Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alameda Whipsnake

Federal RegisterOct 2, 2006

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018AT93

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alameda Whipsnake

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 Alameda whipsnake (

Masticophis lateralis euryxanthus

) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 154,834 acres (ac) (62,659 hectares (ha)) critical habitat are being designated for the taxon. The critical habitat is located in Alameda, Contra Costa, Santa Clara, and San Joaquin Counties, California.

DATES:

This rule becomes effective on November 1, 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. The final rule and economic analysis are available via the Internet at

http://www.fws.gov/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 (16 U.S.C. 1531

et seq.

). 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, but it does not require specific actions to restore or improve habitat.

Currently, only 475 species, or 36 percent of the 1,310 listed species in the U.S. under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,310 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

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 finalizing 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

The Alameda whipsnake, also known as the Alameda striped racer, reaches an adult size of 3 to 5 feet (ft) (91 to 152 centimeters (cm)) in length and inhabits the inner coast range mostly in Contra Costa and Alameda Counties (Jennings 1983; McGinnis 1992; Swaim 1994), with additional occurrence records in San Joaquin and Santa Clara Counties (California Natural Diversity Database (CNDDB) 2006; Swaim 2004). Lizards, particularly the western fence lizard (

Sceloporus occidentalis

), are the primary prey of the Alameda whipsnake, however, the whipsnake's diet may include other prey items (

e.g.

, rattlesnakes and nesting birds) depending on an individual's size, sex, age, and location. Several individuals monitored by Swaim (1994, p. 50) for nearly an entire activity season appeared to maintain stable home ranges varying in area from 1.9 to 8.7 ha (5.0 to 21.5 ac). Movements of these individuals were multi-directional, and individual snakes returned to specific areas and retreat sites after long intervals of nonuse. Whipsnakes had one or more core areas (areas of concentrated use) within their home range as described above, centered on a scrub community; however, whipsnakes often ventured for periods of a few hours to weeks at a time into adjacent habitats, including grassland, oak savanna, and occasionally oak-bay woodland. Male whipsnakes extensively used grasslands during the mating season in spring. Female Alameda whipsnakes used grassland areas most extensively after mating, possibly in search of suitable egg-laying sites.

It is our intent to limit discussion in this final rule to new information or clarification or correction of earlier information. For more information on the Alameda whipsnake, please refer to the December 5, 1997 final listing rule (62 FR 64306), previous October 3, 2000 final critical habitat designation (65 FR 58933), and the October 18, 2005 proposed critical habitat designation (70 FR 60607).

Threats

Several factors can affect the mosaic nature of the habitat upon which the Alameda whipsnake depends. Fire suppression can alter the structure of Alameda whipsnake habitat by allowing plants to establish a closed canopy, resulting in more uniformly cool conditions that may affect the Alameda whipsnake as well as its lizard prey base. Infrequent catastrophic wildfires may result in losses of habitat and direct mortality of Alameda whipsnakes. Incompatible grazing practices such as overgrazing, or bulldozing and burning in preparing lands for grazing, can result in significant and long-term losses of the scrub component of the vegetation mosaic comprising Alameda whipsnake habitat. Construction and use of paved or unpaved roads and trails within largely unbroken tracts of habitat, for recreational or other purposes, may result in both incremental losses of Alameda whipsnake habitat and direct mortality of individual Alameda whipsnakes crushed by motorized or unmotorized vehicles. These threats render the remaining habitat less suitable for the Alameda whipsnake, and special management may be needed to address them.

Previous Federal Actions

On June 7, 2001, the Home Builders Association of Northern California and others filed a lawsuit in the United States Court for the Eastern District of California (Court) against the Service, challenging the final designation of critical habitat for the Alameda whipsnake (

Home Builders Association of Northern California et al.

U.S. Fish and Wildlife Service et al.

, 268 F. Supp. 2d 1197). On May 9, 2003, the U.S. District Judge vacated and remanded the October 3, 2000, final rule designating critical habitat for the Alameda whipsnake and, on January 14, 2004, issued an order specifying a schedule for completion of a new final rule. Our proposed critical habitat for the Alameda whipsnake was published in the

Federal Register

on October 18, 2005 (70 FR 60607). A draft economic analysis of the proposed critical habitat was published in the

Federal Register

on May 4, 2006 (71 FR 26311).

For more information on previous Federal actions concerning the Alameda whipsnake, refer to the December 5, 1997, final listing rule published in the

Federal Register

(62 FR 64306).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Alameda whipsnake published on October 18, 2005 (70 FR 60607). The comment period for the proposed rule closed on December 19, 2005. A second comment period was opened for comments on the Draft Economic Analysis (DEA) and the proposed rule on May 4, 2006, and closed on June 5, 2006 (71 FR 26311). Comments and new information received in response to the proposed rule and the DEA were incorporated in the final rule as appropriate and/or summarized below.

During the comment periods for the proposed rule, we received a total of 20 comment letters from Federal, State and local governments, and private individuals. Of those comment letters; 5 were peer reviews; 1 letter provided comments based on comparison of the proposed rule with the rule remanded by Court order on May 9, 2003; 10 provided comments on the status of particular lands, and 2 of these 10 also commented on comparison with the remanded rule; 1 letter commented on the occurrence of Alameda whipsnake in non-chaparral habitats; 1 stated that all habitat should be saved; 1 expressed general support for the draft East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan (ECCHCP/NCCP); and 1 had particular questions on the impact of critical habitat designation on the development process. We did not receive any requests for a public hearing.

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 all five peer reviewers. Four of the peer reviewers agreed generally with the descriptions, methods, and the primary constituent elements used in this designation. Of those that agreed, one peer reviewer stated the designation should go forward as written, two peer reviewers identified specific areas that should be added to the designation, and one peer reviewer identified specific areas for both addition to and removal from the designation. The fifth peer reviewer commented on habitat associations, feeding specialization, and slope exposure, and recommended additional explanation about habitats where the species is seen less frequently. One of five peer reviewers agreed with the exclusions we had already proposed under section 4(b)(2) of the Act but requested clarifications, while a second peer reviewer disagreed with those exclusions. The other three peer reviewers did not comment on the

exclusions. Three of five peer reviewers felt that additional areas should be designated critical habitat in the vicinities of proposed critical habitat Units 5A and 5B.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the Alameda whipsnake, and addressed them in the following summary.

Peer Reviewer Comments

(1)

Comment:

One peer reviewer concluded that inadequate attention had been given to the issue of intergradation (transitional forms resulting from breeding with similar species; in this case, between the Alameda whipsnake and the chaparral whipsnake) in the proposed designation, noting that he had observed whipsnakes with characteristics of Alameda whipsnakes up to 20 miles (mi) (32 kilometers (km)) south of Unit 5A in Del Puerto Canyon and San Antonio Valley within Santa Clara County. The peer reviewer recommended that these areas should ideally be designated as critical habitat, and suggested that zones of intergradation are vital to the conservation of the Alameda whipsnake. The peer reviewer also called for a study of intergradation using genetic analysis as appropriate.

Our Response:

We examined the available information on intergradation, including published descriptions by Reimer (1954, p. 47) and Jennings (1983, p. 343.1), and Jennings' comments on the proposed listing (Jennings 1994, letter dated March 19, 1994). Those references indicate potential intergrades on the eastern and southern range of the proposed designation, but not in Santa Clara County. Our research into additional occurrence records outside those areas designated in Santa Clara County did not locate documentation of such records of whipsnake intergrades during the preparation of this final rule. We requested the peer reviewer provide additional documentation, but did not receive a response within either comment period. Based on examination of our Geographic Information System (GIS) database, we determined that Del Puerto Canyon and San Antonio Valley do contain at least one primary constituent element (PCE). We conclude that the reviewer may be correct that Alameda whipsnake intergrades are present to the south of the proposed designation, but there is inadequate information to support a change in the designation in this area. While we may agree with the commenter as to the need for additional study, designation of critical habitat is based on the best and most current scientific and commercial information available. Without further information on the location of whipsnake intergrades, we cannot fully consider additional areas for inclusion in critical habitat. Finally, we do not believe that all such habitat, even if occupied, must be designated as critical habitat, nor did we believe it necessary to designate unoccupied habitat. We conclude that the designations of Units 5A and 5B as proposed are sufficient for conservation of the Alameda whipsnake in the southern range of the subspecies.

(2)

Comment:

One peer reviewer noted that the accepted common name of the Alameda whipsnake is Alameda striped racer, but assumes its use is beyond revision at this time.

Our Response:

We have indicated in the Background section above that Alameda striped racer is another name for Alameda whipsnake.

(3)

Comment:

One peer reviewer suggested not excluding any critical habitat from the final designation because management for the Alameda whipsnake should not be much more difficult if such lands are included rather than excluded.

Our Response:

We agree that the designation of critical habitat does not substantially increase the regulatory requirements already in place for a listed species. However, there are multiple ways to provide for the management and conservation of a species and its habitat. Federal, State, local, or private management plans can provide protection and management to avoid the need for designation of critical habitat. When we determine whether a plan is adequate in protecting a species or its habitat, we consider whether the plan, as a whole, will provide at least the same level of protection as the designation of critical habitat. 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 or better overall. In making this determination, we examine whether the plan provides management, protection, or enhancement of the primary constituent elements (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.

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 species. For more information, see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.

(4)

Comment:

One peer reviewer suggested that eucalyptus (

Eucalyptus

sp.) and redwood (

Sequoia sempervirens

) are not essential features because they can form a closed canopy. The peer reviewer states that eucalyptus in particular can invade grasslands and brushland habitats as well as increase fire risk, which could lead to the loss of regional Alameda whipsnake populations. However, the peer reviewer acknowledged the potential for eucalyptus and redwood trees to provide cover and function as a movement corridor. The reviewer provided six color digital aerial photographs showing his recommended removal from the critical habitat designation of groves of eucalyptus or other inappropriate habitat from Units 2 and 6. The reviewer comments that the proposed rule suggests that redwood and eucalyptus are essential features.

Our Response:

In the proposed rule, we indicated that proliferation of non-native species, including eucalyptus, is a factor associated with threats to the Alameda whipsnake and is in need of special management. In this particular case, based on the existence of eucalyptus groves as well as roads, we have decided to remove one specific area in Unit 2 and three specific areas in Unit 6, as identified in the peer reviewer's comments. One additional change in Unit 2 included moving a portion of the west boundary to follow the alignment of Redwood Creek. We also reviewed language in the proposed rule as it pertains to eucalyptus and redwood. We conclude that this language notes that eucalyptus and redwood are examples of the types of vegetation included within woodland communities adjacent to scrub habitat, but this does not require that we include them. As noted by the peer review comment, these areas may require special management to reduce fire risk. As mentioned in the proposed and this final rule, PCE 2 provides several of the biological processes, including dispersal, foraging, and contact with adjacent habitat. There may be instances within the designation in which eucalyptus or redwood areas are included to provide the spatial connectivity needed for dispersal and

contact between higher quality vegetation types. We have decided not to remove mention of eucalyptus or redwood in the primary constituent elements section, because these habitat types may be present in areas that are essential for dispersal and contact and/or may require special management.

(5)

Comment:

Two peer reviewers suggested designating additional critical habitat in the area between Units 5A and 5B. One of the peer reviewers stated that this area has current Alameda whipsnake populations, is in private ownership, and may be threatened by direct mortality along ranch roads and residential development of ranchettes and cabins or other habitat modification. We requested and received additional documentation of Alameda whipsnake sightings in the subject area. The sightings, all photographed, were made between April 21, 2001, and May 2, 2004, by the peer reviewer: three on Ohlone Conservation Bank lands, and one adjacent to San Francisco Water Department lands (San Antonio Watershed).

A second peer reviewer's comment on this issue suggested that additional areas between Units 5A and 5B should be designated because it is a vast area of core type habitat, and the lack of observations is due only to a lack of surveys for the species in this specific area, and designation as critical habitat is necessary to connect major known Alameda whipsnake localities. The reviewer considered the division and reduction of Unit 5, relative to the 2000 rule remanded by the Court in 2003, to be inappropriate based on information concerning Alameda whipsnake habitat and mobility.

Our Response:

We reviewed the materials provided and consider the additional sighting information provided by one of the peer reviewers to be authentic. GIS analysis confirms that the area mentioned by the peer reviewers contains all PCEs, and possesses significant blocks of chamise chaparral and coastal scrub vegetation as well as major rock outcroppings and Alameda whipsnake associated soils. This type of habitat is similar to more extensively surveyed areas, which support robust populations of Alameda whipsnake.

However, we consider the units presented in the proposed rule to contain sufficient PCEs to support the behaviors that we have determined to be essential to the conservation of the subspecies. For this reason, we have not designated this additional habitat recommended by the peer reviewer's in the final rule.

(6)

Comment:

One of the peer reviewers expressed concern that the proposed rule relies far too heavily on Swaim (1994), and appears not to have consulted key references (Larsen

et al.

1991; McGinnis and Swaim 1992, Swaim and McGinnis 1992). The reviewer summarizes several aspects of Alameda whipsnake biology, including the importance of (a) rock, talus, and burrows, (b) high lizard densities, (c) southerly slope aspect, and (d) open canopy shrub or chaparral. The reviewer states that Alameda whipsnakes may forage or pass through a variety of other community types such as grassland and oak woodland. The reviewer believes that the proposed rule gives the inaccurate impression that snake populations may occur only in these other community types and that, therefore, additional explanation is needed. The reviewer expresses concern that this impression may result in misinterpretation during Section 7 consultations. The reviewer states that annual grassland, even if adjacent to scrub or chaparral (PCE 1), is not critical habitat if it has a low prey base or low presence of retreat sites. The reviewer states that the final critical habitat rule should address the potential for development on areas with no such features, and gives Moller Ranch as an example where development was done in a manner compatible with preservation of snake habitat.

Our Response:

We consulted the three references cited in the peer review (Larsen

et al.

1991; Swaim and McGinnis 1992; McGinnis and Swaim 1992). The findings of Swaim and McGinnis (1992) which state that Alameda whipsnakes were most often associated with southerly slope aspects is adequately summarized in the proposed rule (70 FR 60610). More recent analyses establish that this association is not as exclusive as originally indicated by Swaim and McGinnis (1992), in which Alameda whipsnakes were never found on several other slope aspects. In fact, Alameda whipsnakes do use all slope aspects. As already discussed in the proposed rule (70 FR 60610), this conclusion is based on much more extensive studies by Swaim (2000, 2003, 2004, 2005b-d), as well as on further analysis of the most current database of all records by Alvarez (2005, 2006 in press). Alvarez (2006 in press, p. 1) found 17 of 82 (21 percent) of Alameda whipsnake records with reliable slope aspect determination to be on west, north, and northwest slopes. Furthermore, 37 of 129 records (29 percent) of Alameda whipsnake observations reviewed by Alvarez (2005, p. 22) were found outside of vegetation types considered typical habitat for the subspecies. Such usage is well beyond incidental occurrence implied by the peer reviewer. For this final rule, we have modified the wording slightly in the second paragraph of the Habitat section (70 FR 60610, see also below), to reflect the submission during the comment periods of additional materials.

The study by Larsen

et al.

(1991) supports the statement in the proposed rule that Alameda whipsnakes are specialists, eating mainly lizards (70 FR 60609). The study by McGinnis and Swaim (1992) is substantially similar to Swaim (1994); it does indicate that the Alameda whipsnake monitored at Moller Ranch spent 9 percent of its time on annual grassland (McGinnis and Swaim 1992, pp. 35-42). There is insufficient information from that study or Alvarez (2006 in press) to conclude that grassland without crevices or rocks is never used. Based on the information available on the subspecies, it is our best professional opinion that movement through all habitat types must occasionally occur in order to conserve this subspecies. Accordingly, no change in the final rule is warranted based on either of these citations.

This final rule defines three PCEs, all of which define elements considered essential for conservation of the subspecies (

see

Primary Constituent Elements, below). We decided not to base the inclusion of annual grassland as critical habitat on prey densities or retreat sites for a number of reasons. First, as noted elsewhere in this peer review and in studies by Swaim (1994) and Alvarez (2005, 2006 in press), Alameda whipsnakes do utilize grassland habitat for foraging, dispersal, mate-seeking, and egg-laying activities (

See also

our response to a peer reviewer, above (Comment 6).

Comments Relating to Adequacy of Notice

(22)

Comment:

One comment stated that the maps provided in the proposed rule were inadequate because they lacked scale and identifying features to enable the public to determine what land had been excluded, and did not allow the public to determine the differences between areas designated in the proposed rule compared to the previous rule remanded by Court decision on May 9, 2003.

Our Response:

The Service considers the maps in the proposed rule to be adequate for comment. The Service also provided a full legal description of all designated areas in the proposed rule. As indicated in the summary of the proposed rule, all supporting documents used in preparation were available for public inspection. The commenter did not request to examine these records. The GIS shapefiles were provided to anyone making a request for such information. The Service was not under a statutory or Court requirement to compare and explain differences between the remanded rule and the proposed rule published on October 18, 2005. Because the previous critical habitat designation was vacated by the Court, this designation is based on the best scientific information currently available and stands alone for evaluation and review.

(23)

Comment:

One commenter contends that the proposed rule fails to specify the PCEs, and that its designation of broad areas not presently occupied by the Alameda whipsnake constitutes a failure to provide adequate public notice.

Our Response:

We specified the PCEs in the proposed rule and did not designate areas unoccupied by the Alameda whipsnake (

see

response to Comment 16). The proposed designation was limited to those areas containing high quality habitat for the Alameda whipsnake as outlined in the Criteria Used to Identify Critical Habitat section of the proposed rule. We also specifically noticed all appropriate Federal, State, and County government officials, agencies, representatives, and the public through direct mailing, local media news releases, Web site posting, and newspaper notice. Accordingly, the notice of publication of the proposed rule is adequate.

Comments Relating to General Issues of Development Interests

(24)

Comment:

One commenter requested clarity on several aspects of the development process by the City of Pleasanton, under several possible scenarios, namely: (a) Is destruction of Alameda whipsnake critical habitat considered “take” when no Federal permit or action is required? (b) What type of protection is conferred by critical habitat designation when a Section 7 permit is not required? (c) Does a single home development on infill within a critical habitat area require an HCP? (d) Is there a mechanism for the Service to remove inappropriately designated properties? The comment noted that the position of Dublin on Figures 3 and 5 of the proposed rule should be north of Interstate Highway 580.

Our Response:

For information relating to questions (a) and (b) please see Effects of Critical Habitat Designation, below. A Federal nexus is required to implement the protections of critical habitat designation. In response to question (c), the Service notes that the commenter does not specify a particular location; therefore we can not provide a specific response to this question. In designating critical habitat, we avoided areas which included fragmented habitat. As a result there are no areas which would be considered as “infill” as described by the commenter. Also, in designating the critical habitat for this species, we did not include small areas embedded within urban areas and to the best of our ability did not include developed areas within the designation. Any such developed areas remaining within the designation would not contain the PCEs and thus not be considered critical habitat. As for question (d), the primary mechanism for removal of areas that do not contain the PCEs is through the comment period that preceded publication of this final rule. The Service notes that the commenter did not specify any particular location. However, the Service has extensively reviewed all available information, published a proposed critical habitat, and modified the proposed designation in this final rule as appropriate in response to comments. Figures 3 and 5 of the proposed rule do not indicate the position of Dublin.

If a Federal activity or other activity with a Federal nexus within designated critical habitat is contemplated, consultation would be required and Section 7 authorization obtained for any adverse modification of critical habitat. Habitat conditions at the site of the action would be considered during this consultation. For additional or more site-specific information, please contact the Service's Sacramento Field Office (

see

ADDRESSES

(25)

Comment:

One commenter suggested that the language describing activities that destroy or adversely modify critical habitat should be revised to include actions that degrade chaparral scrub or oak woodland, rather than actions that alter and degrade such habitat.

Our Response:

The language in the final rule has been modified in response to this comment to indicate that activities that destroy or adversely modify critical habitat are those that degrade such habitat (

see

Effects of Critical Habitat Designation, Adverse Modification Standard, below).

Comments From Other Federal Agencies

(26)

Comment:

Lawrence Livermore National Laboratory (LLNL) provided information showing that a portion of Department of Energy (DOE) lands designated as critical habitat within Unit 5A had been burned, and mentioned a number of ongoing activities it expects to continue that have already completed consultation with the Service. Finally, LLNL requested that language in the final rule be amended to mention the initiatives and efforts undertaken as conservation measures in its Site 300, which includes the designated critical habitat, to protect the Alameda whipsnake and associated coastal scrub habitat.

Our Response:

We verified with the LLNL that the comments with respect to fire and ongoing activities were provided to us as informational only, and that LLNL is not requesting that its lands be excluded from the designation. We acknowledge the conservation measures mentioned in the comment. In this final rule, we have decided not to exclude DOE lands, and have removed the language stating that the Service is unaware of specific management plans or conservation measures being undertaken for the Alameda whipsnake or its PCEs at LLNL.

Comments From the State

(27)

Comment:

The University of California Regents indicated that Table 2 of the proposed rule should reflect ownership of 720 ac (291 ha) acres in Unit 6 and 15 ac (6 ha) in Unit 1 by the University of California Regents.

Our Response:

In the final rule, the unit descriptions and Table 2 were modified to show 720 ac (291 ha) and 15 ac (6 ha) in Units 6 and 1, respectively, owned by the State of California, and deducted these areas from private ownership.

(28)

Comment:

The University of California Regents suggested that the language in the proposed rule relating to special management considerations in Unit 6 is problematic for the University of California and local residents due to traffic flow and emergency access issues, and that any recommendation to reduce existing, or limit additional roads should be removed from the final designation.

Our Response:

Unit 6 is essential to the conservation of the subspecies not only as occupied habitat, but also as a connectivity corridor for Alameda whipsnake movement between Units 1 and 2. The limited area and width of this unit render its functioning as a migration corridor particularly sensitive to the existing or additional roads. Accordingly, we believe that special management consideration may be needed to avoid adversely modifying this habitat. It is not our intent in this rule to determine what site-specific management measures would be needed within portions of Unit 6. Subsequent consultation would be needed to determine what, if any, specific management may be needed.

(29)

Comment:

The University of California Regents requested that State lands managed by the University of California Fire Fuel Reduction Programs should be excluded from the critical habitat designation. They contend that measures described in the 2020 Long Range Development Plan (2020 LRDP) are equivalent to those in a habitat conservation plan, and are sufficiently protective of endangered species. The commenter detailed some of the mitigation measures and practices in the LRDP. The commenter also expressed concern about what consultation burden would be required under sections 9 and 10 of the Act due to designation.

Our Response:

When we consider exclusions under section 4(b)(2) of the Act, we determine whether the benefits of exclusion outweigh the benefits of including the land in a designation. That determination may include an evaluation of any existing management plans. When evaluating the 2020 LRDP to determine its adequacy in protecting habitat, we initially considered whether the plan, as a whole, will provide a level of protection similar to that which designation of critical habitat would provide. Although much of the land is designated in the 2020 LRDP as an Ecological Study Area (ESA), the potential for development is not ruled out. For example, the 2020 LRDP (p. 3.1-56) states that faculty housing or a campus retreat center are feasible campus uses of Chaparral Hill or Claremont Canyon. Even though the document states that other options should be fully explored, it clearly anticipates the potential for this type of urban development. We conclude that the subject area is occupied by Alameda whipsnake and contains all of the PCEs. However, the plan does not provide a reasonable expectation of protection of the Alameda whipsnake or its habitat into the foreseeable future, and therefore does not warrant exclusion under section 4(b)(2) of the Act. The subject area remains designated as critical habitat in the final rule.

(30)

Comment:

The University of California Cooperative Extension discussed potential benefits of grazing to the Alameda whipsnake, and expressed a concern that the mention of it as a threat may lead to a general determination that grazing is incompatible. The commenter requested that evidence of incompatible grazing practices be specifically listed. The commenter states that the type of special management of grazing in the unit descriptions could be interpreted as meaning grazing should be required, given the benefits listed by the commenter.

In relation to special management considerations or protections, the University of California Cooperative Extension suggested that grazing be used instead of prescribed fire because the fuel load is undesirable for prescribed fires and may result in a wildfire.

Our Response:

The Service discussed the threat of incompatible grazing practices in more detail in our 1997 final listing rule (65 FR 64306, p 64314). Review of that discussion and McGinnis (1992, p. 21) indicates that overgrazing, or clearing of shrub associated with preparation of lands for grazing, may threaten the Alameda whipsnake. Alameda whipsnakes may avoid open areas created by overgrazing, or may be more susceptible to predators if they use these areas. Scrub vegetation (PCE 1) may be lost through either overgrazing or associated range management in which scrub is burned or bulldozed to maximize grassland. We do not agree that mere mention in the unit descriptions of grazing as a special management consideration means that it is required. We have added a brief summary of threats and special management as applied to grazing to the final rule.

The proposed rule does not preclude the use of grazing as a management practice for the reasons stated by the commenter. Indigenous chaparral scrub species that constitute PCE 1, including the federally listed pallid manzanita (

Arctostaphylos pallida

), require fire to create proper site conditions and for seed germination. Thus, the use of prescribed burning may be appropriate in some situations and the discussion of

its potential use has been retained in the final rule.

Comments Relating to the Draft Economic Analysis

(31)

Comment:

One comment noted that the Faria Ranch project spans two Census Tracts (345201 and 345202) and that by estimating impacts on a census tract basis, the total impacts of critical habitat on the project are diluted. The comment also suggests that the projected number of housing units reported in the Draft Economic Analysis (DEA) under-predicts development in Census Tract 345201.

Our Response:

Census Tracts are a standard unit of analysis used in economic and policy studies. Nonetheless, cases may arise where Census Tract boundaries will not conform to actual development projects. In these cases, we have, in previous analyses, aggregated Census Tracts to fit planned developments. In the final economic analysis (FEA), Census Tracts 345201 and 345202 are aggregated to account for the fact that the Faria Project spans these two tracts, (

see

Exhibits IV-I through IV-4 and Figure 2 of the FEA). Merging the development projections for these two tracts addresses the concern that impacts are underestimated in Census Tract 345201.

(32)

Comment:

One comment states that the actual reduction in development resulting from designation of critical habitat in the Faria Project (located in Census Tracts 345201 and 345202) could be greater than the 5.4 percent reduction assumed in the DEA. The comment states that the DEA should consider a development scenario where up to 15 percent of proposed housing units are lost.

Our Response:

The assumption, referred to in this comment, of a 5.4 percent reduction in housing units for projects developed in proposed critical habitat is applied in the first development scenario (

i.e.

, the rationing scenario) analyzed in Section IV, pages 27 to 30. We derived this assumption from the best available information of the likely avoidance and mitigation requirements for the whipsnake by reviewing historical section 7 consultations and resulting biological opinions for similar development projects. If the Service requests more stringent habitat avoidance, resulting in a greater loss of units than the average demonstrated in the documented consultation history for projects of this type, the impacts of critical habitat designation will be higher than estimated in the FEA.

(33)

Comment:

One comment states that the DEA should evaluate a scenario for the Faria Project (located in Census Tracts 345201 and 345202) where the critical habitat designation adds to current regulatory, political, and economic conditions and results in the cancellation of the project in its entirety. The Faria Project is a mixed-unit housing development that includes high-value homes and affordable housing units. As a result, the high-value single homes are being used to subsidize the majority of the public infrastructure costs. The comment states that reducing the unit count would likely remove a disproportionately greater number of the higher-value single-family units, which could result in the project becoming economically infeasible.

Our Response:

With respect to project cancellation, we note that the conservation requirements reflected in the biological opinions would not, as a general rule, result in projects becoming unprofitable. Section IV, pages 27 to 28, and Appendices A and B of the FEA describe the underlying conditions in the Bay Area housing markets and note that because the supply of new housing is so constrained, there is significant producer surplus accruing to projects that are ultimately completed. In such an environment, burdensome conservation requirements can reduce producer surplus without causing the project to become unprofitable. Indeed, this is one reason for the relatively high price of mitigation lands in California.

(34)

Comment:

The comment states that compensation for lost units at the Faria Project will likely require development outside the City's “Urban Growth Boundary” (UGB). The UGB is the result of an initiative passed by the voters to protect open space and prohibits residential development beyond the City's UGB for at least 20 years. Consequently, the DEA fails to include the costs of relaxing these UGB restrictions or delaying housing development for 20 years.

Our Response:

For the reasons described above, expansion beyond the UGB is likely to be difficult. In the DEA, we assume that relaxing the UGB is unlikely, and therefore we do not estimate costs associated with such action. The costs to society of staying within the UGB are estimated in the first development scenario (

i.e.

, the rationing scenario). These costs are greater than a scenario where units are delayed by 20 years rather than lost entirely.

(35)

Comment:

One comment states that the densification scenario is not likely at the Faria Project (located in Census Tracts 345201 and 345202), because the project is already at the maximum densities allowed under existing land use plans and regulations.

Our Response:

The scenario referred to in this comment is described in Section IV, pages 27 to 30. This scenario assumes that efforts to protect the Alameda whipsnake and its habitat are accommodated entirely by building housing units at higher density levels than allowed by current zoning regulations (

i.e.

, no housing units are lost). To develop this scenario, we first used empirical data to test for conditions that might lead to re-zoning. As described on page 28, the FEA examined data on newly constructed homes in three of the five study regions to determine whether the market for new housing is constrained primarily by the availability of land or by prior land-use regulations. The results of this analysis, described in detail in Appendix A, strongly indicates that the number of new homes in the regions of California containing Alameda whipsnake critical habitat is constrained by prior regulation. The implication of these results is that the final impact of critical habitat depends on how local governments respond to the designation, which can vary from city to city. In order to capture the dynamic response of various cities, the EA utilizes two scenarios: One in which the local government changes local land regulations due to critical habitat and one scenario where local government does not change local land regulations. Thus, for projects located in cities where the local government does not change land regulations (

e.g.

, the Faria Project described in the comment), the more likely scenario is a reduction in housing units developed due to critical habitat (

i.e.

, the first scenario, or the rationing scenario).

(36)

Comment

: One comment states that the densification scenario does not address the issue of added project costs when a lesser portion of the project site is used. Specifically, densification of the Faria Project would increase site improvement costs by up to $40,000,000 for materials hauling and other expenses.

Our Response

: The DEA does estimate costs associated with the densification scenario. The cost estimates were based on the information received and gathered prior to and after the opening of the public comment period. We agree that additional costs may be incurred; however, based on our analysis of the economic information we do not believe that there are any disproportionate economic impacts that warrant exclusion pursuant to section 4(b)(2) of the Act at this time.

(37)

Comment

: One comment stated that the EA fails to account for significant public benefits that would result from completion of the Faria Ranch project, including protection of public open space, educational facilities, and a trail system.

Our Response

: The economic analysis estimates the impacts of whipsnake conservation efforts relative to the state of the world absent those efforts. Absent conservation efforts, the Faria Project provides the public benefits described in the comment. Under the assumptions in the economic analysis, the development continues, with a reduction in the number of housing units. As a result, the public benefits described in the comment are also provided if Alameda whipsnake conservation efforts are undertaken. Therefore, the benefits of development referred to in the comment, while real, are the net of the economic welfare calculation measured in the economic analysis.

(38)

Comment

: A public comment noted the Faria Project site is already subject to a number of additional open space requirements, such as the protection of sensitive ridgelines, the presence of site stability problems on certain portions of the site, the need to site water tanks at higher elevations, and the requirement to achieve a balanced grading plan. These requirements have already been incorporated into the Faria Project design and adding critical habitat avoidance requirements will further constrain the project's ability to adhere to these requirements in a cost-effective manner. For example, the comment estimates that if whipsnake conservation leads to an unbalanced grading plan, additional costs of off-hauling or importing soil would be in excess of $30 million.

Our Response

: The measures identified by the commenter are not a result of conservation measures being implemented for the Alameda whipsnake and were not cost associated with the designation. The economic analysis only identified potential costs associated with critical habitat. The costs identified by the commenter are part of the cost of doing business for the development industry.

(39)

Comment

: One comment stated that the EA fails to account for the potential “signaling” effects of critical habitat designation on other regulatory processes, such as those undertaken under the California Environmental Quality Act (CEQA). Any indication that federally-protected amenities are present on a property may raise a flag about negative environmental impacts and lead a local agency to take a more conservative perspective on the development project.

Our Response

: Because of the fully co-extensive approach taken, the FEA assumes that all future development in critical habitat will require mitigation, regardless of whether a Federal nexus or some other mechanism (

e.g.

, a signal to local officials that the land has ecological value with protection implemented through CEQA) requires the action. As a result, the impact estimates summarized in Table I-1 of the FEA incorporate signaling effects.

(40)

Comment

: The DEA considers the economic effects of regulatory delay, but one comment states that the assumed 6 month regulatory delay resulting from whipsnake conservation requirements is an underestimate.

Our Response

: The FEA discusses its calculation of delay costs in Section IV, page 31. We assume a delay period of 6 months based on average permitting times revealed by the relevant biological opinions. Actual delay costs to development activities may be higher or lower if actual delay periods are longer or shorter than 6 months.

(41)

Comment

: One comment noted that the DEA fails to account adequately for the effects of the

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.

(42)

Comment

: One comment stated that the DEA underestimates mitigation costs (

i.e.

, the purchase of credits from a mitigation bank) and suggests that these can run to $300,000 per mitigation acre.

Our Response

: As noted in several places in Section IV of the analysis, the cost assumptions underlying the analysis are based on information provided by individuals involved in securing mitigation and are representative of current market conditions. The FEA uses market data collected from several private conservation banks in the Bay Area and central California regions to determine off-site mitigation prices by county (

see

Section IV, page 29). The FEA further recognizes that increased prices for mitigation lands will increase the economic impacts associated with critical habitat designation (

see

Section IV, page 29).

(43)

Comment

: With reference to the small business analysis in the DEA, one comment noted that Claremont Homes is a small business. Another comment stated that the DEA should consider effects on subcontractors, who are more likely than developers to be small businesses, impacted by a reduction in the number of housing units constructed.

Our Response

: Because the economic analysis is probabilistic in nature, we are unable to identify the specific developers undertaking projects in proposed critical habitat in the next 20 years. However, the FEA estimates that three small developers are likely to be affected by whipsnake conservation efforts in proposed critical habitat in Contra Costa County (

see

Table VII-3 of the FEA). Assuming that Claremont Homes is defined as a “developer” and qualifies as a small business under 13 CFR 121.201, this organization likely accounts for one of the small firms identified in this table. We agree that some subcontractors to developers may meet the definition of a small business under the Regulatory Flexibility Act and may be affected by the impacts to development activities from critical habitat designation. However, these subcontractors are indirectly affected by whipsnake conservation efforts that directly affect the project proponent (

i.e.

, the developer) and, therefore, are beyond the scope of a Regulatory Flexibility Act analysis.

(44)

Comment

: One comment stated that under the scenario where housing units are lost in the Faria Project, the City of San Ramon will lose annual general revenue funds of approximately $121,000. This sum represents annual property taxes, sales and use taxes, transfer taxes, franchise fees, and vehicle license fees net of costs related to providing police services, public works and parks, and community service expenditures.

Our Response

: We agree that a net loss of $121,000 to the City of San Ramon is possible. This loss represents a distributional impact affecting this specific area, as opposed to a social welfare effect; however, based on our analysis of the economic information we do not believe that there are any disproportionate economic impacts that

warrant exclusion pursuant to section 4(b)(2) of the Act at this time.

(45)

Comment

: One comment noted that the benefits of critical habitat designation are not quantified.

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.

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.

(46)

Comment

: One comment asserted that delay costs need to include relevant returns to alternative investments.

Our Response

: The delay costs calculated in the report result from capital being committed to fixed assets for a longer period than would be the case absent the whipsnake conservation requirements. For example, if capital is committed to maintaining a position in an option to purchase land, then this is a loss to the developer. In such a situation, there is no direct return on the option payment, and delay costs are measured accurately by the method of the FEA.

(47)

Comment

: One comment stated that the DEA relies too heavily on the Association of Bay Area Government (ABAG) projections that do not always take into account local development policies and regulations. For example, portions of Census Tract 450601 in Unit 3 are subject to Measure F, passed by the City of Pleasanton in 1993, which restricts density to 1 unit per 100 ac (40 ha). The comment states that because development is carried out subject to General Plan policies and other local regulations, the resulting development projections for this Census Tract are overstated.

Our Response

: The projections produced by ABAG represent the best publicly-available data for this analysis. The entire area in question in Unit 3 is not subject to Measure F. In addition, this type of restriction is regularly modified through public process. However, if these data overstate development projections in the referenced Census Tract, then the impacts estimated in the FEA for this tract are overstated.

(48)

Comment

: One comment states that if the Faria Preserve is not developed, the Faria Ranch will continue to be grazed. As a result, the DEA should consider the environmental or social impact of alternative scenarios of leaving the Faria Project (within Census Tracts 345201 and 345202) in grazing uses.

Our Response

: For the reasons discussed previously, the analysis assumes that the Faria project will go forward, either in its current form if no Alameda whipsnake conservation efforts are undertaken, or with some reduction in housing units if whipsnake concerns are addressed. Therefore, the economic impact of abandoning the development and maintaining current grazing practices is not relevant to the decision at hand.

(49)

Comment

: One comment states that the DEA should factor in the costs of the critical habitat designation to the City of San Ramon associated with public amenities, such as affordable housing, senior housing, and inefficiencies resulting from the repeating local regulatory processes that have been previously approved by voters.

Our Response

: We agree that impacts to the City associated with various public amenities, including affordable housing and repeating local regulatory processes, are a possibility. However, no additional information has become available since the publication of the DEA that would allow us to quantify or monetize marginal effects of fewer affordable housing units or senior housing units resulting from Alameda whipsnake conservation efforts. In addition, no data exist to value inefficiencies created by additional regulatory process related to the whipsnake.

(50)

Comment

: One comment states that the economic analysis should consider the opportunity costs to the developer of undertaking the Faria Project. The developer estimates that the cost of foregone opportunity if the project does not go forward because of Alameda whipsnake conservation costs is approximately equal to the value of the project ($619,850,000).

Our Response

: As discussed above, the most likely scenario is that the project will move forward with a reduction in the number of housing units. We recognize the significant investment made by the developer of this project; however, based on our analysis of the economic information we do not believe that there are any disproportionate economic impacts that warrant exclusion pursuant to section 4(b)(2) of the Act at this time.

Summary of Changes From Proposed Rule

In preparing the final critical habitat designation for the Alameda whipsnake, we reviewed and considered comments from the public on the proposed designation published on October 18, 2005 (70 FR 60607). We published a notice in the

Federal Register

on May 4, 2006 (71 FR 26311) announcing the availability of and soliciting comments on the DEA and the proposed rule. As a result of peer review and public comments received on the proposal and the DEA, we made changes to our proposed designation, as follows:

(1) We removed from the designation several isolated or small fragments of eucalyptus vegetation in Unit 6 that we determined did not sufficiently meet our criteria for designation and were not essential to the conservation of the Alameda whipsnake. We also removed 350 ac (142 ha) from Unit 6, which we

determined did not sufficiently meet our criteria for designation, and which had been addressed in a consultation under section 7 of the Act.

(2) We adjusted the boundaries of Units 2 and 6 to remove several areas dominated by eucalyptus trees that we do not consider to provide essential habitat and features for the subspecies, and to remove one area that was included in the proposed rule due to mapping error.

(3) Collectively, we excluded a total of approximately 46,998 ac (19,020 ha) of land from the proposed designation during the development of this final critical habitat designation (Table 1). 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 that 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.

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 area occupied by the species at the time of listing must first have features that are “essential to the conservation of the species.” Critical habitat designations identify, to the extent known and using the best scientific data available, habitat areas that provide essential life cycle needs of the species (

i.e.

, areas on which are found the primary constituent elements (PCEs), 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 or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2) of the Act.) Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but not known to have been occupied at the time of listing will likely be essential to the conservation of the species and, therefore, included in the critical habitat designation.

The Service's Policy on Information Standards Under the 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 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 may change over time due to vegetational succession, climate, or catastrophic events (

e.g.

, fire, landslides). As a result of habitat change, a 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 species. 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 propose as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to consider those physical and biological features (PCEs) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or

shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific primary constituent elements required for the Alameda whipsnake are derived from the biological and ecological needs of the Alameda whipsnake as described in the Background section of this final rule and in previous listing and critical habitat rules for the subspecies. The primary constituent elements are based on the essential life history functions described below.

Space for Individual Population Growth and Normal Behavior

The Alameda whipsnake is most frequently recorded in close association with chaparral or scrub patches. These patches serve as the center of home ranges, and provide for concealment from predators and prey-viewing opportunities while foraging. Whipsnakes venture into adjacent grasslands or wooded habitats that exhibit, at a minimum, a partially open canopy. The open canopy character is believed to allow development of the primary lizard prey base used by the snake, and efficient thermoregulation and foraging activities. The Alameda whipsnake hunts by sight, holding its head off the ground to peer over grass or rocks for potential prey capture opportunities. Its specialization on lizard prey and mode of foraging require areas that both support abundant prey populations and provide prey-viewing and capture opportunities. Essential features of Alameda whipsnake habitat must therefore include consideration of the habitat needs of the prey species and for hunting and capture of prey. The Alameda whipsnake's prey base and capture opportunities are provided for by a “scrub community.” The particular arrangement of the landscape mosaic that is essential for the conservation of the Alameda whipsnake commonly consists of scrub patches within an open canopy of interspersed grasslands and rock lands (areas containing large percentage of rocks, rocky features, and/or rock-bearing soil types), but may include closed or nearly closed scrub areas, including rock lands, and a much lower complement of grasses. Typical scrub communities within the range of the Alameda whipsnake include diablan sage scrub, coyote brush scrub, and chamise chaparral (Swaim 1994, pp. 101, 123, 129), also classified as coastal scrub, mixed chaparral, and chamise-chaparral (Mayer and Laudenslayer 1998, pp. 104, 106, 108), and chamise, chamise-eastwood manzanita, chaparral whitethorn, and interior live oak shrub vegetation series as identified in the Manual of California Vegetation (Sawyer and Keeler-Wolf 1995), A Guide to Wildlife Habitats of California (Mayer and Laudenslayer 1988, pp. 28, 34), and California Wildlife Habitat Relationship System (CDFG 1998). These vegetation series are characterized as being less than 20 ft (6 m) in height with sparse ground cover (the interior live oak shrub vegetation series having variable ground cover), and form a nearly continuous cover of closely spaced shrubs often with intertwining branches. Sufficient light penetrates through the canopy to support an herbaceous understory. The soils are usually nutrient poor and rocky, and stands are best developed on steep slopes. Because of complex patterns of topographic, edaphic (soil), and climatic variations, these vegetation series form a mosaic pattern with inclusions of other vegetation series (blue oak, coast live oak, California bay, California buckeye, California annual grassland) or open spaces. The percentage cover for these vegetation series is variable depending on species composition and aspect. Vegetation-free zones about 3 ft (1 m) wide may be interspersed within these vegetation series, and extend around and out into adjacent vegetation series. These vegetation series occur on all slope aspects with patch sizes varying from square feet (meters) to square miles (kilometers) in size. The plant species associated with these vegetation series include, but are not limited to: Chamise (

Adenostoma

sp.), manzanita (

Arctostaphylos

sp.),

Ceanothus

sp., buckwheat (

Eriogonum

sp.), bush monkey flower (

Diplacus

sp.), toyon (

Heteromeles arbutifolia

), scrub oak (

Quercus

sp.), interior live oak (

Q. wislizenii

), canyon live oak (

Q. chrysolepis

), California coffeeberry (

Rhamnus

sp.), California buckeye (

Aesculus californica

), poison oak (

Toxicodendron diversilobum

), yerba santa (

Eriodictyon californicum

), and mountain mahogany (

Cercocarpus

sp.).

Swaim (1994, p. 111) found that core areas (areas of concentrated use by Alameda whipsnakes, based on telemetry and trapping data) were predominantly located on east, southeast, south, or southwest facing slopes and were characterized by open or partially-open canopy or grassland within 500 ft (150 m) of scrub vegetation. More recent analysis indicates that other slope aspects are also used to a lesser, albeit significant, extent (

see

responses to Comments #6 and #21). In early studies, Alameda whipsnakes were captured primarily where the canopy cover was open (less than 75 percent cover) or partially open (75 to 90 percent cover). However, more recent trapping efforts have collected Alameda whipsnakes in scrub ranging from nearly complete or completely closed canopies, to very open canopies with a few patches of high-quality scrub present (Swaim 2005b, p. 1). These core areas provide sun-shade mosaics that offer an opportunity for the snake to achieve temperatures necessary for foraging, while providing retreat from predators (Swaim 1994, p. 101). The open scrub habitat supports prey viewing opportunities, aiding foraging opportunities for this diurnal sight-hunting snake (Swaim 1994, p. 102). As previously mentioned, capture of spent females (

i.e.

, snakes which have recently laid eggs) within scrub communities (Swaim 2002a, p. 1) indicates scrub areas are in very close association with egg-laying sites, probably located in nearby grassland (Swaim 1994, p. 104-105). Because they provide the primary foraging, breeding, and shelter areas for Alameda whipsnake, scrub communities are considered a feature essential to the conservation of this subspecies.

Although much of Alameda whipsnake activity occurs in scrub communities, other types of vegetation are also used for foraging and are necessary for normal behavior, breeding, reproduction, population interaction, and dispersal. Core areas used by the snake can be sustained by very small patches of scrub embedded within a larger mosaic of other dominant vegetation types (Swaim 2005b, p. 1). Our review of available vegetation data and aerial imagery indicates that much of the distribution of Alameda whipsnake does not consist of large unbroken tracts of scrub community. The vegetation types adjacent to the scrub habitat that the Alameda whipsnake needs for foraging, dispersal, and population interactions includes annual grassland, blue oak-foothill pine, blue oak woodland, coastal oak woodland, valley oak woodland, eucalyptus, redwood, and riparian communities (

e.g.

, stream corridors). McGinnis (1992, p. 11) has documented Alameda whipsnakes using oak woodland/grassland habitat as a corridor between stands of northern coastal scrub. Alvarez (2005, pp. 23-24) found that 37 of 129 observations of whipsnakes were in a variety of habitats other than scrub, including annual grassland, oak woodland, riparian, and mixed evergreen forest.

Grassland habitats are used extensively by both sexes of Alameda

whipsnake during the breeding season. Males use these areas most extensively during the spring mating season, possibly in search and selection of mates (Swaim 1994, p. 93). Female use occurs after mating, possibly looking for egg-laying sites or for dispersal to scrub habitat (Swaim 1994, p. 95; Swaim 2002a, p. 1). Specifically, concentrated activity of gravid females, and hence the suspected location of egg-laying sites, was in grassland areas with scattered shrubs within 10 to 20 ft (3 to 6 m) of true scrub habitat (Swaim 1994, pp. 104-105). Therefore, woodland and annual grassland plant communities that are contiguous with scrub communities are also essential to the conservation of the Alameda whipsnake.

Food

The specific feeding and foraging habits of the Alameda whipsnake are relatively well known (Stebbins 1985, p. 182; Swaim 1994, p. 2). Alameda whipsnake prey extensively on western fence lizards, but also have been known to prey on western skinks (

Eumeces skiltonianus

) as well as frogs, birds, and other snakes (Stebbins 1985, p. 182; Swaim 1994, p. 82).

Shelter

Embedded within these scrub communities and adjacent habitats are areas consisting of rocky habitat (either rock outcrops or rock debris piles (talus)) and small rodent burrows; however, brush piles and deep soil crevices are also used by the snake (Swaim 1994, p. 104). These areas are essential for normal behavior, breeding, reproduction, dispersal, and foraging because they provide shelter from predators, egg-laying sites, over-night retreats, and winter hibernacula (Swaim 1994, p. 103), and are associated with areas that have increased numbers of foraging opportunities (Swaim 1994, p. 103). Swaim (1994, p. 81) found rock outcrops were typically abundant in core areas and observed Alameda whipsnakes mating in these outcrops. During the mating season, females remain near the retreat sites while males disperse throughout their home ranges (Swaim 1994, p. 94). Hammerson (1979, p. 269) observed the chaparral whipsnake, the close relative of Alameda whipsnake, emerging from burrows in the morning, basking in the sun, and retreating into burrows when the soil surface temperatures began to fall. Alameda whipsnakes retreat into winter hibernacula (

e.g.

, rodent burrows, crevices between rocks) around November and emerge in March (Swaim, p. 28). Trapping of gravid females close to scrub communities in grassland with scattered shrubs (Swaim 1994, pp. 71-72), and finding of spent females in true scrub communities (Swaim 2002a, p. 1) suggest that rock outcrops, talus, and burrows (mating habitats) need to be relatively close to scrub and nearby grassland habitat (suspected egg-laying habitats).

Dispersal Habitat

Dispersal habitats are essential for the conservation of Alameda whipsnake. Protecting the ability of Alameda whipsnake to move freely across the landscape in search of habitats is essential for: (1) Sustaining populations by providing opportunity 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) allowing recolonization of habitat after fires or other natural events that have resulted in local extirpations. The available information on movements of other snakes of the family Colubridae is limited to a small minority of species, but indicates a general potential for significant mobility. Based on extensive radio-tracking data, Blouin-Demers and Weatherhead (2002, p. 1170) found that male and female ratsnakes (

Elaphe obsolete

) (a species similar in size and characteristics to the Alameda whipsnake within the same taxonomic family) travel up to 5 mi (8 km) from hibernacula to mate. Loughheed

et al.

(1999, pp. 1998-1999) found evidence of substantial genetic exchange among ratsnakes from local hibernacula less than 3.75 mi (6 km) apart, although gene flow over distances of 9.38 mi (15 km) and greater appears to be substantially less. Therefore, it is likely that medium-sized species of this family, such as the Alameda whipsnake, regularly move between areas up to a few miles (kilometers) apart. This is consistent with the distribution of vegetation types in portions of the Alameda whipsnake range, where the vegetation often has a more dense closed canopy on the northeast-facing slopes, and less dense open canopy on southwest-facing slopes. Recent trapping data has shown several instances of snakes residing in and moving through predominantly north-facing slopes within two of the six proposed critical habitat units (Swaim 2005c, p. 32; Swaim 2005d, p. 14). Habitat with a more open canopy would provide the greatest range of essential functions. However, closed-canopy areas are considered essential because they provide avenues of dispersal and interaction between subpopulations, and movement through such closed-canopy areas has been documented (Swaim 2002b, p. 44).

Additional trapping data has shown that the maximum distance between Alameda whipsnake observations and the nearest scrub is much larger, up to 4.5 mi (7.3 km), than either the home range diameter or average movements, suggesting more extensive use of grassland for either foraging or corridor movement (Swaim 2000, p. 5; Swaim 2003, Table 1; Swaim 2005b, p. 1; Alvarez 2005, p. 24). The scale of these grassland patches is on the order of several miles (kilometers) across, and movement of this degree would permit Alameda whipsnakes to disperse to other adjacent habitat. Large blocks of contiguous habitat, relatively uninterrupted by roads, structures, or other development, fulfill the essential need for interchange and interaction among individuals and subpopulations within the limited distribution of Alameda whipsnake. Thus, other vegetation (

e.g.

, annual grassland, blue oak-foothill pine, blue oak woodland, coastal oak woodland, valley oak woodland, eucalyptus, redwood, and riparian communities) adjacent to scrub habitat is considered a feature essential to the conservation of the Alameda whipsnake.

The characteristics and composition of the vegetation series adjacent to scrub or rocky habitats used by Alameda whipsnake for foraging, short- and long-distance dispersal, and mating can vary depending on location, topography, soils, and rainfall. The woodland vegetation series are comprised of slow growing, long-lived deciduous and evergreen trees 15 to 70 ft (4 to 21 m) tall with a mixed understory of grass and herbaceous vegetation or shrub vegetation. Some common species associated with the woodland vegetation series include: Blue oak (

Quercus douglasii

), valley oak (

Quercus lobata

), canyon live oak, coast live oak, California black oak (

Quercus kellogi

), interior live oak, madrone (

Arbutus menziesii

), foothill pine (

Pinus sabiniana

), California bay (

Umbellularia californica

), California buckeye, coyote brush, manzanita, gooseberry (

Ribes

sp.), redwood, and

Eucalyptus

. Some common species associated with the California annual grassland vegetation series include: Wild oats (

Avena

sp.), soft chess (

Bromus mollis

Brome

sp., barley (

Hordeum

sp.), and fescue (

Festuca

sp.). Some remnant perennial grasses may also be distributed within this grassland vegetation series comprised of species such as needlegrass (

Nassella

sp.), California onion grass (

Melica californica

), and California fescue (

Festuca californica

Herbaceous vegetation within the woodland and grassland vegetation series includes filaree sp., turkey mullein (

Eremocarpus

sp.), popcorn flower (

Plagiobothrys

sp.), and California poppy (

Eschscholtzia california

Primary Constituent Elements for the Alameda Whipsnake

Under our regulations, we are required to identify the known physical and biological features essential to the conservation of the Alameda whipsnake (PCEs). All areas finalized as critical habitat for the Alameda whipsnake are occupied, 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 Alameda whipsnake and the requirements of the habitat necessary to sustain the essential life history functions of the subspecies, we have determined that the PCEs for the Alameda whipsnake are:

(1)

Scrub/shrub communities with a mosaic of open and closed canopy:

Scrub/shrub vegetation dominated by low-to medium-stature woody shrubs with a mosaic of open and closed canopy as characterized by the chamise, chamise-eastwood manzanita, chaparral whitethorn, and interior live oak shrub vegetation series (as identified in the Manual of California Vegetation (Sawyer and Keeler-Wolf 1995), A Guide to Wildlife Habitats of California ((Mayer and Laudenslayer 1988, pp. 28, 34), and California Wildlife Habitat Relationship System (CDFG 1998)), occurring at elevations from sea level to approximately 3,850 ft (1,170 m). Such scrub/shrub vegetation within these series forms a pattern of open and closed canopy used by the Alameda whipsnake for shelter from predators; temperature regulation, because it provides sunny and shady locations; prey-viewing opportunities; and nesting habitat and substrate. These features contribute to support a prey base consisting of western fence lizards and other prey species such as skinks, frogs, snakes, and birds.

(2)

Woodland or annual grassland plant communities contiguous to lands containing PCE 1:

Woodland or annual grassland vegetation series comprised of one or more of the following: Blue oak, coast live oak, California bay, California buckeye, and California annual grassland vegetation series (as identified in the Manual of California Vegetation (Sawyer and Keeler-Wolf 1995), A Guide to Wildlife Habitats of California (Mayer and Laudenslayer 1988), and California Wildlife Habitat Relationship System (CDFG 1998, pp. 28, 29, 118)) are PCE 2. This mosaic of vegetation is essential to the conservation of the Alameda whipsnake because it supports a prey base consisting of western fence lizards and other prey species such as skinks, frogs, snakes, and birds, and provides opportunities for: (1) Foraging by allowing snakes to come in contact with and visualize, track, and capture prey (especially western fence lizards along with other prey such as skinks, frogs, birds); (2) short and long distance dispersal within, between, or to adjacent areas containing essential features (

i.e.

, PCE 1 or PCE 3); and (3) contact with other Alameda whipsnakes for mating and reproduction.

(3)

Lands containing rock outcrops, talus, and small mammal burrows within or adjacent to PCE 1 and or PCE 2.

These areas are essential to the conservation of the Alameda whipsnake because they are used for retreats (shelter), hibernacula, foraging, and dispersal, and provide additional prey population support functions.

This designation is designed for the conservation of PCEs necessary to support the life history functions which were the basis for the proposal. Because not all life history functions require all the PCEs, not all proposed critical habitat will contain all the PCEs.

Units are designated based on sufficient PCEs being present to support one or more of the species's life history functions. Some units contain all PCEs and support multiple life processes, while some units contain only a portion of the PCEs necessary to support the species' particular use of that habitat. Where a subset of the PCEs is present at the time of designation, this rule protects those PCEs and thus the conservation function of the habitat.

Methods

The methods used in determining the critical habitat boundaries are unmodified from those described in the proposed rule (70 FR 60607, p 60611) and are incorporated within by reference. See the proposed critical habitat designation for more information.

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 Alameda whipsnake. 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 GIS coverages. We designated no areas outside the geographical area presently occupied by the subspecies.

The criteria we utilized to designate critical habitat for Alameda whipsnake are based on the best scientific information available regarding the biology and ecology of the subspecies. In our determination of critical habitat for the Alameda whipsnake, we selected areas that possess the physical and biological features essential to the conservation of the subspecies and that may require special management considerations or protection. Application of these criteria (1) protects the best-quality habitat in areas where Alameda whipsnake occurs; (2) maintains the current geographical, elevational, and ecological distribution of habitat and the subspecies, thereby preserving genetic variation within the range of the Alameda whipsnake, and minimizes the effects of local extirpation; and (3) minimizes fragmentation by establishing unit boundaries that would result in the lowest possible ratio of perimeter/unit area, maintaining the essential need for Alameda whipsnake movement, dispersal, and interaction within the population. The specific habitat quality factors we considered in determining critical habitat included soil type, vegetation type, vegetation mosaic, and amount of included development (

e.g.

, roads, structures).

There is no firm information on the actual population size of Alameda whipsnake. In addition, there has been no analysis of the minimum viable population size necessary to maintain a stable or increasing population of the Alameda whipsnake. However, expert opinion is that the subspecies persists in relatively low numbers throughout its range compared to other snake species (McGinnis 1992, p. 24). These low numbers are also subject to variation as supported by monitoring studies such as Swaim (2006, pp. 1, 4), who found one site in which Alameda whipsnakes comprised 41 of 1,415 total snake captures with 178 traplines in 2005, an increase from 10 Alameda whipsnake captures in 2004 with 274 traplines. Moreover, irretrievable loss of occupied Alameda whipsnake habitat due to recent urban development is significant in areas adjacent to several of the critical habitat units. This loss of habitat has very likely resulted in a commensurate reduction in the population size for the Alameda whipsnake. Accordingly, the general pattern of habitat loss and fragmentation

was taken into consideration in the designation of critical habitat.

Connectivity has been applied as a criterion to those areas where designation of critical habitat would result in a relatively high potential for dispersal between and within units. The need for special management considerations was assessed where such management may be essential to enhance the connectivity or the integrity of high quality habitat within a unit.

We are designating critical habitat on lands we have determined are occupied at the time of listing and contain sufficient PCEs to support life history functions essential for the conservation of the subspecies. When determining critical habitat boundaries for this final rule, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack the PCEs for the Alameda whipsnake. 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 inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the proposed rule and are not designated critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the subspecies and/or the PCEs in adjacent critical habitat.

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 habitat conservation plan (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 are excluding critical habitat from portions of Unit 4 based on the development of the ECCHCP/NCCP and lands within the East Bay Regional Park District. See Relationship of Critical Habitat to Habitat Conservation Plan Lands —Exclusions Under Section 4(b)(2) of the Act below.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the features essential to the conservation of the Alameda whipsnake that have been identified as PCEs may require special management considerations or protections. Special management is required when threats to the subspecies and features essential to its conservation exist and must be reduced by management to conserve the subspecies. The greatest threat to all six critical habitat units is continued urban development, which removes and fragments the features essential to the conservation of the subspecies. Second, fragmentation and destruction of features essential to the conservation of the subspecies, and thus the habitat, also results from road development and widening in all six critical habitat units. Alameda whipsnakes may experience direct mortality while moving across roads, and roads (

e.g.

, highways) may form partial or complete barriers to Alameda whipsnake movement. Special management may be needed to reduce the effects of development projects that remove or reduce the quality of features essential to the subspecies' conservation. Third, the features essential to the conservation of the subspecies are threatened directly and indirectly by the effects of fire suppression. Fire suppression exacerbates the detrimental effects of wildfires through the buildup of fuel (

i.e.

, underbrush and woody debris), creating conditions for slow-moving, hot fires that completely burn all sources of cover for the Alameda whipsnake. The highest intensity fires occur in the summer and early Fall, when accumulated fuel is abundant and dry. During this period, hatchling and adult Alameda whipsnakes are aboveground (Swaim 1994, p. 96), resulting in Alameda whipsnake populations being more likely to sustain heavy losses from high intensity fires. Fire suppression has led to the encroachment of non-indigenous and ornamental trees into grassland habitats, further increasing fuel loads in and around Alameda whipsnake habitat. Fire suppression has also led to the change of scrub communities from open/closed mosaics to closed canopy stands. As described above, Alameda whipsnakes prefer scrub communities consisting of an open/closed mosaic. The closed scrub canopy also results in a buildup of flammable fuels over time. Special management may be required to manage fuel loads to minimize the risk of catastrophic fire within the six critical habitat units.

Inappropriate grazing practices, such as overgrazing, may threaten the Alameda whipsnake. The scrub component of the vegetation mosaic may be affected by overgrazing as well as practices such as burning or bulldozing to remove scrub prior to grazing (McGinnis 1992, p. 21). Overgrazing may also reduce grass height or density to the point that Alameda whipsnakes are exposed to increased predation by hawks. Special management may be needed to manage grazing practices so they do not result in incompatible losses of scrub, and to restore scrub habitat to areas within the six critical habitat units that have been adversely affected by past overgrazing or associated land management.

In habitat areas that are not urbanized, construction and use of paved and unpaved roads and trails, and associated recreational activities (

e.g.

, on- and off-road motorized and non-motorized vehicles, camping, hiking, horseback riding) may result in both losses of habitat and direct mortality of Alameda whipsnakes by motorized and non-motorized vehicles. Special management may be needed to ensure that the locations and densities of such features and activities within all six critical habitat units are managed so effects on the Alameda whipsnake and its habitat are minimized.

Finally, Alameda whipsnakes are subject to increased predatory pressure from introduced species, such as rats (

Rattus

spp.), feral pigs (

Sus scrofa

), and feral and domestic cats (

Felis domestica

) and dogs (

Canis familiaris

). These additional threats become particularly acute where urban development immediately abuts Alameda whipsnake habitat. A growing movement to maintain feral cats in parklands is an additional potential threat to the Alameda whipsnake. EBRPD is currently facing public pressure to allow private individuals to maintain feral cats on park lands (DelVecchio 1997, p. A-15). Although the actual impact of predation under such situations has not been studied, feral cats are known to prey on reptiles, including yellow racers (

Coluber

sp. (Hubbs 1951, p. 183)), a fast, diurnal snake closely related to the Alameda whipsnake (Stebbins 1985, p. 180). Alameda whipsnakes may be adversely affected in areas that are adjacent to urban development because of the associated loss of cover habitats in combination with increased native and nonnative predators using these areas. Special management of nonnative predators may be required within all six critical habitat units.

Critical Habitat Designation

We are designating six units as critical habitat for the Alameda whipsnake. The critical habitat areas described below constitute our best assessment at this time of areas that have been determined to be occupied at the time of listing, contain the PCEs essential for the conservation of the subspecies and that may require special management. The six areas designated as critical habitat for the Alameda whipsnake are shown in Tables 1 and 2 below. Table 1 is a summary of the areas that meet the definition of critical habitat for the Alameda whipsnake and the areas excluded from critical habitat. Table 2 identifies the approximate area designated as critical habitat for the Alameda whipsnake by land ownership.

Table 1.—Approximate Areas With Essential Features for the Alameda Whipsnake and the Area Excluded From the Final Critical Habitat Designation

Unit

Area with essential features

Area excluded from the final critical habitat designation

34,119

13,808

24,436

9,889

27,551

11,150

1,585

641

69,597

28,165

45,413

18,378

24,723

10,005

18,214

7,371

4,151

1,680

Total

202,791

82,068

46,998

19,020

Table 2.—Critical Habitat Units for Alameda Whipsnake

[Area (ac/ha) estimates reflect all land within critical habitat unit boundaries]

Unit

Federal

State

Local

Private

Total

8,108

3,281

25,997

10,520

34,119

13,808

4,386

1,775

20,050

8,114

24,436

9,889

404

163

25,562

10,345

25,966

10,508

13,855

5,607

9,348

3,783

23,225

9,399

2,492

1,008

246

21,986

8,897

24,723

10,005

361

146

17,854

7,225

18,214

7,371

720

291

265

107

3,166

1,281

4,151

1,680

Total

2,515

1,018

14,590

5,904

13,768

5,572

123,962

50,166

154,834

62,659

We present brief descriptions of all units, and reasons why they are essential for the conservation of the Alameda whipsnake below.

Unit 1: Tilden-Briones;

Alameda and Contra Costa Counties (34,119 ac (13,808 ha))

Unit 1 is bordered approximately by State Highway 4 and the cities of Pinole, Hercules, and Martinez to the north; by State Highway 24 and the City of Orinda Village to the south; Interstate 80 and the cities of Berkeley, El Cerrito, and Richmond, to the west; and Interstate 680 and the City of Pleasant Hill to the east. The South end of Unit 1 abuts Unit 6. Land ownership within the unit includes approximately 8,108 ac (3,281 ha) of EBRPD lands, 15 acres (6 ha) of State land, and the remaining 25,997 ac (10,520 ha) under private ownership.

The unit contains a complex mosaic of grassland with woody scrub vegetation of several types (PCE 1 and PCE 2), as well as rock outcrops or other talus features (PCE 3) distributed throughout the unit with little habitat fragmentation. Alameda whipsnake records occur within the unit and are uniformly distributed throughout the unit (Swaim 2005a). The dates of Alameda whipsnake records span a time period from before the subspecies' listing to after the time of listing (1986 to present). Habitat fragmentation is minimal. Very limited development has occurred within the unit, with the exception of a few structures presumably associated with livestock management. The distribution of essential features throughout the unit and low fragmentation allows Alameda whipsnakes to utilize and freely disperse within the unit, making the overall population less vulnerable to local extirpation which could result from fire, landslide, or some other natural event (

e.g.

, drought, disease). The unit is designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is currently occupied, and represents the northwestern portion of the subspecies' range and one of five population centers. The special management actions that may be required within the unit include prescribed burns and management of grazing activities to maintain a mosaic of open habitat. Additional special management actions that may be required for this unit include management of trespass, unauthorized trail construction, dumping, and/or feral animals, and other activities or situations associated with the urban or recreational interface.

Unit 2: Oakland-Las Trampas;

Contra Costa and Alameda Counties (24,436 ac (9,889 ha))

Unit 2 is located south of State Route 24, north of Interstate 580, east of State Route 13, and west of Interstate 680 and the cities of Danville, San Ramon, and Dublin. The North edge of Unit 2 abuts Unit 6. Land ownership includes 4,386

ac (1,775 ha) of EBRPD and East Bay Municipal Utilities District lands and 20,050 ac (8,114 ha) under private ownership.

Unit 2 contains a range of vegetation (PCE 1 and PCE 2), soil types, and rocky features (PCE 3) essential to the conservation of the subspecies, supports viable Alameda whipsnake populations, and has minimal development such as roads and structures (Swaim 2005a). Areas with development or reduced soil and vegetation characteristics have not been included in the critical habitat for this unit. Unit 2 essential features that contain more dense woodland habitat may be subject to special management considerations, such as prescribed burns, to improve the habitat quality and enhance the potential for Alameda whipsnake movement between units. Additional special management actions that may be required throughout this unit include management of trespass, unauthorized trail construction, dumping, and/or feral animals, and other activities or situations associated with the urban or recreational interface. Alameda whipsnake occurrences have been documented by multiple records within the unit as well as adjacent to the unit (Swaim 2005a). Dispersal of snakes between Units 2 and 1 is possible only through Unit 6, and impediments to such movement do not appear to be present. Unit 2 is included in the critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is currently occupied by the subspecies, and represents the central distribution of Alameda whipsnake and one of the five population centers.

Unit 3: Hayward-Pleasanton Ridge;

Alameda County (25,966 ac (10,508 ha))

Unit 3 is located immediately to the west of Interstate 680 and to the south of Interstate 580. Land ownership includes 404 ac (163 ha) of EBRPD land and 25,562 ac (10,345 ha) privately owned land. We have excluded the Stonebrae Country Club project site from critical habitat in this unit (

see

Relationship of Critical Habitat to Approved Management Plans—Exclusions Under Section 4(b)(2) of the Act, below).

Unit 3 contains the mosaic of scrub and chaparral vegetation and rocky outcrops (PCE 1, PCE 3) considered essential to the conservation of the subspecies. The unit also includes variation in vegetation patch size, abundant edge between grassland and woodland, and a minimal amount of development or planned development. The area supports scrub and rock outcrop features essential for Alameda whipsnake. The Alameda whipsnake records within this unit are associated with Gaviota rocky sandy loams in particular, which likely provide talus (PCE 3), and appear to coincide in aerial imagery to scrub or chaparral vegetation preferred by Alameda whipsnake. Vegetation is largely of oak woodland community of variable densities (PCE 2) and statures (trees, shrubs) interspersed with grassland. Some peripheral portions of habitat around this unit were not included as critical habitat due to the high degree of development-related disturbance and fragmentation of the habitat. The unit is included in the designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake; is currently occupied by the subspecies (Swaim 2005a); and represents the southwestern portion of the subspecies' range and one of the five population centers. The special management actions that may be required throughout this unit include management of controlled burns and grazing, trespass, unauthorized trail and road construction, dumping, and/or feral animals, and other activities or situations associated with the urban or recreational interface.

Unit 4: Mount Diablo-Black Hills;

Contra Costa and Alameda Counties (23,225 ac (9,399 ha))

This unit encompasses Mount Diablo State Park and surrounding lands, and is largely within Contra Costa County except a small portion that is within Alameda County. Lands are owned by the Bureau of Land Management (23 ac (9 ha)), State Department of Parks and Recreation (13,855 ac (5,607 ha)), and private landowners (9,348 ac (3,783 ha)). We have excluded East Bay Regional Park District lands and lands covered by the draft East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan from critical habitat in this unit (

see Relationship of Critical Habitat to Approved Management Plans—Exclusions Under Section 4(b)(2) of the Act

”, below).

Numerous Alameda whipsnake observations (

i.e.

, greater than 90 records from 1972 to 2004) occur throughout the area, many of which are associated with dense rock outcrops (PCE 3) and chaparral, scrub, and oak woodland (PCE 1, PCE 2). The pattern of woody vegetation with grassland and rock outcrops forms an intricate landscape mosaic that is highly functional habitat for the Alameda whipsnake. The vegetation and soil characteristics, the mosaic habitat pattern, the abundance of Alameda whipsnake records, and the lack of surrounding development and relative absence of roadways, together indicate that this unit likely provides some of the very highest quality and largest contiguous blocks of habitat within the range of the subspecies, as well as some of its most robust populations. Special management, such as prescribed burns, may be required for portions of the unit with dense vegetation. The special management actions which may be required throughout this unit include management of controlled burns and grazing, trespass, unauthorized trail and road construction, dumping, and/or feral animals, and other activities or situations associated with the urban or recreational interface. The unit is included in designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is occupied by the subspecies (Swaim 2005a), and represents the northeastern portion of the subspecies' range and one of the five population centers.

Unit 5A: Cedar Mountain;

Alameda and San Joaquin Counties (24,723 ac (10,005 ha))

Unit 5A is located east of Lake Del Valle along Cedar Mountain Ridge and Crane Ridge to Corral Hollow west of Interstate 580. Land ownership within this unit includes approximately 2,492 ac (1,008 ha) of Department of Energy land, 246 ac (99 ha) of EBRPD land, and 21,986 ac (8,897 ha)) are privately owned.

The vegetation pattern within this unit consists of various woodland, scrub, and/or chaparral communities on northeast-facing slopes (PCE 1, PCE 2). Rock bearing soils which are associated with multiple Alameda whipsnake records (

e.g.

Vallecitos rocky loam) as well as rock lands are abundant, indicating the presence of PCE 3. Open, grassland-dominated communities are prominent on southwest-facing slopes, but there is also a significant component of woodland habitat on these slopes. Significant areas of vegetation types known to support Alameda whipsnake are present, including coastal oak, chamise-chaparral, mixed chaparral, blue-oak-foothill pine woodland, blue oak woodland, valley oak woodland, and montane hardwood. About 50 Alameda whipsnake records from 1973 through 2002 are known in this unit (Swaim 2005a). In most instances, the boundaries for critical habitat designation correspond to natural breaks in plant communities, habitat quality, and/or landform (ridgelines, water features). A moderate number of light duty roads (

e.g.

, paved or unpaved

lightly used) are present within the unit, although there are very few structures or other land modifications. Special management, such as prescribed burns, may be required for portions of the unit with dense vegetation. The special management actions that may be required throughout this unit include management of grazing, trespass, unauthorized trail and road construction, dumping, and/or feral animals, and other activities or situations associated with urban or recreational interface. The unit is included in designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is currently occupied by the subspecies, and represents the southernmost and easternmost distribution of Alameda whipsnake and one of five population centers for the subspecies.

Unit 5B: Alameda Creek;

Alameda and Santa Clara Counties (18,214 ac (7,371 ha))

This unit is located northeast of Calaveras Reservoir, south of the town of Sunol, including the area along Wauhab Ridge in Alameda County and Oak Ridge in Santa Clara County. Alameda Creek is located at the west margin of the unit, and the unit contains the Sunol Regional Wilderness and Camp Ohlone Regional Park (approximately 361 ac (146 ha)), which are managed by the East Bay Regional Park, with the remaining 17,854 ac (7,225 ha) in private ownership. Vegetation is a mix of blue oak—foothill pine and annual grassland with a significant amount of woodland patches. Coastal live oak is present in the vicinity of Lleyden Creek. Soil types in which Alameda whipsnakes are found dominate the unit. This subunit contains six Alameda whipsnake records documented between 1972 and 2000 (Swaim 2005a). Significant areas of vegetation types known to support Alameda whipsnake are present, including coastal oak, chamise-chaparral, mixed chaparral, blue oak—foothill pine woodland, blue oak woodland, valley oak woodland, and montane hardwood interspersed with rock outcrops or talus (PCEs 1, 2, 3). The boundaries for critical habitat designation correspond to natural breaks in plant communities, soil type, and or landform. A moderate number of light roads are present within the unit, although there are very few structures or other land modifications. Development within or adjacent to the unit is minimal. As a result of this low development pressure, the survey efforts for the Alameda whipsnake in this unit have not been as extensive as in the other units. Special management, such as prescribed burns, may be required for portions of the unit with dense vegetation. Other special management actions which may be required throughout this unit includes management of grazing, unauthorized trail and road construction, dumping, and/or feral animals, control and other activities or situations associated with urban or recreational interface. The unit is included in designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is currently occupied, and represents the southern most distribution of Alameda whipsnake and one of the five population centers for the subspecies.

Unit 6: Caldecott Tunnel;

Contra Costa and Alameda Counties (4,151 ac (1,680 ha))

This critical habitat unit lies between Units 1 and 2, along the Alameda and Contra Costa County lines. Land ownership within this unit includes 265 ac (107 ha) of East Bay Regional Park lands, 720 ac (291 ha) of State, and 3,166 ac (1,281 ha) in private lands.

The unit is bounded by dense urban development to the east and west. However, the vegetation and soil types that are known to support Alameda whipsnake are dominant throughout the unit (PCEs 1, 2, 3). About eight Alameda whipsnake records are known from the unit between 1990 and 2002 (Swaim 2005a). Special management considerations in this unit include possible consolidation of existing roads, or limiting additional road construction in order to preserve a corridor function in this unit as a consequence of the restricted width of the unit and the current presence of a moderate number of roads. Prescribed burns may also be required to maintain the habitat mosaic considered essential. The unit is included in designated critical habitat because it contains features essential to the conservation of the Alameda whipsnake, is currently occupied, and represents the last remaining habitat connecting Unit 1 and Unit 2, which are two of the five population centers for the subspecies. Maintaining connectivity between units allows for dispersal between units for the subspecies and allows for genetic exchange among all three units.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” However, recent decisions by the Fifth and Ninth Circuit Court of Appeals have invalidated this definition. Pursuant to current national policy and the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of critical habitat. This is a procedural requirement only. However, once a proposed species becomes listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) apply to any Federal action. The primary utility of the conference procedures is to maximize the opportunity for a Federal agency to adequately consider proposed species and critical habitat and avoid potential delays in implementing a proposed action as a result of the section 7(a)(2) compliance process, should those species be listed or the critical habitat designated.

Under conference procedures, the Service may provide advisory conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The Service may conduct either informal or formal conferences. Informal conferences are typically used if the proposed action is not likely to have any adverse effects to the proposed species or proposed critical habitat. Formal

conferences are typically used when the Federal agency or the Service believes the proposed action is likely to cause adverse effects to proposed species or critical habitat, inclusive of those that may cause jeopardy or adverse modification.

The results of an informal conference are typically transmitted in a conference report; the results of a formal conference are typically transmitted in a conference opinion. Conference opinions on proposed critical habitat are typically prepared according to 50 CFR 402.14, as if the proposed critical habitat were designated. We may adopt the conference opinion as the biological opinion when the critical habitat is designated if no substantial new information or changes in the action alter the content of the opinion (

see

50 CFR 402.10(d)). As noted above, any conservation recommendations in a conference report or opinion are strictly advisory.

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, compliance with the requirements of section 7(a)(2) will be documented through the Service's issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) a biological opinion for Federal actions that may affect, but are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid jeopardy to the listed species or destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected, and the Federal agency has retained discretionary involvement or control over the action, or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat or adversely modify or destroy proposed critical habitat.

Federal activities that may affect the Alameda whipsnake or its designated critical habitat will require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act or a permit under section 10(a)(1)(B) of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) will also be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for Actions Involving Effects to the Alameda Whipsnake and Its Critical Habitat

Jeopardy Standard

Prior to and following designation of critical habitat, the Service applies an analytical framework for Alameda whipsnake jeopardy analyses that relies heavily on the importance of core area populations to the survival and recovery of the Alameda whipsnake. The section 7(a)(2) analysis is focused not only on these populations, but also on the habitat conditions necessary to support them.

The jeopardy analysis usually expresses the survival and recovery needs of the Alameda whipsnake in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding is considered to be warranted, because of the relationship of each core area population to the survival and recovery of the subspecies as a whole.

Adverse Modification Standard

The analytical framework described in the Director's December 9, 2004, memorandum is used to complete section 7(a)(2) analyses for Federal actions affecting Alameda whipsnake critical habitat. The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the subspecies. Generally, the conservation role of Alameda whipsnake critical habitat units is to support viable core area populations.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the subspecies.

Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that the conservation value of critical habitat for the Alameda whipsnake is appreciably reduced. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore result in consultation for the Alameda whipsnake include, but are not limited to:

(1) Actions that would reduce the total amount of shrub/scrub, oak woodland, or grassland communities. Such activities could include, but are not limited to: Construction of paved or unpaved roads, buildings or other commercial or urban development, recreational facilities, or any other land use that eliminates the natural vegetation types and rock lands that provide PCEs. These actions reduce the available habitat for Alameda whipsnake, and result in direct loss of or cumulative adverse effects to

individual snakes, their life cycles and their populations, or their prey base.

(2) Actions that would significantly modify the vegetation mosaic pattern. Such activities could include, but are not limited to: Loss of scrub due to livestock overgrazing, scrub removal through bulldozing or burning; loss of sun-shade mosaic due to fire suppression; introduction or spread of non-indigenous plants; prescribed fire; timber harvest; off-road vehicle or other recreational use; and other land disturbances. These activities could reduce the quality of habitat necessary for the growth and reproduction of the Alameda whipsnake provided by sun-shade mosaic, which is necessary to sustain snakes and their prey populations and also cause direct loss of or cumulative adverse effects to individual snakes.

(3) Actions that would result in complete loss of habitat or would impede snake movement by forming partial or complete barriers through or between habitat areas. Such activities could include, but are not limited to: Road construction; road improvement, right-of-way designation, installation of new radio equipment and facilities, commercial or urban development, or any other land use within corridors that connect units. These activities could eliminate foraging, resting, or denning habitat, as well as reduce movement corridors essential for genetic exchange and dispersal of Alameda whipsnake. Such activities could also lead to increased road kill incidences for the subspecies.

(4) Actions that would significantly alter or modify the functioning of rock lands, talus, or small mammal burrows as Alameda whipsnake refugium or prey production. Such activities could include, but are not limited to application of rodenticide or other chemicals, mining, grading, excavation, or fill. Activities in these areas could result in direct losses of, or cumulative adverse effects to, individual Alameda whipsnakes, their life cycles, their populations, and their prey base.

(5) Actions that would result in degraded chaparral scrub or oak woodland communities. Such activities could include, but are not limited to: Urban development, unmanaged fire suppression activities, and livestock overgrazing. These activities could reduce the quality of habitat essential for reproduction, growth, or shelter of the Alameda whipsnakes.

(6) Actions that result in a discharge of dredged or fill material into waters of the United States by the Army Corps under section 404 of the Clean Water Act. Such activities could include, but are not limited to, placement of fill into wetlands or channelization of stream corridors. These activities could eliminate or reduce the habitat essential for the reproduction, feeding, or growth of Alameda whipsnake. The functions of riparian areas as refugium from fire or as dispersal corridors for snakes could be adversely affected by these actions.

We consider all of the units designated as critical habitat, as well as those that have been excluded or not included, to contain features essential to the conservation of the Alameda whipsnake. All units are within the geographic range of the subspecies, all were occupied by the subspecies at the time of or since listing, and all are likely to be used by the Alameda whipsnake. Federal agencies already consult with us on activities in areas currently occupied by the Alameda whipsnake, or if the subspecies may be affected by the action, to ensure that their actions do not jeopardize the continued existence of the Alameda whipsnake. If you have questions regarding whether specific activities may constitute adverse modification of critical habitat, contact the Sacramento Fish and Wildlife Office (see

ADDRESSES

section).

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

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

Under section 4(b)(2) of the Act, 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 species. In the following sections, we address a number of general issues that are relevant to the exclusions we considered.

Conservation Partnerships on Non-Federal Lands

Most federally listed species in the United States will not recover without the cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (National Wilderness Institute 1995), and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse

et al.

2002). Stein

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