Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the California Red-Legged Frog, and Special Rule Exemption Associated With Final Listing for Existing Routine Ranching Activities

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018—AJ16

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the California Red-Legged Frog, and Special Rule Exemption Associated With Final Listing for Existing Routine Ranching Activities

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the California red-legged frog (

Rana aurora draytonii

) pursuant to the Endangered Species Act of 1973, as amended (Act). We are further finalizing a special rule associated with final listing of the California red-legged frog as threatened for existing routine ranching activities pursuant to section 4(d) of the Act. In total, approximately 450,288 acres (ac) (182,225 hectares (ha)) fall within the boundaries of the critical habitat designation. The critical habitat is located in Alameda, Butte, Contra Costa, El Dorado, Kern, Los Angeles, Marin, Merced, Monterey, Napa, Nevada, San Benito, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Ventura and Yuba counties, California.

DATES:

This rule becomes effective on May 15, 2006.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours, at the Sacramento Fish and Wildlife Office, 2800 Cottage Way, Suite W-2605, Sacramento, California, 95825 (telephone 916/414-6600). The final rule and economic analysis are available via the Internet at

http://www.fws.gov/pacific/sacramento.

FOR FURTHER INFORMATION CONTACT:

Arnold Roessler, Listing Branch Chief, Sacramento Fish and Wildlife Office, at the above address (telephone 916/414-6600; facsimile 916/414-6712).

SUPPLEMENTARY INFORMATION:

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

Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under section 4(b)(2) of the Act, there are significant limitations on the regulatory effect of designation under section 7(a)(2) of the Act. In brief, (1) designation provides additional protection to habitat only where there is a Federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decision-making would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat. However, designation of critical habitat does not require specific actions to restore or improve habitat.

Currently, only 473 species, or 37 percent of the 1,272 listed species in the U.S. under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,272 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

In considering exclusions of areas originally proposed for designation, we evaluated the benefits of designation in light of

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service.

In that case, the Ninth Circuit invalidated the Service's regulation defining “destruction or adverse modification of critical habitat.” In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to completion to ensure that an adequate analysis has been conducted that is informed by the Director's guidance.

On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designation of critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a time frame that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.

In light of these circumstances, the Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court-ordered designations have left the Service with limited ability to provide for public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse

impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, and is very expensive, thus diverting resources from conservation actions that may provide relatively more benefit to imperiled species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). These costs, which are not required for many other conservation actions, directly reduce the funds available for direct and tangible conservation actions.

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this rule. For more information on the California red-legged frog, refer to the revised proposed critical habitat designation published in the

Federal Register

on November 3, 2005 (70 FR 66906).

Previous Federal Actions

Previous Federal actions for the California red-legged frog can be found in our revised proposal of critical habitat for the California red-legged frog published in the

Federal Register

on November 3, 2005 (70 FR 66906). That information is incorporated by reference into this final rule. On November 23, 2005, the federal district court in the Eastern District of California granted a motion to extend the deadline for publication of the final critical habitat until March 31, 2006. This final designation is being completed and published in the

Federal Register

in compliance with that court order.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the California red-legged frog published on April 13, 2004 (69 FR 19620). We also requested written comments from the public on the revised proposed designation of critical habitat for the California red-legged frog published on November 3, 2005 (70 FR 66906). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on both the proposed and the revised proposed rule. The comment period for the initial proposed rule opened on April 13, 2004, and closed on June 14, 2004. We extended the period from June 14, 2004 to July 14, 2004 (69 FR 32966). Comments and new information received in response to the first proposed rule which were relevant to the revised proposal and final designation were incorporated in the final rule as appropriate and are summarized with the comments received in response to the revised proposed rule below.

During the comment period for the initial proposed rule, we received a total of 88 comment letters from Federal, State, and local governments, and private individuals. Of those comment letters, 30 commenters generally supported the initial proposed designation of 4.1 million acres (1.6 million hectares) or provided specific information pertaining to the subspecies or habitat, and 58 commenters generally did not support the initial proposed designation as written or did not support the inclusion of certain lands. Of the 88 total comment letters, 39 comment letters focused on land areas that we later determined to be nonessential to the conservation of the subspecies and that we are no longer including in this final designation. In summary, in our revised proposed rule and in this final designation, we used the best scientific information available in determining the areas essential for the California red-legged frog and removed all areas that we determined are not essential for the conservation of this subspecies and therefore do not meet the definition of critical habitat. We re-examined all initially proposed areas and removed any areas that do not contain one or more of the PCEs or that were determined to be nonessential for the conservation of the subspecies because: (1) The area is highly degraded and may not be restorable; (2) the area is small, highly fragmented, or isolated and may provide little or no long-term conservation value; and/or (3) other areas within the geographic region were determined to be sufficient to meet the subspecies needs for conservation.

We also considered several criteria in the selection of areas that contain the features essential for the conservation of California red-legged frog and focused on designating units: (1) Throughout the current geographic, elevational, and ecological distribution of the subspecies; (2) that would maintain the current population structure across the subspecies' range; (3) that retain or provide for connectivity between breeding sites allowing for the continued existence of viable and essential metapopulations, despite fluctuations in the status of subpopulations; (4) that possess large continuous blocks of occupied habitat, representing source populations and/or unique ecological characteristics; and (5) that contain sufficient upland habitat around each breeding location to allow for sufficient survival and recruitment to maintain a breeding population over the long term. We proposed critical habitat units in areas that have the highest likelihood to contain self-sustaining populations of California red-legged frogs based on the presence of the PCEs, the density of California red-legged frog occurrences, and the kind, amount, and quality of habitat associated with those occurrences. We believe this strategy allowed us to narrow our initial focus down to the habitats that meet the definition of critical habitat and are essential to the conservation of the subspecies.

During the comment period associated with the revised proposed rule that opened on November 3, 2005, and closed on February 1, 2006, we received 76 comments directly addressing the revised proposed critical habitat designation and the draft economic analysis. Of these comments, three were from peer reviewers, one from a Federal agency, and 32 from organizations. Five commenters supported the designation of critical habitat for the California red-legged frog, and 55 opposed the designation. Sixteen letters included comments or information, but did not express support or opposition to the revised proposed critical habitat designation. Comments received were grouped into 15 general issues specifically relating to the revised proposed critical habitat designation for the California red-legged frog, and are addressed in the following summary and/or incorporated into the final rule as appropriate. We did not receive any requests for a public hearing; however, we did receive one request for a public workshop from the Calaveras County Farm Bureau. On January 10, 2006, we held a public workshop in San Andreas, California, and on January 17, 2006, we held an additional public workshop for the Calaveras County Board of Supervisors and the general public.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the subspecies, the geographic region in which the subspecies occurs, and conservation biology principles. We received responses from two of the peer

reviewers. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. One peer reviewer generally accepted our methodology and criteria used in the designation of critical habitat, while another peer reviewer generally agreed with our proposed special rule to exempt routine ranching practices. The other peer review comments are addressed in the following summary and incorporated into the final rule as appropriate.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the California red-legged frog, and addressed them in the following summary.

Peer Reviewer Comments

(1)

Comment:

One peer reviewer questioned how the future increase in the size of Los Vaqueros reservoir would affect critical habitat in Unit ALA-1A.

Our Response:

The area surrounding Los Vaqueros reservoir was excluded from critical habitat because of disproportionately high economic costs. See

Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act

below. Additionally, areas that support California red-legged frog populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species, or subspecies, outside their designated critical habitat areas may still result in jeopardy findings in some cases.

(2)

Comment:

One peer reviewer questioned our rationale for not including the documented population of California red-legged frogs at Corral Hollow in San Joaquin County. Additionally, the same peer reviewer expressed concern that California red-legged frog recovery cannot take place only in occupied areas.

Our Response:

In our revised proposed designation of critical habitat for the California red-legged frog, we selected areas based on the best scientific data available that possess those physical and biological features essential to the conservation of the subspecies, and that may require special management considerations or protection. We included areas that were occupied at the time of listing as well as some areas subsequently identified as occupied. We proposed critical habitat units in areas whose populations of California red-legged frogs have the highest likelihood to be self-sustaining based on the presence of the PCEs; the density of California red-legged frog occurrences; and the kind, amount, and quality of habitat associated with those occurrences. The proposed units contain sufficient PCEs to support the behaviors that we have determined are essential to the conservation of the subspecies. In this rule, we did not believe that all occupied habitat should be designated as critical habitat, nor did we believe it necessary to designate unoccupied habitat. In the development of the revised proposed rule, we determined the designation of unit ALA-1, which is located to the west of the Corral Hollow area, was sufficient for the conservation of the California red-legged frog in that area. For more information, please see the Criteria Used to Define Critical Habitat section.

(3)

Comment:

One peer reviewer stated that based on the paper published by Shaffer et al. (2004), the California red-legged frog is a full species and should be recognized as such by the Service.

Our Response:

Based on mtDNA evidence, Shaffer et al. (2004) concluded that

Rana aurora aurora

(red-legged frog) and

Rana aurora draytonii

do not constitute a monophyletic group and suggests recognition of each as a separate species. Additionally, Shaffer et al. (2004) suggests

Rana cascadae

(Cascades frog) and

Rana aurora draytonii

are more closely related and should be considered sister taxon. We recognize the paper by Shaffer et al. (2004) presents evidence that can be used to support the argument that the California red-legged frog should be considered a full species. In a cursory review of herpetological and special status species web sites, we found one (The Center for North American Herpetology) that noted Shaffer et al.'s (2004) conclusion that the California red-legged frog was a distinct species, but that web site still uses

Rana aurora draytonii.

Another web site (Amphibia Web) uses

Rana draytonii.

Two other web sites (IUCN Red List and Nature Serve) still list the California red-legged frog as

Rana aurora draytonii.

At this time, we do not find that a formal change in taxonomy for the California red-legged frog is necessary.

(4)

Comment:

One peer reviewer asserted that the lack of a metapopulation focus in the development of the critical habitat designation practically guarantees extinction of California red-legged frogs from 15 or more critical habitat units.

Our Response:

We disagree that the designation of critical habitat presented in this rule will lead to the extinction (extirpation) of the California red-legged frog in any of the critical habitat units. We used the best scientific information available in determining those areas essential for the California red-legged frog for our revised proposed critical habitat designation. We considered several criteria in the selection of areas that contain the features essential for the conservation of California red-legged frog and focused on designating units: (1) Throughout the current geographic, elevational, and ecological distribution of the subspecies; (2) that would maintain the current population structure across the subspecies' range; (3) that retain or provide for connectivity between breeding sites, allowing for the continued existence of viable and essential metapopulations, despite fluctuations in the status of subpopulations; (4) that possess large continuous blocks of occupied habitat, representing source populations and/or unique ecological characteristics; and (5) that contain sufficient upland habitat around each breeding location to allow for sufficient survival and recruitment to maintain a breeding population over the long term. We excluded any areas that do not contain one or more of the PCEs or that were determined not to be essential for the conservation of the subspecies because: (1) The area is highly degraded and may not be restorable; (2) the area is small, highly fragmented, or isolated and may provide little or no long-term conservation value; and/or (3) other areas within the geographic region were determined to be sufficient to meet the subspecies' needs for conservation. We disagree that critical habitat units need to be connected within very large contiguous blocks. Connecting large areas of unknown occupancy, which may or may not support California red-legged frogs or the PCEs, would not materially contribute to the conservation of the subspecies. For more information, please see the Criteria Used to Define Critical Habitat section.

(5)

Comment:

One peer reviewer questioned our exclusion of large blocks of private and Federal lands from critical habitat, stating that this essentially shifts the responsibility of threatened and endangered species' protection to entities that have different priorities.

Our Response:

There are multiple ways to provide management for species habitat. Statutory and regulatory frameworks that exist at a local level can

provide such protection and management, as can lack of pressure for change (e.g., areas too remote for anthropogenic disturbance). Finally, State, local, or private management plans, as well as management by a Federal agency, can provide protection and management to avoid the need for designation of critical habitat. When we consider a plan to determine its adequacy in protecting habitat, we consider whether the plan, as a whole, will provide the same level of protection that designation of critical habitat would provide. The plan need not lead to exactly the same result as a designation in every individual application, as long as the protection it provides is equivalent overall. In making this determination, we examine whether the plan provides management, protection, or enhancement of the PCEs that is at least equivalent to that provided by a critical habitat designation, and whether there is a reasonable expectation that the management, protection, or enhancement actions will continue into the foreseeable future. Each review is particular to the species and the plan, and some plans may be adequate for some species and inadequate for others.

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if [s]he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the Secretary is afforded broad discretion, and the Congressional record is clear that, in making a determination under the section, the Secretary has discretion concerning which factors to consider and how much weight will be given to any factor.

Under section 4(b)(2), in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If an exclusion is contemplated, then we must determine whether excluding the area would result in the extinction of the subspecies. For more information see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.

General Comments

Comments Related to Habitat and Subspecies-Specific Information

(6)

Comment:

One commenter stated our discussion of the reduction in the range of the California red-legged frog in the revised proposed rule was misleading.

Our Response:

We believe our description of the reduction in the range of the California red-legged frog is accurate. We referred to multiple sources when researching the reduction in the range of the California red-legged frog. We consulted the recovery plan; Jennings and Hayes (1994); Fisher and Shaffer (1996); the California Natural Diversity Database (2004 and 2005); Berkeley Museum of Vertebrate Zoology (2004); and the California Academy of Sciences (2004). The map prepared by Jennings and Hayes (1994) depicts historic and extant (as of 1994) occurrences of the California red-legged frog. Approximately 45 counties comprised the historic range of the California red-legged frog, and approximately 17 counties were found to have extant occurrences in 1994. In 1996, when the subspecies was listed, 243 streams or drainages in 22 California counties were documented to contain populations of California red-legged frogs (California Natural Diversity Database (CNDDB) 2004). At the time of listing, California red-legged frogs were believed to have been extirpated from most of the southern Coastal Mountains from Santa Barbara south to Baja California and east along the Transverse (San Gabriel, San Bernadino, Santa Ynez, and Santa Monica Mountains) and Peninsular (San Jacinto, Santa Rosa, Agua Tibia, Laguna, Santa Ana Mountains) Ranges. Since listing, two additional occurrences south of the Tehachapi Mountains at City Creek in San Bernardino county and Andreas Canyon in Riverside county have been discovered (CNDDB 2005) but may no longer be extant. Four additional occurrences have been recorded in the Sierra Nevada foothills since listing, bringing the total to five extant populations, compared to approximately 26 historical records (Berkeley Museum of Vertebrate Zoology 2004; CNDDB 2004; California Academy of Sciences 2004; Barry in litt. 2005). Currently California red-legged frogs are only known from 3 disjunct regions in 26 California counties, and one disjunct region that is still present in Baja California, Mexico (Grismer 2002; Fidenci 2004; R. Smith and D. Krofta, in litt. 2005). Additionally, through comparison of historical museum records (1890-1980) and field surveys (1990-1992), Fisher and Shaffer (1996) present evidence of the extirpation (local extermination) of California red-legged frogs from 24 of 28 counties in a limited portion of the subspecies' historical range.

(7)

Comment:

One commenter suggested we should have included a reference to a paper published by Shaffer et al. (2004) in the subspecies description section of the revised proposed rule.

Our Response:

The Service did consult the paper by Shaffer et al. (2004) in development of the revised proposed rule. As noted by the commenter, we referenced the Shaffer et al. (2004) paper in the Geographic Range section of the revised proposed rule. We also cite Shaffer et al. (2004) in the unit description for RIV-1 in the revised proposed rule in regards to California red-legged frog's genetic lineage in southern California. Based on mtDNA evidence, Shaffer et al. (2004) concluded that

Rana aurora aurora

(red-legged frog) and

Rana aurora draytonii

do not constitute a monophyletic group and suggests recognition of each as a separate species. Additionally, Shaffer et al. (2004) suggests

Rana cascadae

(Cascades frog) and

Rana aurora draytonii

are more closely related and should be considered sister taxa. We recognize the paper by Shaffer et al. (2004) presents evidence that can be used to argue that the California red-legged frog should be considered a full species. However, as discussed earlier in our response to comment 3, we conducted a cursory review of scientific web sites, and based on that review, at this time, we do not find that a formal change in taxonomy for the California red-legged frog is necessary.

Comments Related to Threats to the Subspecies

(8)

Comment:

Several commenters did not believe we adequately assessed the current threats to the California red-legged frog, including introduced predators, grazing, urban run-off, pesticides, and fertilizers.

Our Response:

As discussed throughout the proposed rule, in our previous final designation of critical habitat for the California red-legged frog (66 FR 14626; March 13, 2001), and in our final recovery plan for the subspecies (Service 2002), threats to those features that are essential to the conservation of the California red-legged frog (i.e., primary constituent elements) may include but are not limited to:

Trematode and chytrid fungus disease; direct and indirect impacts from some human recreational activities; flood control maintenance activities; water diversions; unmanaged overgrazing activities (summarized by Kauffman and Krueger (1984) and Belsky et al. (1999)); competition and predation by nonnative species, such as warm water fish and bullfrogs (Alvarez et al. 2003); habitat removal and alteration by urbanization; and some agricultural pesticides and fertilizers (Hayes et al. 2006). We also included lists of threats that may require special management for each unit description in the revised proposed rule (70 FR 66906) and in this final rule (see

Special Management Considerations or Protections

below).

(9)

Comment:

One commenter disagreed with our statement that California red-legged frogs can persist in the presence of bullfrogs and nonnative predatory fish.

Our Response:

We concluded that there are specific conditions under which California red-legged frogs can persist in the presence of bullfrogs and nonnative predatory fish. In aquatic systems subject to seasonal drying, it may be difficult for bullfrogs to become established. Doubledee et al. (2003) studied the relationship between bullfrogs and California red-legged frog persistence. That study showed that bullfrogs and California red-legged frogs can coexist and persist under certain natural and managed regimes. Fellers and Guscio (2004) suggest since bullfrogs require approximately 16 months to metamorphose, periodic drying would be an effective means of preventing a population from becoming established. Additionally, periodic drying may prevent nonnative warm water fish from becoming established as well. Alvarez et al. (2003) present evidence that nonnative predatory fish can have a significant effect on juvenile California red-legged frog survival. Of 90 ponds surveyed in the Los Vaqueros watershed, 7 were found to have nonnative fish. Over 3 years, one or more ponds with nonnative fish were repeatedly drained, and all fish were exhaustively removed. In comparison to surveys conducted before fish removal and surveys conducted after fish removal and pond recharge, juvenile and adult California red-legged frog abundance increased dramatically after nonnative fish were removed, suggesting a strong link to decreased California red-legged frog survival and nonnative fish presence.

Comments Related to Criteria and Methodology

(10)

Comment:

One commenter asserted our description of the Primary Constituent Elements (PCEs) for the California red-legged frog was insufficient and did not conform to

Home Builders Association of Northern California et al.

v.

U.S. Fish and Wildlife Service

, 268 F.Supp.2d 1197 (E.D.C. 2003) in the use of exclusion criteria to define where essential features are found.

Our Response:

We used the best scientific information available in determining the identifiable physical and biological features essential for the conservation of the California red-legged frog (PCEs). PCE 4 (dispersal habitat) includes a description of features that may constitute barriers to dispersal for the California red-legged frog and as such could be interpreted as exclusion criteria. However, features that may constitute barriers to dispersal are merely illustrative and are not to be used as exclusion criteria.

We further used the best scientific information available in determining our descriptions of the areas essential for the California red-legged frog as presented in our revised proposed critical habitat designation. We considered several criteria in the selection of areas that contain the features essential for the conservation of California red-legged frog and focused on designating units: (1) Throughout the current geographic, elevational, and ecological distribution of the subspecies; (2) that would maintain the current population structure across the subspecies' range; (3) that retain or provide for connectivity between breeding sites, allowing for the continued existence of viable and essential metapopulations, despite fluctuations in the status of subpopulations; (4) that possess large continuous blocks of occupied habitat, representing source populations and/or unique ecological characteristics; and (5) that contain sufficient upland habitat around each breeding location to allow for sufficient survival and recruitment to maintain a breeding population over the long term. We excluded any areas that do not contain sufficient PCEs to support necessary biological functions or that were determined not to be essential for the conservation of the subspecies because: (1) The area is highly degraded and may not be restorable; (2) the area is small, highly fragmented, or isolated and may provide little or no long-term conservation value; and/or (3) other areas within the geographic region were determined to be sufficient to meet the subspecies' needs for conservation.

Thus, we believe that the development of the PCEs for this designation of critical habitat for the California red-legged frog and the implementation of the criteria and methods identified herein and in our revised proposed rule conform to the standards set forth in

Home Builders Association of Northern California et al.

v.

U.S. Fish and Wildlife Service

, 268 F.Supp.2d 1197 (E.D.C. 2003).

(11)

Comment:

Two commenters asserted the revised proposed rule fails to identify the physical or biological features essential to the conservation of the California red-legged frog. Another commenter suggested that failure to designate unoccupied habitat runs counter to the recovery goals of the California red-legged frog and the intent of the Act. Additionally, the same commenter asserted that we should have designated all occupied habitat.

Our Response:

In our revised proposed designation of critical habitat for the California red-legged frog, we selected areas based on the best scientific data available that possess those physical and biological features essential to the conservation of the subspecies, and that may require special management considerations or protection. We included in the revised proposed designation areas that were occupied at the time of listing as well as some areas subsequently identified as occupied. We proposed critical habitat units in areas that have the highest likelihood to contain self-sustaining populations of California red-legged frogs based on: (1) The presence of the PCEs; (2) the density of California red-legged frog occurrences; and (3) the kind, amount, and quality of habitat associated with those occurrences. The revised proposed units contain sufficient PCEs to support the behaviors that we have determined are essential to the conservation of the subspecies. Pursuant to section 3(5)(C) of the Act, critical habitat shall not include the entire geographical area that can be occupied by the species unless otherwise determined by the Secretary. We do not believe that all occupied habitat is essential to the conservation of the subspecies. Thus, in this rule, we only designate those areas determined to be essential to the conservation of the subspecies based on the methodological criteria (refer to the response to Comment (10) above for a list of these criteria).

(12)

Comment:

One commenter suggested that limiting protection of upland and dispersal habitat to 200 feet (ft) and 0.7 mile (mi), respectively, does

not provide for adequate conservation of the California red-legged frog in part due to the need for juvenile frogs to disperse from natal aquatic habitat.

Our Response:

We are not aware of any scientific study that provides estimates of juvenile California red-legged frog movement distances. For reasons that are currently unclear, juveniles tend to disperse away from aquatic habitat occupied by adults. Juvenile dispersal is essential for recolonizing temporarily extirpated habitat and preventing genetic isolation as juveniles disperse in more directions, and for longer distances than do migrating adults (Wright, in litt. 1999; Bulger et al. 2003). Juvenile frogs will disperse through a variety of habitats, provided that habitat contains sheltering vegetation or scattered wetlands or streams. Juvenile frogs have been recorded in forested areas, nonnative grasslands, and even croplands (CNDDB 2005); however, frogs are not known to disperse through urbanized or suburban areas, suburban developments, or areas separated from breeding habitat by impassible barriers. Impassible barriers include wide or fast flowing rivers and streams, lakes greater than 50 ac (20 ha), and heavily traveled roads without underpasses or culverts (Reh and Seitz 1990; Fahrig et al. 1995). Juveniles dispersing along riparian corridors may have higher survivorship, as sheltering vegetation and suitable aquatic habitat are both more common in such corridors (M. Jennings, in litt. 2000). Juveniles appear to have less strict requirements for aquatic habitat than adults, and tend to segregate away from adults in water bodies that are shallower or faster moving than those typically used for breeding (Hayes and Jennings 1989; Bobzien pers. comm. 2000; M. Jennings, in litt. 2000). We encourage further research into California red-legged frog juvenile dispersal distances.

We recognize the importance of upland dispersal for the conservation of the California red-legged frog. Bulger et al. (2003) estimated that approximately 75 percent of adult California red-legged frogs are resident in their aquatic habitats, and approximately 90 percent did not move more than 197 ft (60 meters (m)) from their aquatic habitat in a mesic environment. Additionally, the maximum distance moved by a non-migrating California red-legged frog was 427 ft (130 m). Tatarian (2004) found upland use by California red-legged frogs in a more xeric, inland environment averaged 91 ft (27.7 m). A single female California red-legged frog inhabited an upland area, 302 ft (92 m) from its aquatic habitat, continuously for 50 days. Based on the work of Bulger et al. (2003) and Tatarian (2004), and our previous final critical habitat designation (66 FR 14625), we believe that the PCE 3 (upland habitat) distance of 200 ft (60 m) from aquatic habitat is sufficient to provide upland foraging and dispersal habitat for most California red-legged frogs. We do not believe it practicable or necessary to expand this width to capture all upland habitat that may be available to the subspecies. We also believe that the available scientific information does not support a change to our previous determination of the 0.7 mi (1.1 km) dispersal distance. For more information see the Primary Constituent Elements Section below.

(13)

Comment:

One commenter expressed concern at our apparent lack of recognition of the tenuous situation the California red-legged frog is in due to its apparent dependence on stock ponds as habitat. Additionally, the commenter suggested that the California red-legged frog cannot rely on stock ponds as a substitute for naturally occurring ponds, streams, or other naturally occurring aquatic habitat.

Our Response:

As outlined in the revised proposed rule, we recognize stock ponds are usually aquatic habitat of poorer quality than naturally occurring ponds, and we do not consider stock ponds as replacement habitat for naturally occurring ponds or streams. Hydroperiods (amount of time the stock pond contains water) may be so short (e.g., when early drawdown of irrigation ponds occurs) that larvae and tadpoles do not have sufficient time to complete metamorphosis. Artificial ponds also require ongoing maintenance and are often temporary structures. Natural soil erosion, sometimes increased by pond breaching; livestock impacts; and off-road vehicle (ORV) use can cause ponds to silt in after a few decades (Hamilton and Jepson 1940), thereby reducing their quality as frog habitat. Often ponds are not maintained because it may be more economical to construct a new pond when the old pond fills with silt and is no longer functional (Hamilton and Jepson 1940). Finally, stock ponds are often geographically isolated from other seasonal wetlands, and colonization of newly created ponds beyond the normal dispersal range may be slow or nonexistent (Pechmann et al. 1989).

Populations of nonnative introduced predaceous fish and bullfrogs, although less prevalent than in natural habitats, sometimes become established in stock ponds and have been implicated in the decline of other amphibian species (Fisher and Shaffer 1996; Hayes and Jennings 1986; Moyle 1973). We also recognize that stock ponds may facilitate the spread of nonnative organisms by providing aquatic habitats in arid landscapes that otherwise may have served as barriers to the spread of such organisms. Despite these potential adverse impacts, the long-term effect of construction of stock ponds on the subspecies is either neutral or beneficial, because the California red-legged frog would have likely been extirpated from many areas if stock ponds had not been built and maintained for livestock production and ranching.

(14)

Comment:

One commenter stated that the units are too small, need to be connected, and should be large contiguous blocks of critical habitat.

Our Response:

We used the best scientific information available in determining those areas essential for the California red-legged frog and thus proposed as critical habitat. During our determination process, we considered several criteria in the selection of areas that contain the features essential for the conservation of California red-legged frog. We disagree that all critical habitat units need to be connected within very large contiguous blocks of habitat. Connecting large areas of unknown occupancy, which may or may not support California red-legged frogs or the PCEs, would not materially contribute to the conservation of the subspecies. For more information, please see the Criteria Used to Define Critical Habitat section.

(15)

Comment:

One commenter disagreed with our time estimate that a water feature must hold water for a minimum of 15 weeks to be considered essential breeding habitat and stated that California red-legged frogs would be more common in vernal pool habitats if 15 weeks was sufficient time to complete breeding and metamorphosis.

Our Response:

We agree that setting the minimum time to 15 weeks for essential breeding habitat does not provide sufficient time to complete breeding and metamorphosis. Depending on water temperatures, eggs may hatch in 7 to 14 days (Jennings 1988). Eggs may require approximately 3 weeks to develop into tadpoles, and an additional 11-20 weeks to develop into terrestrial frogs (Storer 1925; Wright and Wright 1949; Bobzien et al. 2000). To be considered essential breeding habitat (PCE 1), we have changed the amount of time a water feature must hold water from 15 weeks to 20 weeks, which is an average of the above estimates required for egg and tadpole development into terrestrial frogs. For more information, see the Primary Constituent Elements section below.

(16)

Comment:

Two commenters questioned why we did not designate critical habitat solely within the California red-legged frog recovery plan core area units.

Our Response:

Several critical habitat units fall entirely within, or within portions of, recovery plan core areas. The Recovery Plan for the California red-legged frog was completed in 2002 (Service 2002). In developing this critical habitat designation, we used the latest scientific information available, which includes the 2002 Recovery Plan. We also incorporated more recent survey data (CNDDB 2005) and literature (e.g., Bulger et al. 2003; Alvarez 2004; Fellers and Guscio 2004; Fidenci 2004; Shaffer et al. 2004; Tatarian 2004; Fellers and Kleeman 2005). We used all available data to determine the PCEs and develop a strategy for determining areas (i.e., critical habitat units) essential to the conservation of the subspecies. All the units are described in the Critical Habitat section below. We recognize areas other than those designated as critical habitat, such as those defined in the recovery plan, may be important for the eventual recovery of the California red-legged frog. However, these areas did not meet our criteria for being essential. See also response to Comment 10 above.

Comments Related to Site-Specific Areas

(17)

Comment:

One commenter stated that the Unit MNT-2 in Carmel Valley should not be included in the designation because the area already is subject to county and State controls. The commenter also states that the area is not essential for the subspecies.

Our Response:

Based upon the information we received, we cannot confirm that Monterey County and the State of California have instituted regulatory controls that would render the critical habitat designation redundant in Unit MNT-2. We believe that Unit MNT-2 meets the criteria we have adopted for determining whether an area should be considered essential.

(18)

Comment:

Numerous commenters were opposed to the revised proposed designation of critical habitat unit CAL-1. They suggest an alternate designation of lands in the Mokelumne River watershed surrounding Pardee Dam Reservoir (managed by East Bay Municipal Utility District (EBMUD)) and/or lands surrounding New Hogan Dam (managed by the U.S. Army Corps of Engineers), suggesting these areas are more suitable for the conservation of the frog as they are managed as protected open spaces. Several commenters questioned our designation of critical habitat in the proposed unit CAL-1, stating Young's Creek is designated as a seasonal stream and is dry during 3-4 months of an average rainfall year. Additionally, other commenters indicated other ponds in the area are also of a seasonal nature, and may be dry by early June in a typical year.

Our Response:

Unit CAL-1 contains all the features identified in the PCEs and meets the definition of being essential for the conservation of the California red-legged frog. However, in order to preserve and encourage ongoing partnership activities, we have excluded all of unit CAL-1 from the final designation of critical habitat for the California red-legged frog. See

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

below for more information.

(19)

Comment:

One commenter provided information from EBMUD's website that suggests that California red-legged frogs have been found in surveys conducted in the Mokelumne River watershed, and therefore this area would be more appropriate for the designation of critical habitat than CAL-1.

Our Response:

EBMUD's website provides information on California red-legged frogs found in surveys of EBMUD lands in their land holdings east of San Francisco Bay (the East Bay area). However there was no mention of California red-legged frogs found in surveys conducted in the Mokelumne River watershed (EBMUD Mokelumne Watershed Wildlife web page viewed January 25, 2005). For further confirmation, we contacted an EBMUD biologist who has extensive field experience in the lower Mokelumne River watershed, and the biologist confirmed that no California red-legged frogs had been found in EBMUD's Mokelumne River holdings (Reeves pers com. 2006). Additionally, we have excluded all of unit CAL-1 from the final designation of critical habitat for the California red-legged frog. See

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

below for more information.

(20)

Comment:

One commenter stated there is no evidence that the Burnt Bridge Creek watershed supports a population of California red-legged frogs, and a herpetological survey stated that breeding and summer habitat was seemingly absent from Burnt Bridge Creek. Therefore, based on the lack of documentation of the presence of the subspecies, YUB-1 should not be included in the designation of critical habitat.

Our Response:

Unit YUB-1 contains all the features identified in the PCEs and meets the definition of being essential for the conservation of the California red-legged frog. In the herpetological report cited by the commenter, Barry (2002) suggests California red-legged frog “breeding habitat and summer habitat is seemingly absent from accessible sections of Burnt Bridge Creek.” However, Barry (2002) also states that portions of a terrace and ravine north of Burnt Bridge Creek and east of Oregon Hill Road have dense overgrown blackberry scrub vegetation and that there was some evidence of small ponds or boggy meadows under the vegetation. Prior to a fire in 1999 and discovery in 2000 of California red-legged frogs in Little Oregon Creek, that site was covered by similar blackberry scrub vegetation. Barry (2002), whose surveys were limited to U.S. Forest Service lands, also suggests other locations in the Dobbins and Cottage/Deadwood Creek watersheds that hold promise as California red-legged frog sites; however, due to the prevalence of private land in the area, those and other locations were not surveyed. California red-legged frogs are able to migrate considerable distances overland and have been shown to use small seeps and other wet areas during dispersal events. Additionally, portions of Burnt Bridge Creek are within the known dispersal capabilities of the California red-legged frog (e.g., Bulger et al. 2003) and are considered dispersal habitat as identified in PCE 4.

(21)

Comment:

One commenter requested that the North and South Fork of Webber Creek be excluded from critical habitat since both are fast flowing and would not be conducive to juvenile life stages of the California red-legged frog. However, the commenter suggests both creeks may support adult life stages after reduction of high winter and spring in-stream flows.

Our Response:

In areas where streams are subject to high peak winter and spring flows, California red-legged frogs tend to adjust breeding timing and habitat use to coincide with reduction of peak, scouring flows (Fellers pers com. 2004; Bobzien pers com. 2005). Additionally, in determining which areas to designate as critical habitat, we consider those physical and biological features (PCEs) that are essential to the conservation of the subspecies, that are within areas occupied by the subspecies at the time of listing, and that may require special management considerations and protection. This designation is designed for the conservation of PCEs necessary to support the life history functions of the

subspecies. Because not all life history functions require all the PCEs, not all critical habitat will contain all the PCEs.

(22)

Comment:

El Dorado County requested to be excluded from the designation of critical habitat based on the County's general plan.

Our Response:

We have reviewed El Dorado County's general plan and found no measures specific to the conservation of the California red-legged frog. The County identifies numerous goals in the Conservation and Open Space Element within its general plan; however, no specific measures with respect to the conservation of the primary constituent elements for the California red-legged frog are mentioned. While we value El Dorado County's voluntary agreement in the interagency protection of Spivey Pond, based on the general plan, we have not excluded El Dorado County in its entirety from designated critical habitat. We have, however, excluded those areas being managed by the Bureau of Land Management (BLM) at Spivey Pond in El Dorado County based on an interagency land use management plan (see

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

below).

(23)

Comment:

One commenter opposed the designation of the Hearst Corporation's Jack Ranch property in SLO-1. The commenter stated that many areas on the portion of the Jack Ranch within SLO-1 are extremely arid and would not support a California red-legged frog population and, therefore, do not meet the definition of critical habitat. The commenter also argued that the Jack Ranch property does not meet the definition of critical habitat because the property does not require special management considerations or protection. The commenter stated that the Jack Ranch has been responsibly managed for over 40 years in a manner that has protected and benefited the various natural habitats on the ranch. Alternatively, the commenter argued, the Jack Ranch property should be excluded from critical habitat because the benefits of excluding the ranch outweigh the benefits of including it. The commenter asserted that, as a result of the current ranch management practices in place on the Jack Ranch, the various habitats and species present on the ranch are generally flourishing and will continue to benefit if these practices are allowed to continue. The commenter argued that designating the ranch as critical habitat would create regulatory uncertainty, impose economic burdens on the landowner, and increase vulnerability to legal challenge that could threaten the area's long-term viability as a working ranch.

Our Response:

Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographic area occupied by the species on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. Our criteria for determining features essential to the conservation of the subspecies target areas known to be occupied by California red-legged frog at the time of listing; determined to be occupied since the time of listing; or known to possess high-quality habitat likely to be occupied based on proximity to known occurrences, contiguous habitat, and dispersal capabilities of the California red-legged frog. We included large blocks of contiguous habitat that: Provide geographic distribution across the range of the subspecies; contain high-quality habitat; allow for the long-term viability of the subspecies; represent the full range of habitat and environmental variability the subspecies occupies; avoid conflict with existing commercial and residential development; focus on public lands where available; and, where possible, overlap with other critical habitat designations.

As noted in the unit description for SLO-1, this area was known to be occupied by California red-legged frogs at the time of listing and subsequently and contains the following features that are essential for the conservation for the subspecies: aquatic habitat for breeding and non-breeding activities (PCE 1 and PCE 2) and upland habitat for foraging and dispersal activities (PCE 3 and PCE 4). (See unit description for SLO-1, Cholame, below). Also as noted in the unit description, threats that may require special management in this unit include: highway construction, which may remove upland or aquatic habitat; overgrazing of aquatic and riparian habitats; and dewatering of aquatic habitats due to water diversions. Therefore, based on the criteria above, occupancy at the time of listing, and the requirement for special management, we have designated SLO-1 as critical habitat, including a portion of the Jack Ranch property within SLO-1.

We recognize that routine ranching activities may be beneficial to the California red-legged frog. Therefore, in conjunction with the designation of critical habitat, we are promulgating a special rule under the authority of section 4(d) of the Act containing the actions and prohibitions necessary to provide for the conservation of the California red-legged frog. The prohibitions outlined in the special rule do not include the take of California red-legged frog during existing routine ranching practices. We believe that this special rule will encourage landowners and ranchers operating on non-Federal land to continue their livestock-related practices that are not only important for livestock operations, but that also provide habitat for the California red-legged frog. See also response to Comment 38 and Special Rule section below.

(24)

Comment:

One commenter stated that 6,400 acres (2,590 ha) of unit SLO-1 should be excluded from the designation because it does not occur within the Cholame Creek watershed. It is the understanding of the commenter that the Cholame Creek watershed is where California red-legged frogs have been documented to occur.

Our Response:

Although the unit description for SLO-1 states it “includes locations in the Cholame Creek watershed,” California red-legged frogs have also been documented in 2001 (CNDDB 2005) within the watershed for Jack Canyon, which drains toward the San Joaquin Valley. Therefore, we included the area in question in the critical habitat designation as it is occupied, contains the PCEs, and meets our criteria for determining areas essential for the conservation of the subspecies.

(25)

Comment:

One commenter was opposed to the inclusion of land covered under the Hearst Ranch Conservation Agreement in coastal San Luis Obispo County, a portion of which occurs within units SLO-2 and SLO-3. The commenter argued that, because of the level of protection provided by the Hearst Ranch Conservation Agreement, these areas either do not fall within the definition of critical habitat contained in section 3 of the Act or should be excluded under section 4(b)(2) of the Act. The commenter asserted that California red-legged frogs will be protected through specific measures addressed in Hearst Ranch's draft management plan. In addition, the commenter argued that inclusion of land covered under the Hearst Ranch Conservation Agreement would discourage voluntary conservation initiatives on private lands.

Our Response:

We recognize the importance of voluntary conservation measures, such as the Hearst Ranch Conservation Agreement and future management plans, that benefit federally listed, proposed, candidate, or other at-risk species. Both unit SLO-2 and SLO-3 have been excluded under section 4(b)(2) of the Act for economic reasons. See the section

Relationship of Critical Habitat to Economic Impacts—

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

below for additional information.

(26)

Comment:

One commenter was opposed to the designation of those portions of the Flood Family Ranch Company's property located in units STB-1 and STB-3. The commenter stated that the continuation of cattle grazing on the ranch would be threatened by the critical habitat designation. The commenter expressed concerns that the designation of critical habitat included areas where new vineyards are planned and that the designation would prevent the development of these vineyards. The commenter also argued that the designation would interfere with existing mining activities that occur along the main stem of the Sisquoc River, which runs through the ranch property. The commenter provided information and maps showing the locations of the planned vineyards and mining areas. Finally, the commenter contended that the designation of the ranch lands as critical habitat for the California red-legged frog is improper and unwarranted. The commenter asserted that the Service did not use the best available science for the designation because the Service did not survey the area for the presence of the subspecies and/or the presence of PCEs. To support this, the commenter contended that California red-legged frogs have never been observed in STB-1, yet we proposed designating this area as critical habitat for the California red-legged frog. The commenter further asserted that the Service did not identify any specific special management considerations and protections required within the revised proposed critical habitat areas.

Our Response:

Maps and other information provided by the commenter, which show the location of planned vineyards and mining areas, confirm that these areas were not part of the revised critical habitat proposal (70 FR 66906; November 3, 2005) and are not included in this final designation of critical habitat for the California red-legged frog.

Although we did not conduct surveys for California red-legged frog during the course of designating critical habitat, we did use the best scientific data available, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12. As noted in the unit descriptions (see STB-1, La Brea Creek unit description, and STB-3, Sisquoc River unit description, below) occurrence records from the time of listing exist for both STB-1 and STB-3. The unit descriptions for both STB-1 and STB-3 also included special management considerations for each unit.

We recognize that routine ranching activities may be beneficial to the California red-legged frog. Therefore, as part of this final rule, we are promulgating a special rule under the authority of section 4(d) of the Act containing the actions and prohibitions necessary to provide for the conservation of the California red-legged frog. The prohibitions outlined in the special rule do not include the take of California red-legged frog during existing routine ranching practices. We believe that this special rule will encourage landowners and ranchers operating on non-Federal land to continue their livestock-related practices that are not only important for livestock operations, but also provide habitat for the California red-legged frog.

(27)

Comment:

One commenter stated that the portion of Piru Creek between Pyramid Lake and Lake Piru in Ventura County (unit VEN-3) is a unique fishing area for residents of southern California and would be closed to public access if critical habitat were designated.

Our Response:

The designation of critical habitat does not establish a refuge, wilderness, reserve, preserve, or other conservation area, and we do not anticipate that this fishing area would be closed as a result of it being designated as critical habitat for the California red-legged frog. In addition, this area was designated as critical habitat in the March 13, 2001, final critical habitat designation (66 FR 14626), and there was no closure as a result of that designation. The U.S. Fish and Wildlife Service consults regularly with the U.S. Forest Service on various projects within Los Padres National Forest, and can work with the U.S. Forest Service to develop protective measures and conservation measures that are compatible with continued public access.

Comments Related to Mapping

(28)

Comment:

Several commenters on the April 13, 2004, proposed rule stated that the 4.1 million acres proposed was excessive. Some questioned whether a species that can be found on 4.1 million acres should be listed under the Act.

Our Response:

The original proposed rule was very expansive, included areas that did not contain one or more of the PCEs, and were not occupied. We do not now consider those areas to be essential to the conservation of the California red-legged frog. As a result of public comment, refined methodologies, and more detailed analyses of the maps, this final designation has been revised to include only those areas with features we consider to be essential to the conservation of the subspecies. As a result, this final designation is much smaller than the original proposed rule.

(29)

Comment:

A number of commenters identified specific areas that they thought should not be designated as critical habitat.

Our Response:

We made an effort to avoid developed areas, such as housing and commercial developments, that are unlikely to contribute to the conservation of the California red-legged frog. We also avoided fragmented areas such as those surrounded by development. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, railroads, canals, levees, airport runways, other paved areas, lawns, and other urban landscaped areas do not contain the PCEs and, therefore, are not critical habitat and are not included in this designation. Federal actions limited to these areas would not trigger a section 7 consultation, unless they affect the subspecies and/or the PCEs in adjacent critical habitat. We avoided known areas of intensive agriculture. Agricultural lands may have been included if they were within areas identified as necessary for dispersal or connectivity between known occurrences. Where site-specific documentation was submitted to us providing a rationale as to why an area should not be designated critical habitat, we evaluated that information in accordance with the definition of critical habitat pursuant to section 3(5)(A) of the Act and the provisions of section 4(b)(2) of the Act. We evaluated the parcels to determine whether modifications to the proposal were warranted. We further examined the proposed critical habitat areas and refined the boundaries to exclude those areas that did not, or were not likely to, contain PCEs for the subspecies, wherever technically feasible. Please refer to the Summary of Changes from the Revised Proposed Rule section for a more detailed discussion.

(30)

Comment:

One commenter requested we remove Snows Quarry from the critical habitat designation which is located within unit ELD-1 because it does not contain the PCEs necessary for the conservation of the California red-legged frog.

Our Response:

We have re-evaluated the inclusion of Snows Quarry and concur with the commenter that Snows Quarry does not contain the PCEs necessary for the conservation of the California red-legged frog and therefore should not be included in the critical habitat designation. Due to technical

mapping constraints we did not remove Snows Quarry from unit ELD-1. See the unit description for ELD-1 for more information.

(31)

Comment:

Several commenters requested that we consider designation of alternate areas adjacent to proposed critical habitat or additional areas as critical habitat.

Our Response:

We believe we have appropriately designated critical habitat after careful consideration of all the potential areas. See Critical Habitat section for complete discussion of our methods and our response to Comment 10 above.

Comments Related to Regulatory Burden

(32)

Comment:

One individual who provided comments on our April 13, 2004 proposed rule stated that the Service failed to properly document adverse human health or environmental effects of the designation on minority populations and low-income populations, and failed to make those documents public. The commenter did not provide any specific information on whether they believed that disproportionately high human health or environmental impacts would occur to a particular population segment.

Our Response:

Executive Order 12898 states that Federal agencies should, to the greatest extent practicable and permitted by law, identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority population and low-income populations. The proposed rules provided information to the public on the designation, areas affected, and types of management actions that may result from the final designation. The designation of critical habitat will not result in any adverse human health or environmental effects on the public, including minority and low-income populations.

(33)

Comment:

Numerous commenters asserted that the designation of critical habitat results in an increased regulatory burden, increased landowner costs, and restricted land uses and property rights.

Our Response:

The economic analysis identifies the potential economic costs that may accrue as a result of this designation. These costs will be incurred when a Federal approval or permit is required, or Federal funds are involved with a project proposed on private property. Routine ranching activities are also exempt from take under the new 4(d) rule at 50 CFR 17.43(d).

While the designation of critical habitat does not itself result in the regulation of non-Federal actions on private lands, the listing of the California red-legged frog under the Act may affect private landowner's actions. Actions that could result in take of California red-legged frog (e.g., draining ponds or diverting water from creeks during the breeding season) require authorization for take following consultation under section 7 or an incidental take permit under section 10 of the Act. Because the California red-legged frog has been listed since 1996, proposed actions on private lands that require Federal authorization or funding that may affect the listed entity already undergo consultation under section 7 to ensure that their actions are not likely to jeopardize the continued existence of the subspecies. Future consultations involving private lands will also analyze the effect of the proposed action on designated critical habitat when a Federal nexus exists.

Comments Related to Property Rights

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Comment:

One commenter asserted the designation of critical habitat constitutes an uncompensated taking and is therefore illegal.

Our Response:

The designation of critical habitat does not mean that private lands would be taken by the Federal government or reasonable uses would not be allowed. We evaluate this rule in accordance with Executive Order 12630, and we believe that this designation of critical habitat for the California red-legged frog will not have significant takings implications. We determined that: (1) The designation would result in little additional regulatory burden above that currently in place, as the subspecies is already federally listed and the majority of the area designated is occupied by the subspecies; and (2) the designation of critical habitat will not affect private lands on which there is not a Federal nexus. We do not anticipate that property values, rights, or ownership will be significantly affected by the critical habitat designation.

Comments Related to Public Notification

(35)

Comment:

Several commenters stated that we failed to properly notify landowners concerning the proposed critical habitat designation. Furthermore, several commenters have suggested we should extend the public comment period to provide adequate time to address the proposed critical habitat designation.

Our Response:

The proposed critical habitat designation was published in the

Federal Register

on April 13, 2004 (69 FR 19364), and we accepted comments from all interested parties for 60 days, ending June 14, 2004. We then extended the public comment period for an additional 30 days (69 FR 32966; June 14, 2004). The revised proposed critical habitat designation was published in the

Federal Register

on November 3, 2005 (70 FR 66906), and we accepted comments from all interested parties for 90 days, ending February 1, 2006. For each rule, the Service also wrote press releases that resulted in newspaper articles throughout California. We held two public workshops where we discussed opportunities for the public to comment and provide input and information. Thus, although we did not specifically notify individual landowners within the designation, we believe we provided adequate opportunity for individuals to review and provide comment on the original and revised proposed rules. We also specifically solicited and received comments from peer reviewers on the revised proposed (70 FR 66906) and previously proposed (69 FR 19620) designation for the California red-legged frog. We have a court-ordered date of March 31, 2006, to finalize a designation for the subspecies. Any additional extensions of the comment period would not have allowed us to complete the designation by that court-ordered date.

Comments Related to Department of Defense Lands

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Comment:

In response to our April 13, 2004, proposed designation (69 FR 19620), the Department of the Army requested that Camp Parks not be designated as critical habitat pursuant to regulations under section 4(a)(3) of the Act. The Army stated that Camp Parks has finalized and implemented an approved INRMP that identifies specific conservation measures for the California red-legged frog.

Our Response:

We concur with the Army that it has completed a Service approved INRMP for Camp Parks and that the plan specifically identifies conservation measures for the California red-legged frog. However, as a result of revising our criteria and methodology, we did not identify critical habitat within the Camp Parks area, and, as a result, no section 4(a)(3) determination was necessary. The Camp Parks area is not designated as critical habitat.

(37)

Comment:

The Departments of the Army and Air Force commented that Camp San Luis Obispo (CSLO) has a finalized Integrated Natural Resource Plan (INRMP) that contains management actions that benefit the California red-

legged frog and its habitat. They have requested that CSLO be excluded from designation of critical habitat for the California red-legged frog.

Our Response:

We agree with the commenter and, pursuant to the statutory exemption in section 4(a)(3) of the Act for Department of Defense lands that have a completed INRMP that provides a benefit for the subspecies, have not included any lands at CSLO in this final designation based on their INRMP (see the

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

section below for a detailed discussion).

Comments Related to the Proposed Special (4(d)) Rule

(38)

Comment:

One commenter stated the Service must carry out a NEPA analysis on the special rule because it would reduce protection of the California red-legged frog otherwise afforded to it by its listing in 1996.

Our Response:

On recommendation from the Council of Environmental Quality, we have determined that Section 4 listing actions are exempt from NEPA (48 FR 49244). NEPA requires Federal agencies to prepare an environmental impact statement for major Federal actions significantly affecting the quality of the human environment (42 U.S.C. 4332(2)(c)).

In a judicial order and in

Center for Biological Diversity et al.

v

U.S. Fish and Wildlife Service et al.

(Case No. 3:04CV04324-WHA (E.D. Cal) (Filed August 19, 2005) the court confirmed our position and found that NEPA was not required for section 4 listing actions. In the ruling, the court deferred to the Council of Environmental Quality's view that NEPA does not apply to Section 4 actions. The court went on to state that NEPA would, if applicable, confuse matters and the opportunity for public comment, which is part of the section 4 listing and critical habitat designation process under the Act. The process ensures that information regarding how a listing action impacts the public and the environment is part of the decision-making process, and, therefore, it would make no sense to overlay the NEPA scheme on top of Section 4.

(39)

Comment:

Many commenters were generally supportive of the proposed 4(d) rule for the California red-legged frog, but were concerned that we are limiting its definition of “routine ranching activities” to only those mentioned in the revised proposed rule. Additionally, one of the commenters questioned whether new ranching management practices or changes to existing, routine ranching management practices would also be exempted.

Our Response:

We recognize livestock ranching as a dynamic process, which requires the ability to adapt to changing environmental and economic conditions. However, many of the activities essential to successful ranching are considered routine, and are undertaken at various times and places throughout the year as need dictates. Although the special rule is not intended to provide a comprehensive list of those ranching activities considered routine, some examples include: maintenance of stock ponds; fence construction for grazing management; planting, harvest, and rotation of unirrigated forage crops; maintenance and construction of corrals, ranch buildings, and roads; discing of field sections for fire prevention management; control of noxious weeds by prescribed fire or by herbicides; placement of mineral supplements; and rodent control. The final version of the special rule includes an expanded definition of routine ranching practices and incorporates additional activities we believe are consistent with the conservation of the California red-legged frog. These activities are those that may provide conservation benefits to the California red-legged frog. The ranching activities listed in this document (see also Special Rule section) are merely examples of practices that we consider to be routine to managing an active ranching operation. Our intention is not to limit activities that may be necessary to the operation of a ranch. For further discussion, clarification, and a non-inclusive list of additional activities considered routine ranching practices, see the Special Rule section below.

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Comment:

One commenter requested that we clarify the statement which was included in the special rule section of the re-proposed rule related to stock pond water levels; “(4) routine management and maintenance of stock ponds and berms to maintain livestock water supplies at levels present at the time of the finalization of this special rule”.

Our Response:

We recognize livestock ranching as a dynamic process, which requires the ability to adapt to changing environmental and economic conditions. As such we have exempted the routine hydroperiod management of ranching operation stock ponds. The term levels as used above was not intended to set a particular level of water in a stock pond at the time the special rule is finalized. Stock ponds and water levels can be continued to be maintained as necessary to continue the viability of livestock ranching operations. For more information about stock pond hydroperiod management see the

Special Rule

section below.

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Comment:

One commenter questioned whether non-ranching lands converted to ranching would be covered by the special rule, and whether the special rule applies to ranches when they change ownership.

Our Response:

The special rule exempts routine ranching practices and does not constitute an exemption from critical habitat itself. The special rule does not apply to specific owners of ranching property, but to the practices that are used to manage the land. As long as routine ranching management practices are maintained when ownership changes, or instituted when land is converted from another use and subsequently managed as ranchland, incidental take of California red-legged frogs resulting from the practice of routine ranching activities will not be a violation of the prohibition identified in section 9 of the Act. For further discussion, clarification, and a non-inclusive list of additional activities considered routine ranching practices, see the Special Rule section below.

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Comment:

Several commenters requested the 4(d) rule be expanded to include agricultural lands and practices related to managing agricultural lands.

Our Response:

In the revised proposed rule, we state that agricultural lands such as row crops, orchards, vineyards, and pastures do not constitute barriers to dispersal for the California red-legged frog. We also state agricultural features such as drains, watering troughs, stacks of hay, or other vegetation can serve as temporary shelter for the California red-legged frog during dispersal events. Additionally, ponds used for irrigation of crops in the summer months can provide suitable breeding habitat with proper water management focused on the California red-legged frog life cycle. We also recognize some agricultural practices pose a threat to the California red-legged frog due to loss and modification of habitat. Intensive agriculture often replaces natural varied habitat with monotypic vegetation. Fisher and Shaffer (1996) studied historic records and conducted field surveys for amphibians in the Sacramento and San Joaquin Valleys and the Coast Range. The authors note that amphibian declines may be due in part to introduced exotic species and intensively modified habitat. In the San Joaquin Valley, the authors suggest declines noted there may be due to intense farming, resulting in uninhabitable pools and ponds for

native amphibians and even for introduced exotic species.

While we recognize some agricultural practices, such as routine ranching practices, may provide some beneficial features for the California red-legged frog, we conclude, however, that an exemption for all routine agricultural practices (e.g., dairy, orchard, vineyard, and row crop activities) is not appropriate for the conservation of the California red-legged frog.

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Comment:

Several commenters were opposed to the proposed 4(d) rule because some nonessential routine ranching activities could degrade habitat.

Our Response:

The purpose of the 4(d) rule is to recognize the larger conservation value of maintaining existing rangeland habitats that support the California red-legged frog, even though some specific activities may adversely affect the subspecies. Activities likely to occur in those landscapes, should ongoing ranching be removed, such as irrigated agriculture or urban development, remove and fragment upland and aquatic habitats used for breeding, foraging, and migration, which are essential for the subspecies to complete its life cycle. We believe that exemption of the ranching activities described in the special rule results in a net benefit to the conservation of the California red-legged frog (see Special Rule section below).

To the extent ranching activities are compatible with the California red-legged frog, we wish to encourage such activities to continue. We believe that relaxing the general take prohibitions on specific types of non-Federal lands through the special rule is likely to encourage continued responsible ranching, a land use that can provide an overall benefit to the California red-legged frog. We also believe that such a special rule will promote the conservation efforts and partnerships critical for the recovery of the subspecies. We have further described these benefits in our final version of the special rule below. We have committed to monitor the status of the California red-legged frog in areas where exempted activities occur (see section on Special Rule). We hope to enlist the partnership of the ranching community in education and outreach efforts, and through our Conservation Partnerships program.

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Comment:

One commenter stated the 4(d) rule is not necessary or advisable for the conservation of the California red-legged frog.

Our Response:

Section 4(d) of the Act imparts the authority to issue regulations necessary and advisable to provide for the conservation of threatened species. Under section 4(d), the Secretary may publish a special rule that modifies the standard prohibitions for threatened species under the implementing regulations for section 9 of the Act at 50 CFR 17.31 with special measures tailored to the conservation of the subspecies. We believe that, in certain instances, easing the general take prohibitions on non-Federal lands may encourage continued responsible land uses that provide an overall benefit to the subspecies. We also believe that such a special rule will promote the conservation efforts and private lands partnerships critical for subspecies recovery (Wilcove et al. 1996; Knight 1999; Main et al. 1999; Norton 2000; Bean 2002; Conner and Matthews 2002; Crouse et al. 2002; James 2002; Koch 2002).

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Comment:

One commenter stated the Service's conclusion that grazing and ranching are neutral or beneficial to the California red-legged frog is not supported, and the record demonstrates the adverse impacts of grazing on the California red-legged frog.

Our Response:

In the 1996 final listing rule for the California red-legged frog (61 FR 25813), we cite livestock grazing as a contributing factor in the decline of the subspecies. We also cited many studies in that rule and in the revised proposed critical habitat designation that overgrazing of riparian areas causes detrimental effects to aquatic systems. Numerous studies, summarized by Kauffman and Krueger (1984) and Belsky et al. (1999), have shown that unmanaged livestock grazing (overgrazing) can negatively affect riparian and instream aquatic habitat. Some of the effects of unmanaged grazing include: higher instream water temperatures resulting from reduction or removal of vegetation; channel down-cutting; lowered water tables and loss of plunge pools, which results in direct loss of pool habitats for the California red-legged frog (Patla and Keinath 2005); and diminished water quality through increased sediment loads and nutrient levels (Belsky et al. 1999). The Service does recognize that overgrazing has contributed to the decline of the California red-legged frog.

However, as we state in the revised proposed rule, our understanding of the threats of livestock grazing and stock pond development described in the previous final listing of the subspecies has changed. Stock pond and small reservoir impoundments can provide suitable breeding habitat for the California red-legged frog. In many areas, the presence of California red-legged frogs is due solely to these small ponded habitats. For example, at the Point Reyes National Seashore in Marin County, an area where there are more than 120 breeding sites with an estimated total adult population of several thousand California red-legged frogs, the majority of the breeding sites are within stock ponds constructed on lands that have been grazed by cattle for over 150 years (Fellers and Guscio 2004). In the East Bay Regional Park District (EBRPD) lands in Contra Costa and Alameda counties, 43 of the 179 ponds surveyed (25 percent), which were exposed to grazing and were characterized as with and without emergent vegetation, supported successful breeding frog populations and often exhibited high rates of annual breeding (Bobzien et al. 2000). Ponds can silt in after being fenced off from moderate levels of grazing. EBRPD is currently removing fences and restoring ponds as California red-legged frog habitat (Bobzien pers com. 2005). We now recognize that managed livestock grazing at low to moderate levels has a neutral or beneficial effect on California red-legged frog habitat (Bobzien pers com. 2005) by keeping a mix of open water habitat and emergent vegetation. Therefore, we believe grazing helps contribute to the conservation of the California red-legged frog and its habitat. For more information on the special rule, see the Special Rule section below.

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Comment:

One commenter stated the Service should impose safeguards and controls on ranching activities that could be harmful to the California red-legged frog.

Our Response:

We recognize some routine ranching activities have the potential for take of the California red-legged frog. However, we are adopting a special rule to exempt take of the California red-legged frog due to routine ranching activities because we believe that easing the general take prohibitions on non-Federal lands may encourage continued responsible land uses that provide an overall benefit to the subspecies. We also believe that such a special rule will promote the conservation efforts and private lands partnerships critical for subspecies recovery (Wilcove et al. 1996; Knight 1999; Main et al. 1999; Bean 2002; Conner and Matthews 2002; Crouse et al. 2002; James 2002; Koch 2002; Norton 2000). However, in easing the take prohibitions under section 9 of the Act, the measures that we have developed in the special rule also contain prohibitions necessary and appropriate to conserve the California red-legged frog. We provide examples of routine ranching practices that are exempt from the take prohibitions under section 9 of

the Act. We also provide suggestions to minimize the take of California red-legged frogs while conducting some routine ranching activities. Our intent is not to create an additional regulatory burden on ranching operations. Our basis for not attempting to regulate routine activities is that, ultimately, we believe that a rancher acting in the best interest of maintaining a sustainable ranching operation is also providing incidental but significant conservation benefits for the California red-legged frog. We recognize that most ranching operations operate on a thin financial margin, and additional regulatory requirements could push some operations to bankruptcy. We believe that sensible ranching operations are compatible with California red-legged frog conservation and recovery, while alternate land uses such as high density urban development, which could replace failed ranching operations, is not compatible. To the extent ranching activities are compatible with the California red-legged frog, we wish to encourage such activities to continue. We believe that relaxing the general take prohibitions on specific types of non-Federal lands through the special rule is likely to encourage continued responsible ranching, a land use that can provide an overall benefit to the California red-legged frog, as opposed to alternative uses. We also believe that such a special rule will promote the conservation efforts and partnerships critical for the recovery of the subspecies. We have further described these benefits in our final version of the special rule. We have committed to monitor the status of the California red-legged frog in areas where exempted activities occur and we hope to enlist the partnership of the ranching community in education and outreach efforts, and through our Conservation Partnerships program. For more information on the special rule, see the Special Rule section below.

Comments From Local Non-Governmental Entities

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Comment:

The Pacific Gas and Electric Company (PG&E) requested that their facilities, including transmission line right-of-ways, be removed from the designation. PG&E stated that the designation of critical habitat would lead to an increased regulatory burden as a result of the section 7 consultation process. PG&E also stated that they are working with us on developing a Habitat Conservation Plan (HCP) and that these areas and areas considered under future Habitat Conservation Plans be excluded from the designation.

Our Response:

In our determination of critical habitat, we included only those areas that we determined to contain the features identified in the PCEs and are thus essential to the conservation of the subspecies. To the greatest extent possible, we avoided designating critical habitat adjacent to developed areas and areas containing buildings, electrical substations, and other urban infrastructure related to the distribution and transmission of electricity. However, we did not remove areas under electrical transmission lines or areas within the transmission line right-of-ways from the designation. Although these areas have experienced disturbance in the placement of the transmission line and towers, they still provide at a minimum upland foraging or dispersal habitat, and where the transmission lines cross over streams or ponds, they potentially provide breeding habitat for the California red-legged frog. Because the areas under electrical transmission right-of-ways still contain the PCEs, we did not remove these areas from the designation.

Generally we do not consider excluding critical habitat from an area based on a HCP where the conservation measures have not yet been determined or that has not yet been released to the public for review. Prematurely excluding such areas may significantly influence the outcome of the planning process and limit the effectiveness of the intended conservation activities for the plan. Therefore we have not excluded PG&E transmission right-of-ways from this final designation. For more information on our exclusions see section

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

below.

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Comment:

East Bay Regional Park District (EBRPD) requested clarification of the phrase “portions of” in a statement included in the revised proposed rule regarding exclusion of EBRPD lands from critical habitat.

Our Response:

We analyzed all EBRPD lands for exclusion from critical habitat and have concluded that EBRPD lands within units CCS-1B and ALA-1A are excluded from the final critical habitat designation. See the section

Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act

below for additional information.

Comments From Other Federal Agencies

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Comment:

In response to our April 13, 2004, proposed designation (69 FR 19620), the U.S. Forest Service provided habitat survey, occurrence record, and distributional information regarding the California red-legged frog in the Sierra National Forest. They stated that our general characterization of the subspecies being typically found from sea level to 5,000 ft (1,500 m) does not accurately reflect the distribution of the subspecies in the Sierra Nevada Mountains.

Our Response:

As a result of the comments received, we revised our methodology and criteria for designating critical habitat. In the revised proposed and this final designation, we did not include U.S. Forest Service land in the Sierra National Forest within this final designation. We also reviewed information within our recovery plan (Service 2002) and occurrence record information (CNDDB 2005) and concur with the U.S. Forest Service that the vast majority of occurrences of the subspecies within the Sierra Nevada Mountains occur below 4,000 ft (1,200 m) and that occurrences found above this elevation are atypical for the subspecies. We have revised the final designation to reflect this information.

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Comment:

In response to our April 13, 2004, proposed designation (69 FR 19620), the U.S. Forest Service provided habitat and survey information for the North Fork Feather River, on the Plumas National Forest, reporting only low to moderate quality habitat and absence of California red-legged frog occurrences. Based on this information, the U.S. Forest Service recommended a reduction in the size of unit 1 from the April 13, 2004, proposed critical habitat designation.

Our Response:

Based on our revised methodology and criteria and information provided by the U.S. Forest Service, we have reduced the size of unit BUT-1 (formerly unit 1) to more accurately reflect the occurrence of California red-legged frogs in the Sierra foothills and identify areas containing the features essential to the conservation of the California red-legged frog. For more information see the Criteria Used To Identify Critical Habitat section below.

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Comment:

In response to our April 13, 2004, proposed designation (69 FR 19620), the U.S. Forest Service provided habitat and survey information to support designation of an additional critical habitat unit in the area of the Little Oregon Creek California red-legged frog population. The U.S. Forest Service further recommended specific watersheds and sub-watersheds that could comprise the new critical habitat unit.

Our Response:

We concur with the U.S. Forest Service that the population of California red-legged frogs at Little Oregon Creek warrants the designation

of critical habitat. Based on our revised methodology and criteria, we have designated critical habitat unit YUB-1, and we have excluded land from the final designation of critical habitat which is managed under the Sierra Nevada Forest Plan by the Plumas National Forest. For a further discussion of this exclusion see

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

section below.

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Comment:

The U.S. Forest Service, Plumas National Forest, requested that we clarify the management direction of units YUB-1 and BUT-1.

Our Response:

Those portions of units YUB-1 and BUT-1 that are owned and managed by the U.S. Forest Service, Plumas National Forest, are managed both under the Sierra Nevada Forest Plan Amendment (SNFPA) and the Herger-Feinstein Quincy Library Group (HFQLG) Act direction. HFQLG projects planned or implemented within these units would follow the management direction set out in the 2004 HFQLG Record of Decision (ROD) for the SNFPA and the HFQLR ROD, Final Environmental Impact Statement and Final Supplemental Environmental Impact Statement. Non-HFQLG projects planned or implemented within the two units mentioned above would follow the management direction set forth in the 2004 SNFPA ROD. We have excluded all U.S. Forest Service lands in the Sierra Nevada from this final designation (see

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

below).

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Comment:

The Plumas National Forest also requested we clarify our description of HFQLG vegetation management that we presented in the revised proposed rule. Additionally, they also requested we remove our term “avoidance zones” and replace it with the term “buffer”, which is original to the HFQLG language.

Our Response:

We identified only one of three vegetation management components that can occur under the HFQLG,

e.g.

, defensible fuel profile zones. The other two components of vegetation management that can be implemented under HFQLG are a silvicultural harvest method of Group Selections (1/2-to-2 acre harvest units where all conifer trees less than 30 inches diameter at breast height are removed) and Individual Tree Selection where selected trees are removed to meet desired conditions for canopy cover or basal area retention. Projects that implement vegetation management under HFQLG apply Scientific Analysis Team (SAT) guidelines for riparian area management. Additionally, non-HFQLG projects implement Aquatic Management Strategy guidelines from the SNFPA.

In our description of HFQLG defensible fuel profile zones, we used the term “avoidance zones” to describe 300 ft (90 m) areas along (or around) waterways and ephemeral wetlands and 500 ft (150 m) areas around known occupied California red-legged sites. Our use of that term was entirely an editorial decision and in no way suggests our attempt to change the intent of HFQLG or SNFPA. We therefore replace the term “avoidance zones” with the term “buffer” which is original to the HFQLG language with the revised text reading: “Buffers would be implemented during DFPZ maintenance activities. A 300 ft (90 m) buffer would be implemented along all waterways and ephemeral wetlands, and a 500 ft (150 m) buffer would be implemented along known occupied California red-legged frog sites.”

Comments Related to the Draft Economic Analysis (DEA)

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Comment:

Several commenters stated that mitigation costs are higher than the figure used in the DEA.

Our Response:

Mitigation costs were derived from a survey of mitigation banks, developers, and consultants familiar with the permitting process. We believe that these data represent the best available information on mitigation costs in affected counties.

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Comment:

One commenter stated that the DEA fails to calculate costs for commercial real estate development.

Our Response:

The DEA includes costs resulting from California red-legged frog conservation relating to commercial real estate development. These costs are calculated as the price of mitigation credits multiplied by the assumed mitigation ratio multiplied by the expected number of acres of commercial development in critical habitat. This approach does not calculate price changes or consumer surplus losses associated with impacts to commercial development; however, the “catchall” nature of the commercial development category precludes accurate estimation of demand-and-supply curves and related surplus measures.

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Comment:

Several commenters stated that the avoidance and mitigation requirements and mitigation costs used in the DEA are inconsistent with the recent

Gifford Pinchot

decision.

Our Response:

Avoidance and mitigation requirements and mitigations costs used in the DEA were based on interviews with those familiar with the permitting process, as well as a comprehensive examination of the Service's consultation history. The DEA also assumes that avoidance and mitigation take place within the boundaries of proposed critical habitat. The Ninth Circuit has recently ruled (

Gifford Pinchot,

378 F.3d at 1071) that the Service's regulations defining “adverse modification” of critical habitat are invalid. As a result, there is some uncertainty involved in considering the costs due to the fact that the consequences of designation are more difficult to predict as the Service cannot rely on decades of factual information based on prior experience.

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Comment:

One commenter stated that the economic analysis fails to quantify costs of critical habitat related to restrictions on timber harvesting on private lands within unit YUB-1 located in Yuba County. The commenter states that the Service has recommended special management measures in its review of various Timber Harvest Plans, including no-harvest buffers of 300 ft on both sides of Class I and Class II watercourses and of 114 ft on both sides of Class III watercourses, and a ban on winter operations.

Our Response:

We have provided technical assistance on three timber harvest plans (THPs) on private lands in Yuba County (Oregon Hill THP, Coupe THP, and Flett THP). Technical assistance letters are only recommendations and do not have terms and conditions as do biological opinions. Further, the State did not follow our recommendations in all cases. In the case of the Oregon Hill THP, we recommended five protective measures: no winter timber falling, hauling, or site preparation; directional lighting and other restrictions on pile burning; habitat assessment; dust abatement practices; and application of herbicides by a licensed pest control advisor. In the case of the Coupe THP, we recommended 300-ft buffers on both sides of Class I and Class II watercourses; a ban on winter operations other than directional pile burning; and dustabatement. In the Flett THP, we recommended a ban on winter operations; directional burning; protective measures relating to water intake; a 300-ft buffer on one side of Little Oregon Creek; no herbicide applications within the buffer area; dry-season construction of water crossings; and various restrictions on placement of slash pilings. Our recommendations overlap to a significant degree with the California Forest Practice Rules. These rules generally provide guidance for conducting work outside of riparian areas, location of slash burn piles, erosion control measures, road

construction, threatened and endangered species specific measures, time of operation, and water quality issues. Thus, it is not reasonable to attribute most of the costs of these measures to the conservation of the California red-legged frog; rather they should be treated as part of the regulatory baseline. Furthermore, no HCPs have been completed on private timberland involving the California red-legged frog. Given all these factors, it is our conclusion that the economic impact of critical habitat on private timber operations is minimal and that most recommended conservation measures are properly considered as part of the regulatory baseline.

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Comment:

Several commenters stated that the DEA failed to provide a balanced assessment of economic benefits (such as water filtering and general habitat protection) and costs in relation to the revised proposed critical habitat designation.

Our Response:

Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Service's approach for estimating economic impacts includes both economic efficiency and distributional effects. The measurement of economic efficiency is based on the concept of opportunity costs, which reflect the value of goods and services foregone in order to comply with the effects of the designation (e.g., lost economic opportunity associated with restrictions on land use). Where data are available, the economic analyses do attempt to measure the net economic impact. However, no data was found that would allow for the measurement of such an impact, nor was such information submitted during the public comment period.

Most of the other benefit categories submitted by the commenter reflect broader social values, which are not the same as economic impacts. While the Secretary must consider economic and other relevant impacts as part of the final decision-making process under section 4(b)(2) of the Act, the Act explicitly states that it is the government's policy to conserve all threatened and endangered species and the ecosystems upon which they depend. Thus, we believe that explicit consideration of broader social values for the subspecies and its habitat, beyond the more traditionally defined economic impacts, is not necessary as Congress has already clarified the social importance.

We note, as a practical matter, it is difficult to develop credible estimates of such values, as they are not readily observed through typical market transactions and can only be inferred through advanced, tailor-made studies that are time consuming and expensive to conduct. We currently lack both the budget and time needed to conduct such research before meeting our court-ordered final rule deadline. In summary, we believe that society places significant value on conserving any and all threatened and endangered species and the habitats upon which they depend and thus needs only to consider whether the economic impacts (both positive and negative) are significant enough to merit exclusion of any particular area without causing the species to go extinct.

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Comment:

Several comments stated that the DEA did not adequately consider impacts on agricultural landowners and that the designation of critical habitat decreases property values.

Our Response:

The DEA calculates the impact of critical habitat on agricultural land values by measuring its effect on the likelihood and profitability of residential and commercial development. One comment stated that farm subsidies may trigger a section 7 consultation and that these costs should be included in the DEA. This linkage is speculative and there is no instance of a farm subsidy being used as the basis for a consultation with the Service. Further, activities including discing, plowing, irrigation, chemical application, harvesting and others that are part of normal agricultural operations are also unlikely to trigger a section 7 consultation. Incremental costs to farming operations may result from construction of stream crossings, water diversion, and sediment removal; these costs are discussed in the final economic analysis.

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Comment:

One comment stated that the DEA is deficient in its treatment of impacts on the agricultural sector and on rural areas generally. The comment asserts that designation of critical habitat may jeopardize or delay the receipt of federal subsidies by requiring a section 7 consultation with the Service. The comment asserts that critical habitat designation may impair the ability of farmers to engage in routine agricultural activities necessary to maintain property by requiring a section 7 consultation. The comment goes on to assert that critical habitat designation for the California red-legged frog can jeopardize the viability of the agricultural service infrastructure.

Our Response:

In theory, there are several ways that the agricultural sector may be impacted directly by the designation of critical habitat for the California red-legged frog. First, owners of agricultural land may experience a decline in wealth resulting from a reduced ability to convert this land to alternative uses such as housing. Second, critical habitat designation may restrict allowable farming practices on land currently under cultivation, and may impose additional costs on farm operators. Third, critical habitat may make it more difficult to bring new land into farm production. In addition to these direct impacts, there may be indirect effects flowing from these direct impacts. We discuss each type of direct impacts and then discuss the indirect and regional impacts of critical habitat designation.

The DEA recognizes that critical habitat may result in large economic losses to owners of agricultural land, and describes these impacts in great detail. Producer surplus losses measured in the report include losses experienced by landowners. We note that these losses are changes in wealth since designation of critical habitat will lower the market price of land. In cases where critical habitat results in complete avoidance of certain areas, the per-acre wealth loss will be nearly total since the salvage value of land, especially grazing land, is often very low. Again, these types of impacts are included in the DEA and are described on a highly disaggregated basis.

With respect to impacts to lands currently under cultivation, we note that farmland comprises only a small portion of California red-legged frog critical habitat, and that critical habitat is an even smaller proportion of California farmland. The California Farmland Mapping and Monitoring Program (FMMP), conducted by the California Department of Conservation, is a biennial survey of land use activities in California. FMMP defines prime farmland as land that has been used for agricultural production at some time during the four years prior to the mapping date and meets edaphic criteria established by the U.S. Department of Agriculture. FMMP delineated 5.1 million acres of prime farmland in California in its latest round of surveying. Proposed critical habitat intersects 5,129 of those acres, or roughly 0.1 percent of all prime farmland in California; viewed another way, only 0.7 percent of the proposed habitat is classified as prime farmland. 1,075 acres are in Santa Cruz County;

1,037 are in San Luis Obispo; 935 are in San Mateo; 598 are in Contra Costa; 588 are in San Benito; and the remainder is in Monterey, Riverside, Ventura, Napa, Santa Barbara and El Dorado counties.

There are no recorded section 7 consultations concerning ongoing and traditional farming activities such as those listed in the comment letter. This gap is at least partly due to the fact that the Clean Water Act exempts from the Section 404 program discharges associated with normal farming, ranching, and forestry activities such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices (Section 404(f)(1)(A)). To be exempt, these activities must be part of an established, ongoing operation. Further, there is nothing in the record to support the notion that farm subsidies or program payments would be threatened or delayed by the designation of critical habitat.

This leaves the possibility that designation of critical habitat may make it more difficult to bring new land under cultivation. As a threshold matter, we note that there is a long-term downward trend in cultivated acreage in California. At present, the California Department of Food and Agriculture reports that there are roughly 8.5 million acres devoted to field crops, fruit and nut crops, and vegetables and melons, down from a peak of 9.7 million acres in 1981. Thus, it would appear that far more land is leaving agriculture each year than entering it.

It is difficult to predict with any certainty the specific areas that will be brought into agricultural production for the first time. Further, there are often a large number of substitute sites for any new farming activity, most of which are presumably outside of critical habitat since critical habitat comprises less than one percent of all prime farmland in California. As a result, critical habitat may be expected to produce distributional effects, however data are not readily available that would allow us to reasonably forecast these effects.

With respect to indirect and regional effects of critical habitat designation on rural areas, the comment asserts that critical habitat can jeopardize the viability of the infrastructure needed to service the agricultural sector. Without a critical mass of farms, it is argued, service providers will be unable to operate economically. While this point may be true in theory, it is unlikely that even an extreme outcome like the total loss of all prime farmland within critical habitat would jeopardize the agricultural infrastructure. As noted above, prime farmland within critical habitat accounts for less than one-tenth of a percent of all prime farmland in California.

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Comment:

The Office of Advocacy of the U.S. Small Business Administration suggests that the designation of critical habitat for the California red-legged frog, if finalized as proposed, would likely have a significant economic impact on a substantial number of small entities, and therefore should not be certified under the Regulatory Flexibility Act.

Our Response:

Following the completion of the proposed critical habitat designation for the California red-legged frog, we took into consideration the potential economic and other relevant effects of the designation as directed by section 4(b)(2) of the Act. On the basis of this evaluation, we excluded many areas due to potential economic effects resulting from the designation or due to conservation partnerships and programs (please refer to the Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act portion of this final rule). We believe that based on these exclusions, we have reduced or eliminated the potential economic burden to a substantial number of small business entities. Thus, we are certifying in this final rule that we do not anticipate that this final designation of critical habitat for the California red-legged frog will have a significant impact on a substantial number of small business entities. Please refer our response to Executive Order 12866 and the Regulatory Flexibility Act in this final rule for more discussion of this issue.

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Comment:

The Office of Advocacy of the U.S. Small Business Administration requested that we exclude certain areas from the final designation where it is believed that the designation of critical habitat would result in a high cost economic burden.

Our Response:

As discussed in the Application of Section 4(b)(2)—Economic Exclusion to 19 Census Tracts section of this final rule, we have excluded the 19 census tracts, totaling approximately 250,329 ac (101,305 ha) (approximately 34 percent of the revised proposed critical habitat), from this final rule under section 4(b)(2) of the Act on the basis of potential disproportionately high economic cost. Please refer to that section of the rule for further discussion of this issue. Thus, we believe, that we have adequately responded to the comments from The Office of Advocacy of the U.S. Small Business Administration and our responsibilities for mitigating potential economic burdens to small businesses under the Regulatory Flexibility Act.

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Comment:

The Office of Advocacy of the U.S. Small Business Administration indicates that we should either be certifying that our designations of critical habitat will not have a significant impact on a substantial number of small business entities at the time of our proposal, or providing an Initial Regulatory Flexibility Analysis pursuant to the Regulatory Flexibility Act at that time.

Our Response:

As we have indicated in previous final designations of critical habitat and discussions with The Office of Advocacy of the U.S. Small Business Administration, we often do not have available to use the relevant economic information and analysis at the time of proposal to either certify that a proposed designation will not have a significant impact on a substantial number of small business entities or to be able to develop an Initial Regulatory Flexibility Analysis. The data to evaluate potential effects on small business entities, as well as the overall effect of the designation becomes available through the draft economic analysis which is produced shortly following the completion of the proposed designation. On the basis of the information in that draft analysis, we then evaluate the potential effects on the designation with regards to small businesses and to the overall public pursuant to section 4(b)(2) of the Act and various Executive Orders and statutes such as Executive Order 12866 and the Regulatory Flexibility Act. We have then been providing our position on certification of compliance with these specific Executive Orders and statutes in the Notice of Availability for the draft economic analyses. We further review potential effects of the rule based on public comment as we develop the final designation and make revision thereto accordingly. Finally, we revaluate our position on certification of compliance with these specific Executive Orders and statutes and iterate that position in the final designation.

We are currently working on internal processes and procedures to allow for the draft economic analysis to be done more concurrently with proposed designations of critical habitat. This will allow us to evaluate potential economic effects much earlier in the critical habitat rulemaking process, and thus provide our position on certification of compliance with these specific Executive Orders and statutes earlier.

Comments From the State

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Comment:

In response to our April 13, 2004, proposed designation (69 FR 19620), the California Department of Fish and Game (CDFG) requested that we exclude lands that they manage and administer for resource conservation (e.g., State Wildlife Areas, Ecological Reserves) and lands that are administered for fishery resources (e.g., hatcheries, fishing access areas). The CDFG stated that they have specific management objectives for State lands within their jurisdiction to protect wildlife and their habitats, including those occupied by the California red-legged frog. The CDFG further stated the application of critical habitat to CDFG lands would provide no added benefit, result in project delays, and divert scarce monetary resources away from on-the-ground preservation and conservation work.

Our Response:

We concur with the CDFG that their mission is to protect and conserve State wildlife resources including the California red-legged frog and that the designation of critical habitat would provide little additional protection for the subspecies. As a response in part to comments received, as well as revising our methodology and criteria, we published a revised proposed critical habitat for the California red-legged frog (70 FR 66906). In the revised proposed and this final designation, we did not include CDFG-owned or administered lands within the critical habitat designation.

(65)

Comment:

The California Department of Transportation (CalTrans) requested that we exclude all lands along highway right-of-ways (ROWs). CalTrans has stated that these ROWs undergo continual maintenance activities, and it is unlikely that such lands would contain the PCEs, and thus not be essential, for the California red-legged frog. CalTrans also stated that if a highway be used as a boundary that the boundary be outside of the ROW and that the unit description clearly state that information.

Our Response:

In our determination of critical habitat, we included only those areas that we determined to contain the features identified in the PCEs and that are thus essential to the conservation of the subspecies. To the greatest extent possible, we avoided designating critical habitat adjacent to developed areas and areas containing major highways; however, due to mapping constraints, we may not have removed all such areas from the designation. In our analysis on the economic costs of the designation, we identified four future highway projects in Kern, Merced, Riverside, and San Luis Obispo counties along State Routes 46, 79 and 152. We determined that the benefits of including these lands in the designation were outweighed by the economic costs and these ROWs were removed from the designation. For more information on the exclusion see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.

Summary of Changes From Revised Proposed Rule

In preparing the final critical habitat designation for the California red-legged frog, we reviewed and considered comments from the public on the proposed designation of critical habitat published on April 13, 2004 (69 FR 19620). Based on review of comments received on this initial proposal, we published a revised proposed critical habitat designation along with a DEA on November 3, 2005 (70 FR 66906). As a result of comments received on the initial proposal, the reproposal, the DEA, and a reevaluation of the revised proposed critical habitat boundaries we made changes to our revised proposed designation, as follows:

(1) We revised the proposed critical habitat units based on peer review, public comments, and biological information received during the public comment period and public workshops. After excluding units based on economics or existing management practices, isolated or small fragments that we determined were not essential to the conservation of the California red-legged frog were removed. Additionally, portions of units that did not contain PCEs were removed from the final designation.

(2) Under section 4(a)(3) of the Act, we did not designate DOD lands that have approved INRMPs in place that benefit the subspecies. Under sections 3(5)(a) and 4(b)(2) of the Act, we excluded Vandenberg Air Force Base and Camp San Luis Obispo because they had adequate management plans that cover the California red-legged frog and its habitat. For more information, refer to

“Application of 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act”

below.

(3) We adjusted the boundaries of the revised proposed units as feasible to remove areas that do not contain the primary constituent elements or were included in the revised proposed rule as a result of a mapping error.

(4) We revised the minimum time of water retention for PCE 1 from 15 to 20 weeks. This is the average time required for egg, larvae, and tadpole development into terrestrial frogs based on peer review comments and the currently accepted information on the California red-legged frog (Storer 1925; Wright and Wright 1949; Jennings 1988; Bobzien et al. 2000).

(5) Collectively, we excluded or removed a total of approximately 287,624 ac (116,397 ha) of land from this final critical habitat designation. Please refer to Table 1 for the differences in the amount of area proposed for designation in the revised proposed rule and the areas designated in this final rule. For a detailed discussion of all exclusions and exemptions, please refer to

“Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act”

below.

Critical Habitat

Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act means to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Conservation is a process which contributes to improving the status of the species. Individual actions may still be considered conservation even though in and of themselves they do not remove the species' need for protection under the Act.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The

designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7 is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures.

To be included in a critical habitat designation, the habitat within the geographical area occupied by the subspecies must first have features that are essential to the conservation of the subspecies. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the subspecies (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management considerations or protection. Thus, we do not include areas where existing management is sufficient to conserve the subspecies. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2)). Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the subspecies require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the subspecies at the time of listing. An area currently occupied by the subspecies but was not known to be occupied at the time of listing will likely, but not always, be essential to the conservation of the subspecies and, therefore, typically included in the critical habitat designation.

The Service's Policy on Information Standards Under the Endangered Species Act, published in the

Federal Register

on July 1, 1994 (59 FR 34271), and section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the subspecies. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we consider those physical and biological features (PCEs) that are essential to the conservation of the subspecies, and within areas occupied by the subspecies at the time of listing, that may require special management considerations and protection. These include, but are not limited to: space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific primary constituent elements required for the California red-legged frog are derived from the biological needs of the California red-legged frog as described below and in the revised proposed critical habitat designation published in the

Federal Register

on November 3, 2005 (70 FR 66906).

The areas determined to contain the features essential for the conservation of the California red-legged frog are designed to provide sufficient aquatic habitat for breeding and non-breeding activities and sufficient upland habitat for shelter, foraging, predator avoidance and dispersal.

Aquatic Breeding Habitat

California red-legged frogs typically lay eggs between December and early April. Eggs hatch within 6 to 14 days depending on water temperatures and require approximately 20 days to develop into tadpoles. Tadpoles in turn require anywhere between 11 to 20 weeks to develop into terrestrial frogs (Storer 1925; Wright and Wright 1949; Bobzien et al. 2000). Water bodies suitable for tadpole rearing must remain watered at least until the tadpoles metamorphose into adults, typically between July and September. Adult California red-legged frogs can survive in moist upland areas after breeding habitat has dried, and can live several years to make new breeding attempts. Therefore, aquatic breeding habitat need not be available every year, but it must be available often enough and for appropriate hydroperiods to maintain a California red-legged frog population during most years.

Aquatic breeding habitat is essential for providing space, food, and cover necessary to sustain all life stages of California red-legged frogs. It consists of low-gradient fresh water bodies, including natural and manmade (e.g., stock) ponds, backwaters within streams and creeks, marshes, lagoons, and dune ponds. It does not include deep lacustrine water habitat (e.g., deep lakes and reservoirs 50 ac (20 ha) or larger in size).

The aquatic habitat PCE is essential for frog breeding and for providing space, food, and cover necessary to

sustain the early life history stages of larval and juvenile California red-legged frogs. To be considered essential breeding habitat, the aquatic feature must have the capability to hold water for a minimum of 20 weeks in all but the driest of years. This is the average amount of time needed for egg, larvae, and tadpole development and metamorphosis so that juveniles can become capable of surviving in upland habitats. California red-legged frogs usually have completed metamorphosis between July and September. During periods of drought or less-than-average rainfall, these sites may not hold water long enough for individuals to complete metamorphosis. However, these sites would still contain essential features because they constitute breeding habitat in years of average rainfall. Without aquatic breeding habitats, the California red-legged frog would not survive, reproduce, develop juveniles, and grow into adult California red-legged frogs that can complete their life cycles.

Non-Breeding Aquatic Habitat

The aquatic non-breeding habitat is essential for providing the space, food, and cover necessary to sustain California red-legged frogs. Non-breeding aquatic habitat consists of those aquatic elements identified above, and also includes, but is not limited to, other wetland habitats such as intermittent creeks, seeps, and springs. California red-legged frogs can use large cracks in the bottom of dried ponds as refugia to maintain moisture and avoid heat and solar exposure (Alvarez 2004). Without these non-breeding aquatic features, California red-legged frogs would not be able to survive drought periods, or be able to disperse to other breeding habitat.

Upland Habitat

Upland and riparian habitats associated with essential aquatic habitat are essential to maintain California red-legged frog populations. The associated upland and riparian habitats provide food and shelter sites for California red-legged frogs and assist in maintaining the integrity of aquatic sites by protecting them from disturbance and supporting the normal functions of the aquatic habitat. Upland habitat associated with occupied wetland habitat often contains blackberry (

Rubus

sp.) and other upland perennial species that provide for shelter from predatory species and forage habitat (Service 2002).

Upland habitat that contains the features essential to the conservation of the subspecies consists of natural areas within 200 ft (60 m) of the edge of the riparian vegetation or dripline, or the edge of the watershed boundary, whichever is closer. This is based on the dispersal capabilities of the subspecies (see Dispersal Habitat below), and research identifying the use of upland areas by the subspecies (Rathbun et al. 1993; Bulger et al. 2003; Tartarian 2004). Tatarian (2004) found California red-legged frogs inhabiting upland areas for 50 days at a distance of 302 ft (92 m) from aquatic habitat; Bulger et al. (2003) found that the subspecies is capable of inhabiting upland habitats within 200 ft (60 m) of aquatic habitat for continuous durations exceeding 20 days; and Rathbun et al. (1993) observed California red-legged frogs inhabiting upland riparian habitat for durations up to 77 days. California red-legged frogs often disperse from their breeding habitat to forage and seek suitable upland habitat if aquatic habitat is not available.

Suitable upland habitat includes structure that provides shade, moisture, and cooler temperatures. This structure may be natural, such as the spaces under boulders or rocks and organic debris (e.g., downed trees or logs), or it could be manmade, such as industrial debris and agricultural features (drains, watering troughs, abandoned sheds, or stacks of hay or other vegetation). California red-legged frogs will also use small mammal burrows and moist leaf litter as refugia (Jennings and Hayes 1994; Fellers and Kleeman 2005).

Dispersal Habitat

Dispersal habitat provides connectivity among California red-legged frog breeding (and associated upland) habitat patches. While California red-legged frogs can pass many obstacles, and do not require a particular type of habitat for dispersal, the habitat connecting breeding locations and other aquatic habitat must be free of barriers that prevent California red-legged frogs from dispersing.

Designated dispersal habitat consists of upland and riparian habitat contiguous with breeding and non-breeding aquatic habitat, that is free of barriers, and, that connects two or more patches of aquatic breeding habitat within 0.7 mi (1.2 km) of one another. Dispersal barriers include heavily traveled roads (Vos and Chardon 1998) that possess no bridges or culverts, moderate to high density urban or industrial developments with large expanses of asphalt or concrete that do not contain the PCEs or features essential to conservation of the subspecies, and large reservoirs over 50 ac (20 ha) in size that contain predatory species. Agricultural lands such as row crops, orchards, vineyards, and pastures do not constitute barriers to California red-legged frog dispersal.

California red-legged frogs have been documented to travel as far as 2.2 mi (3.6 km) from non-breeding to breeding habitats (Bulger et al. 2003). These long distance movements are migrations rather than use of corridors for moving between habitats (N. Scott and G. Rathbun, in litt. 1998). These movements have also been found to be with apparent disregard to topography, vegetation type, or riparian corridors (Bulger et al. 2003; Fellers and Kleeman 2005). We conclude the 2.2 mi (3.6 km) is likely the upward limit of dispersal capability for the California red-legged frog and that the 0.7 mi (1.2 km) dispersal distance will ensure that connectivity between breeding habitats will be maintained within areas designated as critical habitat. This 0.7 mi (1.2 km) dispersal element also includes areas of non-aquatic (i.e., upland habitat) habitat for shelter.

Accessible dispersal habitat provides opportunities for the California red-legged frog to move freely across the landscape in search of adjacent breeding and non-breeding habitats. Accessible dispersal habitat is considered essential to the conservation of the subspecies and provides for: (1) Opportunities for movement and establishment of home ranges by juvenile recruits; (2) maintaining gene flow by the movement of both juveniles and adults between subpopulations; and (3) recolonization of or recruitment into breeding habitat after local extirpations.

Primary Constituent Elements (PCEs) for the California Red-Legged Frog

Pursuant to our regulations, we are required to identify the known physical and biological features (PCEs) essential to the conservation of the California red-legged frog. All areas designated as critical habitat for California red-legged frogs are occupied, are within the subspecies' historic geographic range, and contain sufficient PCEs to support at least one life history function.

Based on our current knowledge of the life history, biology, and ecology of the subspecies and the requirements of the habitat to sustain the essential life history functions of the subspecies, we have determined that the California red-legged frog's PCEs are:

(1)

Aquatic Breeding Habitat.

Standing bodies of fresh water (with salinities less than 7.0 parts per thousand (ppt)), including: natural and manmade (e.g., stock) ponds, slow moving streams or pools within streams, and other ephemeral or permanent water bodies that typically become

inundated during winter rains and hold water for a minimum of 20 weeks in all but the driest of years.

(2)

Non-Breeding Aquatic Habitat.

Fresh water habitats, as described above, that may or may not hold water long enough for the subspecies to hatch and complete its aquatic life cycle but that do provide for shelter, foraging, predator avoidance, and aquatic dispersal for juvenile and adult California red-legged frogs. Other wetland habitats that would be considered to meet these elements include, but are not limited to: plunge pools within intermittent creeks; seeps; quiet water refugia during high water flows; and springs of sufficient flow to withstand the summer dry period.

(3)

Upland Habitat.

Upland areas within 200 ft (60 m) of the edge of the riparian vegetation or dripline surrounding aquatic and riparian habitat and comprised of various vegetational series such as grasslands, woodlands, and/or wetland/riparian plant species that provides the frog shelter, forage, and predator avoidance. Upland features are also essential in that they are needed to maintain the hydrologic, geographic, topographic, ecological, and edaphic features that support and surround the wetland or riparian habitat. These upland features contribute to the filling and drying of the wetland or riparian habitat and are responsible for maintaining suitable periods of pool inundation for larval frogs and their food sources, and provide breeding, non-breeding, feeding, and sheltering habitat for juvenile and adult frogs (e.g., shelter, shade, moisture, cooler temperatures, a prey base, foraging opportunities, and areas for predator avoidance). Upland habitat can include structural features such as boulders, rocks and organic debris (e.g. downed trees, logs), as well as small mammal burrows and moist leaf litter.

(4)

Dispersal Habitat.

Accessible upland or riparian dispersal habitat within designated units and between occupied locations within 0.7 mi (1.2 km) of each other that allows for movement between such sites. Dispersal habitat includes various natural habitats and altered habitats such as agricultural fields, which do not contain barriers to dispersal. (An example of a barrier to dispersal is a heavily traveled road (Vos and Chardon 1998) constructed without bridges or culverts.) Dispersal habitat does not include moderate to high density urban or industrial developments with large expanses of asphalt or concrete, nor does it include large reservoirs over 50 ac (20 ha) in size, or other areas that do not contain those features identified in PCE 1, 2, or 3 as essential to the conservation of the subspecies.

This designation is designed for the conservation of PCEs necessary to support the life history functions and essential to the conservation of the subspecies. Because not all life history functions require all the PCEs, not all areas designated as critical habitat will contain all the PCEs.

Each of the areas designated in this rule have been determined to contain sufficient PCEs to provide for one or more of the life history functions of the California red-legged frog. In some cases, the PCEs exist as a result of ongoing Federal actions. As a result, ongoing Federal actions at the time of designation will be included in the baseline in any consultation conducted subsequent to this designation.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we use the best scientific data available in determining areas that contain the features that are essential to the conservation of the California red-legged frog. The material included data in reports submitted during section 7 consultations and by biologists holding section 10(a)(1)(A) recovery permits; research published in peer-reviewed articles and presented in academic theses and agency reports; and regional Geographic Information System (GIS) coverages. We designated no areas outside the geographical area presently occupied by the subspecies.

In designating critical habitat for the California red-legged frog, we selected areas based on the best scientific data available that possess those physical and biological features essential to the conservation of the subspecies, and that may require special management considerations or protection. We included some areas which were occupied at the time of listing as well as some areas subsequently identified as occupied. We found that the majority of newer occurrence records were within areas already known to support the California red-legged frog. We identified critical habitat units that have the highest likelihood to contain populations of California red-legged frogs based on: (1) The presence of the defined PCEs; (2) the density of California red-legged frog occurrences; and (3) the kind, amount, and quality of habitat associated with those occurrences. The units contain sufficient PCEs to support the behaviors and/or life cycle stages we have determined are essential to the conservation of the subspecies.

Throughout the development process, we avoided identifying areas with single occurrences for designation unless such areas were considered ecologically or biologically unique or had other biological significance. Further, we made an effort to avoid developed areas, such as housing and commercial developments, that are unlikely to contribute to the conservation of the California red-legged frog. We also avoided fragmented areas such as those surrounded by development. Areas within the boundaries of the mapped units such as buildings, roads, parking lots, railroads, canals, levees, airport runways, other paved areas, lawns, and other urban landscaped areas are not critical habitat and are not included in this designation. Federal actions limited to these areas would not trigger a section 7 consultation, unless they affect the subspecies and/or the PCEs in adjacent critical habitat. We avoided known areas of intensive agriculture. Agricultural lands may have been included if they were within areas identified as necessary for dispersal or connectivity between known occurrences.

We considered several criteria in the selection of areas that contain the essential features for the California red-legged frog and focused on designating units: (1) Throughout the current geographic, elevational, and ecological distribution of the subspecies; (2) that would maintain the current population structure across the subspecies' range; (3) that retain or provide for connectivity between breeding sites that allows for the continued existence of viable and essential metapopulations, despite fluctuations in the status of subpopulations; (4) that possess large continuous blocks of occupied habitat, representing source populations and/or unique ecological characteristics; and (5) that contain sufficient upland habitat around each breeding location to allow for sufficient survival and recruitment to maintain a breeding population over the long term.

We first determined the occupancy status of areas on the basis of report data compiled by the CDFG (CNDDB 2005). Occurrence records were reviewed and historical or extirpated records were not considered in the designation. We used the final listing rule to establish those areas occupied at the time of listing. All other areas designations were based on occupancy data collected since listing. Our designation does not include all occupied areas. When determining which occupied areas are essential to the conservation of the subspecies and meet the definition of critical habitat, we considered theories of

metapopulation persistence, on-the-ground survey data, and California red-legged frog longevity. Bulger et al. (2003) found more than 75 percent of California red-legged frogs are resident at permanent aquatic habitats over the course of a year, thereby providing local population stability. Survey data provided to us during the development of the revised proposed critical habitat rule show an average persistence of 19 years for California red-legged frog populations. Additionally, maximum longevity of male and female California red-legged frogs is 8 and 10 years respectively (Jennings et al. in litt. 1992), which also contributes to generational and metapopulation stability.

The extant occurrences within the critical habitat units comprise approximately 63 percent of known extant occurrences within the range of the subspecies. We critically evaluated records in which the exact site location was not precisely identified or could not be confirmed, and removed those locations from our analysis. We then selected areas that are inhabited by populations (source populations) that are capable of maintaining their current population levels and capable of providing individuals to recruit into subpopulations found in adjacent areas. We also selected several areas which have other unique ecological significance, with the goal of maintaining the full range of the habitat variability and evolutionary adaptation in this subspecies. These include areas on the periphery of the current range and elsewhere that represent the distribution of the subspecies, and areas that provide connectivity among source populations or between source populations.

The critical habitat units were delineated by creating approximate areas for the units by screen digitizing polygons (map units) using ArcMap (Environmental Systems Research Institute, Inc.), a computer GIS program. The polygons were created by overlaying occurrence locations extant-at-time-of-listing and subsequent-to-listing California red-legged frog with a 0.7 mi (1.2 km) radius. This distance was used as a guide for mapping the essential features around locations where California red-legged frog populations are present (see Dispersal Habitat above). As stated above, California red-legged frogs have been documented to disperse from ponds and streams a distance over 2.0 mi (3.2 km) (Bulger et al. 2003). However, based on a review of the most current literature and information gathered in development of the Recovery Plan for the subspecies, we have determined that the 2.0 mi (3.2 km) distance is toward the maximum dispersal distance for the subspecies during a single season, and that the 0.7 mi (1.2 km) distance is more reflective of the average dispersal distance for the California red-legged frog (Rathbun et al. 1993; Scott and Rathbun, in litt 1998; Wright, in litt. 1999; Bulger et al. 2003; Tatarian 2004; Fellers and Kleeman 2005). Although the studies discussed above provide an approximation of the distances that California red-legged frogs can move from their aquatic habitats, breeding ponds, and other wetland habitats in search of suitable upland refugia or other breeding locations, we recognize that upland habitat features will influence California red-legged frog movements in a particular landscape. As a result, we made adjustments to the upland areas to include additional areas up to the watershed boundaries or to include habitat containing the PCEs beyond the 0.7 mi (1.2 km) distance where appropriate to aggregate clumps of occurrences. In some other instances, we reduced the areas to remove areas not exhibiting the PCEs from the revised proposed designation including agricultural, developed, disturbed, or fragmented lands.

We evaluated the resulting units (delineating geographic range and potential suitable habitat), refined elevation and hydrologic ranges, and identified areas not containing the essential features (i.e., not containing PCEs) (see Primary Constituent Elements section). We excluded areas because (1) they do not contain sufficient PCEs to support one or more of the subspecies' life processes or they have low quality PCEs because either the area is highly degraded and is likely not restorable or the area is small, highly fragmented, or isolated and may provide little or no long-term conservation value; and/or (2) other areas within the geographic region were determined to be sufficient to meet the conservation needs of the subspecies.

When determining critical habitat boundaries, we made every effort to avoid including developed areas such as: buildings, paved areas, and other structures that lack PCEs for the California red-legged frog. The scale of the maps prepared under the parameters for publication within the

Code of Federal Regulations

may not reflect the exclusion of such developed areas. Any such structures and the land under them remaining within critical habitat boundaries shown on the maps of this final rule are excluded by text and are not designated as critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the subspecies and/or primary constituent elements in adjacent critical habitat.

Further refinement of the preliminary areas as described above was based on the extent of aquatic habitat, stream reach, upland dispersal distance and watershed boundaries. We focused on areas of high California red-legged frog abundance, areas to maintain connectivity, and/or areas of unique ecological significance. Refined unit boundaries were delineated using watershed boundaries from the State of California's CALWATER watershed classification system (version 2.2) using the smallest (planning watersheds) watershed designation. Visual inspection of mapped California red-legged frog occurrence records revealed un-surveyed regions surrounded by surveyed regions, mostly in highly developed areas. Rather than designating critical habitat in the development fringe, we designated in areas where fewer surveys have been conducted but where California red-legged frogs are likely to occur based on similarity of habitat and presence of PCEs. In areas where planning watersheds were large and/or had been significantly altered hydrologically, we used alternative structural, political, or topographic boundaries (e.g., roads, county boundaries, ridgeline features, elevation contour lines) as critical habitat boundaries because in these areas the benefits of using planning watersheds were limited in that they included areas outside the subspecies' dispersal distance or were of little conservation value for the California red-legged frog.

Units were designated based on sufficient PCEs being present to support California red-legged frog life processes. Some units contained all PCEs and supported multiple life processes. Some units contained only a portion of the PCEs necessary to support the California red-legged frog's particular use of that habitat. Where a subset of the PCEs were present (e.g., water temperature during migration flows), it has been noted that only PCEs present at designation will be protected.

Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed species incidental to otherwise lawful activities. An incidental take permit application must be supported by a HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the requested incidental take. We often exclude non-Federal public lands and private lands that are covered

by an existing operative HCP and executed implementation agreement (IA) under section 10(a)(1)(B) of the Act from designated critical habitat because the benefits of exclusion outweigh the benefits of inclusion as discussed in section 4(b)(2) of the Act. We have excluded lands covered by the Bonny Doon HCP, the draft East Contra Costa HCP, and the Western Riverside Multiple Species HCP (see

Relationship of Critical Habitat to Habitat Conservation Plan Lands—Exclusions Under Section 4(b)(2) of the Act

section below).

A brief discussion of each area designated as critical habitat is provided in the unit descriptions below. Additional detailed documentation concerning the essential nature of these areas is contained in our supporting record for this rulemaking.

Special Management Considerations or Protections

We believe the areas designated as critical habitat will require some level of management and/or protection to address the current and future threats to the California red-legged frog and maintain the PCEs essential to its conservation in order to ensure the overall conservation of the subspecies. Areas in need of management include not only the immediate locations where the subspecies may be present, but additional areas adjacent to these that can provide for normal population fluctuations and/or dispersal. The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of the California red-legged frog. Federal activities outside of critical habitat are still subject to review under section 7 of the Act if they may affect the California red-legged frog or its

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