or human cultural harvest rates of 20 to 25 percent of a offset the impacts of development to concerns will promote landowner and prairie dog population are sustainable Utah prairie dogs (Iron County 2006). community support for Utah prairie (Reeve and Vosburgh 2006, p. 123; We are working with the counties and dogs that is necessary to achieve CDOW 2007, p. 135); however, these local communities to develop a recovery on non-Federal lands. The models were not specific to Utah prairie rangewide HCP to replace the Iron ability to allow some control of prairie dogs. In our view, the Utah prairie dog County HCP. It is too early to describe dogs is prudent from a biological and situation differs from the ones modeled. specific mitigation scenarios under a social context, and has and will One major difference is that prairie dog new rangewide HCP, other than to continue to enhance our ability to productivity and survivorship, key summarize our intent that a new HCP recover the species. Utah prairie dog assumptions for these models, are contribute to recovery and populations have remained stable to substantially higher in colonies simultaneously accommodate urban increasing throughout implementation occurring on irrigated agricultural land growth. Conservation banking of the previous special rule and past than they are on native semiarid

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grasslands (Collier 1975, pp. 42–43, 53; We include additional safeguards. colony (CDOW 2007, p. 128). If the Crocker-Bedford and Spillet 1981, p. 1, Permitting entities will spatially maximum amount of take (one-half of 15–17). These differences suggest that distribute the 7 percent allowed take on the colony’s productivity = 18 prairie existing models for black-tailed and agricultural lands across the three dogs) occurs on this size colony, it Gunnison prairie dogs are poor Recovery Units, based on the would reduce the total colony size to 32 predictors of likely impacts to Utah distribution of the total annual animals prior to the following breeding prairie dogs; the existing models are not population estimate within each season. Colonies of at least 25 prairie specific to agricultural lands as in the Recovery Unit. This spatial distribution dogs are likely to show population case of this special rule. Thus, the will help ensure that the take is not growth with very little risk of suggested sustainable harvest rates clustered in one area, and is instead extinction. Populations with 50 or recommended by these models are not more uniform based on comparative greater animals show no risk of directly applicable to agricultural lands annual population numbers. extinction and strong population growth occupied by Utah prairie dogs. Furthermore, we are limiting within- (CDOW 2007, p. 128). Therefore, we Regardless, we use this available colony take on agricultural lands to one- expect prairie dog colonies of at least 32 modeling in conjunction with data from half of a colony’s estimated annual animals to continue to exist long term 25 years of implementation of the productivity. Annual productivity = [(2 with annual, regulated lethal take. This × × previous special rules to allow take in spring adult count) 0.67 (proportion conclusion is supported by our × a manner that promotes the of adult females) 0.97 (proportion of observations that we have never verified × conservation of the Utah prairie dog. breeding females) 4 (average number the loss of a Utah prairie dog colony Although the previous special rules of young per breeding female)], or because of take permitted by UDWR did not follow a fluctuating harvest-rate approximately 36 percent of the total under the previous special rules, and model (i.e., a fixed rate of 6,000 animals estimated population of the colony. This prairie dog counts have remained stable could be taken annually), we used the limit is consistent with UDWR’s past to increasing on sites where permits available UDWR implementation data to practices. Under these practices, since were repeatedly requested and given determine the yearly permitted and 1985, we have never verified the loss of since 1985 (Day 2010, pers. comm.). a prairie dog colony because of take actual take numbers as percentages of These limits are largely consistent permitted by UDWR (Day 2010, pers. total annual population estimates. with UDWR’s past practice, which has comm.). Furthermore, according to Under the UDWR system, permitted successfully controlled prairie dogs in UDWR personnel, prairie dog counts take has averaged 5.7 percent of the total site-specific locations without have remained stable to increasing on rangewide population estimate (range negatively impacting recovery of the sites where permits are repeatedly equals 1.8 to 13.0 percent), with actual species (Day 2010, pers. comm.; Brown requested, indicating a self-sustaining take averaging 2.6 percent of the total 2012). In fact, this rule is more population and, sometimes, the rangewide population (range equals 0.9 restrictive in that it increases the expansion of these colonies despite to 5.3 percent). With these levels of long-term control efforts (Day 2010, minimum colony size for permitting permitted and reported take, rangewide pers. comm.). Our available data show from a spring count of five animals Utah prairie dog populations have, to that reported take in 1 year has not (1991 special rule) to a spring count of date, remained stable to increasing (see resulted in significant population seven animals (total estimated Figure 1, above). declines of the colony the following population size = 50 animals) because This rule limits the allowable year (Brown 2012). Thus, limiting that is the best available information we permitted take to no more than 10 within-colony take on agricultural lands have to ensure continued population percent of the estimated annual to no more than one-half of a colony’s growth rates and low extinction risk rangewide population (adults and estimated annual productivity (CDOW 2007, p. 128). juveniles). Take associated with (approximately 36 percent of the total Properties Near Conservation Lands agricultural lands can never exceed 7 estimated colony population) is percent of the estimated annual consistent with conservation of the Utah As noted above, a maximum of 7 rangewide population. The remaining prairie dog. percent of estimated annual rangewide allowable take is reserved for properties Colony size will be taken into population is allocated to agricultural within 0.8 km (0.5 mi) of conservation consideration by the permitting lands. The remaining take (3 percent or lands (see below). biologist when evaluating the more, depending on the percent of take While our new limit on allowable take permittee’s property and determining associated with agricultural lands) is is above the average actual take under appropriate take levels, because the reserved for permitted take on private the previous special rules, UDWR- impacts of take may be greater on property within 0.8 km (0.5 mi) of Utah permitted take associated with smaller colonies (CDOW 2007, p. 135). prairie dog conservation lands. This agricultural lands previously met or Personnel from the permitting entity level of take allows us to address exceeded the standard for agricultural will count prairie dogs on the impacts to private lands associated with lands (7 percent) eight times since 1985. applicant’s property and determine a increased prairie dog distribution and Thus, this rule is more restrictive than total population estimate (adults and numbers that are likely to result from past practice in some years and less juveniles) for each colony. The the rangewide protection of restrictive than past practice in other permitting entity will identify each conservation properties. Without such years. We also note that actual take has permitted colony by name or number. A ability, private landowners and local always been less than permitted take minimum spring count of seven animals governments would likely not support, (see Table 3, above), and we expect this (total population estimate = 50 animals) and could prevent, much if not all trend to continue under this revised is required to ensure that permits are recovery progress on private lands. We special rule. In addition, our new limit authorized only where resident prairie have determined that the ability to on allowable take is well below the dogs have become established on respond to this need, in a carefully standards set by the previously agricultural lands (Day 2011, pers. regulated environment, is necessary and described modeling where harvest rates comm.), and to ensure that lethal take advisable for the conservation of the of 20 to 25 percent are sustainable. does not result in the elimination of the Utah prairie dog.

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The extent of take on properties dogs from these sites also will assist extirpation (CDOW 2007, p. 135). These within 0.8 km (0.5 mi) of conservation with recovery efforts on Federal lands seasonal shooting closure dates directly lands is further limited to not reduce (USFWS 2012, p. 3.5–7). correspond to our timing of June 15 populations below the baseline Most studies on the impacts of through December 31 for allowing direct estimated total population size (adults shooting are related to recreational lethal take on agricultural lands. Thus, and juveniles) that existed on these hunting on black-tailed prairie dog we can conclude that restricting use of lands prior to the establishment of the colonies. This information indicates that this 4(d) rule between the dates of conservation property. This provision recreational shooting of other prairie January 1 through June 14 will result in provides assurances to the landowners dog species can cause localized effects positive population growths with low to that they will not incur new Federal on a population (Stockrahm 1979, pp. negligible risk of extinction. This regulatory restrictions as a result of their 80–84; Knowles 1988, p. 54; Vosburgh conclusion is supported by our habitat improvements and the 1996, pp. 13, 15, 16, and 18; Vosburgh observations that we have never verified reintroduction of prairie dogs on a and Irby 1998, pp. 366–371; Pauli 2005, the loss of a Utah prairie dog colony conservation property. Conversely, this p. 1; Reeve and Vosburgh 2006, p. 144), because of take permitted by UDWR, provision assists us with the creation of but populations typically rebound and prairie dog counts have remained conservation properties by allowing thereafter (Knowles 1988, p. 54; stable to increasing on sites where landowners to take prairie dogs down Vosburgh 1996, pp. 16, 31; Dullum et al. permits were repeatedly requested over to, but not below, the established 2005, p. 843; Pauli 2005, p. 17; Cully the last 25 years (Day 2010, pers. baseline population. The property’s and Johnson 2006, pp. 6–7). comm.). In this timeframe, UDWR baseline is the highest estimated Extirpations due to shooting, while provided permits to landowners population size (adults and juveniles) documented, are rare (Knowles 1988, p. beginning June 1. Thus, this revision to on the property during the 5 years prior 54). Impacts to other species of prairie June 15 is more conservative than past to establishment of the conservation dogs from unregulated or minimally practice, and is based on the best property, except that if no UDWR regulated recreational shooting, as cited current available science. surveys to determine population size on above, are likely to be more pronounced According to the literature and on- a property were conducted during such than impacts to Utah prairie dog the-ground experience with Utah prairie 5-year period, the baseline population is permitted control, given our restrictions dogs, our timing of permitted Utah the estimated total (summer) population on the amount and distribution of take. prairie dog control, when combined size on that property as determined in On the whole, we believe our limits with other take limitations outlined the first survey conducted after the on the amount and distribution of take elsewhere in this rule (e.g., a harvest establishment of the conservation ensures that this rule does not rate based on a percentage of the known property. Thus, this provision provides negatively impact the stable-to- population and restrictions on lands a conservation benefit for Utah prairie increasing Utah prairie dog population where take is allowed), is sufficient to dogs by promoting landowner support trends of the last 25 years. Continuing allow long-term, stable-to-improving for such efforts while not reducing to allow sufficient permitted take limits population trends to continue. Thus, populations below the established will help ensure that private permitted Utah prairie dog control on baseline. Similar provisions were landowners and local communities are agricultural lands and properties near incorporated into all previously willing to work with us on prairie dog conservation lands is allowed from June approved Utah prairie dog safe harbor conservation efforts (see Limiting Where 15 to December 31. agreements. Take is Allowed, above). Consequently, Lethal take from March to May would we believe this final rule is sufficient to likely kill pregnant or lactating females Safety Hazards, Human Cultural and so that neither they nor their offspring Burial Sites address prairie dog control issues and Utah prairie dog recovery would reproduce the following year We are not limiting the amount of simultaneously. (Knowles 1988, p. 55). If the timing of translocation or lethal take on lands lethal take is restricted to times outside where Utah prairie dogs create serious Limiting Take by Season of the breeding and young-rearing human safety hazards or disturb the (lactating) periods, then impacts can be Agricultural Lands and Properties Near sanctity of significant human cultural or minimized (Vosburgh and Irby 1998, p. Conservation Lands human burial sites. These sites are 370; CDOW 2007, pp. 135–137). In fact, relatively small areas, and for lethal take We are limiting take on agricultural as described in this and previous rules the areas must be fenced, and prairie lands and properties within 0.8 km (0.5 (49 FR 22333, May 29, 1984; 56 FR dogs removed by translocation prior to mi) of conservation lands by season. 27439–27441, June 14, 1991), the Service’s written approval for lethal Take is allowed between June 15 and controlling prairie dogs when take. For example, fencing was recently December 31. This is a moderate change populations are at high densities (i.e., constructed around the Parowan airport from the dates authorized by the particularly during the summer months runway to preclude prairie dogs from previous special rules, but is based on when the aboveground prairie dog using 53 ac (21 ha) of occupied habitat, our most current knowledge of the population explodes as the juveniles and the 5 ac (2 ha) Paragonah cemetery species biology; pups emerge from their emerge from their burrows) may will be fenced in 2012; prairie dogs will burrows by approximately mid-June, at enhance long-term population growth be translocated from these sites prior to which time they are foraging rates by reducing competition for lethal take. Thus, we expect that the independently (Hoogland 2003, p. 236; limited resources and increasing numbers of Utah prairie dogs lethally see ‘‘Life History,’’ above). Therefore, overwinter survival (see Limiting Where removed will be small. In addition, as the loss of female adult prairie dogs to Direct Take Can Be Permitted). This previously described, these areas do not shooting will not negatively affect the information is supported by contribute to conservation of the species survivability of the remaining young. In observations that Utah prairie dog because they are generally within addition, prairie dog populations with colonies are maintained at high levels otherwise developed areas with seasonal shooting closures of March 14 on properties that have received substantial human activity and habitat to June 15 show positive population multiple annual control permits despite fragmentation. Translocation of prairie growths and low to negligible risk of over 25 years of permitted control under

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the previous special rules (Day 2010, translocation protocol in order for the At the present time, we do not have pers. comm.). provisions of this rule to apply. information to indicate that the concern While translocation is and will of potential lead poisoning is translating Safety Hazards, Human Cultural and continue to be the preferred take option, into impacts on Utah prairie dogs. Burial Sites largely due to its contribution to Allowed take is limited to agricultural We will not restrict lethal take to a recovery, finite staff resources and a lands, properties within 0.8 km (0.5 mi) specified timeframe in areas where limited availability of suitable of conservation lands, and areas where prairie dogs present a serious human translocation sites require that other prairie dogs create serious human safety concern or disturb the sanctity of tools also be available. Thus, we are hazards or disturb the sanctity of a significant human cultural or human limiting the methods of intentional significant human cultural or human burial site because the specific intent of lethal take on agricultural lands and burial sites. Therefore, any potential lethal take in these areas is to remove all properties within 0.8 km (0.5 mi) of site-specific impacts as a result of remaining prairie dogs from these areas conservation lands to forms with a potential lead poisoning are limited in following implementation of all proven success record as demonstrated scope and likely of minor consequence practicable measures, including fencing by past UDWR permitting, including to the Utah prairie dog. Limitations on and translocations. lethal removal through trapping and the timing of allowed control further shooting. Under this rule, permitted limit the scope of potential impacts. Our Limiting Methods Allowed To lethal take can be carried out by the December 3, 2009, black-tailed prairie Implement Direct Take landowner or the U.S. Department of dog status review came to a similar The previous special rules did not Agriculture—Wildlife Services with the conclusion when it found use of restrict the method or type of take landowner’s permission. Use of these expandable lead shot did not pose a UDWR could permit. In practice, UDWR methods has occurred over the past 25 substantial risk of lead poisoning to previously permitted the control of Utah years, while the total population surviving prairie dogs due to scavenging prairie dogs through translocation rangewide and within individual carcasses (74 FR 63343). efforts, trapping intended to lethally colonies subject to take have remained Given these findings, this rule does remove prairie dogs, and shooting. This stable to increasing (Day 2010, pers. not prohibit certain types of shot amendment limits methods of take that comm.). (expandable vs. nonexpendable or lead We are specifically prohibiting can be permitted on agricultural lands vs. nonlead). However, we may consider drowning, poisoning, and the use of gas and properties within 0.8 km (0.5 mi) of ammunition-type restrictions in the cartridges, anticoagulants, and explosive conservation lands to be consistent with future if available data indicate such devices as methods of permissible lethal this past practice. restrictions would be necessary and control on agricultural lands and advisable to provide for the Agricultural Lands and Properties Near properties within 0.8 km (0.5 mi) of conservation of the species. Conservation Lands conservation lands. Drowning or poisoning are typically applied across Safety Hazards, Human Cultural and Translocations of Utah prairie dogs large areas and usually kill large Burial Sites are used to increase the numbers of numbers of prairie dogs (Collier 1975, p. The use of any lethal take prairie dog colonies in new locations 55). These techniques were not methodology will be allowed in areas across the species’ range. Translocation employed by UDWR under the previous where Utah prairie dogs create serious of Utah prairie dogs occurs within and rule and are explicitly prohibited by this human safety hazards or disturb the between recovery units in part to rule because they do not allow control sanctity of significant human cultural or address the species’ limited levels of agents to target a specific number of human burial sites. At the time that genetic diversity (USFWS 2012, p. 1.9– prairie dogs or track actual take. lethal take is authorized at these sites, 1; Roberts et al. 2000). Translocation One potential concern is lead the areas will have been fenced and efforts include habitat enhancement at poisoning as an indirect impact from prairie dogs translocated off-site. selected translocation sites and live shooting. Specifically, shooting may Therefore, we anticipate that relatively trapping of Utah prairie dogs from increase the potential for lead poisoning small numbers of prairie dogs will existing colonies to move them to the in predators and scavengers consuming remain in these areas. We do not selected translocation sites. In short, shot prairie dogs (Reeve and Vosburgh consider these areas important to the translocations play an important role in 2006, p. 154). This risk may extend to conservation of the species because as establishing new colonies and prairie dogs, which have occasionally previously stated they are generally facilitating gene flow. been observed scavenging carcasses within otherwise developed areas with Thus, translocation will be one of the (Hoogland 1995, p. 14). Expanding substantial human activity and habitat approved methods of taking Utah prairie bullets leave an average of 228.4 fragmentation. It is our intent that these dogs. Previously, only UDWR performed milligrams (mg) (3.426 grains) of lead in designated areas remain free of prairie Utah prairie dog translocations. This a prairie dog carcass, while dogs, and thus all otherwise lawful rule allows all properly trained and nonexpanding bullets averaged 19.8 mg methodologies for lethal take are permitted individuals to translocate (0.297 grains) of lead (Pauli and Buskirk allowable. prairie dogs to new colony sites in 2007, p. 103). The amount of lead in a support of recovery actions, provided single prairie dog carcass shot with one Exemption for Incidental Take From these parties comply with current expanding bullet is potentially Normal Agricultural Practices Service-approved translocation sufficient to acutely poison scavengers Normal agricultural practices can guidance. Translocated prairie dogs or predators, and may provide an result in the unlawful take (harm, count toward the take limits established important portal for lead entering harass, or kill) of Utah prairie dogs. For by the previous special rules and will wildlife food chains (Pauli and Buskirk example, agricultural equipment can continue to count toward the more 2007, p. 103). A wide range of sublethal accidentally crush burrows or restricted take limits in this rule. toxic effects also is possible from individual animals. Similarly, burrows Translocation activities must be in smaller quantities of lead (Pauli and also can be flooded by normal irrigation accordance with Service-approved Buskirk 2007, p. 103). practices and thus made uninhabitable

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for Utah prairie dogs, or result in the conservation of the species. This is must meet State average annual (per incidental mortality. Although the the case because agricultural users are a acre) production requirements. incidental take permit for the Iron key partner in our efforts to recover the Limiting the take to such lands County HCP (Iron County 2006, entire) Utah prairie dog. As previously ensures only legitimately operating authorizes normal agricultural practices described, up to 85 percent of prairie agricultural producers will be eligible as a form of non-permanent take in Iron dogs occur on private lands (see Table for the incidental take provisions as County, this incidental take permit does 2), many of which are in agricultural described in this rule. As previously not extend to address these issues for production (USFWS 2012, p. 1.7–3). discussed, available information agricultural users across the entire range Agricultural users are often interested in indicates that prairie dog populations of the Utah prairie dog. participating in conservation programs on agricultural lands are not negatively We are exempting incidental take for the species such as safe harbors and affected by ongoing standard resulting from agricultural practices on conservation easements if they know agricultural practices. In fact, 25 years of legitimately operating agricultural they have some regulatory flexibility data under the previous special rules lands. Exempted practices include regarding their daily operational show stable-to-increasing, rangewide plowing to depths not exceeding 46 activities (see Limiting Where Take is prairie dog population trends. Providing centimeters (cm) (18 in.), discing, Allowed, Conservation Benefits of the safeguard of specifically defining harrowing, irrigating crops, mowing, Allowing Take on Specific Lands, agricultural lands ensures that we limit harvesting, and bailing, as long as the above; Elmore and Messmer 2006, p. 9– the allowable incidental take to specific activities are not intended to eradicate 13; USFWS 2012, p. 2.3–2). If we can types of agricultural uses, of which any Utah prairie dogs. These are traditional provide regulatory flexibility to these possible resulting negative impact practices on the landscape where Utah land users, they are more likely to would be only a minor and temporary prairie dogs occur. support rangewide conservation accompaniment to the continued long- While it is possible that some programs for the Utah prairie dog. incidental mortality or harassment Because such incidental take is not term benefits to the species. As results from these activities, no limited in quantity, it is imperative we described earlier, we conclude that available information indicates sizable build in safeguards to prevent abuse. allowing direct lethal take in or noteworthy impacts. Similarly, the Therefore, the above activities are agricultural areas will increase the available information (namely, annual exempted from incidental take participation of landowners and local Utah prairie dog surveys conducted by prohibitions on agricultural lands, only communities in the species’ UDWR rangewide; see ‘‘Distribution and in accordance with the previously conservation and recovery (see Limiting Abundance,’’ above) does not indicate described Utah Farmland Assessment Where Take is Allowed, ‘‘Conservation adverse impacts at the colony or species Act of 1969 (Utah Code Annotated Benefits of Allowing Take on Specific level. The continued presence of large, Sections 59–2–501 through 59–2–515). Lands’’). This same benefit is persistent colonies on agricultural lands To be considered agricultural land anticipated with standard agricultural despite ongoing agricultural uses under this rule, lands must meet the practices because agricultural users are indicates any negative impacts are following requirements: They must meet a key partner for Utah prairie dog minor and temporary. Agricultural the general classification of irrigated, recovery efforts (see Exemption for operations make the land more dryland, grazing land, orchard, or Incidental Take from Normal productive than it would be in its meadow; must be capable of producing Agricultural Practices, above). natural state. Provided that careful crops or forage; must be at least 2 Effects of This Rule regulation of direct take continues, this contiguous ha (5 contiguous ac) (smaller increased productivity appears, based parcels may qualify where devoted to The 1991 special rule (56 FR 27438, on individual colony persistence and agriculture use in conjunction with June 14, 1991; 50 CFR 17.40(g)) abundance data, to more than offset any other eligible acreage under identical authorized UDWR to permit take of up temporary negative impacts that are legal ownership); must be managed in to 6,000 animals on private land within created by the incidental take of such a way that there is a reasonable the species’ range annually. We amend individual prairie dogs. expectation of profit; must have been that rule with new restrictions on direct Providing a take exemption for devoted to agricultural use for at least 2 take previously authorized and add a otherwise legal activities associated successive years immediately preceding new incidental take authorization. Table with standard agricultural practices is the year in which application of 4 summarizes the amendments finalized necessary and advisable to provide for agricultural land status is made; and by this rule.

TABLE 4—SUMMARY OF OUR FINAL AMENDMENTS

Final Amendments

Who Can Allow Take ...... UDWR or, with the Service’s written approval, other entities can perform the permitting and re- porting tasks for control activities on agricultural lands or properties within 0.8 km (0.5 mi) of conservation lands. No permits are required for take in areas where prairie dogs create seri- ous human safety hazards or disturb the sanctity of significant human cultural or human burial sites. Where Direct Take Is Allowed ...... Direct take is limited to: Agricultural land being physically or economically impacted by Utah prairie dogs when the spring count on the agricultural lands is seven or more individuals; pri- vate properties within 0.8 km (0.5 mi) of Utah prairie dog conservation land; and areas where human safety hazards or the sanctity of significant human cultural or human burial sites are a serious concern, but only after all practicable measures to resolve the conflict are imple- mented.

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TABLE 4—SUMMARY OF OUR FINAL AMENDMENTS—Continued Amount of Rangewide Direct Take Allowed .... The upper permitted take limit may not exceed 10 percent of the estimated rangewide popu- lation annually for agricultural lands and properties within 0.8 km (0.5 mi) of conservation lands; and, on agricultural lands, may not exceed 7 percent of the estimated annual rangewide population annually. There is no limit for the amount of take in areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites, and take in these circumstances does not contribute to the upper per- mitted take limits described above. Site-Specific Limits on Amount of Direct Take On agricultural lands, within-colony take is limited to one-half of a colony’s estimated annual production (approximately 36 percent of estimated total population). On properties neigh- boring conservation lands, take is restricted to animals in excess of the baseline population. The baseline population is the highest estimated total (summer) population size on that prop- erty during the 5 years prior to establishment of the conservation property, except that if no UDWR surveys to determine population size on a property were conducted during such 5- year period, the baseline population is the estimated total (summer) population size on that property as determined in the first survey conducted after the establishment of the conserva- tion property. There are no site-specific direct take limits in areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites. Timing of Allowed Direct Take ...... The timing of permitted direct take on agricultural lands and properties ne within 0.8 km (0.5 mi) of conservation lands is limited to June 15 through December 31. There is no timing restric- tion where prairie dogs create serious human safety hazards or disturb the sanctity of signifi- cant human cultural or human burial sites, except that translocations must be completed prior to conducting any lethal take. Methods Allowed to Implement Direct Take .... On agricultural lands and properties within 0.8 km (0.5 mi) of conservation lands, direct take is limited to activities associated with translocation efforts by trained and permitted individuals complying with current Service-approved guidance, trapping intended to lethally remove prai- rie dogs, and shooting. Actions intended to drown or poison prairie dogs, and the use of gas cartridges, anticoagulants, or explosive devices is prohibited in these areas. There are no re- strictions on methods to implement take in areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites, except that translocations will be conducted before lethal measures of control are allowed. Service Ability to Further Restrict Direct Take Unchanged. The Service may immediately prohibit or restrict take as appropriate for the con- servation of the species. Incidental Take for Agricultural Activities ...... Utah prairie dogs may be taken when take is incidental to otherwise legal activities associated with standard agricultural practices (see Regulation Promulgation section for specifics).

First, this rule restricts where direct rangewide population or more, 46 cm (18 in.), discing, harrowing, take can be permitted to: (1) depending on the amount permitted on irrigating crops, mowing, harvesting, Agricultural land being physically or agricultural lands) is restricted to and bailing, as long as the activities are economically impacted by Utah prairie animals in excess of the baseline not intended to eradicate Utah prairie dogs when the spring count on the population. dogs. Third, this rule limits the methods of agricultural lands is 7 or more Finally, the Service maintains the individuals; (2) private property within take that can be permitted on right to immediately prohibit or restrict 0.8 km (0.5 mi) of Utah prairie dog agricultural lands and properties within permitted taking. Restrictions on conservation land; and (3) areas where 0.8 km (0.5 mi) of conservation lands to permitted taking could be implemented Utah prairie dogs are determined, with include: (1) Activities associated with without additional rulemaking, as the approval of the Service, to be translocation efforts by trained and presenting a serious human safety permitted individuals complying with appropriate for the conservation of the hazard (e.g., airport safety areas, current Service-approved guidance; (2) species, if we receive evidence that recreational sports fields, nursing trapping intended to lethally remove taking pursuant to the special rule is homes, schools), or disturbing the prairie dogs; and (3) shooting. having an effect that is inconsistent with sanctity of significant human cultural or These limitations on direct take are the conservation of the Utah prairie dog. largely consistent with past UDWR human burial sites if these lands are If restrictions on permitted taking are practice. Slight modifications are determined not necessary for the required, the Service will immediately included where implementation data conservation of the species. notify the permitting entities in writing. indicate modifications are warranted. Second, this rule limits the amount Additionally, this rule exempts These new restrictions on direct take and distribution of direct take that can standard agricultural practices from and the new incidental take provision be permitted. Total take cannot exceed incidental take prohibitions on private will support the conservation of the 10 percent of the estimated annual property meeting the Utah Farmland species while still providing relief and rangewide population. On agricultural Assessment Act of 1969 (Utah Code conservation incentives to private lands, permitted take is limited to Annotated Sections 59–2–501 through landowners. On the whole, we believe 7 percent of the estimated annual 59–2–515) definition of agricultural this rule will help maintain the stable- rangewide population and within- lands. Any Utah prairie dog mortalities to-increasing (more likely increasing) colony take is limited to one-half of a resulting from these standard long-term population trends we have colony’s estimated annual productivity. agricultural practices are in addition to seen over the last 25 years, and facilitate On properties within 0.8 km (0.5 mi) of the direct or intentional take described the recovery of the Utah prairie dog. conservation lands, the remaining take above. Allowable practices include (3 percent of the estimated annual plowing to depths that do not exceed

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Required Determinations Utah prairie dogs have been Federally governments ‘‘lack authority’’ to adjust listed under the ESA since the early accordingly. Federal private sector Regulatory Planning and Review 1970s (38 FR 14678, June 4, 1973; 39 FR mandate’’ includes a regulation that (Executive Orders 12866 and 13563) 1158, January 4, 1974). A section 4(d) ‘‘would impose an enforceable duty Executive Order (E.O.) 12866 provides special rule has been in place since upon the private sector, except (i) a that the Office of Information and 1984 that provides protections deemed condition of Federal assistance or (ii) a Regulatory Affairs will review all necessary and advisable to provide for duty arising from participation in a significant rules. The Office of the conservation of the species (49 FR voluntary Federal program.’’ Information and Regulatory Affairs has 22330, May 29, 1984; 56 FR 27438, June This rule does not impose a legally determined that this rule is not 14, 1991). These special regulations binding duty on non-Federal significant. allowed limited take of Utah prairie Government entities or private parties. E.O. 13563 reaffirms the principles of dogs on private land from June 1 Instead, this amendment to the previous E.O. 12866 while calling for through December 31, as permitted by special rules establishes take improvements in the nation’s regulatory UDWR (50 CFR 17.40(g)). While this authorizations and limitations deemed system to promote predictability, to final rule places limits on the previous necessary and advisable to provide for reduce uncertainty, and to use the best, special rules, the changes are largely the conservation of the Utah prairie dog. most innovative, and least burdensome consistent with past UDWR permitting Application of the provisions within tools for achieving regulatory ends. The practices. Because this rule largely this rule, as limited by existing E.O. directs agencies to consider institutionalizes past practices, there regulations and this amendment, is regulatory approaches that reduce should be little or no increased costs optional. burdens and maintain flexibility and associated with this regulation (b) We do not believe that this rule freedom of choice for the public where compared to the past similar special significantly or uniquely affects small these approaches are relevant, feasible, rules that were in effect for the last governments. The State of Utah and consistent with regulatory several decades. originally requested measures such as objectives. The E.O. 13563 emphasizes In summary, we have considered this regulation to assist with reducing further that regulations must be based whether the rule results in a significant conflicts between Utah prairie dogs and on the best available science and that economic impact on a substantial local landowners on agricultural lands the rulemaking process must allow for number of small entities. For the above (49 FR 22330, May 29, 1984). In public participation and an open reasons and based on currently available addition, the UDWR actively assists exchange of ideas. We have developed information, we certify that these with implementation of the 1984 special this rule in a manner consistent with amendments do not have a significant rule, as amended in 1991, and will do these requirements. economic impact on a substantial the same under this regulation, through Regulatory Flexibility Act number of small entities. Therefore, a a permitting system. Under this rule, we regulatory flexibility analysis is not have included the ability for other Under the Regulatory Flexibility Act required. permitting entities to perform many of (RFA) 5 U.S.C. 601 et seq., as amended the UDWR’s permitting and reporting by the Small Business Regulatory Unfunded Mandates Reform Act tasks for control activities. However, Enforcement Fairness Act (SBREFA) of In accordance with the Unfunded this change was in response to a 1996), whenever an agency must Mandates Reform Act (2 U.S.C. 1501 et recommendation from UDWR provided publish a notice of rulemaking for any seq.), we make the following findings: in that agency’s comments to our proposed or final rule, it must prepare (a) This rule will not produce a proposed rule. Thus, no intrusion on and make available for public comment Federal mandate. In general, a Federal State policy or administration is a regulatory flexibility analysis that mandate is a provision in legislation, expected; roles or responsibilities of describes the effects of the rule on small statute, or regulation that would impose Federal or State governments will not entities (small businesses, small an enforceable duty upon State, local, or change; and fiscal capacity will not be organizations, and small government Tribal governments, or the private substantially directly affected. The jurisdictions). However, no regulatory sector, and includes both ‘‘Federal special rule operates to maintain the flexibility analysis is required if the intergovernmental mandates’’ and existing relationship between the States head of the agency certifies the rule will ‘‘Federal private sector mandates.’’ and the Federal Government. not have a significant economic impact These terms are defined in 2 U.S.C. Furthermore, the limitations on where on a substantial number of small 658(5)–(7). ‘‘Federal intergovernmental permitted take can occur, the amount of entities. The SBREFA amended RFA to mandate’’ includes a regulation that take that can be permitted, and methods require Federal agencies to provide a ‘‘would impose an enforceable duty of take that can be permitted are largely statement of the factual basis for upon State, local, or [T]ribal consistent with past UDWR practices. certifying that the rule will not have a governments,’’ with two exceptions. It Therefore, the rule will not have a significant economic impact on a excludes ‘‘a condition of Federal significant or unique effect on State, substantial number of small entities. assistance.’’ It also excludes ‘‘a duty local, or Tribal governments or the Thus, for a regulatory flexibility analysis arising from participation in a voluntary private sector. A statement containing to be required, impacts must exceed a Federal program,’’ unless the regulation the information required by the threshold for ‘‘significant impact’’ and a ‘‘relates to a then-existing Federal Unfunded Mandates Reform Act is not threshold for a ‘‘substantial number of program under which $500,000,000 or required. small entities’’ (see 5 U.S.C. 605(b)). more is provided annually to State, Based on the information that is local, and tribal governments under Takings available to us at this time, we certify entitlement authority,’’ if the provision This action is exempt from the that this regulation will not have a would ‘‘increase the stringency of requirements of E.O. 12630 significant economic impact on a conditions of assistance’’ or ‘‘place caps (Government Actions and Interference substantial number of small entities. upon, or otherwise decrease, the Federal with Constitutionally Protected Private The following discussion explains our Government’s responsibility to provide Property Rights). According to section rationale. funding,’’ and the State, local, or Tribal VI(D)(3) of the Attorney General’s

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Guidelines for the Evaluation of Risk tasks for control activities. However, species that has been determined to be and Avoidance of Unanticipated this change was in response to a threatened under section 4(a) of the Takings, regulations allowing the take of recommendation from UDWR provided ESA. It is our view that NEPA wildlife issued under the ESA fall under in that agency’s comments to our procedures unnecessarily overlay a categorical exemption. This rule proposed rule. Thus, no intrusion on NEPA’s own matrix upon the ESA pertains to regulation of take (defined by State policy or administration is section 4 decisionmaking process. For the ESA as ‘‘to harass, harm, pursue, expected; roles or responsibilities of example, the opportunity for public hunt, shoot, wound, kill, trap, capture, Federal or State governments will not comment—one of the goals of NEPA— or collect, or to attempt to engage in any change, and fiscal capacity will not be is already provided through section 4 such conduct’’) deemed necessary and substantially directly affected. The rulemaking procedures. advisable to provide for the special rule operates and, as amended, However, out of an abundance of conservation of the Utah prairie dog. will continue to operate to maintain the caution, we complied with the Thus, this exemption applies to this existing relationship between the State provisions of NEPA for this rulemaking. action. and the Federal Government. Therefore, We analyzed the impact of this Regardless, we do not believe this this rule does not have significant modification to the existing special rule action poses significant takings Federalism effects or implications to and determined that there were no implications. This rule will warrant the preparation of a federalism significant impacts or effects caused by substantially advance a legitimate summary impact statement pursuant to this rule. A final environmental government interest (conservation and the provisions of E.O. 13132. assessment was completed for this recovery of listed species). However, it action, and is available for public will not deny property owners Civil Justice Reform inspection (see ADDRESSES section). economically viable use of their land, In accordance with E.O. 12988 (Civil and will not present a bar to all Justice Reform), the Office of the Government-to-Government reasonable and expected beneficial use Solicitor has determined that the rule Relationship With Tribes of private property. We believe this rule does not unduly burden the judicial In accordance with the President’s provides substantial flexibility to our system and that it meets the memorandum of April 29, 1994, partners while still providing for the requirements of sections 3(a) and 3(b)(2) Government-to-Government Relations conservation of the Utah prairie dog. of the Order. We have amended the With Native American Tribal Should additional take provisions be previous special rules for the Utah Governments (59 FR 22951), E.O. 13175, required, an applicant has the option to prairie dog in accordance with the and the Department of the Interior’s develop a habitat conservation plan and provisions of the ESA. Under section manual at 512 DM 2, we readily request an incidental take permit (see 4(d) of the ESA, the Secretary may section 10(a)(1)(B) of the ESA). This extend to a threatened species those acknowledge our responsibility to approach allows permit holders to protections provided to an endangered communicate meaningfully with proceed with an activity that is legal in species as deemed necessary and recognized Federal Tribes on a all other respects, but that results in the advisable to provide for the government-to-government basis. In ‘‘incidental’’ take of a listed species. conservation of the species. These accordance with Secretarial Order 3206 We have concluded that this action amendments satisfy this standard. of June 5, 1997 (American Indian Tribal does not result in any takings of private Rights, Federal-Tribal Trust property. Should any takings Paperwork Reduction Act Responsibilities, and the ESA), we implications associated with this This rule does not contain any new readily acknowledge our responsibilities amendment be realized, they will likely collections of information that require to work directly with Tribes in be insignificant. approval by OMB under the Paperwork developing programs for healthy Reduction Act of 1995 (44 U.S.C. 3501 ecosystems, to acknowledge that Tribal Federalism et seq.). This rule will not impose lands are not subject to the same In accordance with E.O. 13132 recordkeeping or reporting requirements controls as Federal public lands, to (Federalism), this rule does not have on State or local governments, remain sensitive to Indian culture, and significant Federalism effects. A individuals, businesses, or to make information available to Tribes. federalism summary impact statement is organizations. An agency may not Therefore, we coordinated with affected not required. In keeping with conduct or sponsor, and a person is not Tribes within the range of the Utah Department of the Interior and required to respond to, a collection of prairie dog. We did not receive any Department of Commerce policy, we information unless it displays a comments on the proposed special requested information from, and currently valid OMB control number. regulations from Tribes or Tribal coordinated development of this members during the public comment amendment with, appropriate State National Environmental Policy Act period. resource agencies in Utah. The State of In 1983, upon recommendation of the Energy Supply, Distribution, or Use Utah originally requested measures such Council on Environmental Quality, the as this regulation to assist with reducing Service determined that National On May 18, 2001, the President issued conflicts between Utah prairie dogs and Environmental Policy Act (NEPA) E.O. 13211 (Actions Concerning local landowners on agricultural lands documents need not be prepared in Regulations That Significantly Affect (49 FR 22330, May 29, 1984). In connection with regulations adopted Energy Supply, Distribution, or Use) on addition, the UDWR actively assists pursuant to section 4(a) of the ESA regulations that significantly affect with implementation of the previous (http://ceq.hss.doe.gov/nepa/regs/1983/ energy supply, distribution, and use. special rules, and will do the same 1983guid.htm). The Service E.O. 13211 requires agencies to prepare under this regulation, through a subsequently expanded this Statements of Energy Effects when permitting system. Under this rule, we determination to section 4(d) rules. A undertaking certain actions. We do not have included the ability for other section 4(d) rule provides the expect this action to significantly affect permitting entities to perform many of appropriate and necessary take energy supplies, distribution, or use. the UDWR’s permitting and reporting prohibitions and authorizations for a Therefore, this action is not a significant

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energy action, and no Statement of when the spring count on the (C) In setting take limits on properties Energy Effects is required. agricultural lands is seven or more within 0.8 km (0.5 mi) of conservation individuals, and only during the period lands, the UDWR, or other parties as References Cited of June 15 to December 31; and authorized in writing by the Service, A complete list of all references cited (B) The land must: will consider the amount of take that in this rulemaking is available upon (1) Meet the general classification of occurs on agricultural lands. The State, request from our Utah Ecological irrigated, dryland, grazing land, orchard, or other parties as authorized in writing Services Field Office (see FOR FURTHER or meadow; by the Service, will restrict the INFORMATION CONTACT section). (2) Be capable of producing crops or remaining permitted take (the amount forage; that would bring the total take up to List of Subjects in 50 CFR Part 17 (3) Be at least 2 contiguous hectares 10 percent of the estimated annual Endangered and threatened species, (5 contiguous acres) in area (smaller rangewide population) on properties Exports, Imports, Reporting and parcels may qualify where devoted to within 0.8 km (0.5 mi) of conservation recordkeeping requirements, agricultural use in conjunction with lands to animals in excess of the Transportation. other eligible acreage under identical baseline population. The baseline legal ownership); Regulation Promulgation population of these lands is determined (4) Be managed in such a way that in accordance with paragraph For the reasons stated in the there is a reasonable expectation of (g)(3)(iii)(D) of this section. preamble, the Service amends part 17, profit; (D) Take on properties within 0.8 km chapter I, title 50 of the Code of Federal (5) Have been devoted to agricultural (0.5 mi) of conservation lands is Regulations, as set forth below: use for at least 2 successive years restricted to prairie dogs in excess of the immediately preceding the year in baseline population. The baseline PART 17—[AMENDED] which application is made; and population is the highest estimated total (6) Meet State average annual (per- (summer) population size on that ■ 1. The authority citation for part 17 acre) production requirements. property during the 5 years prior to the continues to read as follows: (ii) Private property near conservation establishment of the conservation Authority: 16 U.S.C. 1361–1407; 16 U.S.C. land. (A) Take may be permitted on property, except that if no UDWR 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– private properties within 0.8 km (0.5 surveys to determine population size on 625, 100 Stat. 3500; unless otherwise noted. mi) of Utah prairie dog conservation a property were conducted during such ■ 2. Amend § 17.40 by revising land during the period of June 15 to 5-year period, the baseline population is paragraph (g) to read as follows: December 31. the estimated total (summer) population (B) Conservation lands are defined as size on that property as determined in § 17.40 Special rules—mammals. non-Federal areas set aside for the the first survey conducted after the * * * * * preservation of Utah prairie dogs and establishment of the conservation (g) Utah prairie dog (Cynomys are managed specifically or primarily property. The baseline population will parvidens). toward that purpose. Conservation lands be established by the UDWR, or other (1) Except as noted in paragraphs may include, but are not limited to, parties as authorized in writing by the (g)(2) through (g)(6) of this section, all properties set aside as conservation Service. prohibitions of § 17.31(a) and (b) and banks, fee-title purchased properties, (E) Translocated Utah prairie dogs exemptions of § 17.32 apply to the Utah properties under conservation will count toward the take limits in prairie dog. easements, and properties subject to a paragraphs (g)(3)(iii)(A) through (D) of (2) A Utah prairie dog may be directly safe harbor agreement (see § 17.22). this section. or intentionally taken as described in Conservation lands do not include (iv) Methods of allowed direct take on paragraphs (g)(3) and (4) of this section Federal lands. agricultural lands and private properties on agricultural lands, properties within (iii) Amount of permitted take on near conservation land. Methods for 0.8 kilometers (km) (0.5 miles (mi)) of agricultural lands and private property controlling Utah prairie dogs on conservation lands, and areas where near conservation land. (A) The UDWR, agricultural lands and properties within prairie dogs create serious human safety or other parties as authorized in writing 0.8 km (0.5 mi) of conservation lands hazards or disturb the sanctity of by the Service, will ensure that are limited to activities associated with significant human cultural or human permitted take on agricultural lands and translocation efforts by trained and burial sites. properties within 0.8 km (0.5 mi) of permitted individuals complying with (3) Agricultural lands and properties conservation lands does not exceed 10 current Service-approved guidance, near conservation lands. When percent of the estimated rangewide trapping intended for lethal removal, permitted by the Utah Division of population annually. and shooting. Actions intended to Wildlife Resources (UDWR), or other (B) On agricultural lands, the UDWR, drown or poison Utah prairie dogs and parties as authorized in writing by the or other parties as authorized in writing the use of gas cartridges, anticoagulants, Service, direct or intentional take is by the Service, will limit permitted take and explosive devices are prohibited. allowed on private properties that are to 7 percent of the estimated annual (4) Human safety hazards and located within 0.8 km (0.5 mi) of rangewide population and will limit significant human cultural or human conservation land, and on agricultural within-colony take to one-half of a burial sites. land. Records on permitted take will be colony’s estimated annual production. (i) Nonlethal take is allowed where maintained by the State (or other parties The UDWR, or other parties as Utah prairie dogs create serious human as authorized in writing by the Service), authorized in writing by the Service, safety hazards or disturb the sanctity of and made available to the Service upon will spatially distribute the 7 percent significant human cultural or human request. allowed take on agricultural lands burial sites, if approved in writing by (i) Agricultural land. (A) Take may be across the three Recovery Units, based the Service. To reduce hazards, prairie permitted only on agricultural land on the distribution of the total annual dog burrows may be filled with dirt if being physically or economically population estimate within each they are directly creating human affected by Utah prairie dogs, and only Recovery Unit. hazards or disturbing the sanctity of

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significant human cultural or human (3) Continued maintenance or harrowing, irrigating crops, mowing, burial sites. Utah prairie dogs also may modification of the fence as needed to harvesting, and bailing, as long as the be translocated from these sites to preclude Utah prairie dogs from activities are not intended to eradicate approved translocation sites by properly entering the fenced sites. Utah prairie dogs. There is no numeric trained personnel using Service- (B) There are no restrictions on the limit established for incidental take approved translocation protocols. amount, timing, or methods of lethal associated with standard agricultural (ii) Direct or intentional lethal take is take allowed on lands where Utah practices. Incidental take is in addition allowed where Utah prairie dogs create prairie dogs create serious human safety to, and does not contribute to, the take serious human safety hazards or disturb hazards or disturb the sanctity of limits described in paragraphs (g)(2) the sanctity of significant human significant human cultural or human through (4) of this section. A permit is cultural or human burial sites, but only burial sites, as long as all qualifications not required for incidental take after all practicable measures to resolve in paragraphs (g)(4)(ii)(A)(1)through (3) associated with agricultural practices. the conflict are implemented, and only of this section are met. as approved in writing by the Service. (C) The amount of take in areas where (6) If the Service receives evidence A permit is not required to allow take Utah prairie dogs create serious human that take pursuant to paragraphs (g)(2) under these conditions. safety hazards or disturb the sanctity of through (5) of this section is having an (A) All practicable measures means, significant human cultural or human effect that is inconsistent with the with respect to these situations: burial sites does not contribute to the conservation of the Utah prairie dog, the (1) Construction of prairie-dog-proof upper permitted take limits described Service may immediately prohibit or fence, above and below grade to above for agricultural lands and private restrict such take as appropriate for the specifications approved by the Service, properties within 0.8 km (0.5 mi) of conservation of the species. The Service around the area in which there is conservation lands. will notify the permitting entities in concern. (5) Incidental take associated with writing if take restrictions are necessary. (2) Translocation of Utah prairie dogs agriculture. Utah prairie dogs may be * * * * * out of the fenced area in which there is taken when take is incidental to Dated: July 17, 2012. a concern must be conducted prior to otherwise-legal activities associated allowing lethal take. Lethal take is with legal and standard agricultural Eileen Sobeck, allowed only to remove prairie dogs that practices on legitimately operating Acting Assistant Secretary for Fish and remain in these areas after the measures agricultural lands. Acceptable practices Wildlife and Parks. to fence and translocate are successfully include plowing to depths that do not [FR Doc. 2012–18284 Filed 8–1–12; 8:45 am] carried out. exceed 46 cm (18 in.), discing, BILLING CODE 4310–55–P

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