# Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the California Red-Legged Frog > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-4656 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 17, 2010 - **Citation:** 75 FR 12816 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R8-ES-2009-0089] [MO 92210-0-0009-B4] RIN 1018-AV90 Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the California Red-Legged Frog AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the California red-legged frog ( Rana draytonii ) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 1,636,609 acres (ac) (662,312 hectares (ha)) of critical habitat in 27 California counties fall within the boundaries of the final revised critical habitat designation. DATES: This rule becomes effective on April 16, 2010. ADDRESSES: This final rule, final economic analysis, and maps are available on the Internet at http://www.regulations.gov and http://www.fws.gov/sacramento/ . Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-414-6712. FOR FURTHER INFORMATION CONTACT: For information on the revised designation in general and information about the revised designation in Alameda, Butte, Calaveras, Contra Costa, El Dorado, Kern, Kings, Marin, southern Mendocino, Merced, Napa, Nevada, Placer, San Joaquin, San Mateo, Santa Clara, Solano, Sonoma, Stanislaus, and Yuba Counties, contact Susan Moore, Field Supervisor or Arnold Roessler, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-414-6712. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. For information about the revised designation in Los Angeles, Monterey, San Benito, San Luis Obispo, Santa Barbara, Santa Cruz, and Ventura Counties, contact Diane Noda, Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2394 Portola Road, Suite B, Ventura, CA 93003; telephone 805-644-1766; facsimile 805-644-3958. For information about the exclusion of critical habitat in Riverside County, contact Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-9624. For information about the revised designation in northern Mendocino County, contact Randy Brown, Acting Field Supervisor, Arcata Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the California red-legged frog in this final rule. For more information on the California red-legged frog and threats affecting the species, refer to the final listing rule published in the Federal Register on May 23, 1996 (61 FR 25813) and the recovery plan for the species (Service 2002, pp. 1-173). Change in Nomenclature When we made the draft economic analysis of the proposed revised critical habitat for the California red-legged frog available on April 28, 2009 (74 FR 19184), we proposed a nomenclature change to the California red-legged frog from Rana aurora draytonii to Rana draytonii and for that change to be published in the Code of Federal Regulations (CFR) when this rule became final. In this rule, we make that change and will now refer to the California red-legged frog by its accepted taxonomic name of Rana draytonii . Species Description The California red-legged frog is the largest native frog in the western United States. It is endemic (native and restricted) to California and Baja California, Mexico, at elevations ranging from sea level to approximately 5,000 feet (ft) (1,500 meters (m)). Records of the California red-legged frog are known from Riverside County to Mendocino County along the Coast Range; from Calaveras County to Butte County in the Sierra Nevada; and in Baja California, Mexico (Grismer 2002, p. 79; Fidenci 2004, pp. 27-29; Smith and Krofta 2005, pp. 4, 6; California Natural Diversity Database 2009 (CNDDB)). The California red-legged frog gains its name from the typically red or pink color of its posterior abdomen and hind legs. For a detailed description of the species, see the recovery plan for the California red-legged frog (Service 2002, pp. 1-173), references identified in the recovery plan, and information in previous Federal Register notices (April 13, 2006, 71 FR 19244; March 13, 2001, 66 FR 14626; May 23, 1996, 61 FR 25813). Life History During the breeding season, which typically runs from November through April, males call to females from the margins of ponds and slow streams (Jennings et al. 1992, p. 3). Mating most commonly occurs in February or March, but can vary depending on seasonal climatic patterns. The female lays a jellylike mass of 2,000 to 5,000 reddish brown eggs in the water attached to emergent vegetation, twigs, or other structure. The resulting tadpoles, which likely feed on algae (Dickman, 1968, pp. 1189-1190), typically require about 3 weeks to hatch, and another 11 to 20 weeks to metamorphose into juvenile frogs. Metamorphosis, therefore, typically occurs from July to September, although some tadpoles have been observed to delay metamorphosis until the following March or April (Bobzien et al. 2000, p. 13; Fellers et al. 2001, pp. 156-157). Adults are predominantly nocturnal, while juveniles can be active at any time of day (Hayes and Tennant 1985, p. 604). Habitat California red-legged frogs live in a Mediterranean climate, which brings about temporal and spatial changes in habitat quality. Almost the entire landscape, not just breeding ponds and streams, may become suitable habitat for the adults during periods of above average rainfall. Conversely, habitat that is suitable may be drastically reduced during periods of prolonged drought. Due to this variability, population sizes can vary widely from year to year. During years when aquatic habitat (ponds and streams) is abundant as a result of adequate rainfall, the California red-legged frog can produce large numbers of dispersing young, resulting in an increase in the number of occupied sites. In contrast, the California red-legged frog may temporarily disappear from an area during periods of extended drought. Therefore, it is essential to provide for sites that can be recolonized by dispersing individuals (Semlitsch 2000, pp. 623, 624). Habitats used by the California red-legged frog typically change in extent and suitability in response to the dynamic nature of floodplain and fluvial processes (i.e., variable natural water flow and sedimentation regimes that create, modify, and eliminate deep pools, backwater areas, ponds, marshes, and other aquatic habitats). Rangewide, and even within local populations, the California red-legged frog uses a variety of areas, including aquatic, riparian, and upland habitats. They may complete their entire life cycle in a particular habitat (e.g., a pond is suitable for all life stages), or they may seek multiple habitat types depending on climatic conditions or distance between and availability of wetland and other suitably moist environments. Despite the California red-legged frog's ability to utilize multiple habitat types, there are certain habitat features they require. Most important is a breeding pond, or slow-flowing stream reach or deep pool within a stream with vegetation or other material to which egg masses may be attached. These areas must hold water long enough for tadpoles to complete their metamorphosis into juvenile frogs that can survive outside of water. Bobzien et al. (2000, p. 12) observed juveniles inhabiting a wide variety of habitats while adults primarily inhabited deep pools. They postulated that juveniles might segregate themselves away from adults to escape predation and competition (see Dispersal section below). In northern California, many California red-legged frog populations occupy artificially created wetland environments. Historically, as natural wetlands and streams were converted for agriculture, flood control, and urban development, the California red-legged frog colonized small artificial impoundments, or stock ponds, created by cattle ranchers for the purpose of providing water for their cattle. Our understanding of the role of stock ponds in the conservation of the California red-legged frog has evolved since listing. Without these stock ponds, the range of the California red-legged frog would be more limited in this region. Riparian and upland habitats adjacent to aquatic areas used by the California red-legged frog are essential in maintaining frog populations, and for protecting the appropriate hydrological, physical, and water quality conditions of the aquatic areas. Riparian habitat includes vegetation that grows along banks and in the floodplains of streams and adjacent to ponds and that is dependent on the bordering water source for survival. Adjacent uplands are marked by vegetation that is not dependent on a nearby supply of surface water. The California red-legged frog uses both riparian and upland habitats for foraging, shelter, cover, and non-dispersal movement (Service 2002, pp. 14-15; Bulger et al. 2003, p. 87; Fellers and Kleeman 2007, p. 276). Bulger et al. (2003, pp. 85-95) studied the California red-legged frog's terrestrial activity in coastal forest and grassland habitats and recommends at least a 328-ft (100-m) buffer zone for protection of adjacent aquatic and upland habitat, as well as seasonal restrictions for activities within this zone. In a recent study also specific to the California red-legged frog, Fellers and Kleeman (2007, pp. 278-280) recommend establishing zones around breeding habitat, non-breeding habitat, and migration corridors that are sufficient to protect function of the amphibian habitat. However, Fellers and Kleeman (2007, p. 279) discourage setting specific distances for these zones due to differences in biological or site-specific requirements; they further state that any distances set for avoidance of upland habitat should be made on a case-by-case basis, taking into account the need to protect breeding and non-breeding habitat as well as any migration corridors. Without protecting and maintaining the upland areas surrounding breeding and non-breeding habitats the quality of the water feature may deteriorate to such an extent as to not support the California red-legged frog. California red-legged frogs will disperse from their breeding habitat to forage and seek suitable upland and riparian habitat if aquatic habitat is not available. Tatarian (2004, p. 33) found the California red-legged frog inhabiting upland areas for 50 days at a distance of 302 ft (92 m) from aquatic habitat; Bulger et al. (2003, p. 87-89) found that the species is capable of inhabiting upland habitats within 200 ft (60 m) of aquatic habitat for continuous durations exceeding 20 days; and Rathbun et al. (1993, p. 15) observed a California red-legged frog inhabiting upland riparian habitat at distances of up to 85 ft (26 m) for 65 days. These upland habitat areas used by the California red-legged frog include structure that provides shade, moisture, and cooler temperatures. This structure may be natural, such as the spaces under boulders or rocks and organic debris (e.g., downed trees or logs), or manmade, such as certain industrial debris and agricultural features (e.g., drains, watering troughs, abandoned sheds, or stacks of hay or other vegetation). The California red-legged frog will also use small mammal burrows and moist leaf litter as refugia (areas whose climate remains habitable when that of the surrounding areas has changed) (Rathbun et al . 1993, p. 15; Jennings and Hayes 1994, p. 64; Fellers and Kleeman 2005, p. 12). Metapopulation Dynamics The life history and ecology of the California red-legged frog make it likely that this species has a metapopulation structure (Hanski and Gilpin 1991, pp. 3-16). A metapopulation is a set of breeding sites within an area, where typical migration from one local occurrence or breeding site to other areas containing suitable habitat is possible, but not routine. Within this rule we refer to these local occurrences as populations. The movement (i.e., dispersal) of frogs between areas containing suitable upland and aquatic habitats is restricted due to inhospitable conditions around and between areas of suitable habitats. Because many of the areas of suitable habitats may be small and support small numbers of frogs, local extinction of these small populations may be common. The persistence of a metapopulation depends on the combined dynamics of these local extinctions and the subsequent recolonization of these areas through dispersal (Hanski and Gilpin 1991, pp. 3-16; Hanski 1994, pp. 151-162). Maintaining corridors for dispersal between breeding and non-breeding habitat and between populations is essential in preserving the population structure of the California red-legged frog. Dispersal Adult California red-legged frogs may disperse from breeding sites at any time of year depending on habitat availability and the environmental conditions of the aquatic habitat. In addition, a few frogs may disperse long distances in search of additional breeding or non-breeding habitat. Dispersing adult California red-legged frogs in northern Santa Cruz County traveled distances of 0.25 mile (mi) (0.4 kilometers (km)) to more than 2.0 mi (3.2 km) without apparent regard to topography, vegetation type, or riparian corridors (Bulger et al . 2003, p. 90). California red-legged frogs have also been tracked using radio telemetry in East Las Virgenes Creek, Ventura County, which is characterized by a well-defined creek and riparian zone with permanent deep pools and highly variable rainfall (Smith 2005, p. 1). The maximum distance moved in this study was 48 ft (15 m) (Smith 2005, p. 1). In contrast, California red-legged frog movements in Santa Cruz County in similar habitat were found to be substantially less, with typical movements of 9 to 16 ft (3 to 5 m) from the water's edge. In a study in Marin County, 123 California red-legged frogs were tracked using radio telemetry between 1997 and 2003 at 8 different sites within the Point Reyes National Seashore and Golden Gate National Recreation Area (Fellers and Kleeman 2007, p. 277). The habitat at the sites included permanent ponds, seasonal ponds, permanent marsh, and a seasonal seep. The majority of movement was small scale (less than 98 ft (30 m)) and considered non-dispersal. Movements of greater than 98 ft (30 m) occurred mostly during winter rain events; however, some movements did occur when the ponded habitat was almost dry (Fellers and Kleeman 2007, p. 279). The majority of California red-legged frogs dispersed less than 1,640 ft (500 m) away from breeding habitat, and the maximum dispersal distance recorded was 1.7 mi (2.8 km) (Fellers and Kleeman 2007, pp. 279-280). The study concluded that most California red-legged frogs move away from breeding sites, but only a few disperse farther than the nearest non-breeding habitat, and that the distance moved is highly dependent on site conditions and local landscapes (Fellers and Kleeman 2007, p. 284). The study also concluded that, by establishing a generic dispersal distance for the species, we may select for sedentary frogs and thus lose those individuals that disperse farthest and reach other distant breeding sites. This selection may thereby decrease genetic exchange and diversity (Fellers and Kleeman 2007, p. 285). As a result the authors recommend that the average dispersal or migration distances identified in the study not be used; site conditions should dictate the area needed for the species. Newly metamorphosed juveniles tend to disperse short distances initially from July through September, and then move farther away from the breeding habitat during warm rain events (Jennings 2000, p. 1). Additionally, and for reasons that are unclear, juveniles tend to disperse away from aquatic habitat occupied by adults. Juvenile dispersal is essential for recolonizing temporarily extirpated habitat and for preventing genetic isolation because juveniles disperse in more directions, and for longer distances, than do migrating adults (Wright 1999, p. 2; Bulger et al . 2003, p. 94). Dispersal habitat for juveniles can be any habitat that provides sheltering vegetation and scattered wetlands or streams, including forested areas, nonnative grasslands, croplands, and pastures. It is unlikely that juveniles disperse through urbanized or suburban areas, suburban developments, or areas separated from breeding habitat by impassible barriers. Juveniles dispersing along riparian corridors may have higher survivorship, as sheltering vegetation and suitable aquatic habitat are both more common in such corridors (Jennings 2000, p. 1). Finally, juvenile California red-legged frogs appear to have less strict requirements for aquatic habitat than adults, and tend to segregate away from adults in water bodies that are shallower or faster moving than those typically used for breeding (Hayes and Jennings 1988, p. 147; Bobzien 2000, p. 1; M. Jennings 2000, p. 1). Dispersal Barriers Impassible barriers that impact dispersal of the California red-legged frog include wide or fast-flowing rivers and streams, lakes greater than 50 ac (20 ha), and heavily traveled roads (such as highways or freeways) without underpasses or culverts (Reh and Seitz 1990, pp. 247, 248; Fahrig et al . 1995, pp. 179-181). Passable roadways that are heavily used by vehicles may also result in a high rate of mortality for California red-legged frog adults and juveniles, and other amphibians, thereby limiting dispersal capabilities (Glista et al . 2008, pp. 81-82). The long-term probability of the survival and recovery of the California red-legged frog is dependent upon the protection of existing breeding habitat and associated uplands (Fellers and Kleeman 2005, pp. 1, 17-18), the movement of individuals between aquatic habitat patches, and the ability to recolonize newly created or vacated habitats. Recolonization of vacant habitat patches, which is vital to maintaining the California red-legged frog populations and the recovery of this species, is dependent upon landscape characteristics, including appropriate distances between suitable breeding and non-breeding aquatic habitat, and limited fragmentation of interconnecting habitat (Vos and Chardon 1998, pp. 44, 53-56). For this rule, we based our designation of critical habitat on areas of high-quality habitat that we determined provide for persistence of California red-legged frog populations and allow for dispersal within, and in most cases between, populations. We did not designate areas subject to anthropogenic activities (e.g., urban development) or those that were fragmented or unlikely to be restorable (poor quality habitat) unless it was determined that these areas were unique for the species (for more information, see the Criteria Used to Identify Critical Habitat section below). Previous Federal Action On July 20, 2007, we announced that we would review the April 13, 2006, final rule (published at 71 FR 19243) designating critical habitat for the California red-legged frog under the Act (16 U.S.C. 1531 et seq. )(Service 2007a, pp. 1-2), after questions were raised about the integrity of scientific information used and whether the decision made was consistent with the appropriate legal standards. Based on our review of the 2006 final critical habitat designation, we determined it was necessary to revise the critical habitat; however, no specific dates for completing such revision were established. Subsequently, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Northern District of California on December 12, 2007, challenging our designation of critical habitat for the California red-legged frog ( Center for Biological Diversity v. Kempthorne, et al. , Case No. C-07-6404-WHA). The court entered a consent decree on April 2, 2008, requiring a proposed revised critical habitat rule to be submitted to the Federal Register by August 29, 2008, and a final revised critical habitat designation to be submitted to the Federal Register by August 31, 2009. On September 16, 2008, we published in the Federal Register a proposed revised rule to designate critical habitat for the California red-legged frog (73 FR 53491). We published a document in the Federal Register on April 28, 2009 (74 FR 19184): (1) Reopening the public comment period on the revised proposed rule to designate critical habitat for the California red-legged frog (73 FR 53491); (2) announcing the availability of a draft economic analysis (DEA) of the proposed rule to revise critical habitat; (3) proposing boundary changes to Unit MEN-1 to better reflect the occupied habitat for the species; and (4) proposing a change to the taxonomic nomenclature for the species. The public comment period closed on May 28, 2009. The comments received on our DEA (IEc 2009a) during the April 28 to May 28, 2009, public comment period led us to revise the DEA (IEc 2009b). To allow public comment on the revised DEA, an extension to the publication deadline of the final determination of critical habitat was required. On August 31, 2009, a consent decree was signed by the court extending the deadline for the final revised designation of critical habitat for the California red-legged frog to March 1, 2010. On October 8, 2009, we published a document in the Federal Register (74 FR 51825) announcing the availability of the revised DEA. We reopened the comment period for an additional 30 days to allow all interested parties an opportunity to comment simultaneously on the proposed revision of critical habitat and the associated revised DEA. This rule represents our final revised designation of critical habitat in compliance with the court order. Summary of Comments and Recommendations We requested written comments from the public and peer reviewers during three comment periods on the proposed rule to revise critical habitat for the California red-legged frog. The first comment period opened September 16, 2008 (73 FR 53491), and closed November 17, 2008. The second comment period opened April 28, 2009 (74 FR 19184), and closed May 28, 2009. The third comment period opened October 8, 2009 (74 FR 51825), and closed November 9, 2009. During these three comment periods, we contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule to revise critical habitat for the California red-legged frog and the associated DEA. We did not receive any requests for public hearings during these comment periods. We did, however, receive a request to attend a public meeting in San Andreas, California held on October 30, 2008. During the public meeting, we provided information and answered questions regarding the designation and exclusion processes. During the three comment periods we received a total of 113 public comments directly addressing the proposed revision of critical habitat. In addition we received four responses from peer reviewers we solicited to comment on the proposed revised designation. During the first comment period we received 80 comments directly addressing the proposed revision of critical habitat for the California red-legged frog. During the second comment period, we received 19 new comments directly addressing the proposed revision of critical habitat for the California red-legged frog and the DEA; and during the third comment period we received an additional 12 comments addressing the proposed revision of critical habitat for the California red-legged frog and the DEA. Peer Review In accordance with our policy published in the Federal Register on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the California red-legged frog, the geographic region in which the species occurs, and conservation biology principles. We received responses from four of the peer reviewers. We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the California red-legged frog. These comments are addressed below and incorporated into the final rule as appropriate. Peer Review Comments Comment (1): One peer reviewer stated that the Service used a reasonable approach in determining the critical habitat boundaries for the California red-legged frog by looking at the core recovery areas as identified in the 2002 recovery plan. The reviewer also said the Service appropriately evaluated the metapopulation dynamics, unoccupied areas, dispersal, and connectivity of habitat for the California red-legged frog. The peer reviewer concurred with our proposal to raise the California red-legged frog to full species level. However, the peer reviewer went on to say that the current designation represents only a relatively small proportion of the historic geographic range of the species and that it is unknown if the California red-legged frog can survive long-term in such a reduced range. Response : In this current revised designation, we acknowledge that we did not include all areas where the California red-legged frog occurs and that areas outside the designation either: (1) Do not contain essential habitat features, or (2) are not essential to the conservation of the species. We believe it is important, however, to note that critical habitat designation is a different process than development of a long-term management plan such as a recovery plan. A critical habitat designation is a specific regulatory action that defines particular areas as critical habitat in accordance with the statutory definition. Our revised methodology incorporates new information to best identify areas that meet the definition of critical habitat. As a result, the final revised critical habitat designation does not include, for example, all areas that the 2002 recovery plan identified as necessary for the conservation of the California red-legged frog. Therefore, we believe this final revised critical habitat designation more precisely maps the essential physical and biological features that occur within the geographical area occupied by the California red-legged frog at the time of listing, and includes those areas containing the most suitable habitat for use by the frog. Comment (2): One peer reviewer stated that, although the review of dispersal capabilities of the frog were well discussed, it should be noted that the studies of dispersal capabilities rely on relatively few individuals and likely miss the relatively rare long-range distance dispersers. The peer reviewer also mentioned that the Service did not discuss whether dispersal events actually result in geneflow between metapopulations. Response : We believe we have reviewed the most recent scientific information on frog dispersal capabilities of the California red-legged frog and have used this information appropriately in our designation of critical habitat. We acknowledge that the California red-legged frog may disperse beyond the dispersal distance of 1 mi (1.6 km) identified in the designation (Bulger et al . 1999, p. 11; Fellers and Kleeman 2007, pp. 279-280). However, as stated by the peer reviewer, these long distance movements are rare and represent the exception to dispersal events for the species. In addition, the designation is not based solely on the 1-mi (1.6-km) dispersal distance but is based on habitat features and watershed boundaries that we have determined are connected to those areas where the California red-legged frog occurs. We have, therefore, included areas in this designation beyond the strict 1-mi (1.6-km) distance. We are currently unaware of any completed genetic studies regarding the genetic exchange between frog populations and at what distance this genetic exchange is considered to be limited and not important for the species. Our methodology to include the habitat areas surrounding known populations, as well as to connect adjacent populations together into discernable units, most likely allows for such genetic exchange. Comment (3): One peer reviewer applauded our decision to reevaluate the 2006 designation, but stated that the Service should incorporate the 2001 designation into our analysis and remove areas identified in the 2001 designation only if the Service has justifiable scientific information or if it can be shown that the 2001 designation was inaccurate. The same peer reviewer mentioned that the Service should review the units within Sonoma County to ensure that they include all uplands within 1 mi (1.6 km). The peer reviewer also stated that the entire Sonoma Mountain area from Annadel State Park to Sears Point/Highway 37 area should be designated as this area has more than 15 records of the California red-legged frog, most of which are breeding sites. The peer reviewer went on to mention that Unit SON-3 should be connected to Unit MRN-2 in Marin County to provide connectivity between units based on habitat availability and recent documentation of new California red-legged frog records within the area. Response : We agree with the peer reviewer that habitat connectivity is important to allow for movement between California red-legged frog populations and to maintain genetic variation. We are aware of the extensive amount of scientific evidence illustrating the importance of habitat connectivity, and we considered this information during the development of this critical habitat designation. We acknowledge that areas potentially providing connectivity between units were included in the 2001 critical habitat designation; however, based on our reevaluation of the data available at the time of the 2001 designation, data obtained since, and our revised methodology for delineating critical habitat, we find that those areas do not meet the definition of critical habitat because the available data do not identify specific areas between these units that contain the physical or biological features essential to the conservation of the California red-legged frog. The 2001 designation was based on large-scale watershed boundaries and not the local watershed boundaries in this designation. We believe the use of the local watershed boundaries is more appropriate based on dispersal capabilities of the species and the information known on occupancy. The area surrounding the Sonoma and Marin County units includes developed areas, dairies, and ranchland. We evaluated the areas within the 1-mi (1.6-km) distance from the Sonoma and Marin County occurrence records and potential breeding habitats and determined that for the most part these areas, although likely used by the frog, do not meet our criteria established for this designation. We focused our designation to encompass areas that support viable (self-sustaining or increasing) populations, areas that represent portions of the geographic extent of the species within the core areas identified in the 2002 recovery plan, and any other unique habitats. We did not include all the areas occupied by the California red-legged frog. For more information on our criteria for designating critical habitat for the California red-legged frog see the Criteria Used To Identify Critical Habitat section below. Comment (4): One peer reviewer commented on Unit MEN-1 (as identified in the September 2008 proposed revised designation), saying that it includes northern red-legged frogs ( Rana aurora ) or hybrids between the northern red-legged frog and the California red-legged frog. The peer reviewer stated that hybrids between the two species occur as far south as Manchester State Beach, but that the exact zone of hybridization and its importance to either species is unknown. Response : As stated in our April 28, 2009, Federal Register publication announcing the availability of the draft economic analysis (74 FR 19184), we revised Unit MEN-1 to better reflect new species occurrence data within the area and the habitat surrounding those records. On further review of the unit, we further adjusted the boundaries to include only known California red-legged frog records and not hybrid northern red-legged frog records. The unit currently includes the habitat from Manchester State Beach south to Riverside Road. Unit MEN-1 represents the northern extent of the California red-legged frog within the North Coast of California and likely represents a unique genetic component of the species. Comment (5): One peer reviewer concluded that it is unclear whether the Service considered climate change in the current designation and what effects climate change may have on the California red-legged frog's habitat in the future. Response : We acknowledge that climate change may alter the suitability of the California red-legged frog's habitat in the future. However, we are required to designate critical habitat based upon the best available scientific data at the time that we finalize the designation. For species like the California red-legged frog, we conclude relatively higher elevation and moister habitat is likely to become increasingly important in the face of climate changes. The designated critical habitat units include areas distributed across the species range from southern California to Butte and Mendocino County in northern California and vary from coastal sea-level locations to interior Coast Range areas and higher elevation locations in the Sierra Nevada Mountains. The variability of environmental conditions at locations across the range of the species would likely become more important to the extent that California red-legged frog distribution and habitat may shift upward in elevation and northward in distribution as temperatures increase and precipitation becomes more variable due to climate change. However, at this point in time, reliable projections of future climatic conditions and how those conditions may affect the California red-legged frog's distribution and habitat in California are not available. Consequently, we find it appropriate to designate critical habitat for the California red-legged frog in areas occupied by the species that currently contain the physical and biological features or the areas essential to the conservation of the California red-legged. Revisions to the critical habitat designation may be necessary in the future to accommodate shifts in the occupied range of the California red-legged frog. Comments from Department of Defense Comment (6) : The Department of The Army, the National Guard Bureau, and the California Army National Guard commented that we should exclude Camp San Luis Obispo (CSLO) from critical habitat designation for the California red-legged frog under section 4(b)(2) of the Act, for reasons including national security and economic impacts. Response : The Secretary has determined to exercise his discretion under section 4(b)(2) of the Act to exclude lands at CSLO from this final designation due to potential impacts on national security (see Application of Section 4(b)(2) - Impacts to National Security section). Comment (7) : The Department of the Air Force commented that we should exclude Vandenberg Air Force Base (VAFB) from critical habitat designation for the California red-legged frog under section 4(b)(2) of the Act, for reasons including impacts on national security, and under section 4(a)(3)(B)(i) of the Act, for operating under a draft Integrated Natural Resources Management Plan (INRMP). Response : The Secretary has determined to exercise his discretion under section 4(b)(2) of the Act to exclude lands at VAFB from this final designation due to potential impacts on national security (see Application of Section 4(b)(2) - Impacts to National Security section). Public Comments Comments Related to Site-Specific Areas or Issues Comment (8) : Four commenters opposed designation of parts or all of proposed Unit CAL-1 because they believe that the majority of the area constitutes poor habitat for the California red-legged frog. Six commenters stated that most of the area is too dry for the California red-legged frog to occur, and that most ponds and streams are dry for 4 to 5 months of the year. Two commenters noted that perennial ponds and streams support populations of predatory fish and bullfrogs and would not support California red-legged frogs. Response : We consider Unit CAL-1 to contain high-quality habitat because it contains the physical and biological features essential to the conservation of the species and has not been subject to fragmentation due to development. The habitat within the unit includes areas of aquatic breeding habitat that hold water for a minimum of 20 weeks in all but the driest years, areas of non-breeding aquatic habitat, and areas of upland and dispersal habitat within 1 mi (1.6 km) of aquatic habitat. The California red-legged frog is adapted to dry environments. The drying of watercourses and ponds is beneficial in that it precludes the use of these habitats by bullfrogs and predatory fish. While water bodies free of bullfrogs and predatory fish would be optimal, the California red-legged frog can persist in the presence of both of these predators under specific conditions such as occur within Unit CAL-1. In aquatic systems subject to seasonal drying, it may be difficult for bullfrogs to become established. As discussed in the background section of the proposed revised critical habitat rule, Doubledee et al . (2003, pp. 424-438) studied the relationship between bullfrogs and California red-legged frog persistence. That study showed that bullfrogs and California red-legged frogs can coexist and persist under certain natural and managed regimes. Additionally, periodic drying may prevent nonnative warm water fish from becoming established as well. Alvarez et al . (2003, pp. 9-12) presented evidence that nonnative predatory fish can have a significant effect on juvenile California red-legged frog survival in ponds where they co-occur. Of 90 ponds surveyed in the Los Vaqueros watershed in Contra Costa County, 7 were found to have nonnative fish. Over 3 years, one or more ponds with nonnative fish were repeatedly drained, and all fish were exhaustively removed. Compared to surveys conducted before fish removal, surveys conducted after fish removal and pond recharge showed juvenile and adult California red-legged frog abundance increased dramatically. This suggests a strong link between nonnative fish presence and decreased California red-legged frog survival. The California red-legged frog is adapted to the drying of its aquatic habitat. Moreover, this drying assists the frog by eliminating potential predators and competition for resources. Comment (9) : Nine commenters stated that the data on the California red-legged frog population in Unit CAL-1 are not sufficient to justify critical habitat designation throughout the unit. Five of these claimed there is no information to indicate the population still exists, while others noted they had never seen such frogs within the unit despite long residence and experience with catching bullfrogs in the area. One commenter questioned the validity of California red-legged frog occurrence as being natural and suggested that the California red-legged frog was potentially introduced to the area. One commenter asked why the unit extends 2.2 mi (3.5 km) from the frog population despite our PCEs, which restrict the extent of upland and dispersal habitat. Another commenter specifically noted the importance of the California red-legged frog population at Unit CAL-1 on the grounds that it is one of only six remaining in the Sierra foothills. Response : We consider this population to be important to the conservation of the California red-legged frog because it is one of six remaining populations in the Sierra Nevada foothills, which is a historical portion of the species' range (Service 2002, p. 5). Such peripheral populations may also have unusual genetic characteristics that could prove useful in maintaining the genetic variability of the species (Gilpin and Soule 1986, p. 32). Species that are able to maintain their genetic variability can more easily adapt to environmental changes and therefore be less prone to extirpation or extinction. The California Natural Diversity Database (2009) indicates the California red-legged frog population was seen relatively recently, and we have no evidence to suggest it is no longer extant. Information available to the Service confirms the species' presence as recently as October 2008. We consider repeated and comprehensive surveys by trained personnel to be necessary to conclude a population has been extirpated. Based on the information available on the sighting and circumstances surrounding the discovery of California red-legged frogs, we have no reason to question the validity of the record as being a natural occurrence. Also, regardless of whether the population of California red-legged frogs was introduced to the area, it is still considered a listed species under the Act and still receives the protections of a listed entity. The size of Unit CAL-1 reflects our methodology and criteria for mapping the critical habitat units. We based the proposed boundaries of the unit on the local watershed boundaries where California red-legged frogs have been sighted. However, in response to public comments and site visits by Service staff, we revised the boundaries of the unit to better reflect the available habitat within the area and the locations used by the California red-legged frog. As a result, we revised the extent of the unit and removed those areas that we determined do not contain the physical and biological features essential for conservation of the California red-legged frog. Comment (10) : Two commenters noted that Unit CAL-1 is outside the core recovery area identified by the recovery plan (Service 2002, p. 132). One additional commenter asked if surveys had established local salinity or temperature levels, or if a habitat suitability index had been established for the area. Response : We recognize this designation is different than what is outlined as essential habitat in the 2002 recovery plan (which largely adopted the boundary delineated in the 2001 critical habitat designation (66 FR 14625; March 13, 2001)). While we believe the 2001 designation and the 2002 recovery plan are important for determining the extent of habitat use by the California red-legged frog, we have significantly more data available today than when we finalized 2001 critical habitat designation and the 2002 Recovery Plan. We have utilized the currently available data to more precisely identify areas meeting the definition of critical habitat, in particular, areas related to connectivity. We include such areas in this designation where the data support the determination that such areas contain the physical and biological features essential to the conservation of the species. We believe it is important to note that critical habitat designation is a different process than development of a recovery plan. A critical habitat designation is a specific regulatory action that defines specific areas as critical habitat in accordance with the statutory definition. A recovery plan is a guidance document, developed in cooperation with partners, that provides a roadmap with detailed site-specific management actions to help conserve listed species and their ecosystems. The term “essential,” as used in the recovery plan, is not necessarily used in the same manner as it is used in the definition of critical habitat (section 3(5) of the Act). The recovery plan provides important information about the species and the actions that are needed to bring about its recovery, while critical habitat identifies specific areas that are essential for the species' conservation. In addition, although Unit CAL-1 is outside the core recovery area established for Calaveras County by the recovery plan, that plan was completed in 2002, and could not account for the discovery of the California red-legged frog population in 2003. We have not conducted water quality surveys or developed habitat suitability index models for proposed critical habitat units. The extent of the designation would make these efforts impractical. We have determined that specific water salinity or other water monitoring aspects are not necessary because the California red-legged frog is recently confirmed to be occupying the area and the landowner maintains suitable habitat as a result of agreements with the Service. Based on the best scientific information available to us at this time, we believe that the area within Unit CAL-1 that we are designating as critical habitat for the California red-legged frog is appropriate and necessary. Comment (11) : Five commenters indicated we could do more for California red-legged frog conservation by pursuing conservation agreements with landowners in the vicinity of Unit CAL-1, rather than by designating the unit. Thirty-five signatories of a form letter indicated they would be less likely to participate in conservation partnership projects with us in the future if we designate this unit. Response : Although we are aware that the establishment of partnerships with private landowners is essential to the conservation of many species including the California red-legged frog, we are not able to forego the designation of critical habitat based on the possibility of establishing conservation partnerships in the future. We must adequately weigh the benefits, pursuant to section 4(b)(2) of the Act, for conserving the California red-legged frog and its habitat from the partnerships and resulting conservation programs and plans relative to the regulatory benefits of designating the specific areas as critical habitat. Despite our exclusion of this unit in our 2006 final critical habitat designation (71 FR 19243), landowners wishing to build partnerships have not approached us despite our efforts to establish such willing partnerships with landowners. It was not until after we published our proposed revised designation on September 16, 2008 (73 FR 53491), that landowners within Unit CAL-1 contacted us regarding developing potential partnerships. On October 30, 2008, we attended a public meeting in San Andreas, California, to provide information on the proposed revised designation, and we were subsequently approached by several landowners interested in forming partnerships and working with the Service on conservation measures for the California red-legged frog on their private property. However, due to the short court-ordered timeframe of this action, we have not been able to finalize any agreements or management plans for the frog or its habitat with these landowners. We have, however, been able to meet with these landowners during site visits to discuss potential habitat restoration activities or other conservation measures for the California red-legged frog on their properties. We will continue to work with local landowners and seek new partnerships regarding the frog in the future. Comment (12) : Ten commenters, and an additional 35 signatories of a form letter, requested exclusion of Unit CAL-1 under section 4(b)(2) of the Act. They stated that the benefits of such exclusion would outweigh the benefits of designation for the following reasons: (1) Routine grazing practices benefit the California red-legged frog, and designation would increase the liabilities on such practices; (2) Designation would trigger review of Farm Bill conservation grant projects under section 7 of the Act, thereby decreasing the incentive to apply for such grants; (3) Designation negatively impacts landowners but provides little benefit to the species; (4) Much of the land in the unit is already protected by incentives under the Williamson Act to keep the land in agricultural uses; (5) Designation could impact water deliveries to farmers and interfere with road repair, the clearing of logjams from streams, and other infrastructure maintenance; (6) Designation would limit development and the planting of crops; and (7) Designation would lower property values. Response : We finalized a special rule under section 4(d) of the Act for the California red-legged frog in 2006 (71 FR 19243; April 13, 2006) that exempts routine ranching operations from the take prohibitions of the Act. We recognize livestock ranching as a dynamic process, which requires the ability to adapt to changing environmental and economic conditions. However, many of the activities essential to successful ranching are considered routine, and are undertaken at various times and places throughout the year as need dictates. Although the 4(d) special rule is not intended to provide a comprehensive list of those ranching activities considered routine, some examples include: maintenance of stock ponds; fence construction for grazing management; planting, harvest, and rotation of unirrigated forage crops; maintenance and construction of corrals, ranch buildings, and roads; discing of field sections for fire prevention management; control of noxious weeds by prescribed fire or by herbicides; placement of mineral supplements; and rodent control. The final version of the 4(d) special rule includes an expanded definition of routine ranching practices and incorporates additional activities we believe are consistent with the conservation of the California red-legged frog. These activities are those that may provide conservation benefits to the California red-legged frog. The ranching activities listed in the 2006 final critical habitat designation (71 FR 19243; April 13, 2006) are examples of practices that we understand are routine to managing an active ranching operation. Our intention is not to limit activities that may be necessary to the operation of a ranch. As a result of implementing the 4(d) special rule, we are unaware of any increased liabilities associated with ranching operations having a higher liability than those areas not dedicated to ranching. The final economic analysis (EA) prepared for this designation calculates the impact of critical habitat on agricultural land values by measuring its effect on the likelihood and profitability of residential and commercial development. One comment stated that farm subsidies may trigger a consultation under section 7 of the Act and that these costs should be included in the final EA. This linkage is speculative, and there is no instance of a farm subsidy being used as the basis for a consultation with the Service. Further, activities including discing, plowing, irrigation, chemical application, harvesting, and others that are part of normal agricultural operations are also unlikely to trigger a section 7 consultation. Incremental costs to farming operations may result from construction of stream crossings, water diversion, and sediment and debris removal; these costs are discussed in the final economic analysis. Existing regulatory mechanisms such as the California Land Conservation Act of 1965 (commonly referred to as the Williamson Act) may afford some regulatory protection to the California red-legged frog. However, the protection afforded by these regulations does not sufficiently protect the species to such an extent that it would warrant consideration for exclusion under section 4(b)(2) of the Act. The Williamson Act is a voluntary contract between participating landowners and cities or counties to voluntarily restrict land use to agricultural or open-space uses. The term of the contracts is a minimum of 10 years, and the landowner may petition to cancel the contract. Also the conditions of the contracts vary by city or county or even landowner and would not specifically identify conservation measures for the frog. Therefore, as a result of implementing the 4(d) special rule, our review of the Williamson Act conditions, and review of the economic costs associated with Unit CAL-1, we have determined that the measures identified by the commenters do not warrant further consideration for our exclusion of the unit under section 4(b)(2) of the Act. Comment (13) : Five commenters asked us to exclude agricultural land in Marin County under section 4(b)(2) of the Act. They stated that the benefits of such exclusion would outweigh the benefits of designation for the following reasons: (1) Routine grazing practices benefit the frog, and designation would increase the liabilities on such practices; (2) Designation would trigger review of Farm Bill conservation grant projects under section 7 of the Act, thereby decreasing the incentive to apply for such grants; (3) Designation negatively impacts landowners economically but provides little benefit to the species; (4) Designation could impact water deliveries to farmers and interfere with road repair, the clearing of logjams from streams, and other infrastructure maintenance; and (5) Designation would lower property values. Response : See our response to Comment (12) above. Comment (14) : One commenter noted that we provided incorrect area estimates for Federal and private lands in proposed unit ELD-1. The commenter also stated that designation of private lands within the proposed unit would be inconsistent with the El Dorado County General Plan. Response : We have revised the land ownership for Unit ELD-1 to correctly reflect the landownership within the unit. When designating critical habitat, we base our designation on the essential habitat features required by the species. When exercising our discretion to exclude areas from critical habitat under section 4(b)(2) of the Act, we must weigh the benefits of designating against the benefits of not designating critical habitat. Such exclusions are usually based on finalized management plans, habitat conservation plans, or other documents and not on local general plans unless there is a high degree of certainty that conservation measures will take place for a particular species and that those measures are more beneficial than the designation of critical habitat. We have reviewed El Dorado County's general plan and found no measures specific to the conservation of the California red-legged frog or its habitat. The County identifies numerous goals in the Conservation and Open Space Element within its general plan; however, no specific measures with respect to the conservation of the primary constituent elements for the California red-legged frog are mentioned. While we value El Dorado County's voluntary agreement in the interagency protection of Spivey Pond, based on the general plan, we have not exercised our discretion to exclude El Dorado County in its entirety from designated critical habitat. We have, however, exercised our discretion to exclude those areas managed by the Bureau of Land Management (BLM) at Spivey Pond in El Dorado County based on an interagency land use management plan (see Application of Section 4(b)(2) of the Act section below). Comment (15) : One commenter stated that we should include downstream portions of Weber Creek in proposed unit ELD-1, as that area contains habitat elements essential to the conservation of the species. Response : We used the best scientific information available in determining those areas that contain the physical and biological features essential for the California red-legged frog and that we therefore proposed as critical habitat. During our determination process, we considered several criteria in the selection of areas that contain the features essential for the conservation of the California red-legged frog. We did not include all available habitat or all areas where frogs are located within the designation. Although the Weber Creek area may contain some primary constituent elements, we believe the arrangement and quantity of those features may not be adequate. For more information, please see the Criteria Used to Identify Critical Habitat section below. Comment (16) : One commenter asked us to remove a specific property from SOL-2 on the basis that some of it is too dry to constitute good habitat, while the rest is not within 1 mi (1.6 km) of a known occurrence, nor is it uplands connecting several occurrences. The commenter also requested exclusion from the critical habitat designation on economic grounds, arguing that designation would prevent conversion of over 900 ac (364 ha) of land suitable for winegrowing, resulting in a cost of $3.5 million in gross revenue. Another commenter stated that we appropriately designated land within Units SOL-1, SOL-2, and SOL-3 in that designation of this land will assist in conserving the California red-legged frog and its habitat. The commenter suggested that additional areas adjacent to Unit SOL-1 be part of the designation including areas along Highway 680 and adjacent to Suisun Marsh in Solano County. The commenter also stated that the Service should ensure that “these critical habitat designations not be overridden by presumed ‘public' benefits” for other uses such as wind energy or electrical transmission lines. Response : We based this final revised critical habitat designation on California red-legged frog occurrence records, habitat surrounding those localities, and local watershed boundaries. The occurrence records within Unit SOL-2 are associated with the drainages in the Jameson Canyon area. Our determination of the unit boundaries focused on incorporating not only the occurrence records but also any adjacent habitat up to the local watershed boundary as long as we could determine that the habitat within the watershed was reasonably connected. In some cases where the records were isolated and habitat not extensive, we used the 1-mi (1.6-km) dispersal distance to determine the extent of the designation. In other cases where the habitat was similar or included adjacent water courses within the dispersal distance of the California red-legged frog, we looked at the habitat and watershed boundaries to guide our designation (see Criteria Used To Identify Critical Habitat section below). In regards to the areas adjacent to Unit SOL-1 along Highway 680, we believe we have properly designated the specific areas where those physical or biological features essential to the conservation of the species are found. Extending the unit to these adjacent areas would require, as the commenter points out, the species to cross under the multilane highway through a culvert. Our review of the use of the area by the California red-legged frog shows the species in upland grassland habitats with no records into the Suisun Marsh area. Although the species may be able to access and use the Suisun Marsh area, we believe the species is more likely to use the upland grassland habitats and not the brackish marsh habitats associated with the Suisun Marsh. As a result of our examining the available habitat within the area and use of our mapping criteria, we believe we have used the best scientific information available on determining the critical habitat boundaries including those for Units SOL-1 and SOL-2. The final economic analysis prepared for this designation calculates potential impacts to agricultural crop farming activities. According to the final economic analysis, the relative incremental costs associated with the designation within Unit SOL-2 is less than 1 percent of the total incremental costs of the designation and only 3 percent of the total incremental costs associated with agricultural crop farming activities. Based on these results, we do not consider the estimated costs associated with the designation of critical habitat within Unit SOL-2 to be disproportionate and have not exercised our discretion to exclude any area within Unit SOL-2 under section 4(b)(2) of the Act. See “Exclusions Under Section 4(b)(2) of the Act - Economic Exclusions” section below for more information regarding exclusions. Comment (17) : The San Francisco Public Utilities Commission (Commission) wrote in support of the two units proposed on portions of its property. Those units are SNM-1 and ALA-2 in San Mateo and Alameda Counties. The commenter added that the Commission has enacted additional protections for the frog, and that it is also preparing habitat conservation plans (HCPs) with the Service to protect endangered and threatened species and enhance their habitats within those areas. Response : We appreciate the support and look forward to working with the commenter in the future on continued conservation efforts for the California red-legged frog. We do not expect the HCPs to be completed by the time this designation is made effective (see the DATES section). Comment (18) : Three commenters stated that they were not properly notified of the proposed rule, despite being landowners in designated areas or having submitted comments in the past. Response : We published the proposed critical habitat designation in the Federal Register on September 16, 2008 (73 FR 53491), and we accepted comments from all interested parties for 60 days, ending November 17, 2008. We then extended the public comment period for an additional 30 days (74 FR 19184; April 28, 2009). We later reopened the public comment period again for another 30 days (74 FR 51825; October 8, 2009). For each publication, the Service wrote press releases that resulted in newspaper articles throughout California and specifically noticed the proposed designation in pertinent newspapers in the range of the California red-legged frog. We held a public meeting where we discussed opportunities for the public to comment and provide input and information. Thus, although we did not specifically notify individual landowners within the designation, we believe we provided adequate opportunity for individuals to review and provide comment on the proposed revised rule. It is our practice to include on our mailing lists those individuals who have made comments in the past regarding a specific issue. We apologize for having inadvertently failed to notify certain people of the proposed action and have updated our records accordingly. Comment (19) : A commenter requested exclusion of approximately 3,000 ac (1,214 ha) of private land proposed within unit MNT-3 because there is an existing conservation easement that protects habitat in this area. Response : Our review of the easement indicates that: (1) It primarily is intended to protect viewshed resources; (2) it covers only a portion of the area requested for exclusion; and (3) it allows a variety of uses that could adversely affect the physical and biological features essential to the California red-legged frog, including new utilities and highway improvements, clearing of vegetation for fire management, and changes in water use. We have therefore determined not to exercise our discretion to exclude these areas under section 4(b)(2) of the Act. Comment (20) : A commenter requested designation of an additional critical habitat unit encompassing the Moss Beach, Sawmill Gulch, Seal Rock Creek, Fan Shell, and Carmel Bay watersheds on the Monterey Peninsula in Monterey County. Response : Our approach to designating critical habitat includes designating areas with a high density of California red-legged frog occurrences and avoiding developed and fragmented areas. Our review of the information provided by the commenter and information available in our files indicates that the area requested for designation is highly fragmented by recreational and residential development. The California red-legged frog has been observed in the area, with a small number of frogs observed at two localities. Although the California red-legged frogs occur in watersheds of the Monterey Peninsula, the best available information indicates these watersheds are occupied at low densities within fragmented habitat. We have therefore determined that the requested addition is not appropriate. For more information, please see the Criteria Used to Identify Critical Habitat section below. Comment (21) : One commenter supported the expansion of critical habitat to include the Little Sur River, North and South forks of La Brea Creek, the North fork and Upper North fork of Matillija Creek, Santa Paula Creek and its tributaries, and Agua Caliente Creek. The commenter indicated that these areas are important to the survival and recovery of the California red-legged frog. Response : We contacted the commenter because we were unable to locate Agua Caliente Creek on a map. The commenter stated that the correct name was Agua Blanca Creek. In our proposed designation of revised critical habitat for the California red-legged frog, we determined that all occupied habitat did not need to be designated as revised critical habitat, nor did we believe it necessary to designate unoccupied habitat, based on our determination that enough occupied areas representing the distribution of the frog across its range had already been determined and that these areas would provide for the conservation of the species. Because we have no records of the California red-legged frog occupying the Little Sur River, North and South forks of La Brea Creek, the North Fork and Upper North Fork of Matillija Creek, Santa Paula Creek and its tributaries, or Agua Blanca Creek, we consider these areas unoccupied and have not included them in this final rule. For more information on our criteria for designating critical habitat, please see the Criteria Used to Identify Critical Habitat section below. Comment (22) : One commenter supported the expansion of critical habitat to include the Cuyama River and its tributaries, Branch Creek and Alamo Creek, the tributaries feeding Lake Cachuma, a portion of Sespe Creek, Birabent Canyon, a portion of the Sisquoc River, the Arroyo Seco River and its tributaries, and San Carpoforo Creek. The commenter indicated that these areas are important to the survival and recovery of the California red-legged frog. Response : Our designation of revised critical habitat for the California red-legged frog does not include all occupied areas. As described in the proposed rule, when determining which occupied areas are essential to the conservation of the species and meet the definition of critical habitat, we considered theories of metapopulation persistence, on-the-ground survey data, and California red-legged frog longevity. We focused on areas of high California red-legged frog abundance, areas needed to maintain connectivity between aquatic breeding habitat, and areas of unique ecological significance. We selected areas that are inhabited by source populations that are capable of maintaining their current population levels and capable of providing individuals to recruit into subpopulations found in adjacent areas. We are aware that California red-legged frogs do occur in the areas listed by the commenter; however, these areas are isolated, occupied at low densities, or otherwise not essential to the conservation of the species; therefore, we have not included them in this final designation. For more information on our criteria for designating critical habitat, please see the Criteria Used to Identify Critical Habitat section below. Comment (23) : One commenter identified the California red-legged frog as a coastal species and stated that the species was never in any inland counties until the early 1900s. The commenter concluded that the designation of critical habitat for the species outside of coastal areas is not justified. Response : According to accepted scientific and taxonomic information on the California red-legged frog, the species' historic and current distribution includes inland counties in the Sacramento and San Joaquin Valleys as well as Sierra Nevada and Interior Coast Range counties from Riverside to Shasta County, California. According to early species distribution accounts and collections by species experts (Storer 1925; pp. 235-236), the species was present in the interior portions of California well before the 1900s. As a result of the early species' range descriptions and collections in accredited scientific facilities and currently known occurrence records for the species, we have determined that the historic and current range of the species does include interior California counties. This information justifies the designation of critical habitat within these interior areas. Comment (24) : One commenter requested not to increase the mitigation requirements for the California red-legged frog because it will harm the livelihood or restrict activities of private citizens. Response : According to section 7(a)(2) of the Act, each Federal agency shall, in consultation with the Service, insure that any action will not result in the destruction or adverse modification of habitat of a listed species . Only activities that have a Federal nexus (i.e., that involve a Federal permit, license, or funding, or are carried out by a Federal agency) and are likely to destroy or adversely modify the area of critical habitat will be affected. If this is the case, we will work with the Federal agency and, where appropriate, applicants for Federal permits or license, or for Federal funding, to modify their projects so that those projects will not adversely affect the critical habitat. Thus, most Federal projects are likely to go forward, but some will be modified to minimize harm to critical habitat. Critical habitat does not set mitigation requirements for a species. Comment (25) : One commenter identified pesticide use and pesticide drift from agricultural use, not habitat loss, as the major threat impacting the California red-legged frog. The commenter also stated the decline in frog populations worldwide is a result of disease and climate change and that fish are not at all the cause of the species' decline. The commenter stated that the designation of critical habitat is a typical “knee-jerk” reaction to frog species' decline and does not address the problem. Response : In our May 23, 1996, final listing determination (61 FR 25813), we determined that habitat loss and fragmentation from urban encroachment (along with other factors) constituted the dominant factor leading to the listing of the species. Since the listing, numerous studies have looked at pesticide drift as the potential cause of amphibian declines in California. According to several studies, the transport and deposition of pesticides from the agriculturally intensive Central Valley of California to the adjacent Sierra Nevada is well documented, and pesticides have been found in the bodies of Sierra frogs (Davidson et al . 2002, pp. 1589-1590; Davidson 2004, pp. 1892-1902). However, to date, no direct links have been found between pesticides and actual amphibian population declines. We are currently consulting with the Environmental Protection Agency (EPA) on the use of 66 pesticides on or near areas where the California red-legged frog occurs to determine appropriate conservation measures for the species. We disagree with the commenter that fish are not an issue in the species' decline because the introductions of nonnative warm water fish (e.g., bass, sunfish, and mosquito fish) have caused some declines in the species' distribution and abundance throughout its range (Service 1996, p. 25827). We agree with the commenter that other factors in addition to habitat loss are contributing to a world-wide decline in frog and other amphibian populations and that, in some species, disease is the major factor. However, in the case of the California red-legged frog, we continue to assert that habitat loss and fragmentation continue to be the dominant factors in preventing the recovery of the species. In response to the commenter's statement that the designation is only a reaction to current amphibian declines, we have designated critical habitat according to our implementing regulations at 50 CFR 424.12, by using the best scientific data available and defining specific areas that contain those essential physical or biological features essential to the conservation of the species and which may require special management considerations or protection. Consistent with these regulations, we have determined the areas designated as critical habitat are appropriate for conservation of the California red-legged frog. Comment (26) : One commenter: (1) Stated that the designation as proposed is essential for the proper protection of this species, and (2) emphasized the importance of maintaining buffer zones around wetland areas, and (3) agreed that the methodologies employed in the designation were a practical means for determining the extent of the critical habitat boundaries. The commenter stated that that methodologies used would assist in protecting both the aquatic features and habitat corridors between wetland features and thus allow the necessary genetic exchange between populations. Response : In accordance with 50 CFR 424.12, we designated critical habitat on the basis of the best scientific data available, after taking into consideration the probable economic and other impacts of making such a designation. In designating critical habitat, we considered those physical and biological features that are essential to the conservation of the California red-legged frog and that may require special management considerations or protection. We are not designating buffer zones around those features we determined to be essential. An area we designate as critical habitat is not a refuge or sanctuary for the species; it serves as a reminder to Federal agencies that they must make special efforts to protect the important characteristics of the areas designated. Listed species and their habitats are protected by the Act whether or not they are in an area designated as critical habitat. Comment (27) : One commenter stated that we should exclude all areas being considered as part of the proposed Santa Clara Valley Habitat Conservation Plan (SCVHCP) under section 4(b)(2) of the Act, because the California red-legged frog is a covered species, an administrative draft has been developed and released to the public, and the exclusion would follow past Service practice in previous exclusions such as with the East Contra Costa HCP. Response : When considering the exclusion of areas that are covered by conservation plans from critical habitat under section 4(b)(2) of the Act, we must determine whether the benefits of such exclusion outweigh the benefits of specifying such areas as critical habitat. Such exclusions are usually based on finalized management plans, HCPs, or other documents that provide a high degree of assurance that conservation measures will be implemented and effective for a particular species and its habitat, and that those measures are more beneficial than the designation of critical habitat. The current information on the SCVHCP made available to stakeholders and resource agencies consists of early administrative drafts and only portions of the entire document. The information is not intended for public review and comment and is not final documents. Because they are incomplete, the documents have not gone through section 7 intra-Service consultation regarding effects to endangered species. The Service's current position is not to consider areas for exclusion that are covered by draft conservation programs or plans. Draft documents and their proposed conservation measures are subject to change. Without a high degree of assurance that conservation measures will be implemented and effective for a particular species and its habitat, we cannot complete a meaningful analysis under section 4(b)(2) of the Act. Comment (28) : One commenter objected to the redefinition of “occupied at the time of listing” and said the redefinition was arbitrary and capricious because the Service did not articulate its rational for the change. Response : In the previous final critical habitat designation, we interpreted the “occupied at time of listing” standard to include only those specific records mentioned in the final listing rule (61 FR 25813, May 23, 1996). The purpose of the listing rule is to identify threats to a species and determine whether or not listing the species under the Act is necessary. The final listing rule is not intended as a complete listing of all specific locations where a species occurs. The records identified in the final listing rule were not the only locations where California red-legged frogs existed but only those reported to scientific, higher education, or informational sources. Other occupied areas outside those specifically mentioned in the final listing rule existed for the frog. In this designation, we interpreted occupancy “at time of listing” based on the dates of occurrence records and life history of the California red-legged frog. For example, if an occurrence was recorded after the 1996 listing, but we could determine based on population size, demographics, and biological factors that the population was most likely present at time of listing, we considered that area to be occupied at the time of listing for this designation of revised critical habitat. When determining occupancy, we considered theories of metapopulation persistence, on-the-ground survey data, and California red-legged frog longevity. Bulger et al . (2003, pp. 85, 92) found that more than 75 percent of California red-legged frogs are resident at permanent aquatic habitats over the course of a year, thereby providing local population stability. Survey data provided to us during the development of this and previous critical habitat rules show an average persistence of 19 years for the California red-legged frog populations. Additionally, the California red-legged frog is considered long-lived, with a minimum longevity of male and female California red-legged frogs of between 8 and 10 years, respectively (Jennings et al . 1992, p. 3), which also contributes to generational and metapopulation stability. By limiting our previous designation to only those specific records identified in the listing rule and using an overly narrow definition of occupancy at the time of listing, we were not including many records which were identified before 1996, or any records present but not specifically identified in the listing rule. The process for designating critical habitat in this rule is consistent with the standards required by our implementing regulations at 50 CFR 424.12 on using the best scientific data when designating critical habitat. Comment (29) : One commenter stated that the elimination of the upward boundary for upland habitat was arbitrary and capricious in that it deferred designation of critical habitat to the consultation process under section 7 of the Act. Response : We did identify the upland distance surrounding aquatic features within the current designation. The primary constituent element (PCE 3), as identified in the 2006 final critical habitat designation, limited the upland areas to 200 ft (60 m) from the water feature. Based on new biological information on protecting breeding and non-breeding aquatic features for the California red-legged frog and movements of the frog between breeding and non-breeding habitat (Fellers and Kleeman 2007, pp. 276-286), we have extended the upland distance surrounding the breeding and non-breeding aquatic features. In general, the upland habitat surrounding the aquatic breeding and non-breeding habitat (PCEs 1 and 2) would be limited to 1 mile (1.6 km) in most cases, depending on surrounding landscape and dispersal barriers. Comment (30) : One commenter stated that several units or portions of units be removed from the designation because they are within planned development areas as identified in County or City general plans and these areas, according to the preamble of the proposed revised critical habitat rule, should not be designated according to the methodology used in determining the critical habitat boundaries. An additional commenter stated that we should not remove areas of planned development because arbitrarily removing these areas is not a valid biological reason. Response : We are basing this final designation of revised critical habitat on the best scientific data available, after taking into consideration the probable economic and other impacts of making such a designation in accordance with our implementing regulations at 50 CFR 424.19. As we state in the preamble of our 2008 proposed rule to revise critical habitat (73 FR 53500), our methodology and the criteria we used to determine the critical habitat boundaries were not intended to exclude all planned development as identified in city, county, or regional general plans. The methods and criteria we used to map areas adjacent to development removed areas only if (1) they do not contain sufficient PCEs to support one or more of the species' life processes, or (2) they have low-quality PCEs because either the area is highly degraded and is likely not restorable or the area is small, highly fragmented, or isolated and may provide little or no long-term conservation value. As a result, we do not believe it would be appropriate to automatically exclude planned development areas from the designation. Comment (31): One commenter requested exclusion from the designation of critical habitat in Unit SLO-4 between the town of Pozo and the National Forest boundary south of Pozo. The commenter stated that designation of critical habitat on private land can significantly depreciate the value of the property, affecting the landowner's ability to acquire operating capital. The commenter further stated that designation of critical habitat can make habitat-enhancing projects (i.e., water troughs and delivery systems) cost-prohibitive if it is necessary to obtain permits for the projects, thereby discouraging voluntary measures to enhance habitat for California red-legged frogs. The commenter also expressed concerns with our assertion that the Salinas River, near the town of Pozo, is occupied by California-red legged frogs. Response : Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. Our criteria for determining features essential to the conservation of the species has been to target areas known to be occupied by the California red-legged frog at the time of listing; including those areas discovered to be occupied since the time of listing; or known to possess high-quality habitat likely to be occupied based on proximity to known occurrences, contiguous habitat, or dispersal capabilities of the California red-legged frog. We included large blocks of contiguous habitat that: (1) Provide geographic distribution across the range of the species; (2) represent the full range of habitat and environmental variability the species occupies; (3) avoid conflict with existing commercial and residential development; (4) focus on public land, where available; and (5) overlap with other critical habitat designations, where possible. As noted in the unit description for SLO-4 (see Final Critical Habitat Designation section), this area was not known to be occupied at the time of listing but is currently occupied. Based on life history and population dynamics of the species we have determined that the area was most likely occupied at the time of listing. The occurrence records for California red-legged frogs in SLO-4 were generated from surveys conducted according to Service protocol by the U.S. Forest Service in 1999. We have reviewed these records and consider them to be our best available science. SLO-4 contains the following features that are essential for the conservation of the species: aquatic habitat for breeding and non-breeding activities (PCE 1 and PCE 2) and upland habitat for foraging, dispersal activities, and shelter (PCE 3 and PCE 4). Also, as noted in the unit description, threats that may require special management in this unit include predation by nonnative species and habitat disturbance. Therefore, based on the criteria above, we have designated SLO-4 as revised critical habitat in this rule. We recognize that routine ranching activities may be beneficial to the California red-legged frog. In 2006, we published a special rule under the authority of section 4(d) of the Act containing the actions and prohibitions necessary to provide for the conservation of the California red-legged frog (50 CFR 17.43(d)). Under the special rule, incidental take of the California red-legged frog is not a violation of section 9 of the Act, if the incidental take results from routine ranching activities located on private or Tribal lands. We believe that this special rule will encourage landowners and ranchers operating on non-Federal land to continue their livestock-related practices that are important not only for livestock operations, but also for maintaining or enhancing habitat for the California red-legged frog. Comment (32): One commenter opposed the designation of the Hearst Corporation's Jack Ranch property in Unit SLO-1. The commenter stated that many areas on the portion of the Jack Ranch within SLO-1 are extremely arid, would not support a California red-legged frog population, and therefore do not meet the definition of critical habitat. The commenter also argued that the Jack Ranch property does not meet the definition of critical habitat because the property does not require special management considerations or protection. The commenter stated that the Jack Ranch has been responsibly managed for over 40 years in a manner that has protected and benefited the various natural habitats on the ranch. Alternatively, the commenter argued that we should exclude the Jack Ranch property from critical habitat because the benefits of excluding the ranch outweigh the benefits of including it. The commenter asserted that as a result of the current ranch management practices in place on the Jack Ranch, the various habitats and species present on the ranch are generally flourishing and will continue to benefit if these practices are allowed to continue. The commenter argued that designating the ranch as critical habitat would create regulatory uncertainty, impose economic burdens on the landowner, and increase vulnerability to legal challenge that could threaten the area's long-term viability as a working ranch. Response : Section 3(5)(A) of the Act defines critical habitat, in part, as the specific areas within the geographic area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found only those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. Our strategy for determining features essential to the conservation of the species was to target areas that are known to be occupied by the California red-legged frog at the time of listing; that we determined to be occupied since the time of listing; or that are known to possess high-quality habitat likely to be occupied based on proximity to known occurrences, being part of contiguous habitat, and the dispersal capabilities of the California red-legged frog. We included large blocks of contiguous habitat that: (1) Provide geographic distribution across the range of the species; (2) Represent the full range of habitat and environmental variability the species occupies; (3) Avoid conflict with existing commercial and residential development; (4) Focus on public land, where available; and (5) Overlap with other critical habitat designations, where possible. As noted in the unit description for SLO-1 (see “Final Critical Habitat Designation” section), this area was known to be occupied by California red-legged frogs at the time of listing, is currently occupied, and contains the following features that are essential for the conservation of the species: aquatic habitat for breeding and non-breeding activities (PCE 1 and PCE 2) and upland habitat for foraging and dispersal activities (PCE 3 and PCE 4). Also as noted in the unit description, threats that may require special management in this unit include: highway construction, which may remove upland or aquatic habitat; overgrazing of aquatic and riparian habitats; and dewatering of aquatic habitats due to water diversions. Therefore, based on the criteria above, occupancy at the time of listing, and the requirement for special management, we have designated SLO-1 as critical habitat, including a portion of the Jack Ranch property within SLO-1. We recognize that routine ranching activities may be beneficial to the California red-legged frog. In 2006, we published a special rule under the authority of section 4(d) of the Act to provide for the conservation of the California red-legged frog (50 CFR 17.43(d)). The special rule provides that incidental take of the California red-legged frog will not be a violation of section 9 of the Act, if the incidental take results from routine ranching activities located on private or Tribal lands. We believe that this special rule will encourage landowners and ranchers operating on non-Federal land to continue their livestock-related practices that are important not only for livestock operations, but also for maintaining or enhancing habitat for the California red-legged frog. Comment (33): One commenter was opposed to the designation of lands in Unit SLO-2 in San Luis Obispo County that are covered under the Hearst Ranch Conservation Easement (Easement) and Hearst Ranch San Simeon Conservation Easement Management Plan (Plan). The commenter asserted that California red-legged frogs occurring within the boundaries of the Easement will be protected through specific measures addressed in the Plan, and therefore, these lands either do not fall within the definition of critical habitat contained in section 3 of the Act or should be excluded under section 4(b)(2) of the Act. In addition, the commenter argued that designation of lands covered under the Easement would discourage voluntary conservation initiatives on private land. Response : We recognize the importance of voluntary conservation measures, such as the Hearst Ranch Easement and Plan, which provide protections for California red-legged frogs and their habitat. The Secretary has determined to exercise his discretion under section 4(b)(2) of the Act to exclude from critical habitat 34,777 ac (14,074 ha) of Easement lands that occur in Unit SLO-2. See the Exclusions under Section 4(b)(2) of the Act section for additional information. Comment (34): One commenter commended our abandonment of methods used in determining “co-extensive” costs in previous critical habitat designations including the previous final designation for the California red-legged frog (April 13, 2006, 71 FR 19244). The commenter also commended the Service for refraining from claiming in the preamble that the designation of critical habitat provides little additional protection to most listed species and for refraining from statements emphasizing primarily the “limitations” of any “benefits of designating” an area as critical habitat and using this as a basis for excluding areas from the designation. The commenter strongly urged the Service to “follow through with changes in interpretations and procedures” as found in the Federal Register notice for the proposed designation (September 16, 2008, 73 FR 53491). The commenter also pointed out several concerns with the DEA and the proposed revised designation. The commenter stated that the DEA does not appropriately focus on or address market impacts; stated that the DEA is not transparent on whether the ancillary benefits of designating critical habitat were appropriately analyzed; and that the Service did not fairly account for the benefits and costs of designating critical habitat. Response : We acknowledge that our past practice of including language in the preamble to critical habitat designations stating a policy position at that time was not the appropriate forum for doing so and has not been conducive for facilitating the appropriate dialogue to assist in the conservation of listed species. As stated earlier, we are revising this and certain other designations because of inappropriate influence of past Department of Interior personnel and have taken into account the information reported by the General Accounting Office on critical habitat and listing designations. Comments related to the Economic analysis are addressed below. Comments Related to the Economic Analysis Comment (35): One commenter requested the exclusion based on economic costs of an area in SOL-1 where a mining company plans to expand its existing aggregate quarry. Response : As described in section 10.2 of the final economic analysis (FEA), we revised the report to include discussion of the potential economic impacts to the proposed mining project. The company states it is already working closely with Solano County and representatives of the Service to develop appropriate mitigation measures. The options under consideration are consistent with the types of project modifications considered in the FEA. Because these discussions are already underway, costs are attributed to the baseline scenario. Additional impacts resulting from the designation of critical habitat are not anticipated. Comment (36): One commenter requested exclusion of a portion of an existing aggregate quarry overlapping the southern portion of SOL-3 because it does not contain the PCEs and out of concern that the designation may delay implementation of the ongoing reclamation process. Response : As described in section 10.2 of the FEA, we revised the report to include a discussion of this quarry site. The company has already submitted a revised reclamation plan to Napa County, which incorporates the results of a biological assessment. In addition, the company is currently working with the County and the Service to develop mitigation measures that will minimize the impact of the reclamation operations on the California red-legged frog. Because the company is already working with the Service, costs of efforts to protect the California red-legged frog are attributed to the baseline scenario. Given that the PCEs are not present at the site, delays due to the designation of critical habitat are not anticipated. Comment (37): Multiple commenters requested the exclusion of specific private properties in SLO-1, SLO-2, SLO-3, and SOL-4, based on the assumption that the designation will trigger land use restrictions limiting current ranching and farming practices, and in SLO-2, that the designation will create barriers to future uses of the land for development or agricultural purposes. Response : The commenters do not provide information about the types of farming and ranching activities taking place on these properties. As described in Chapters 6 and 7 of the FEA, this analysis relies upon the California Department of Conservation's Farmland Mapping and Monitoring Program (FMMP) to identify active crop farming and grazing land within the study area as of 2006. According to the FMMP, the private properties identified by these commenters are classified primarily as grazing lands with a small portion of the properties classified as agricultural lands. For property identified as agricultural lands, these areas are included in the analysis of impacts to agricultural activities presented in Chapter 6. For areas identified in these private properties as grazing lands, as described in Chapter 7, this analysis assumes that ranchers will likely be subject to restrictions on the use of 66 named active ingredients. However, according to discussions with representatives of the Agricultural Commissioner offices in several counties, the impact of the use restrictions to date have been relatively minor, as herbicides are only used to treat noxious weeds through spot application. To further minimize the impact of the restrictions, some Agricultural Commissioner offices are also working with affected ranchers to identify alternative herbicides not subject to restrictions. Accordingly, while ranchers may be affected by California red-legged frog related herbicide use restrictions, the nature of the use of herbicides by ranchers is likely to vary depending on the specific ranching operation, and the economic impacts of any resulting herbicide use restrictions are expected to be minor. In addition to existing ranching activities, one of the commenters notes that approximately 300 ac (121 ha) of the private property located in SLO-2 are allocated for development. The commenter does not provide specific information about plans for future residential or commercial development of the property. As described in Chapter 4 of the FEA, this analysis relies on local planning authorities for estimates of the number of housing units projected to be built by 2030 in the study area. In San Luis Obispo County, this analysis relies upon data from the San Luis Obispo Council of Governments (SLOCOG). As shown in Exhibit 4-4, in SLO-2 this analysis forecasts the development of 241 ac (98 ha). Baseline impacts associated with consideration of the California red-legged frog and its habitat are estimated in this unit to be $14.6 million to $58.0 million and incremental impacts are estimated to be $3.9 million to $16.4 million, assuming a seven percent discount rate. Comment (38): Several commenters requested the exclusion of a private property in CAL-1 engaged in ranching activities, based on the assumption that the designation will trigger (1) land use restrictions by local agencies limiting current ranching practices, (2) devaluation of the property as a result of barriers to urban development, and (3) additional costs should the landowner chose to convert a portion of their property to agricultural uses. Response : The private property identified by the commenter is approximately 1,094 ac (443 ha) in size, of which 247 ac (100 ha) is proposed for critical habitat designation in CAL-1. As described in Chapter 7, this analysis assumes that ranchers will likely be subject to restrictions on the use of 66 named active ingredients. However, according to discussions with representatives of the Agricultural Commissioner offices in several counties, the impact of these restrictions have been relatively minor, as herbicides are only used to treat noxious weeds through spot application. To further minimize the impact of the restrictions, some Agricultural Commissioner offices are also working with affected ranchers to identify alternative herbicides not subject to restrictions. Accordingly, while ranchers may be affected by California red-legged frog related herbicide use restrictions, the nature of the use of herbicides by ranchers is likely to vary depending on the specific ranching operation, and the economic impacts of any resulting herbicide use restrictions are expected to be minor.. The commenter does not provide specific information about plans for future residential or commercial development of the property. As described in Chapter 4 of the FEA, this analysis relies on local planning authorities for estimates of the number of housing units projected to be built by 2030 in the study area. In Calaveras County, this analysis relies upon growth projections obtained from Applied Geographic Solutions (AGS), which develops forecasts of population and households at the census tract level for the entire state of California through the year 2018. Growth through 2030 was projected linearly. As shown in Exhibit 4-4, in CAL-1 this analysis forecasts the development of 300 ac (121 ha). Baseline impacts to development activities in CAL-1 associated with the consideration of the California red-legged frog and its habitat are estimated to be $2.6 million to $7.6 million and incremental impacts are estimated to be $2.1 million to $7.0 million, assuming a seven percent discount rate. There could also be additional property value losses if the landowner is not able to develop portions of the property for agricultural purposes. In that case, those losses may not be captured because this property was not identified as agricultural lands. Without additional information on plans for future agricultural development of this property, data are not readily available to estimate potential future losses. Comment (39): One commenter states that the DEA fails to analyze the socio-economic and cumulative impacts related to agriculture. The commenter anticipates economic impacts stemming from the loss of agricultural acreage in production, the loss of jobs, and reductions in food and fiber production, and from negative impacts to local communities, among other losses. Response : As described in Section 6.5 of the FEA, we revised the analysis to include the regional economic impacts expected to result from the implementation of no-pesticide use areas for 66 pesticide ingredients in the study area. The estimated baseline impact of a loss 16,519 ac (6,685 ha) from agricultural production to the study area in an average year is approximately $103.3 million and approximately 2,062 jobs. The estimated impact of an incremental loss 7,286 ac (2,949 ha) from agricultural production to the study area in an average year is approximately $23.8 million and approximately 404 jobs. Detailed information on direct, indirect, and induced impacts, including job losses, is provided in Chapter 6 of the FEA. Comment (40): The Small Business Administration (SBA) submitted a comment recommending the Service exercise its discretion under section 4(b)(2) of the Act to exclude the agricultural acres of small business-owned farmland that the DEA expects to be taken out of agricultural production. Response : As described in Chapter 6 and Appendix A of the FEA, we revised the Initial Regulatory Flexibility Analysis (IRFA) to incorporate refined geographic data on active farming lands in the study area. Specifically, this analysis relies upon the Farmland Mapping & Monitoring Program (FMMP) to identify active crop farming and grazing lands, including a newer data set maintained internally by the FMMP, that resulted in the reclassification of a significant number of cropped acres within the study area as grazing lands. The number of cropped agricultural area incrementally affected decreased from 29,413 ac (11,903 ha) in the first DEA (dated March 3, 2009) to 7,286 ac (2,949 ha) in the FEA. We also revised the methodology used to estimate the number of small farms affected in each county. Small businesses in crop production (North American Industry Classification System (NAICS) subsectors 1111, 1112, and 1113) are defined by SBA as having annual revenues less than $750,000 (hereinafter referred to as “small farms”). Ideally this analysis would rely on geographic data to identify the size of farms within the study area and the percentage of a farm's total harvested acres potentially removed from agricultural production as a result of the pesticide use restriction. However such geographic data are not readily available. As described in section A.1.3 of the FEA, in the absence of this information, this analysis uses publically-available Census data to estimate the probability that incrementally affected acres are located on small farms and the percent of cropland harvested by “small farms.” This approach yields a lower-bound estimate of the total number of small farms affected in the study area of 198. Worst-case annualized incremental impacts are anticipated to range between $500 and $168,000 per farm. Comment (40): One commenter stated that the Service's failure to evaluate the economic benefits of the rule is inconsistent with administrative guidance and widely accepted professional standards. Further, the commenter stated that the economic benefits of protecting critical habitat for the California red-legged frog probably outweigh the costs and are too substantial to downplay or ignore. The commenter concludes that the Service should devote equal effort to identifying and accounting for categories of benefits relative to the rigor devoted to identifying costs. Response : In the context of a critical habitat designation, the primary purpose of the rulemaking (i.e., the direct benefit) is to designate areas in need of special management that are essential to the conservation of listed species. While a listed species may be the primary beneficiary of designated critical habitat, the Act is clear that it is the policy of the Federal government to provide a means whereby the ecosystems upon which endangered and threatened species depend are conserved. By extension, therefore, benefits must somehow also accrue to society from a designation or else Congress would not have included this provision in the Act. The designation of critical habitat may result in two distinct categories of benefits to society: (1) use; and (2) non-use benefits. Use benefits are simply the social benefits that accrue from the physical use of a resource. Visiting critical habitat to see endangered species in their natural habitat would be a primary example. Non-use benefits, in contrast, represent welfare gains from “just knowing that a particular listed species' natural habitat is being specially managed for the survival and recovery of that species.” Both use and non-use benefits may occur unaccompanied by any market transactions. A primary reason for conducting the economic analysis is to provide information regarding the economic impacts associated with a proposed critical habitat designation. 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, and any other relevant impact, of specifying any particular area as critical habitat. Economic impacts can be both positive and negative and by definition, are observable through market transactions. While the Act requires the specific consideration of the economic impact of a designation, it does not require the Service to explicitly consider any broader social benefits (or costs) that may be associated with the designation. In fact, the Service believes that this is by Congressional design because the Act explicitly states up front that it is the Federal government's policy to conserve all threatened and endangered species and the ecosystems upon which they depend. While section 4(b)(2) of the Act gives the Secretary discretion to exclude certain areas from the final designation, he is authorized to do so only if an exclusion does not result in the extinction of the species. Thus, the Service believes that explicit consideration of broader social values for the species and its habitat, beyond economic impacts, is not necessary as Congress has already clarified the importance our society places on conserving all threatened and endangered species and their natural habitats upon which they depend. In terms of carrying out its responsibilities under section 4(b)(2) then, the Service need only to consider whether the economic impacts are significant enough to merit exclusion of any particular area without causing the species to go extinct. To support the claim that the benefits of designating critical habitat for the frog probably outweigh the costs, the commenter provides examples of other situations and environmental regulations where studies have shown that the benefits exceed costs. However, this evidence does not support a conclusion that the same is true in this instance. If environmental regulation always resulted in net benefits, there would be no need to conduct economic analyses. Finally, no guidance or executive order requires Federal agencies to spend equal effort estimating the benefits and costs of regulations. Specifically, OMB's Circular A-4 states (p. 26-27), “some important benefits and costs...may be inherently too difficult to quantify or monetize given current data and methods”. Chapter 13 of the FEA describes qualitatively the types of benefits that may result from the designation of critical habitat, including open space benefits, improved water quality, aesthetic benefits, flood control, improved soil productivity, and regional economic benefits if increased visitation results from the former benefits. To quantify these benefits, information about the current environmental quality of the habitat (e.g., current concentration of pollutants in waterways, current capacity of the habitat to absorb flood waters, current productivity of the soil) is necessary as a starting point. In addition, ecological and hydrologic models are necessary to understand how conservation measures such as reduced pesticide use will change the concentration of contaminants in the relative waterways. Most of these data and models are not readily available, preventing the quantification of benefits at this time. Comment (41): One commenter states that in its estimate of the costs imposed on development activities, the DEA does not consider offsetting positive market impacts, particularly in areas outside of the designation. Specifically, the commenter states that the Service mistakenly reports the gross, rather than net, costs of critical habitat designation. Response : We considered the potential for shifts in the market that would offset the costs experienced by existing landowners and developers within the proposed designation and concluded that measurable offsetting gains to homeowners, developers, or landowners are unlikely. As discussed in detail in Chapter 4 of the FEA, anticipated costs to landowners and developers include the administrative costs to consult with the Service or to comply with the California Environmental Quality Act, the costs of conservation measures, and opportunity costs associated with delays in development schedules. Anticipated conservation measures include on-site or off-site habitat restoration and the preservation of off-site habitat through the acquisition of mitigation banking credits (see section 4.7.2 of the FEA). If adequate substitutes for areas projected for development are available, developers are likely to avoid areas of critical habitat and to develope substitute sites instead. Thus, existing owners of land parcels that would have been developed absent critical habitat experience a devaluation of their property equivalent to the additional costs that would have been incurred by the developers to conserve the California red-legged frog. As described in section 4.3 of the FEA, of the 1,252,096 ac (506,706 ha) of private land within the proposed designation, only 5,746 ac (2,325 ha), or less than one percent, of this land is anticipated to be developed within the next 22 years. In the 20 affected counties, the number of affected acres (hectares) ranges from 2 ac (0.8 ha) to 1,034 ac (418 ha), with an average of 287 ac (116 ha) affected per county. Given the relatively small number of affected acres relative to the size of the affected counties (hundreds of thousands to millions of acres), the availability of suitable substitutes is likely. It is possible that the value of land at substitute sites outside of critical habitat may increase; however, where many substitutes are available, the marginal increase is likely small. Furthermore, quantification of such increases requires significant additional data describing the geographic characteristics of alternatives and construction of complex, general equilibrium economic models of the markets for raw land in each county. Finally, no reduction in the number of new houses is anticipated. Developers will either move to substitute locations or implement the project modifications, which do not include conserving habitat on-site. Thus, measurable consumer surplus gains in the market for existing houses, and consumer surplus losses in the market for new housing, are not anticipated. Finally, we note that Quigley and Swoboda (2007, pp. 299-318) specifically addressed these issues in the context of critical habitat, and found that consideration of additional losses and gains to landowners and homeowners outside of critical habitat but within the same market is likely to result in higher, rather than lower overall cost estimates. Comment (42): One commenter stated that they could not identify clear evidence that the Service estimated ancillary benefits that are measurable in markets through shifts in resource allocation, as suggested in Chapter 2 of the DEA. Specifically, the commenter states that habitat protection for an aquatic species such as the California red-legged frog may enhance water quality or quantity, resulting in avoided costs associated with treatment facilities or other water-supply-related infrastructure. The commenter cites, as an example, a study of such benefits resulting from restoring high-quality watersheds in Portland, Oregon. Response : Assessment of the potential changes in the costs associated with treatment facilities or other water-supply-related infrastructure first requires an understanding of current water quality. In addition, complex fate and transport models of contaminants and sediments are necessary to calculate the change in water quality likely to result from the implementation of conservation activities (e.g., pesticide use restrictions, habitat restoration) protecting critical habitat. Finally, engineering cost models of alternative treatment technologies are necessary to estimate the incremental cost savings associates with a change in water quality. Most of these data and models are not readily available; thus, the potential offsetting benefit of reduced water treatment costs cannot be quantified or monetized at this time. Summary of Changes from the 2006 Critical Habitat Designation to the 2008 Proposed Rule to Revise Critical Habitat In the proposed revised and final revised designation of critical habitat for the California red-legged frog, we determined that it would be appropriate to complete our analysis of critical habitat without using the 2006 final critical habitat designation as a base from which to make changes due to the involvement of Department of the Interior personnel that may have inappropriately influenced the extent and locations of critical habitat designated in our previous final determination. As a result of this unrestricted analysis, the amount and distribution of final critical habitat has increased over the 2006 final critical habitat designation and better represents those areas that contain the features essential to the conservation of the species. In the 2006 final critical habitat designation for the California red-legged frog (71 FR 19281; April 13, 2006), we excluded all Forest Service lands managed under the Sierra Nevada Forest Plan Amendment (SNFPA) under section 4(b)(2) of the Act. We based this decision on the conservation benefits to the frog outlined in the SNFPA. In the proposed revised critical habitat designation issued on September 16, 2008 (73 FR 53491) we asked for public comment regarding the exclusion of these lands from the designation under section 4(b)(2) of the Act and whether the SNFPA was an appropriate mechanism for exclusion. Although the SNFPA addresses the California red-legged frog in Chapter 4, and states generally that the “species parameters are similar to those applicable to other areas of California” (USDA 2004, pp. 234-239), no details are given as to what specific conservation measures would be implemented and how these measures would benefit the California red-legged frog. The SNFPA does state that the preferred alternative is to limit streambank disturbance to 10 percent of any reach within critical aquatic refuges and the SNFPA does limit streambank disturbance to 20 percent of any reach in general. Again these measures are not specific to identify how and where these measures will be implemented and how they will benefit the California red-legged frog. Consequently, we are not exercising our discretion to exclude Forest Service lands from the final designation because the SNFPA not including specific measures to protect and conserve the California red-legged frog and its habitat. In the 2006 final critical habitat designation, we also excluded the entire critical habitat unit CAL-1 from Calaveras County, California, under section 4(b)(2) of the Act. We based this decision on the actions of a single private landowner who has been managing for the frog on their property and who has been encouraging additional landowners to join efforts to conserve the frog. Since our publication of the proposed revised designation of critical habitat in September 2008 (73 FR 53491), we held a public meeting to discuss the revised proposal in San Andreas, California on October 30, 2008, and to answer questions regarding the Unit CAL-1. Shortly after the meeting we were approached by several private landowners within the unit that are willing to work with us on potentially developing conservation efforts for the frog on their lands. We are also working with the County of Calaveras on developing a Habitat Conservation Plan for the California red-legged frog and other listed or sensitive species in the county. However, we have not been able to finalize a HCP or other management plans to assure development and implementation of conservation measures and protection for the California red-legged frog or its habitat. As a result we are not excluding the lands within Unit CAL-1 from the designation under section 4(b)(2) of the Act. In the 2008 proposed revised designation, we used the recovery plan for the California red-legged frog (Service 2002, pp. 1-173) as part of our criteria. Specifically, we used the 34 core areas described in the recovery plan to focus our efforts on where to designate critical habitat. We attempted to include areas in this critical habitat designation from those 34 core areas that contain those physical and biological features essential to the conservation of the species, that were unique habitat types for the species, that were a representation of the species' geographic range within each core area, and that were most appropriate for conservation of the species across its current range. When determining critical habitat, we included areas that met the definition of critical habitat and that maximized the potential for the conservation of the species, and we attempted to avoid potential conflict with development. As a result, we included several new areas within the spec [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-4656. Public record. Not legal advice.