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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A06-8367

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 2, 2006
- **Citation:** 71 FR 58176

## Text

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
v.
United States Fish and Wildlife Service.
In that case, the Ninth Circuit invalidated the Service's regulation defining “destruction or adverse modification of critical habitat.” In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to 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.
v.
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
Background, above). These are essential life history functions that do not necessarily rely on the presence of lizard prey densities or retreat sites. Multiple captures of juvenile Alameda whipsnakes in grassy ridges during recent monitoring of the Stonebrae Country Club project site suggest that this habitat may provide an important dispersal corridor (Swaim 2006, p. 6). Second, lizard prey densities can fluctuate within and between seasons, and determination of critical habitat on lizard prey densities may lead to inaccurate representations of habitat quality based on instantaneous measurement. Third, those areas which contain PCE 2 such as grassland, which may be utilized less frequently due to absence of PCE 1 or 3, may lack those PCEs due to prior scrub clearing. Such

areas may be subject to special management considerations, which could enhance habitat quality and contribute to the conservation of the subspecies. Fourth, as already mentioned in the proposed rule, designation of these areas minimizes overall fragmentation of critical habitat and allows for interaction between population components of the subspecies.

Comments Related to Site-Specific Areas

(7)
Comment:
One commenter requested that a location in Unit 3 known as the Stonebrae project (formerly Blue Rock) be removed from the designation. The commenter asserted that few Alameda whipsnakes have been found there, the site has been graded, and the developed portion of the site does not contain the PCEs. The commenter's reasons for excluding the site are that a section 7 consultation with the Service for this project site has been completed (Service file reference number 1-1-01-F-0275, dated July 12, 2002); the site is not essential to the conservation of the Alameda whipsnake; the site does not require special management beyond that addressed in an existing management plan; the benefits of exclusion outweigh the benefits of inclusion under section 4(b)(2) of the Act and; citing our proposed rule (70 FR 60607, p 60620), the section 7 consultation constitutes a type of formalized agreement that would provide assurances that conservation measures for the subspecies will be implemented and effective.

Our Response:
We requested and received additional monitoring information from the commenter, which reported that 7 Alameda whipsnakes were captured in the immediate vicinity of the site in 2004, and 38 whipsnakes were captured in 2005 (Swaim 2006, pp. 1, 4). Only a portion of the site is currently graded or will be graded in the future. The golf course element of the project as well as the open space currently have at least one of the PCEs based on our analysis of the site and information in our files.

However, we confirm that a Biological Opinion has been issued for the Stonebrae project. The Service agrees with the commenter that this constitutes a formalized relationship with assurances that conservation measures for the subspecies will be implemented and effective, because implementation of the conservation measures within the project description is required under the Biological Opinion. The project area in its entirety has been excluded from the final rule. For more information, see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.

(8)
Comment:
In reference to our proposal not to exclude lands in Mount Diablo State Park, one commenter explained that several management activities, including the removal of livestock, and construction and maintenance of fuel breaks, may be causing considerable ecological impact, and monitoring of park lands has been inadequate. The commenter pointed out the inability of the State Park to fulfill directives to protect listed species in accordance with the Mount Diablo 1989 General Plan.

Our Response:
In our proposed rule, we solicited information from the State as to whether lands within Mount Diablo should be excluded from the designation. We did not receive any information from the State regarding the designation of critical habitat. We have not excluded Mount Diablo State Park from our final designation, because it contains the PCE for the species and the area meets our criteria for designation.

(9)
Comment:
One commenter requested that the eastern boundary of Unit 6 be revised to match more specific information in a Biological Opinion for a housing development known as Gateway/Montanera (Service file reference number 1-1-02-F-0168, dated October 8, 2004). The commenter noted that the requested boundary change is based on criteria used in the critical habitat designation that was applicable at the time of consultation with the Service and, although that critical habitat rule was remanded, the methodology for assessing PCEs has not changed significantly in the proposed rule.

Our Response:
The discussion of the Conservation Measures in the Biological Opinion states that the 973 ac (394 ha) of conservation lands are expected to benefit the Alameda whipsnake (p. 43 of Biological Opinion) and “enhance the value of critical habitat on these lands.” Thus, retention of such conservation lands as critical habitat is consistent with the Biological Opinion. The commenter's proposed boundary revision primarily separates those areas that will be impacted as permitted under the Biological Opinion from areas that will not be affected and possess the PCEs. These impacts include construction of residences, recreational facilities, trails of various kinds, grading, and installation of drainage. In the final rule, the Service has revised the critical habitat boundary as requested by the commenter to remove developed areas or areas planned to be developed.

(10)
Comment:
Two commenters supported the proposed exclusion of areas covered by the ECCHCP/NCCP for various reasons. One commenter indicated that an overlapping critical habitat designation could undermine permit streamlining aspects of Habitat Conservation Plans (HCP). A second commenter listed the benefits of the conservation measures in the ECCHCP/NCCP of habitat preservation, connectivity, management and enhancement, mitigation of activities covered by the ECCHCP/NCCP, and contributions to recovery of the Alameda whipsnake and maintenance of ecosystem functions.

Our Response:
In this final rule, we have excluded lands within the ECCHCP/NCCP boundary. For more information, see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.

(11)
Comment:
One commenter compared the critical habitat designated in the proposed rule with a previous 2000 rule which was remanded by the Court, and stated that the Service has not adequately explained or identified why 203,366 ac (82,299 ha) previously designated as critical habitat are not included in the currently proposed rule. The commenter specifically refers to areas between Units 5A and 5B, areas adjacent to proposed development in Unit 3, portions of Unit 1, and all of an area known as Unit 7 in the remanded 2000 rule. The commenter concludes the exclusion of these previously designated areas to be arbitrary.

Our Response:
The Service did not arbitrarily exclude areas in the proposed rule. We examined the area previously designated as Unit 7 for the Alameda whipsnake and considered them along with all other scientific information and evaluated the areas based on our methods and criteria for this designation. The area within the previously know Unit 7 did not meet the criteria we used to identify critical habitat for this designation. We consider the areas and PCEs included within the currently identified critical habitat to be sufficient for conservation of the subspecies.

With respect to the area formerly designated as Unit 7 in the remanded rule, we concluded that the potential for movement between Units 3 and 4 is possible, but so severely limited by existing roadways and current land uses that designation of the area between them would not result in a high potential for dispersal. The area within the formally designated Unit 7 did not meet our criteria for being designated as critical habitat and is not essential.

As explained above in our responses to similar comments by three peer reviewers (
see
Comments 1 and 5), we consider the areas designated in Units 5A and 5B of the proposed rule to contain sufficient PCEs to support the behaviors that we have determined to be essential to the conservation of the subspecies.

The boundaries of Units 1 and 3 in the proposed rule were determined from features visible in aerial imagery and described in the criteria and methods as including one or more of the following: Ground disturbance or other included development; proximity to development; included structures or roads; proportion of scrub and chaparral; and proportion of soils types associated with multiple records of Alameda whipsnake. We have re-examined these particular areas, and have determined that the boundaries of Units 1 and 3 are consistent with the criteria and methods described in the proposed rule. In this final rule, we have excluded one area within Unit 3 because it had been adequately considered in a previous Biological Opinion (see Comment 7, above)

(12)
Comment:
One commenter noted that the proposed rule did not identify the area or specific locations of habitat proposed for exclusion under section 4(b)(2) of the Act. The commenter assumes that the Service proposes to exclude 42,665 ac (7,058 ha) from Unit 4 that are covered by the ECCHCP/NCCP, in addition to the 17,440 ac (7,058 ha) of East Bay Regional Park District (EBRPD) land that will be excluded.

The commenter believes that the Service has improperly equated protections of critical habitat with those of species listing in its exclusion of ECCHCP/NCCP lands. The commenter further states that the proposed rule did not state the reasons why EBRPD lands were excluded, or identified management activities that may be conducted under federal permits or funding that are detrimental to the Alameda whipsnake. Finally, the commenter states that the impacts of recreational activities, grazing, and roads on EBRPD lands proposed for exclusion were not discussed by the Service.

Our Response:
Table 1 of the proposed rule (70 FR 60616) shows the distribution by unit of the lands proposed for exclusion. The amount of area covered under the ECCHCP/NCCP can be obtained by subtracting the local area column in Table 2 from the total area proposed for exclusion column in Table 1. The language in the Unit 4 description in the final rule has been slightly revised so that it states that EBRPD lands are excluded, rather than a portion of such lands. An additional section has been provided in the final rule explaining the Service's consideration of the incremental protection of designation (
see
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act). The proposed rule did include an evaluation and description of Federal actions that may destroy or adversely modify habitat, or may jeopardize the continued existence of the Alameda whipsnake (70 FR 60619), which we have revised below (
see
Effects of Critical Habitat Designation). These or other activities could be affected by management activity on EBRPD lands. As further discussed in the proposed rule, however, we proposed to exclude EBRPD lands based on participation and linkage with the ECCHCP/NCCP, and to remove disincentives of such participation and linkage where deemed appropriate. For more information,
see Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act
section below.

(13)
Comment:
One commenter noted that his client's property, known as Oak Knoll, had been properly excluded from the critical habitat designation, and should remain excluded in the final rule because it was poor habitat, there were no Alameda whipsnake observations, and exclusion of the site would meet the section 4(b)(2) balancing test.

Our Response:
In consideration of the criteria described in the proposed rule, the location known as Oak Knoll, a decommissioned Federal facility, was not determined to be essential for the conservation of the subspecies. We are not aware of any recent information that would warrant inclusion of this area as critical habitat.

(14)
Comment:
One commenter indicated that present information did not support designation of a 450 ac (182 ha) property in Unit 2 known as Faria Ranch. The commenter represents a client who plans to construct a housing development on the property. The commenter asserts that Faria Ranch generally lacks PCEs, and Alameda whipsnakes have not been found on the site. The comment suggests that EnviroNet (2000) surveyed the site and found no Alameda whipsnakes. Further, the commenter compared the EBRPD Master Plan to a draft document (Huffman-Broadway Group 2005) his client intends to submit in the future as part of an application for a 404 permit in connection to a section 7 consultation with the Service (
i.e.
, the draft document was provided during the comment period, but consultation with the Service has not been initiated). The commenter concludes, based on this comparison, that no further mitigation measures are required. The commenter makes several further general comments related to methods, which we address separately below (
see
Comments Relating to Criteria and Methods).

Our Response:
Faria Ranch is part of a larger geographic area encompassing all of the features known as Las Trampas Ridge. In contrast to the suggestion by the commenter that Alameda whipsnakes were not found in surveys, we find that EnviroNet (2000, p. 1) states that “No trapping of the whipsnake was conducted.” EnviroNet (2000, p. 5) also concludes that Alameda whipsnakes may use the site for short periods of time. Moreover, Faria Ranch is within 2 to 4 mi (3 to 6 km) of verified records of Alameda whipsnakes, contains small quantities of chaparral and rock outcrops, and is within 1,400 ft (427 meters (m)) of much more extensive rock outcrops and chaparral. We requested and received from the commenter Appendix 4b of the Huffman-Broadway Group (2005) report, which included a more recent 2005 site assessment (Swaim 2005e). This 2005 site assessment concludes that, due to the extensive patches of high-quality scrub and chaparral in such close proximity to the site, it is very likely that Alameda whipsnakes do occur on Faria Ranch (Swaim 2005e, p. 4). Swaim (2005e, p. 4) notes that while Alameda whipsnake surveys were not conducted during this assessment, Faria Ranch was likely to support high densities of this subspecies based on the habitat quality and connection to other areas with recorded sightings of Alameda whipsnakes. In contrast to the conclusion by EnviroNet (2000, p. 5) that usage would be short term and infrequent, Swaim (2005e, p. 4) suggests that portions of Faria Ranch would be included within home ranges of any snakes present in the extensive rock outcrops and chaparral just north of Faria Ranch.

We also examined the materials provided for presence or absence of the PCEs. Plate C of EnviroNet (2000) provides definitive photographic proof of PCEs 1 and 2 on and immediately adjacent to the site. The abundant rock outcrops within 1,400 ft (427 ha) of the site were verified by the soil information in our GIS database (Rocky Outcrops—Xerothants). A professional botanist provided further evidence of outcrops within the site itself, stating that shrubby rock outcrops were examined in detail on three occasions on Faria Ranch (Huffman-Broadway Group 2005, p. 16). In addition to the

small inclusions of chaparral and some animal burrows noted on the site by EnviroNet (2000, p. 4), much more chaparral occurs in association with the rocky soils close to the site. The mammal survey provided by the commenter includes an array of common burrowing mammals that very likely burrowed on site (Table 2, Attachment 2 in Huffman-Broadway Group 2005). The rock outcrops and burrows demonstrate the presence of PCE 3 on the site, which is used by the Alameda whipsnake for shelter, hibernacula (wintering shelter), foraging, dispersal, and additional prey population support functions.

In the proposed rule, we discussed the need for special management considerations to address inappropriate grazing practices. EnviroNet (2000, p. 4) identifies grazing as a factor on Faria Ranch that has favored invasive exotic species. Special management considerations may be needed to manage various effects of grazing or rangeland management practices on habitat for Alameda whipsnake, as discussed above (Threats), and below in our response to Comment 28. In conclusion, the best scientific data indicate that Faria Ranch contains all of the PCEs and may require special management. The geographic feature of Las Trampas Ridge, which includes Faria Ranch, is occupied by Alameda whipsnake. The proximity of observations of Alameda whipsnakes to Faria Ranch are well within the dispersal capabilities of the Alameda whipsnake, and the habitat is of sufficiently high quality under the criteria we have described in the proposed rule to warrant designation. Further, the section 7 consultation process has not been initiated, so the site cannot be considered for exclusion or removal on that basis. For these reasons, Faria Ranch is included in the designated critical habitat in the final rule.

(15)
Comment:
One commenter points out that the description of Unit 5A does not include PCE 3, and does not see how Unit 5A can be critical habitat if it is devoid of one of the PCE's.

Our Response:
It is not necessary that habitat contain all of the PCEs to be designated critical habitat; only sufficient PCEs necessary to support one of the life history functions of the species is necessary. However, the Unit 5A description in the final rule has been amended to make clear that it does contain an abundance of rock bearing soils such as rock land, Vallecitos rocky loam, and other types, indicating the presence of PCE 3 (talus).

Comments Relating to Criteria and Methods

(16)
Comment:
One commenter stated that the proposed rule is inadequate because it does not include any unoccupied habitat. The commenter states that unoccupied habitat is necessary to the survival and recovery of the subspecies. The commenter makes reference to our discussion about habitat loss and fragmentation in the remanded October 3, 2000, final critical habitat rule (65 FR 58933). The commenter suggests that the Service has also excluded habitat that currently lacks PCEs but could be restored to provide PCEs and aid in the recovery of the subspecies. Additionally, the commenter notes that the Service did not include any type of buffer habitat.

Our Response:
The criteria and methods in the proposed and this final rule have been significantly revised from the remanded final critical habitat rule (65 FR 58933) as it pertains to occupancy. Habitat determined to be occupied included the habitat between recorded observations within the capable and necessary range of movement, with relatively high quality habitat for the Alameda whipsnake, presence of the PCEs, and other factors (
see
Methods section and Criteria Used to Identify Critical Habitat, below). Additionally, one of the peer reviewers concurred with our methodology due to extensive trapping surveys in those areas we have designated and where Alameda whipsnakes have been found. Habitat occupied by the subspecies extends beyond the precise point of collection or observation of known Alameda whipsnake sightings, because the snakes have the ability and necessity to move and disperse to locations outside these areas, and because the known records are only a fraction of the actual population of Alameda whipsnakes. Furthermore, although the commenter is correct in that we have not designated habitat that does not contain the PCEs but may be restorable, we have concluded that designating such habitat is not essential for conservation of the subspecies. We have determined that we designated sufficient habitat for the conservation of the subspecies.

(17)
Comment:
One commenter stated that there was no method for determining how or when Act protections were no longer needed and that this violates the Act as interpreted by the Court.

Our Response:
The language in the May 9, 2003, Court decision to which the commenter is referring relates to the issue of identification of PCEs. The final rule identifies, enumerates, and discusses those PCEs the Service considers essential to the conservation of the subspecies and directly relates those PCEs to the specific areas being designated and to our implementing regulation found at 50CFR 424.12. The final rule is, therefore, in full compliance with the Act as interpreted by the Court decision. Additionally, the process for determining when the protections of the Act are no longer needed is part of the Recovery planning and delisting process and not part of critical habitat designation.

(18)
Comment:
One commenter states that the proposed rule has deficiencies similar to the remanded rule because it relies on exclusion criteria that result in what the commenter terms “deferral and overdesignation” problems.

Our Response:
The language in the May 9, 2003, Court decision to which the commenter is referring relates to a finding, as a matter of law, that the Service's dependence in the remanded rule on exclusion criteria is unwarranted because the remanded rule excluded only features and structures, not the land on which they are located. The proposed rule, as noted by the commenter, does exclude the land which contains buildings, paved areas, and other structures. We have, therefore, not designated this land as critical habitat, and we consider the proposed rule in compliance with the Act as interpreted by the Court decision. Minor editing of the language is included in this final rule.

(19)
Comment:
One commenter stated that while the PCEs described in the proposed rule are those known to be associated with Alameda whipsnake, no attempt was made in the proposed rule to discern which features or settings are truly essential to the subspecies' conservation. The commenter states that the May 9, 2003, Court decision requires the Service to do more than identifying habitat features to be associated with the subspecies. The commenter claims that all areas within each unit that contain PCEs were designated because the proposed rule did not state a quantity for patch dimension or minimum amount.

Our Response:
The PCEs described in the proposed rule were not selected based on mere association with Alameda whipsnake observations or records. The proposed rule includes a detailed description of the PCEs, states that they are essential, describes the relationship of each PCE to critical and essential life history processes of the Alameda whipsnake, and provides support of the selection of the PCEs with the best available scientific

information. This information indicates that a range of patch sizes, from very small to large patches, is known to support Alameda whipsnake (Swaim 2004, p. 1). In the proposed rule, the Service did not specify a patch size or minimum amount of chaparral habitat as a criterion for designating critical habitat. The PCEs describe the features essential for the Alameda whipsnake and no changes were made in this final rule. For additional information, see Criteria Used to Identify Critical Habitat, below.

(20)
Comment:
One commenter considered the description of the PCEs to be overly broad and not in compliance with the May 9, 2003, Court decision. The commenter concludes that the formulation of the PCEs in the proposed rule provide no guidance for determining the areas that are essential to the conservation of the subspecies, because all undeveloped areas of the East Bay would possess the PCEs.

Our Response:
The proposed rule includes a detailed description of the PCEs and a rationale for why they are essential, describes the relationship of each PCE to critical and essential life history processes of the Alameda whipsnake, and provides support for the selection of the PCEs with the best available scientific information. In addition to the PCE descriptions, the proposed rule includes additional detailed discussion of the methods and criteria used to designate critical habitat. As a result of applying these methods and criteria, we have designated sufficient areas containing essential PCEs to provide for the life history functions of the subspecies and ensure its conservation. These areas are substantially less than all such areas in the East Bay that contain PCEs. The Service considers the methods and criteria in the proposed rule to be in full compliance with the May 9, 2003 Court decision. No change in the description of the PCEs, methods, or criteria is warranted in the final rule.

(21)
Comment:
One commenter stated that adjacent habitats are frequently used and may be critical in their own right. The commenter included two peer-reviewed publications supporting his comment (Alvarez 2005, 2006 in press).

Our Response:
The Service reached this same conclusion in the proposed rule (70 FR 60610, “Habitat”). The references were reviewed and found to provide further support for this conclusion as well as for Alameda whipsnake mobility. Therefore, this additional information was added to the revised sections on Habitat, and Dispersal Habitat, below.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-8367. Public record. Not legal advice.