# Endangered and Threatened Wildlife and Plants; Listing and Designation of Critical Habitat for the Chiricahua Leopard Frog

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-5953

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 20, 2012
- **Citation:** 77 FR 16324

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2010-0085;4500030114]
RIN 1018-AX12
Endangered and Threatened Wildlife and Plants; Listing and Designation of Critical Habitat for the Chiricahua Leopard Frog

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the Chiricahua leopard frog (
Lithobates chiricahuensis
) under the Endangered Species Act of 1973, as amended (Act). In total, we are designating approximately 10,346 acres (4,187 hectares) as critical habitat for the Chiricahua leopard frog in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron, Grant, Hidalgo, Sierra, and Socorro Counties, New Mexico. In addition, because of a taxonomic revision of the Chiricahua leopard frog, we reassessed the status of and threats to the currently described species
Lithobates chiricahuensis
and are listing the currently described species as threatened.

DATES:

This rule is effective on April 19, 2012.

ADDRESSES:

This final rule and the associated final economic analysis and final environmental assessment are available on the Internet at
http://www.regulations.gov.
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, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone 602-242-0210; facsimile 602-242-2513.

FOR FURTHER INFORMATION CONTACT:

Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone (602/242-0210); or by facsimile (602/242-2513). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss in this final rule only those topics directly relevant to the listing and development and designation of critical habitat for the Chiricahua leopard frog under the Act (16 U.S.C. 1531
et seq.
). For more information on the biology and ecology of the Chiricahua leopard frog refer to the final listing rule (67 FR 40790; June 13, 2002) or our April 2007 final recovery plan, which are available from the Arizona Ecological Services Field Office (see
ADDRESSES
section). For information on Chiricahua leopard frog critical habitat, refer to the proposed rule to reassess the listing status and propose critical habitat for the Chiricahua leopard frog published in the
Federal Register
on March 15, 2011 (76 FR 14126). Information on the associated draft economic analysis for the proposed rule to designate critical habitat was published in the
Federal Register
on September 21, 2011 (76 FR 58441).

Previous Federal Actions

We published a proposed rule to list the Chiricahua leopard frog as threatened in the
Federal Register
on June 14, 2000 (65 FR 37343). We published a final rule listing the species as threatened on June 13, 2002 (67 FR 40790). Included in the final rule was a special rule (see 50 CFR 17.43(b)) to exempt operation and maintenance of livestock tanks on non-Federal lands from the section 9 take prohibitions of the Act. The special rule remains in place and is not affected by this final rule, except that we are making an editorial change to revise the heading of 50 CFR 17.43(b) to reflect the currently described species
Lithobates chiricahuensis.
For further information on actions associated with listing the species, please see the final listing rule (67 FR 40790; June 13, 2002).

In a May 6, 2009, order from the Arizona District Court, the Secretary of the Interior was required to publish a critical habitat prudency determination for the Chiricahua leopard frog and, if found prudent, a proposed rule to designate critical habitat by December 8, 2010. Because of unforeseen delays related to species taxonomic issues, which required an inclusion of a threats analysis, we requested a 3-month extension to the court-ordered deadlines for both the proposed and final rules. On November 24, 2010, the extension was granted and new deadlines of March 8, 2011, for the proposed rule and March 8, 2012, for the final rule were established for completing and submitting the critical habitat rules to the
Federal Register
.

We published a proposed rule to reassess the listing status and propose critical habitat for the Chiricahua leopard frog in the
Federal Register
on March 15, 2011 (76 FR 14126) with a request for public comments. On September 21, 2011, we made available the draft environmental assessment and draft economic analysis for the proposed designation of critical habitat and reopened the public comment on the proposed rule (76 FR 58441).

Summary of Comments and Recommendations

We requested written comments from the public on the reassessment of listing status and proposed designation of critical habitat for the Chiricahua leopard frog during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 14126) opened on March 15, 2011, and closed on May 16, 2011. We also requested comments on the reassessment of listing status, proposed critical habitat designation, associated draft economic analysis, and associated draft environmental assessement during a comment period that opened September 21, 2011, and closed on October 21, 2011 (76 FR 58441). We did not receive any requests for a public hearing. We also contacted appropriate Federal, Tribal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule, draft economic analysis, and draft environmental assessment during these comment periods.

During the first comment period, we received 48 submissions from the public. During the second comment period, we received 14 submissions. Most submissions addressed the proposed critical habitat designation, the draft environmental assessment, or the draft economic analysis, while others provided no substantive information useful to the development of this final rule. All substantive information provided during comment periods has either been incorporated directly into this final rule or is addressed below. Comments we received were grouped into six general issues specifically relating to the proposed critical habitat designation for the Chiricahua leopard frog, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR

34270), we solicited expert opinions from four knowledgeable individuals with scientific expertise that included familiarity with the species or taxa, the geographic region in which the species occurs, and conservation biology principles. We received responses from one of the peer reviewers.

We reviewed all comments we received from the peer reviewer for substantive issues and new information regarding critical habitat for the Chiricahua leopard frog. The peer reviewer generally concurred with our methods and conclusions, and provided additional suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

Comment 1:
The peer reviewer suggested we provide clarification on the geographic range and distribution of the species by defining what is meant by the term “major drainage” and how their current and historical distribution regarding “localities” relate to these areas.

Our Response:
The term “major drainage” refers to rivers that are large and are perennial or were historically perennial. Examples of major drainages include the upper Gila, Verde, Salt, and San Pedro Rivers, etc. Because habitat for the Chiricahua leopard frog could include a variety of wetted environments, we use the term “localities” to incorporate habitat including stock tanks, streams, cienegas, and other similar areas in a general sense so as to avoid an unnecessarily inclusive description of occupied or formerly occupied habitat. A more detailed account of the species' current and historical distribution can be found in the original listing of the species in 2002 (67 FR 40790) and in the 2007 recovery plan (Service 2007).

Comment 2:
The peer reviewer and others suggested various editorial changes to the final rule.

Our Response:
We evaluated all of the suggested editorial changes, and we incorporated them, as appropriate, into this final rule.

Comment 3:
The peer reviewer stated that our discussion of dispersal habitat focuses on protection of areas to facilitate movement among local populations and asked how longer distance dispersal corridors will be protected (e.g., among populations in different habitat units) to maintain the species throughout its range.

Our Response:
We treated dispersal habitat within the context of our current knowledge of the species' natural history, and in particular, its dispersal capabilities. This rationale is provided in our discussion of the “1-3-5 rule” in the
Dispersal
section below.

Comment 4:
The peer reviewer stated that the rationale for each primary constituent element (PCE) is clear, but requiring critical habitat units to meet all of these relatively narrow criteria may be too restrictive. The peer reviewer also stated that other areas that contain most of the elements and have high restoration potential for “missing” elements should also be considered.

Our Response:
We used the best scientific information available in determining the PCEs for the Chiricahua leopard frog. The PCEs are the elements of physical or biological features that together provide for a species' life-history processes and are essential to the conservation of the species. We amended the PCEs after the publication of the proposed rule, and included the amended PCEs in our September 21, 2011, publication (76 FR 58441). In designating critical habitat, we based our evaluation of areas on those that contain the physical or biological features essential to the conservation of the Chiricahua leopard frog and which may require special management. In this designation, we include only areas that contain one or more of the PCEs, and note within each unit description the special management actions needed for that unit.

Comment 5:
The peer reviewer stated that it appeared as though the recovery plan formed the basis for the proposed critical habitat units and suggested making this clear in the beginning of the section entitled “
Criteria Used To Identify Critical Habitat.”

Our Response:
In this final rule, we emphasize the use of the recovery plan in the designation of critical habitat.

Comments From States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the States regarding the proposal to designate critical habitat for the Chiricahua leopard frog are addressed below.

Comment 6:
In the discussion of climate change, it was stated that Chiricahua leopard frog “can often withstand drying of stock tanks for 30 days or more.” Caution should be used in making this claim as it is an untested hypothesis. Chiricahua leopard frogs may appear during the rainy season at a site that has been dry for 30 days or fewer, but they may have recolonized the site from another occupied site within the metapopulation.

Our Response:
We exercised caution in expressing our understanding of the Chiricahua leopard frogs' ability to withstand drought by amending this passage to state, “Because of their evolutionary history, southwestern leopard frogs may be able to withstand drying of stock tanks for a longer period of time than nonnative species that evolved in wetter climates in the eastern United States, which could provide southwestern leopard frog a selective advantage.”

Comment 7:
Under PCE 1(h), the absence of the organism
Batrachochytrium dendrobatidis
(chytrid fungus) is impossible to know with certainty.

Our Response:
We amended the PCEs after the publication of the proposed rule and included the amended PCEs in our September 21, 2011, publication (76 FR 58441). The amended PCEs, while providing necessary specificity, are general enough to account for the inherent level of uncertainty that pertains to the presence or absence of
Batrachochytrium dendrobatidis.
PCE 1(d) currently states, “Absence of chytridiomycosis, or if present, then environmental, physiological, and genetic conditions are such that allow persistence of Chiricahua leopard frogs.” This change applies the best scientific and commercial data available in addressing a known, serious threat to the Chiricahua leopard frog.

Comment 8:
We received a recommendation to state the level of uncertainty that exists regarding the current knowledge of how exactly the defined metapopulations function in reality, compared to how we describe metapopulations.

Our Response:
Our current understanding of metapopulations is an amalgamation of past field observations, the literature, and how unoccupied, but suitable, habitat can contribute to the metapopulation dynamic. Inevitably and over time, it is the species itself, in the wild, which will define the configuration of any given metapopulation, which may or may not comport with our current understanding of existing metapopulations. We have revised the language in this final rule to better describe our understanding of metapopulation function.

Comment 9:
One comment stated that Peña Blanca Lake should not be included as critical habitat because the long-term persistence of Chiricahua leopard frogs there, in the wake of planned warm-water fish stockings, remains uncertain. Therefore, the lake is

not essential to the conservation of the species.

Our Response:
Peña Blanca Lake currently meets the definition of critical habitat as defined in section 3 of the Act because it occurs within the geographical area occupied by the species at the time it was listed, in accordance with the Act, and it has the features essential to the conservation of the species and which may require special management considerations or protection. Our rationale for retaining this unit's designation is provided below in the “Final Critical Habitat Designation” section.

Comment 10:
Trail Tank in the Crouch, Gentry, and Cherry Creeks, and Parallel Canyon Unit have had a history of bullfrog (
Lithobates catesbeianis
) occupation and no previous records of Chiricahua leopard frog. It should be excluded from critical habitat. Bullfrog eradication efforts in 2010 proved unsuccessful.

Our Response:
We view Trail Tank as an important component to critical habitat in the Crouch, Gentry, and Cherry Creeks, as well as Parallel Canyon Unit, because of their potential to support a robust population of Chiricahua leopard frogs in a unit where occupied sites tend to be of small size with small numbers of frogs. While we acknowledge that May 2010 bullfrog removal efforts were unsuccessful at Trail Tank, additional removal efforts occurred in May of 2011, and appear to have been successful. Our discussion of Trail Tank, in our rationale for designating the Crouch, Gentry, and Cherry Creeks, and Parallel Canyon Unit as critical habitat, is provided below under “Final Critical Habitat Designation.”

Public Comments

General Comments Issue 1: Expansion of Critical Habitat

Comment 11:
Expand designation of critical habitat to include 8 miles of Cienega Creek north of the confluence of Cienega Creek and Empire Gulch, which is important flood plain habitat where ephemeral sinkholes and semi-permanent marshes exist.

Our Response:
In the Las Cienegas National Conservation Area Unit, we designated areas where the Chiricahua leopard frog maintained breeding populations, or was suspected to, at the time of listing or currently. Our records do not indicate the recommended area of expansion meets these predetermined criteria. Furthermore, should this area support breeding populations in the future, ongoing management of the area should be commensurate with their persistence.

Comment 12:
Designate critical habitat in springs, and intermittent or perennial (or both) streams, on a more landscape- or watershed-level to better address the risk of habitat fragmentation, offer more connectedness for metapopulation dynamics, protect habitat, and manage against nonnatives to achieve the necessary landscape-level opportunity to recover the Chiricahua leopard frog. One commenter suggested that we designate critical habitat for all sites that have been occupied since 1990.

Our Response:
As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the Chiricahua leopard frog and may require special management considerations or protection, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of the species. We also relied heavily on the recovery criteria formulated in collaboration and outlined in the 2007 recovery plan for the Chiricahua leopard frog. The suggestions identified immediately above were not specifically commensurate with these criteria and were therefore not used in the designation process.

Comment 13:
A commenter requested expansion of critical habitat in the eastern slope of the Santa Rita Mountains and in the vicinity of the proposed Rosemont Mine to include California Tank, East Tank, and Upper Enzenberg, Box, Sycamore, Sawmill, and Gardner Canyons, because these sites were either occupied at the time of listing, are currently occupied, or may be essential to the conservation of the species.

Our Response:
We are not aware of any records that document breeding of the Chiricahua leopard frog at these sites. The lack of historical records that document breeding in these areas may demonstrate that, while they may be important for metapopulation dynamics as demonstrated by intermittent occupation over time, they may not be suitable as breeding habitat and therefore are not essential to the conservation of the species. Therefore, these sites are not included in our critical habitat designation because they do not meet the definition of critical habitat under the Act for the Chiricahua leopard frog.

Comment 14:
Expand critical habitat designation in the Left Prong of Dix Creek Unit within the Right and Left Prongs of Dix Creek to include the following tanks: Draw Tank, Bull Canyon Tank, Bobby Tank, Middle Tank, Rattlesnake Gap Tank, Rattlesnake Tank No. 1, Rattlesnake Tank No. 2, and Buckhorn Tank. Connect the designations along the drainages between the above tanks with extant populations from the Rattle Snake Gap Complex, then continue up Dix Creek Left Prong proposed critical habitat, and continue upstream through Bull Canyon and unnamed drainages to connect occupied or seasonal habitats or both. It is also recommended to include the short segment of Dix Creek Right Prong/Left Prong confluence up the Right Prong of Dix Creek to Sycamore Canyon. Further, it is recommended that the Service designate critical habitat from Highway 78 southward along Coal Creek to include habitat where frogs may retreat seasonally or during periods of low water availability. The commenter noted that both lowland leopard frogs (
Lithobates yavapaiensis
) and Chiricahua leopard frogs were identified in surveys, and not all observations of leopard frogs in this area were identified to species.

Our Response:
Please see our response to Comments 12.

Comment 15:
Expand critical habitat designation into the tributary adjacent to and west of Three Forks near the Campbell Blue and Coleman Creeks Unit.

Our Response:
Please see our response to Comments 12.

Comment 16:
Expand critical habitat designation in the Peloncillo Mountains Unit on the Diamond A Ranch, Western Division (Canoncito Ranch) to include more dispersal habitat.

Our Response:
The Diamond A Ranch, Western Division (Canoncito Ranch) in the Peloncillo Mountains Unit is excluded as designated critical habitat under section 4(b)(2) of the Act. Please review our rationale and analysis for this exclusion under the section “Exclusions” below.

Comment 17:
Expand critical habitat designation in the following units: Garcia Tank, Buenos Aires National Wildlife Refuge Central Tanks, Bonita, Upper Turner, and Mojonera Tanks, Sycamore Canyon, and Peña Blanca Lake and Spring and associated tanks to include the California Gulch, Ruby, Chimney Canyon, Arivaca Lake, and Airvaca Cienega to protect Chiricahua leopard frogs against nonnative predators.

Our Response:
Please see our response to Comments 12.

General Comments Issue 2: Exclusion or Reduction of Critical Habitat

Comment 18:
The High Lonesome Well Unit does not provide any more conservation benefit than a zoo and should not be considered critical habitat.

Our Response:
We reevaluated the High Lonesome Well Unit and have determined that it does not meet the definition of critical habitat, because it does not have the physical or biological features that are essential for the conservation of the species. After further evaluation, the unit does not contain the terrestrial habitat that provides opportunities for foraging and basking, and that is immediately adjacent to or surrounding breeding aquatic and riparian habitat, which is a component of primary constituent element 1. Therefore, we have removed the High Lonesome Well Unit from this final critical habitat designation.

Comment 19:
The West Fork Gila River Unit is within the Gila Wilderness Area on the Gila National Forest, and designating it as critical habitat provides no further conservation value for the species. In addition, this population is known to have chytridiomycosis, and the most recent surveys in 2009 failed to detect any Chiricahua leopard frogs, therefore precluding this unit from meeting PCE (1).

Our Response:
We carefully reviewed the best available scientific and commercial data and concluded that the West Fork Gila River Unit both meets the definition of critical habitat described in the “Critical Habitat” section below and meets the goals and objectives outlined in the final recovery plan for this species. In addition, the commenter provides no rationale to indicate the unit does not meet the definition of critical habitat or does meet exclusion criteria under section 4(b)(2) of the Act. Please review our rationale and analysis for designating this unit under the section “Final Critical Habitat Designation” below.

Comment 20:
The threat of chytridiomycosis in the Ash and Bolton Springs Unit makes it unsuitable as critical habitat.

Our Response:
The Ash and Bolton Springs Unit meets the definition of critical habitat under the Act for the Chiricahua leopard frog because it was occupied at the time of listing and contains the features essential to the conservation of the species and requires special management considerations or protection. Not all PCEs are currently present, or required to be present, for a given unit to meet the definition of critical habitat under the Act. The commenter provides no additional rationale to indicate the unit does not meet the definition of critical habitat or does meet exclusion criteria under section 4(b)(2) of the Act.

Comment 21:
The proposal speaks to a dry section of the West Fork dividing the proposed segment: “the Upper West Fork is divided into two perennial segments by a 1.2-mi (2.0-km) long ephemeral reach between Turkeyfeather Creek and Whiskey Creek.” Whiskey Creek is upstream of the proposed segment of stream, and this statement is not relevant to the proposal. In addition, Turkeyfeather Creek was not occupied at time of listing, and there are no historic records from the ephemeral stream. The only intermittent part of the stream is at the spring itself and extending approximately 0.10 mi downstream of the spring. The outflow from the spring is captured in a small cement spring box with a 1-inch pipe extending out of the box as an overflow. The flow from the spring seldom makes it to Turkeyfeather Creek itself. We do not believe that Turkeyfeather Creek is suitable habitat for the frog.

Our Response:
White Creek was mistakenly identified as Whiskey Creek in our proposed rule. This has been corrected in this final rule. Our records indicate that the area within this unit as described was occupied at the time of listing and has the features essential to the conservation of the species and which may require special management considerations or protection to minimize impacts to existing threats. No further justification as to why the unit does not meet the definition of critical habitat or does meet exclusion criteria under section 4(b)(2) of the Act was provided.

Comment 22:
Exclude from critical habitat designation all private lands (Ladder Ranch) in the Seco Creek, Cuchillo Negro Warm Springs and Creek, and South Fork Palomas Creek Units.

Our Response:
The Ladder Ranch is excluded from designated critical habitat under section 4(b)(2) of the Act. Please review our rationale and analysis for this exclusion under the section “Exclusions” below.

Comment 23:
North Tank and Rosewood Tank Unit should be excluded from critical habitat designation because including them represents adverse effects to the grazing operation on the Magoffin Ranch, and is a disincentive to promote conservation of endangered and threatened species within the ranching community.

Our Response:
The Magoffin Ranch (North Tank and Rosewood Tank Unit) is excluded as designated critical habitat under section 4(b)(2) of the Act. Please review our rationale and analysis for this exclusion under the section “Exclusions” below.

Comment 24:
All critical habitat should be excluded in Recovery Unit 1 (Tumacacori-Atascosa-Pajarito Mountains, Arizona and Mexico) and portions of Recovery Unit 2 (Santa Rita-Huachuca-Ajos Bavispe, Arizona and Mexico).

Our Response:
We carefully reviewed the best available scientific and commercial data and concluded that critical habitat we are designating within Recovery Units 1 and 2 both meets the definition of critical habitat described in the “Critical Habitat” section below and meets the goals and objectives outlined in the final recovery plan for this species. No further justification as to why these units do not meet the definition of critical habitat or do meet exclusion criteria under section 4(b)(2) of the Act was provided. Please review our rationale and analysis for designating these units under the section “Final Critical Habitat Designation” below.

Comment 25:
The Concho Bill and Deer Creek Unit is not essential to the conservation of the Chiricahua leopard frog.

Our Response:
We carefully reviewed the best available scientific and commercial data and concluded that the Concho Bill and Deer Creek Unit both meets the definition of critical habitat described in “Critical Habitat” section below and meets the goals and objectives outlined in the final recovery plan for this species. In addition, the commenter provided no rationale to indicate the unit does not meet the definition of critical habitat or does meet exclusion criteria under section 4(b)(2) of the Act. Please review our rationale and analysis for designating this unit under the section “Final Critical Habitat Designation” below.

General Comments Issue 3: Threats Analysis

Comment 26:
Chiricahua leopard frogs are sensitive to cadmium and copper above certain levels according to Little and Calfee (2008, pp. 6-10). The Service should differentiate potential effects to the species from the footprint of the Rosemont Mine versus the general area of the mine. We are concerned that Eastern Slope of the Santa Rita Mountains and Las Cienegas National Conservation Area Units might be adversely affected by pollution from Rosemont Mine, once in operation.

Our Response:
We agree that Chiricahua leopard frogs are vulnerable to effects from contaminants associated

with mining operations and provide discussion on this issue under the section “
A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range.”
If the Rosemont Mine begins operation, potential effects to, and legal protections, for the Chiricahua leopard frog will be evaluated, in accordance with applicable provisions under the Act, at that time, and are not constrained to the footprint of the proposed mine.

Comment 27:
In discussing chytrid presence in the Seco Creek Unit, it was stated that “no frogs have tested positive since then (i.e., 2001)”. More accurately, in June 2007, a single sample (out of 7) from Artesia Well and a single sample (out of 9) from LM Bar Well tested positive for chytrid. Both of these were considered “weak positive” by the laboratory and may have been false positives. Extensive testing since then has failed to produce additional positive tests.

Our Response:
We have updated our analysis and discussion of this unit to reflect this information.

Comment 28:
The proposed rule stated that within the West Fork Gila River Unit “ * * * nonnative predators are present, including fish, crayfish, and bullfrogs. Even though a cooperative restoration project between the Service, the U.S. Forest Service, and New Mexico Department of Game and Fish is underway to restore native fish and remove nonnative predatory fish in this unit, the frog population is currently threatened by nonnative predators and chytridiomycosis (Service 2009, pp. 15-16).” This statement is incorrect; there are no nonnative predatory fish (Gila trout and speckled dace are the only fish present), there are no crayfish, and there are no bullfrogs in the unit.

Our Response:
We have updated our analysis and discussion of this unit to reflect this information.

Comment 29:
Periodic Chiricahua leopard frog die-offs resulting from chytridiomycosis have not been observed in the Las Cienegas National Conservation Area Unit. They probably do occur, and probably are a key factor, but it is also possible that other factors are responsible for the rarity of the Chiricahua leopard frog in the Cienega Creek bottomlands.

Our Response:
The final recovery plan notes the presence of chytridiomycosis in Cienega Creek (Service 2007, p. 61). We have amended our discussion of this unit to remove the statement regarding periodic die-offs.

Comment 30:
Effects of climate change are downplayed in the proposed rule, with significant effects predicted for winter precipitation. Warmer and dryer conditions will force more contact between Chiricahua leopard frogs and nonnative predators, to the detriment of Chiricahua leopard frogs.

Our Response:
We used the best available scientific and commercial data to inform our analysis of the effects of climate change on the Chiricahua leopard frog, including the inherent uncertainty that pertains to evaluating the effects of climate change. The effects of climate change are inextricably related to effects from other threats and are difficult to predict or interpret without more definitive data of higher resolution. This discussion was expanded upon in this final rule. Please review our analysis below of the potential effects of climate change under listing Factor E, “
Other Natural or Manmade Factors Affecting Its Continued Existence”
below.

Comment 31:
The Service falsely relied on Fleischner (1994), Belsky (1999), and Jones (2000) on describing the effects of livestock grazing on Chiricahua leopard frogs. These studies discuss uncontrolled grazing when grazing in endangered and threatened species' habitat is controlled.

Our Response:
These studies detail potential effects of grazing to habitat. We evaluated the effects of grazing on the Chiricahua leopard frog both historically and present day. We appreciate the conservation actions undertaken by the ranching community and those partnerships we have formed in furthering the goals and objectives of Chiricahua leopard frog conservation and recovery, and we recognize the intrinsic value of their continued participation in this effort.

Comment 32:
Regarding the Scotia Canyon, Beatty's Guest Ranch (excluded), and Carr Barn Pond Units, the copper mine in Cananea, Sonora, pumps 10,000 to 12,000 acre feet of groundwater and then redirects surplus water into the Rio Sonora basin which flows to Hermosillo, Sonora. This should be discussed.

Our Response:
We understand (although not specifically stated) the implication of groundwater pumping on potential effects to surface flows to the upper San Pedro River. However, these units do not rely on surface flow in the upper San Pedro River for their water supply and are, therefore, unaffected by groundwater pumping activities in Mexico.

Comment 33:
The Service should focus on the threat of (Chiricahua leopard frog) surveyors spreading the chytrid fungus.

Our Response:
Several precautions are listed in the final recovery plan (Service 2007, Appendix G), such as dedicating equipment, disinfecting equipment, etc., which are taught at annual survey training workshops, required as permit stipulations, and followed by surveyors to prevent the accidental spread of chytrid fungus. These precautions are also mandated as permit conditions for those with section 10(a)(1)(A) permits authorized by the Service. Whatever small risk may be associated with this form of disease transmission, it is countered by the important data collected by the surveys themselves, in helping meet the conservation and recovery goals for the species.

Comment 34:
The Service should clearly define what is meant by “poor” livestock management.

Our Response:
We consider poor livestock management to mean grazing conducted in a manner not in accordance with approved allotment management plans or otherwise considered adverse to maintaining natural habitat characteristics. We have updated this discussion below in Factor A, “
The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range”
of this final rule.

Comment 35:
If Chiricahua leopard frogs do not persist in water affected by livestock feces, what steps will be required by livestock producers with waters that support the species? What about elk feces?

Our Response:
We did not state that Chiricahua leopard frogs do not persist in water affected by livestock feces. We stated that Chiricahua leopard frogs likely do not persist in waters severely polluted with cattle feces (Service 2007, p. 34). We understand that in most circumstances where frogs occur in tanks actively used by livestock, livestock feces are likely present in the water, and frogs are not appreciably affected by their presence. We also acknowledge the potential that in tanks that have limited water and are subjected to intense livestock activity, adverse affects to the Chiricahua leopard frog are likely from concentrated amounts of livestock feces, which could limit a population's persistence. We are not aware of any Chiricahua leopard frog populations that are adversely affected as a result of elk feces, but presume similar adverse effects are likely under the same rationale. Furthermore, we are not requiring ranchers to manage their livestock tanks specifically with this factor in mind, but rather prefer to pursue opportunities to work with the ranching community to meet both the needs of the species and the needs of their livestock operations.

General Comments Issue 4: General Biology

Comment 36:
The Service must analyze whether Chiricahua leopard frogs along Mogollon Rim are a separate species.

Our Response:
We specifically discuss issues pertinent to Chiricahua leopard frog taxonomy under the “
Species Information”
section below. Since the publication of the proposed rule, Hekkala
et al.
(2011) published a phylogenetic analysis of the (considered extinct) Vegas Valley leopard frog (
Lithobates fisheri
) and other North American Ranidae (North American frogs of the same family) DNA and placed
L. fisheri
within Chiricahua leopard frog (
Lithobates chiricahuensis
) (using archival and contemporary nuclear and mitochondrial DNA). Hekkala
et al.
(2011) ascribed the northwestern-most populations of
L. chiricahuensis
from the Mogollon Rim to
L. fisheri,
although

specific populations were not identified. Populations of
L. chiricahuensis
outside this zone were not recommended for taxonomic revision. Data likely support ascribing all known populations of
L. chiricahuensis
to
L. fisheri,
although Hekkala
et al.
(2011) did not make that recommendation. The phylogenetic tree in Hekkala
et al.
(2011; Fig. 2b.) is a subset of a larger phylogenetic tree that is still under construction by genetic researchers. As a subset, the resolution of the data is not sufficient to support recognizing individual populations of
L. chiricahuensis
as
L. fisheri
at this time. Completion of ongoing rangewide research, with sufficient genetic resolution, of the more comprehensive phylogeny of western leopard frogs is expected to be available in 3 to 4 years and will provide additional information for analysis necessary to make informed management

or listing decisions.

Comment 37:
The proposed rule states, “ * * * the maximum distance moved by a telemetered Chiricahua leopard frog in New Mexico was 2.2 mi (3.5 km) in one direction along a drainage.” In a New Mexico State Wildlife Grant Report entitled, “Distribution and Movement of Chiricahua leopard frog on the Ladder Ranch and adjacent National Forest Lands, Sierra County, New Mexico,” authored by Carter Kruse and Bruce Christman in 2005, it was reported that a single frog moved at least 3.1 mi (5 km), one way during a 3-day rain event in the Seco drainage (page 18), which is substantially farther than discussed in the proposed rule.

Our Response:
We did not receive a copy of this report, and we therefore are unable to verify its findings. However, upon receipt of this reference, we will add this information to our current understanding of the species' dispersal capabilities. However, for this final critical habitat rule, no changes have been made based on this information.

Comment 38:
Specifically, on page 14151, the proposed rule states that “Chiricahua leopard frogs are known to breed at all of the above mentioned wells except Sawmill and Johnson Wells * * * Frogs were extant at Davis Well, LM Bar Well, North Seco Well, Pague Well, and Sucker Ledge at the time of listing.” We offer two corrections: Chiricahua leopard frog reproduction has been documented at Johnson Well each of the last 3 years, and Chiricahua leopard frogs were extant and breeding at Fish Well, in addition to the other sites listed, at the time of listing.

Our Response:
The sites noted by the commenter are on the Ladder Ranch which is excluded as critical habitat under section 4(b)(2) of the Act and discussed below under “Exclusions.”

Comment 39:
Chiricahua leopard frogs in the Las Cienegas National Conservation Area Unit are less than 6 miles (10 km) from the nearest recently occupied site in the Eastern Slope of the Santa Rita Mountains Unit. In the 1970s, a key study site for the Chiricahua leopard frog was halfway between the nearest recently occupied sites. Thus, 35 years ago or less, there were likely metapopulation dynamics active between these units.

Our Response:
While, historically, such a metapopulation dynamic is feasible, we do not possess records to verify such a dynamic. Therefore, we consider the Eastern Slope of the Santa Rita Mountains Unit as a disjunct metapopulation and the Las Cienegas National Conservation Area Unit as an isolated population because of the distance between the nearest occupied sites between units is more than 8.0 mi (13 km) straight-line distance away, which is not within a reasonable dispersal distance for the Chiricahua leopard frog.

Comment 40:
How do the 43 proposed units (39 designated units) correspond to the 85 percent reduction in occupied sites (in reference to statements made in the final listing rule and subsequent Service documents regarding rangewide reductions in occupied habitat), and how will the critical habitat designation achieve the recovery criteria in the recovery plan?

Our Response:
Under section 3(5)(A)(ii) of the Act, we have authority to designate specific areas outside the geographic areas occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination that such areas are essential for the conservation of the species. In this final designation, we have identified two units that were not known to be occupied at the time of listing, but which we consider essential for the conservation of the species. Also, the recovery criteria in the final recovery plan (Service 2007, p. 55) for the Chiricahua leopard frog was an important factor in our methodology used to designate critical habitat. In order to meet recovery criteria outlined in the recovery plan, we designated multiple critical habitat units in each recovery unit.

General Comments Issue 5: PBFs, PCEs, and Special Management

Comment 41:
The Service should reconsider whether the buffer zones proposed are to protect PCEs from effects caused by livestock grazing or from those posed by airborne pollution.

Our Response:
At this time, we feel that applying a buffer zone to protect against the effects of livestock grazing would be arbitrary, because we do not know how large to make the buffer to protect from those effects. However, in ponds designated as critical habitat, most of which are impoundments for watering cattle or other livestock, designated critical habitat extends for 20 ft (6.1 m) beyond the high water line or to the boundary of the riparian and upland vegetation edge, whichever is greatest. We used this 20-ft (6.1-m) extension because the frogs are commonly found foraging and basking within 20 feet of the shoreline of tanks. In regards to effects posed by airborne pollution, no reasonable spatial distance is guaranteed to protect PCEs from airborne pollutants by the very nature of their movement vector. Therefore, we did not consider airborne pollution as a determinant in describing buffer areas.

Comment 42:
Regarding the PCE that requires, “Emergent and or submerged vegetation, root masses, undercut banks, fractured rock substrates, or some combination thereof; but emergent vegetation does not completely cover the surface of water bodies,” this PCE is not clearly essential in our experience, as sites with minimal vegetation cover can support substantial Chiricahua leopard frog populations. Under the PCE that requires, “Absence of chytridiomycosis, or if chytridiomycosis is present, then conditions that allow persistence of Chiricahua leopard frogs with the disease (e.g., water temperatures that do not drop below 20 °C (68 °F), pH of greater than 8

during at least part of the year),” the temperature conditions stated are vague and not clearly in line with observations, as we have populations where temperatures do drop below these values for several months per year.

Our Response:
According to our review of the best available scientific and commercial data and the opinion of species experts, the importance of available cover (
i.e.,
emergent and or submerged vegetation, root masses, undercut banks, fractured rock substrates) for the Chiricahua leopard frog cannot be overstated. Available cover is a fundamental component in the defensive behavior of the species, provides varied thermoregulation opportunities, is an important consideration in maintaining an invertebrate prey base, and also serves as substrate for egg mass deposition. In the presence of nonnative species, adequate cover becomes even more critical to an individual frogs' survival. With respect to temperature conditions specified in the proposed rule, we eliminated temperature-specific conditions in an amended PCE as stated under the “
Primary Constituent Elements for the Chiricahua Leopard Frogs”
section below.

Comment 43:
The Service should focus on promoting disturbance in riparian habitat, such as controlled grazing, in order to accommodate the native species' advantage to a disturbance regime in riparian habitat.

Our Response:
In the context of evaluating the response of native species versus nonnative species to disturbance regimes in riparian habitat, we consider, in an evolutionary context, disturbance from natural hydrological processes (such as flooding). Native riparian species have evolved in the presence of dynamic hydrologic processes over millions of years, and it is these hydrological disturbance events that prepare seedbeds and provide conditions for germination for native riparian species. For purposes of this critical habitat designation, the concept of promoting disturbance in riparian habitat via controlled grazing in order to accommodate native species is not substantially useful information.

Comment 44:
The PBFs and PCEs should include considerations for a landscape of appropriate size free from known or likely populations of nonnative species highly deleterious to populations of the Chiricahua leopard frog.

Our Response:
We considered both the importance of space for individual and population growth and for normal behavior, and sites for breeding, reproduction, or rearing (or development) of offspring in our development of the PBFs 1 through 5 and PCEs 1 and 2. Special management that will result from critical habitat designation, such as nonnative species control, should promote these habitat characteristics on a local level, if not landscape level. Such landscape-level management against nonnatives has already proven successful in several areas within Recovery Units 1 and 2.

Comment 45:
Why did you change PCE (1)(a) to remove the minimum of 6.0 foot in diameter and 20 inches in depth for breeding pools and ponds?

Our Response:
During periods of drought, or less than average rainfall, breeding sites may not hold water long enough for individuals to complete metamorphosis, but they would still be considered essential breeding habitat in non-drought years. Regardless of the effects of drought on any given breeding site, we are aware of pools that fall short of the 6.0 foot in diameter and 20 inches in depth criteria that have regularly contained breeding populations in most years, such as the West Prong Gentry Creek in Recovery Unit 5. These sites still provide important habitat for the species.

Comment 46:
If Chiricahua leopard frogs are to persist in Peña Blanca Lake after stocking with predatory nonnative fish species, the vegetation should be controlled to prevent suitable habitat for bullfrogs.

Our Response:
We note that the designation of critical habitat for the Chiricahua leopard frog does not require this specific management, nor does any other critical habitat designation require management. Subsequent to draining and dredging Peña Blanca Lake, a concerted effort began in 2008 to clear the area of bullfrogs. The effort appears to be successful, and Chiricahua leopard frogs have benefited. We agree that, if bullfrogs were to successfully recolonize Peña Blanca Lake, shoreline habitat complexity would make their elimination difficult if not impossible without another draining and dredging effort. However, management of this area will continue to concentrate on preventing bullfrogs from recolonizing the area and eliminating those that do recolonize in habitat suitable for these efforts. Furthermore, in a May 2011, section 7 consultation for sportfish stocking of the lake, conservation measures were established that require shoreline habitat to be managed in a manner to retain its complexity, which will provide some level of protection to resident Chiricahua leopard frogs from potential predation from sportfish.

General Comments Issue 6: Legal/Policy/Economics

Comment 47:
Designating critical habitat might place a burden on ranching.

Our Response:
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Also, we conducted an economic analysis of this critical habitat designation, including analyzing the impacts to ranching. Even though there may be some incremental costs to livestock management entities, because of costs related to section 7 consultations in regards to grazing on Forest Service lands, we have found no significant economic impacts are likely to result from this designation (Industrial Economics 2012, pp. ES-5, A-3, A-7).

Comment 48:
The Service should consider the cumulative impact of listings and critical habitat designations in New Mexico on private agricultural producers.

Our Response:
For listing actions, the Act requires that we make determinations “solely on the basis of the best available scientific and commercial data available” (16 U.S.C. 1533(b)(1)(A). So, we do not conduct economic or environmental analyses or environmental assessments when making listing determinations. However, for critical habitat designations, including this one, we are required to prepare draft and final economic analyses and environmental assesessment rules. However, we are required and have prepared draft and final economic analysis and environmental assessment documents, which consider the impacts of critical habitat designation. Those documents consider impacts to private agricultural producers in Arizona and New Mexico and have generally found no significant economic or environmental impacts due to this critical habitat designation. The final economic analysis and final environmental assessment are available on the Internet at
http://www.regulations.gov.

In regards to considering the cumulative impact of listings and critical habitat designations, in 2001, the U.S. Tenth Circuit Court of Appeals instructed the Service to conduct a full analysis of all of the economic impacts of proposed critical habitat, regardless of whether those impacts are attributable co-extensively to other causes. Since that decision, however, courts in other cases have held that an incremental analysis of impacts stemming solely from the critical habitat rulemaking is proper. Most recently, in 2010, the U.S. Ninth Circuit Court of Appeals came to similar conclusions during its review of critical habitat designations. In order to address the divergent opinions of the courts and provide the most complete information to decision-makers, the economic analysis for this rule describes the baseline protections afforded the Chiricahua leopard frog absent critical habitat designation, and monetizes the potential incremental impacts precipitated specifically by the designation of critical habitat for the species.

Comment 49:
The Service should invite coordination with local governmental entities in affected counties relative to any further development of proposed rules.

Our Response:
We place a high priority on coordinating with local and State governments within the framework of relevant federal laws. However, we do not understand exactly what the commenter's expectations are regarding coordination with local governmental entities in affected counties relative to any further development of proposed rules. The Act does not delineate a unique role of coordination with counties. However, when proposed rules are developed, we invite and encourage comments from affected counties during the open public comment period.

Comment 50:
Designating critical habitat will incentivize landowners to allow bullfrogs to take over stock tanks or allow tanks to dry up when not in use to alleviate regulatory burden. Instead the Service should not designate critical habitat and allow landowners to move frogs around to tanks suitable for occupation.

Our Response:
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. See our response to comments 47 and 53.

Comment 51:
In ponds proposed as critical habitat, most of which are impoundments for watering cattle or other livestock, proposed critical habitat extends for 20 ft (6.1 m) beyond the high water line or to the boundary of the riparian and upland vegetation edge, whichever is greatest. This definition of critical habitat, as it applies to private landowners, is vague and therefore unenforceable.

Our Response:
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. See our response to comment 47.

Comment 52:
Please do not let critical habitat designation negatively affect the ongoing environmental education program at Brown Canyon Ranch.

Our Response:
One of the benefits to designating critical habitat is its value in educating the public on endangered and threatened species conservation. The designation of critical habitat in Brown Canyon will not impact the environmental education program at Brown Canyon Ranch. Alternatively, designating critical habitat may prove beneficial to these purposes, and the Service supports and promotes such positive endeavors.

Comment 53:
Control of nonnatives is difficult, if not impossible, in many circumstances, but working with private landowners could help further the goal if critical habitat were not designated.

Our Response:
As previously stated, the designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Also, critical habitat designation does not require property owners to undertake affirmative actions to promote the recovery of the species. However, the majority of Chiricahua leopard frog habitat and localities are on Federal lands, mostly lands managed by the U.S. Forest Service. We believe that building partnerships and promoting voluntary cooperation of landowners are essential to improving the status of species on non-Federal lands, and are necessary for implementing recovery actions, such as reestablishing listed species and restoring and protecting habitat.

Comment 54:
Designation of critical habitat could diminish private land value.

Our Response:
In this final critical habitat designation, only 26 percent of the lands designated as critical habitat are private lands, and there is no evidence that designation of critical habitat in this case will diminish land values (Industrial Economics 2012, p. 2-17). We acknowledge that public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are likely. Thus, there may be a stigma effect on a property that is designated as critical habitat due to perceived limitations or restrictions, which may result in a lower market value than an identical property that is not within the boundaries of critical habitat. However, we have no evidence that private land values will diminish with this designation. In fact, we believe that, because this designation may increase protection of scenic habitat, there may be aesthetic values resulting in increased properties values (Industrial Economics 2012, p. 2-17).

Comment 55:
We recommend the Service consider working with private landowners proactively in conservation and recovery versus enforcing restrictions, etc.

Our Response:
The Service has a long history of working proactively with private and public land managers to further conservation and recovery goals for this species while simultaneously accounting for their multiple-use and/or commercial needs of these lands. Examples of such relationships are numerous but perhaps none are more pertinent that those discussed in detail under the section “Exclusions” below.

Comment 56:
The proposed rule does not meet Data Quality Act standards, because it ignores the best scientific information available and bases many of its conclusions on supposition and speculation about the future.

Our Response:
In accordance with section 4 of the Act, we are required to use, and we used, the best available scientific and commercial information to make this critical habitat decision. Further, we followed the criteria, established procedures, and guidance from our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines. As such, we relied upon primary and original sources of information in this designation of critical habitat.

In order to meet these “best available scientific and commercial information” standards, we found information from many different sources, including the recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge. Also, in accordance with our peer review policy published on July 1, 1994 (59 FR

34270), we solicited expert opinions from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule.

In conclusion, we believe that we have used the best available scientific and commercial information for the listing and designation of critical habitat for the Chiricahua leopard frog.

Comment 57:
The Service stated that while Hermann et al. (2009, pp. 12-17) indicates that Chiricahua leopard frogs do not currently suffer from a lack genetic variability, it does not preclude the possibility that individual populations may suffer from genetic or demographic problems. This speculation is a violation of the Data Quality Act.

Our Response:
The statement that “* * * it does not preclude the possibility that individual populations may suffer from genetic or demographic problems” pertains to the inherent level of uncertainty of how changes in the species' status and threats may influence population genetics in the foreseeable future. The Service's use of this information does not result in speculation by the Service.

Comment 58:
The Services' presumption that there are “future” threats clearly fails to pass Data Quality Act standards, because that presumption is based solely on speculation and surmise contradicted by the best scientific and commercial information available.

Our Response:
See our response to comment 56.

Comment 59:
The designation of 5,200 acres of land in Arizona may place an economic burden on the livestock and mining industries in Arizona and may also risk discouraging private partnerships that could further recovery of the species.

Our Response:
We discuss how the designation of critical habitat may or may not affect the responsibilities of land owners and managers under the “
Background”
under the section “Critical Habitat” heading below. We recommend review of this section for clarification of the actual, versus perceived, effects of critical habitat designation. Also, we conducted an economic analysis of this designation, and found that even though there may be some incremental costs to livestock management entities related to section 7 consultations, no significant economic impacts on livestock and mining industries are likely to result from this designation (Industrial Economics 2012, pp. ES-5, A-3, A-7).

Comment 60:
We are concerned that the conservation efforts for the Chiricahua leopard frog will become another Service action where new rules are put in place that limit or restrict “multiple use” of land and resources. Throughout Apache County, once productive private, State, or Federal land has become so encumbered with use restrictions, requirements, and liabilities that the natural resources they once provided are no longer economically available or contributing to the local economy.

Our Response:
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

Comment 61:
The Apache County Board of Supervisors requests we coordinate with them to discuss the consistencies, conflicts, opportunities for coordination, and coordinated monitoring associated with this rulemaking.

Our Response:
We accepted comments on the proposed rule, draft economic analysis, and draft environmental assessment during two comment periods for a total of 90 days. As such, we complied with all requirements for public participation in our rulemaking process, under the Act and the Administrative Procedures Act (5 U.S.C. Subchapter II).

Economic Analysis

Comment 62:
The Service should provide a detailed assessment about who will bear the costs in “management changes, use reduction, or loss of property rights, such as depreciation of land values.” The comment also suggested that the Service conduct a takings implication assessment to analyze the effects of critical habitat designation on land and water rights where appropriate.

Response:
The draft economic analysis (DEA) discusses potential direct and indirect impacts of the Chiricahua leopard frog critical habitat designation in Chapters 2 and 4. In Chapter 2, the analysis discusses the possibility that the designation might affect property values both positively and negatively. Because of the extensive conservation efforts already in place for the Chiricahua leopard frog, and because the Service is already excluding portions of 10 critical habitat units (due to existing leopard frog protections in these areas), neither direct nor indirect property value impacts are anticipated to result from the designation. The analysis finds that any impacts to property value or other property rights would occur regardless of critical habitat designation and are therefore not attributable to the Chiricahua leopard frog designation.

Comment 63:
One comment noted that the DEA erroneously stated that the Chiricahua leopard frog was listed as endangered rather than threatened in 2002.

Response:
This is corrected in the final economic analysis (FEA).

Comment 64:
The DEA states that the Service is considering portions of nine critical habitat units for exclusion, when in fact portions of 10 critical habitat units are being considered. With the addition of Unit 43 (Palomas) to the proposed rule, the Ladder Ranch lands within this unit are also being considered for exclusion (as stated in the draft environmental assessment).

Response:
This is corrected in the FEA.

Comment 65:
The DEA did not adequately address potential impacts on local businesses. The analysis also focused almost exclusively on the administrative costs to the Federal agencies for consultation related to the designation of critical habitat, and did not examine the potential impact to local economies already struggling with high unemployment and widespread poverty. Finally, the DEA must analyze, fully disclose, and explain how the rule may impact local businesses.

Response:
Appendix A of the DEA considers potential impacts of the critical habitat designation on small entities and the energy industry. The DEA considers publicly available information in estimating the incremental costs of the proposed critical habitat designation on small entities, including any information about potential impacts to local communities.

Environmental Assessment

Comment 66:
The potential impacts of climate change are complicated and overly downplayed in the draft environmental assessment.

Response:
We have added a discussion of climate change in section 1.8.1 of the final environmental assessment.

Comment 67:
A proposed open pit copper mine seriously threatens both units 8 and 9.

Response:
In September 2011, Coronado National Forest published a draft environmental impact statement (EIS) on the proposed mine. Using information from that EIS, we added section 3.11 Mining to the final environmental assessment to address potential impacts.

Comment 68:
One commenter felt that we should elevate the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
et seq.
) analysis to the level of an EIS.

Response:
The level of impacts to the environment from this critical habitat designation do not rise to the level of significance to trigger the requirement to produce an EIS.

Comment 69:
One commenter quotes from the Service's Handbook on NEPA Policies and Responsibilities: “We encourage public scoping for an Environmental Assessment, because it helps satisfy NEPA's purposes in section 101(b).”

Response:
In the proposed rule to designate critical habitat, dated March 15, 2011, and published in the
Federal Register
(76 FR 14126), we requested public review and comment on several aspects of the proposed designation, including a draft environmental assessment. Also, we conducted public outreach efforts, including posting information on the Service's National, Regional, and Field Office Web sites.

Comment 70:
One commenter suggested that the draft environmental assessment did not have sufficient information on the impacts of the proposed designation, and that the Secretary of the Interior should defer making a designation of critical habitat until such time as this information is available.

Response:
The commenter does not suggest what necessary information is lacking. The Act requires us to use the best available scientific and commercial data in making decisions. We believe this standard was met, and we are finalizing the critical habitat designation.

Comment 71:
One commenter suggested that the draft environmental assessment does not meet the requisite Data Quality Act of 2000 standards. Instead it blatantly ignored scientific information and based many of its conclusions on supposition and speculation.

Response:
The commenter does not cite the ways the document violates the Data Quality Act, or the scientific information that has been ignored. We believe that the draft environmental assessment relied on the best available scientific and commercial information. It based its conclusions on a reasonable assessment of the likely frequency, nature, and outcomes of incremental section 7 consultations, and discussed these in chapters 3 through 5.

Comment 72:
The draft environmental assessment uses the term “unknown” more than 18 times, yet page 96 of the draft environmental assessment concludes that “The impacts do not pose any uncertain, unique, or unknown risks.” With the number of unknown details listed throughout the draft environmental assessment and the overly general nature of this NEPA document, it is clear that there are unknown risks that the conclusion on page 96 of the draft environmental assessment fails to recognize.

Response:
The commenter's examples fall into two categories of unknowns: (1) The number

of section 7 consultations likely to be conducted in the future affecting a given resource, agency, or activity (accounting for 9 of the 17 specific instances mentioned); and (2) the specific details and locations of such projects (accounting for 8 of the 17 specific instances mentioned). Given the consultation histories that are relevant (and cited throughout the draft environmental assessment), we do not believe that the frequency or nature of likely consultations will be such to cause significant impacts, regardless of whether or not the precise number and nature of those consultations can be predicted.

Comment 73:
The Service should correct the draft environmental assessment by including data that support analysis of the effects of implementing critical habitat. The analysis should focus on the effects of critical habitat on each proposed critical habitat unit.

Response:
The designation of critical habitat itself does not produce direct impacts on the natural environment, nor does it directly impose limits on land management activities on private property. Its impacts occur through consultations conducted with Federal agencies (and, rarely, non-Federal project proponents who request Federal funding or authorization) under section 7 of the Act. For this reason, we feel it is appropriate to focus the impact discussion on the effects that critical habitat designation will have on the number, types, and outcomes (including conservation measures, project modifications, costs, or delays) of consultations. Please see the final environmental assessment for more information.

Comment 74:
There is a lack of actual environmental consequence determinations for each of the proposed critical habitat units. Per NEPA, the definition of effects clearly considers the ecological component to be the backbone of effects determinations.

Response:
The designation of critical habitat is intended to provide for the protection of the physical or biological features essential to the conservation of a listed species. Impacts from critical habitat designation occur through the outcomes of new, re-initiated, or expanded consultations under section 7 of the Act, rather than through direct physical impacts on the ground. For this reason, we feel it is appropriate to focus the impact discussion in the environmental assessment on the effects critical habitat designation will have on the number, types, and outcomes of consultations.

Comment 75:
One commenter suggested that the Service revise the environmental assessment to provide information about how the implementation of the proposed critical habitat will change the ecosystems that make up the proposed critical habitat areas. If it is determined that there will be no change in the environment conditions of the various proposed critical habitat areas due to the critical habitat designation, or that no true benefits will be realized from designating critical habitat, then the Service should select the “No Action” alternative and not burden the public with the cost of unnecessary Federal actions.

Response:
We do not believe that ecological impacts will occur because of this critical habitat designation. The benefits of critical habitat include public awareness of Chiricahua leopard frog presence and the importance of habitat protection, and in cases where a Federal nexus exists, increased habitat protection for Chiricahua leopard frogs due to the protection from adverse modification or destruction of critical habitat.

Summary of Changes From Proposed Rule

In the March 15, 2011, proposed rule (76 FR 14126), we proposed to designate approximately 11,136 acres (4,510 hectares) in 40 units as critical habitat

for the Chiricahua leopard frog. Then, in September 21, 2011 (76 FR 58441), we proposed approximately 331 acres (133 hectares) in three additional units, and amended the PCEs to provide more clarification by making them more objective and measurable. In this final listing rule, we are designating approximately 10,386 acres (4,187 hectares) as critical habitat in 39 units for the Chiricahua leopard frog.

We have fewer units in this final rule because we exclude the Pasture 9 Tank Unit, Beatty's Guest Ranch Unit, and Ramsey and Brown Canyons Unit under the provisions of section 4(b)(2) of the Act (see the unit descriptions under the Final Critical Habitat Designation section and the Exclusion section, below). Also, we reevaluated the High Lonesome Well Unit, and we have determined that it does not meet the definition of critical habitat (see our response to comment 18, above, and the unit description under the Final Critical Habitat Designation section, below). Therefore, we have removed the High Lonesome Well Unit from this final critical habitat designation.

Threatened Status for the Chiricahua Leopard Frog

Background

Due to a taxonomic revision of the Chiricahua leopard frog, we reassessed the status of and threats to the currently described species. It is our intent to discuss below only those topics directly relevant to the listing of the Chiricahua leopard frog as threatened in this section of the final rule. For more information on the Chiricahua leopard frog, refer to the final listing rule published in the
Federal Register
on June 13, 2002 (67 FR 40790) and the species' recovery plan (Service 2007).

Species Information

Description

When we listed the Chiricahua leopard frog as a threatened species on June 13, 2002 (67 FR 40790), we recognized the scientific name as
Rana chiricahuensis.
Since that time, the genus name
Lithobates
was proposed by Frost
et al.
(2006, p. 249) and adopted by the Society for the Study of Amphibians and Reptiles in their most recent listing of scientific and standard English names of North American amphibians and reptiles north of Mexico (Crother 2008, p. 7). With the publication of this final rule, we officially accept the new scientific name of the Chiricahua leopard frog as
Lithobates chiricahuensis.

In addition, the Ramsey Canyon leopard frog (
Lithobates subaquavocali
s), found on the eastern slopes of the Huachuca Mountains, Cochise County, Arizona, has recently been subsumed into
L. chiricahuensis
(Crother 2008, p. 7) and was noted by the Service as part of the listed entity in a 90-day finding on 192 species from a petition to list 475 species (74 FR 66866; December 16, 2009). Goldberg
et al.
(2004, pp. 313-319) examined the relationships between the Ramsey Canyon leopard frog (
L. subaquavocalis
) and the Chiricahua leopard frog (
L. chiricahuensis
). Genetic analysis showed no evidence that Ramsey Canyon leopard frog was a separate species from the Chiricahua leopard frog (Goldberg
et al.
2004, p. 315). The Society for the Study of Amphibians and Reptiles later adopted these leopard frogs as the same species,
L. chiricahuensis
(Crother 2008, p. 7). Therefore, we no longer recognize the Ramsey Canyon leopard frog (
L. subaquavocalis
) as a distinct species and consider it to be synonymous with the Chiricahua leopard frog (
L. chiricahuensis
). In this final rule, we present our analysis of the threats to the species given this taxonomic revision to determine if it is appropriate to list the Chiricahua leopard frog as threatened throughout its range (see Summary of Factors Affecting the Species below).

Northern populations of the Chiricahua leopard frog in the Mogollon Rim region of east-central Arizona east to the eastern bajada of the Black Range in New Mexico are physically separated from populations to the south. Previous work had suggested these two separate divisions might be distinct species (Platz and Grudzien 1999, p. 51). Goldberg
et al.
(2004, p. 315) demonstrated that frogs from these two regions showed a 2.4 percent average divergence in mitochondrial DNA sequences. However, more recent work using both mitochondrial DNA and nuclear microsatellites from frog tissues throughout the range of the species provides no evidence of multiple taxa within what we now consider to be the Chiricahua leopard frog (Herrman
et al.
2009, p. 18).

The Chiricahua leopard frog is distinguished from other members of the leopard frog complex by a combination of characters, including a distinctive pattern on the rear of the thigh consisting of small, raised, cream-colored spots or tubercles (wart-like projections) on a dark background; folds on the back and sides that, towards the rear, are interrupted and deflected towards the middle of the body; stocky body proportions; relatively rough skin on the back and sides; eyes that are positioned relatively high on the head; and often green coloration on the head and back (Platz and Mecham 1979, p. 347.1; Degenhardt
et al.
1996, pp. 85-87). The species also has a distinctive call consisting of a relatively long snore of 1 to 2 seconds in duration (Platz and Mecham 1979, p. 347.1; Davidson 1996, tracks 58, 59). Overall body lengths of adults range from approximately 2.1 inches (in) (5.3 centimeters (cm)) to 5.4 in (13.7 cm) (Platz and Mecham 1979, p. 347.1; Stebbins 2003, pp. 236-237).

Life History

The life history of the Chiricahua leopard frog can be characterized as a complex life cycle, consisting of eggs and larvae that are entirely aquatic and adults who are primarily aquatic but may be terrestrial at times. Females attach spherical masses of fertilized eggs, ranging in number from 300 to 1,485 eggs, to submerged vegetation (Sredl and Jennings 2005, p. 547). Egg masses of Chiricahua leopard frogs have been reported in all months, but reports of egg laying (oviposition) in June and November through January are uncommon (Zweifel 1968, pp. 45-46; Frost and Bagnara 1977, p. 449; Frost and Platz 1983, p. 67; Scott and Jennings 1985, p. 16; Sredl and Jennings 2005, p. 547). Frost and Platz (1983, p. 67) divided egg-laying activity into two distinct periods with respect to elevation. Populations at elevations below 5,900 feet (ft) (1,798 meters (m)) tend to lay eggs from spring through late summer, with most activity taking place before June. Populations above 5,900 ft (1,798 m) bred in June, July, and August. Scott and Jennings (1985, p. 16) found a similar seasonal pattern of reproductive activity in New Mexico (February through September), as did Frost and Platz (1983, p. 67), although they did not note elevational differences. Additionally, Scott and Jennings (1985, p. 16) noted reduced egg laying in May and June. Zweifel (1968, p. 45) noted that breeding in the early part of the year appeared to be limited to sites where water temperatures do not get too low, such as spring-fed sites. Chiricahua leopard frogs at warm springs may lay eggs year-round due to elevated water temperatures as compared to most breeding habitat (Scott and Jennings 1985, p. 16).

Eggs hatch in approximately 8 to 14 days depending on temperature (Sredl and Jennings 2005, p. 547). After hatching, tadpoles remain in the water, where they feed and grow. Tadpoles turn into juvenile frogs in 3 to 9 months (Sredl and Jennings 2005, p. 547). Juvenile frogs are typically 1.4 to 1.6 in (35 to 40 millimeters (mm)) in overall body length. Males reach sexual

maturity at 2.1 to 2.2 in (5.3 to 5.6 cm), a size they can attain in less than a year (Sredl and Jennings 2005, p. 548).

The diet of the Chiricahua leopard frog includes primarily invertebrates such as beetles, true bugs, and flies, but fish and snails are also taken (Christman and Cummer 2006, pp. 9-18). An adult was documented eating a hummingbird in southeastern Arizona (Field
et al.
2003, p. 235). Chiricahua leopard frogs can be found active both day and night, but adults tend to be active more at night than juveniles (Sredl and Jennings 2005, p. 547). Chiricahua leopard frogs presumably experience very high mortality (greater than 90 percent) in the egg and early tadpole stages, high mortality when the tadpole turns into a juvenile frog, and then relatively low mortality when the frogs are adults (Zug
et al.
2001, p. 303; Service 2007, pp. C10-C12). Under ideal conditions, Chiricahua leopard frogs may live as long as 10 years in the wild (Platz
et al.
1997, p. 553).

Geographical Range and Distribution

The range of the Chiricahua leopard frog includes central and southeastern Arizona; west-central and southwestern New Mexico; and in Mexico, northeastern Sonora, the Sierra Madre Occidental of northwestern and west-central Chihuahua, and possibly as far south as northern Durango (Platz and Mecham 1984, p. 347.1; Degenhardt
et al.
1996, p. 87; Sredl and Jennings 2005, p. 546; Brennan and Holycross 2006, p. 44; Lemos-Espinal and Smith 2007, pp. 287, 579; Rorabaugh 2008, p. 32). The distribution of the species in Mexico is unclear due to limited survey work and the presence of closely related taxa (especially
Lithobates lemosespinali
(no common name)) in the southern part of the range of the Chiricahua leopard frog. Based on 2010 data, the species still occurs in most major drainages in Arizona and New Mexico where it occurred historically; the exception to this is the Little Colorado River drainage in Arizona. In Arizona and New Mexico, the species likely occurs at about 14 and 16 to 19 percent of its historical localities, respectively (Service 2007, p. 6).

Habitat

Within its geographical range, breeding populations of this species historically inhabited a variety of aquatic habitats (Service 2007, p. 3); however, the species is now limited primarily to headwater streams and springs, and livestock tanks into which nonnative fish, bullfrogs, crayfish (
Orconectes virilis
), and barred tiger salamanders (
Ambystoma mavortium mavortium
) have not yet invaded or been introduced, or where the numbers of nonnative predators are low and habitats are complex, allowing Chiricahua leopard frogs to coexist with these species (Service 2007, p. 15). The large valley-bottom cienegas (mid-elevation wetland communities typically surrounded by relatively arid environments), rivers, and lakes where the species occurred historically are populated with nonnative predators at densities with which the Chiricahua leopard frog cannot coexist.

Dispersal

Although one of the most aquatic of southwestern leopard frogs (Degenhardt
et al.
1996, p. 86), Chiricahua leopard frogs are known to move among aquatic sites, and such movements are crucial for conserving metapopulations. A metapopulation is a set of local populations that interact via individuals moving between local populations (Hanski and Gilpin 1991, p. 7). If local populations are extirpated through drought, disease, or other factors, the populations can be recolonized via dispersal from adjacent populations. Hence, the long-term viability of metapopulations may be enhanced over that of isolated populations, even though local populations experience periodic extirpations. To determine whether metapopulation structure exists in a specific group of local populations, the dispersal capabilities of the frog must be understood. Based on a review of available information, the recovery plan (Service 2007, pp. D-2, D-3, K-3) provides a rule of thumb on dispersal capabilities. Chiricahua leopard frogs are reasonably likely to disperse 1.0 mile (mi) (1.6 kilometers (km)) overland, 3.0 mi (4.8 km) along ephemeral or intermittent drainages (water existing only briefly), and 5.0 mi (8.0 km) along perennial water courses (water present at all times of the year), or some combination thereof not to exceed 5.0 mi (8.0 km). This is often referred to as the “1-3-5 rule” of dispersal. It should be noted that inevitably and over time, it is the species itself, in the wild, which will define the configuration of any given metapopulation. Ultimately, the resultant configuration of persistent wild metapopulations may or may not comport with our current understanding of metapopulation dynamics. We will continue to examine metapopulation dynamics of wild populations and make management recommendations or modifications as required, over time.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants (Lists). A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. The final listing rule for the Chiricahua leopard frog (67 FR 40790; June 13, 2002) contained a discussion of these five factors, as did the proposed listing rule (65 FR 37343; June 14, 2000). Threats discussed in the previous listing rules are still affecting the Chiricahua leopard frog today. Please refer to these rules or the Chiricahua leopard frog recovery plan (Service 2007, pp. 18-45) for a more detailed analysis of the threats affecting the species. Because we no longer recognize the Ramsey Canyon leopard frog as a distinct species and consider it to be synonymous with the Chiricahua leopard frog, we reanalyzed factors relevant to the entire listed entity below. However, because all the threats from the previous rules still apply, we provide a summary of those below.

A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

The recovery plan lists the following threats to habitat or range of the Chiricahua leopard frog: Mining, including mining-related contaminants; other contaminants; dams; diversions; stream channelization; groundwater pumping; woodcutting; urban and agricultural development; road construction; grazing by livestock and elk; climate change; and altered fire regimes (Service 2007, pp. 31-37). Although these threats are widespread and varied, a threats assessment that was accomplished as part of the recovery plan showed chytridiomycosis and predation by nonnative species as consistently more important threats than these habitat-based factors (Service 2007, pp. 20-27).

Chiricahua leopard frogs are fairly tolerant of variations in water quality, but likely do not persist in waters severely polluted with cattle feces

(Service 2007, p. 34), or runoff from mine tailings or leach ponds (Rathbun 1969, pp. 1-3; U.S. Bureau of Land Management 1998, p. 26; Service 2007, p. 36). Furthermore, variation in pH, ultraviolet radiation, and temperature, as well as predation stress, can alter the potency of chemical effects (Akins and Wofford 1999, p. 107; Monson
et al.
1999, pp. 309-311; Reylea 2004, pp. 1081-1084). Chemicals may also serve as a stressor that makes frogs more susceptible to disease, such as chytridiomycosis (see discussion under Factor C below) (Parris and Baud 2004, p. 344). The effects of pesticides and other chemicals on amphibians can be complex because of indirect effects on the amphibian environment, direct lethal and sublethal effects on individuals, and interactions between contaminants and other factors associated with amphibian decline (Sparling 2003, pp. 1101-1120; Reylea 2008, pp. 367-374).

A copper mine (the Rosemont Mine) has been proposed in the northeastern portion of the Santa Rita Mountains, Pima County, Arizona (Recovery Unit 2), the footprint of which includes several sites recently occupied by Chiricahua leopard frogs. Recent research indicates that Chiricahua leopard frog tadpoles are sensitive to cadmium and copper above certain levels (Little and Calfee 2008, pp. 6-10), making the introduction of copper into Chiricahua leopard frog habitat a possible significant threat. A draft environmental impact statement was prepared by the U.S. Forest Service in September 2011, which confirmed that Chiricahua leopard frogs could be adversely affected by direct and indirect impacts of the mining operation, including effects from mercury, cadmium, and selenium contamination (U.S. Forest Service 2011, p. 396).

The continued threat of wildfire has never been more visible than that represented by the 2011 fire season in Arizona. A minimum of five wildfires occurred in Arizona that adversely affected the status of the Chiricahua leopard frog. The largest wildfire in Arizona State history, the Wallow Fire, started in the White Mountains on May 28, 2011. The Wallow Fire consumed 538,049 acres (217,741 ha), including in the area around Cambell Blue and Coleman Creeks. The Horseshoe II Fire started on May 8, 2011, grew to 222,954 acres (90,226 ha), and affected the majority of land area in the Chiricahua Mountains. We are not certain how occupied habitat in Cave Canyon will respond to such a widespread fire and subsequent precipitation events. The Murphey Complex and Greaterville fires both occurred in the spring of 2011, potentially affecting designated critical habitat in the Santa Rita Mountains (Florida Canyon and Eastern Slope of the Santa Mountains Units) and Pajarito Mountains (Sycamore Canyon and Peña Blanca Lake and Spring and Associated Tanks Units), respectively.

On June 12, 2011, the Monument Fire started 4 miles east of Hereford, Arizona, ultimately consuming 30,526 acres (12,353 ha) and significantly affecting a portion of the Huachuca Mountains, including the Beatty Guest Ranch in Miller Canyon. On June 27, 2011, over 120 adult and larvae Chiricahua leopard frogs were salvaged from the Beatty Guest Ranch in anticipation of destructive floods and sedimentation that occurred shortly thereafter, filling with sediment the ponds that formerly contained a robust population of Chiricahua leopard frogs. Chiricahua leopard frogs persist on Beatty Guest Ranch but only as a small fraction of their former numbers in habitat that has been severely adversely affected and faces an uncertain future.

The Southwest Endangered Species Act Team (2008, pp. iii-IV-5) published “Chiricahua leopard frog (
Lithobates
[
Rana
]
chiricahuensis
)

considerations for making effects determinations and recommendations for reducing and avoiding adverse effects,” which includes detailed descriptions of how many different types of projects, including fire management, construction, native fish recovery, and livestock management projects, may affect the frog and its habitat. This document, in addition to the recovery plan (Service 2007, pp. 31-37), can be referenced for more information about habitat-related threats. Habitat-related threats to the Chiricahua leopard frog, while not the most important factors threatening the species, currently affect and will continue to affect the species in the future.

B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

Even though the final listing rule (67 FR 40790; June 13, 2002) discussed over-collection for the pet trade as a possible threat, we have no information that leads us to believe that overutilization for commercial, recreational, scientific, or educational purposes is currently a threat to the Chiricahua leopard frog, or will become a threat in the future.

C. Disease and Predation

The threats assessment conducted during the preparation of the recovery plan (Service 2007, pp. 18-45) found that disease (chytridiomycosis) and predation by nonnative species (bullfrogs, crayfish, fish, and barred tiger salamanders) are the most significant threats to the Chiricahua leopard frog.

Disease

In some areas, Chiricahua leopard frog populations are known to be seriously affected by chytridiomycosis. Chytridiomycosis is an introduced fungal skin disease caused by the organism
Batrachochytrium dendrobatidis
or “
Bd.”
Voyles
et al.
(2009) hypothesized that
Bd
disrupts normal regulatory functioning of frog skin, and evidence suggests that electrolyte depletion and osmotic imbalance that occur in amphibians with severe chytridiomycosis are sufficient to cause mortality. This disease has been associated with numerous population extirpations, particularly in New Mexico, and with major die-offs in other populations of Chiricahua leopard frogs (Service 2007, p. 26).

Predation

Prior to the invasion of predatory, nonnative species (bullfrog, crayfish, fish species) into perennial waters, the Chiricahua leopard frog was historically found in a variety of aquatic habitat types. Today, leopard frogs in the southwestern United States are so strongly impacted by harmful nonnative species, which are most prevalent in perennial waters, that the leopard frogs' occupied niche is increasingly restricted to the uncommon environments that do not contain these nonnative predators, and these environments now tend to be ephemeral and unpredictable. Witte
et al.
(2008, p. 378) found that sites with disappearances of Chiricahua leopard frogs were 2.6 times more likely to have introduced crayfish than were control sites. Unfortunately, few sites with bullfrogs were included in the Witte
et al.
(2008, pp. 375-383) study, and at many sites, there was no identification of the species of fish present.

Summary of Factor C

Overall, the Chiricahua leopard frog has made modest population gains in Arizona in spite of disease and predation, but is apparently declining in New Mexico because of these threats (Service 2011, pp. 25-27). We consider disease, specifically chytridiomycosis, and predation by nonnative species to have significant impacts on Chiricahua leopard frog populations now, and we anticipate those impacts will continue in the future.

D. Inadequacy of Existing Regulatory Mechanisms

The Chiricahua leopard frog is currently listed as a threatened species (67 FR 40790; June 13, 2002) with a special rule (see 50 CFR 17.43(b)) to exempt operation and maintenance of livestock tanks on non-Federal lands from the section 9 take prohibitions of the Act. Even with regulatory protections of the Act currently in place, nonnative species used for fishing baits in Chiricahua leopard frog habitats pose a significant threat to the Chiricahua leopard frog; use of these nonnative species as fishing baits presents a vehicle for the distribution of these often predatory or competitive bait species into frog habitat and for the dissemination of deadly diseases to the frog. Picco and Collins (2008, pp. 1585-1587) found tiger salamanders infected with chytridiomycosis in Arizona bait shops, and tiger salamanders infected with ranavirus (a genus of viruses known to effect amphibians and reptiles) in Arizona, New Mexico, and Colorado bait shops. Furthermore, they found that 26 to 67 percent of anglers released tiger salamanders bought as bait into the waters where they fish, and 4 percent of bait shops released tiger salamanders into the wild after they were housed in shops with infected animals, despite the fact that release of live salamanders is prohibited by Arizona Revised Statute 17-371. This study shows how current wildlife laws and regulations fail to prevent the spread of amphibian diseases via the tiger salamander bait trade. Even though the Chiricahua leopard frog is currently listed under the Act as a threatened species, additional regulation or increased enforcement of existing regulations or both are needed to stem the spread of amphibian diseases via use of live salamanders as bait. Therefore, we consider the inadequacy of current regulatory mechanisms to prevent the spread of amphibian diseases via the bait trade to be a threat to the Chiricahua leopard frog now and in the future.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Small Populations

Among the potential threats in this category discussed in the Chiricahua leopard frog recovery plan (Service 2007, pp. i-M-17) and the final listing rule (67 FR 40790; June 13, 2002), are genetic and stochastic effects that manifest in small populations. Specifically, small populations are vulnerable to extirpation due to random variations in age structure and sex ratios, as well as from disease or other natural events that a larger population is more likely to survive. Inbreeding depression and loss of genetic diversity in small populations can also reduce the fitness of individuals and the ability of a population to adapt to change. The recent genetic study revealed no systemic lack of genetic diversity within the Chiricahua leopard frog as a species (Herrmann
et al.
2009, pp. 12-17). In fact, populations were quite variable; up to 16 different genetic groupings were found. This does not preclude the possibility that individual populations may suffer from genetic or demographic problems, but the study shows the species retains good genetic variability.

Climate Change

The Chiricahua leopard frog recovery plan (Service 2007, pp. 40-43) describes anticipated effects of climate change on the Chiricahua leopard frog. The plan cited literature indicating that temperatures rose in the 20th century and warming is predicted to continue over the 21st century (Service 2007, pp. 40-43). Climate models are less certain about predicted trends in precipitation, but the southwestern United States is expected to become warmer and drier. Since the recovery plan was prepared, the Intergovernmental Panel on Climate Change (IPCC) (2007, pp. 1-8) published a report stating that global warming is occurring and that precipitation patterns are being affected.

According to the IPCC report, global mean precipitation is anticipated to increase, but not uniformly (IPCC 2007, p. 8). In the American Southwest and elsewhere in the middle latitudes, precipitation is expected to decrease. There is also high confidence that many semi-arid areas like the western United States will suffer a decrease in water resources due to climate change, as a result of less annual mean precipitation and reduced length of snow season and snow depth (IPCC 2007, p. 8). Although most climate models predict a drying trend in the 21st century in the southwestern United States, these predictions are less certain than predicted warming trends. The models do not predict summer precipitation well, and typically at least half of precipitation within the range of the Chiricahua leopard frog occurs in the summer months (Brown 1982, pp. 58-62; Guido 2008, p. 5). Furthermore, there have been no trends either in summer rainfall over the last 100 years in Arizona (Guido 2008, pp. 3-5), or since 1955 in annual precipitation in the western United States (van Mantgem
et al.
2009, p. 523). On the other hand, all severe, multi-year droughts in the southwestern United States and northwestern Mexico have been associated with La Niña events (Seager
et al.
2007, p. 3), during which sea surface temperatures in the tropical Pacific decline. Climate models predict that drought driven by La Niña events will be deeper and more profound than any during the last several hundred years (Seager
et al.
2007, p. 3).

Drought has likely contributed to loss of Chiricahua leopard frog populations since the species was originally listed in 2002, and has likely affected the species historically. Drought conditions in the southwestern United States have arisen over time, and can range from short term to long term in duration. Stock tank populations are particularly vulnerable to loss, because they tend to dry out during periods of below normal precipitation. These trends are likely to continue, but the situation is complicated by interactions with other factors. For example, the effects of drought cannot be separated from the effects of nonnative species, because drought will affect those predators as well as populations of Chiricahua leopard frogs. The interaction between predators and drought resistance of frog habitats is often a delicate balance. Stock tanks are likely an important habitat for Chiricahua leopard frogs in part because these sites dry out periodically, which rids them of most aquatic predators. Because of their evolutionary history, southwestern leopard frogs may be able to withstand drying of stock tanks for a longer period of time than nonnative species that evolved in wetter climates in the eastern United States, which could provide southwestern leopard frogs a selective advantage. However, if stock tanks remain dry for extended periods of time, neither leopard frogs nor introduced predators may be capable of persisting. Drought will reduce habitats of both leopard frogs and introduced predators, but exactly how that will affect the Chiricahua leopard frog will probably be site-specific. Chiricahua leopard frogs can often withstand drying of stock tanks for short to moderate periods of time, whereas fish and bullfrogs may not (Service 2011; p. 29). At this time, it is difficult to predict how drought will impact the overall species' status, but Chiricahua leopard frog sites could be buffered from the effects of drought by occupying sites that have alternative supplies of water, such as wells. Even though drought may contribute to loss of site-specific populations, we do not consider short to moderate periods of drought that causes stock tanks to dry out to be a threat to the species or its

habitat. However, we consider prolonged drought that appreciably affects habitat on a regional scale to be a threat to the species.

Additionally, the effects of chytridiomycosis on frogs are related to water temperature. Sites where Chiricahua leopard frogs coexist with the disease are typically at lower elevations and are warmer sites (Service 2007, p. 26). As a result, if temperatures increase as predicted, it is possible that more populations will be able to persist with the disease. Thus climate change, particularly in the form of increased water temperatures, may not pose an impact to the Chiricahua leopard frog into the future.

Summary of Factor E

The Chiricahua leopard frog recovery plan (Service 2007) describes genetic and stochastic effects that manifest in small populations and the anticipated effects of climate change on the Chiricahua leopard frog as potential threats to the species. Herrmann
et al.'
s recent genetic study (2009, pp. 12-17), however, revealed no systemic lack of genetic diversity within Chiricahua leopard frog populations. Moreover, the effects of climate change are inextricably related to effects from other threats and are difficult to predict or interpret without more definitive data of higher resolution. Therefore, we are unable to conclusively state that climate change, in and of itself, will adversely affect the Chiricahua leopard frog in the foreseeable future. However, long-term periods of drought can be a factor affecting the species' continued existence that poses significant impacts to the Chiricahua leopard frog's habitat now and in the future.

Listing Determination

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Chiricahua leopard frog. In summary, the most significant threats to the Chiricahua leopard frog include the effects of the disease chytridiomycosis, which has been associated with major die-offs in some populations of Chiricahua leopard frogs (Service 2007, pp. B8-B88), predation by nonnative species (Factor C), and drought (Factor E). According to the June 13, 2002, final listing rule (67 FR 40790) and 2007 recovery plan, additional factors affecting the species include degradation and loss of habitat as a result of water diversions and large-scale groundwater pumping, livestock management practices (such that grazing is not in accordance with approved allotment management plans or otherwise considered adverse to maintaining natural habitat characteristics), altered fire regimes due to fire suppression, mining, contaminants, agricultural development, and other human activities; and inadequate regulatory mechanisms regarding introduction of nonnative bait species (Factors A and D) (67 FR 40790, June 13, 2002; Sredl and Jennings 2005, pp. 546-549; Service 2007, pp. B1-B88).

Since the time of listing, the species has made modest population gains in Arizona as a result of cooperative head-starting (rearing frogs in captivity from eggs through metamorphosis) campaigns and active partnerships and cooperation in management of occupied habitat. However the Chiricahua leopard frog continues to decline in New Mexico. Overall in the United States, the status of the Chiricahua leopard frog is improving. The status and trends for the species are unknown in Mexico. A recovery program is underway in the United States, and reestablishment of populations, creation of refugial populations, and habitat enhancement and creation have helped stabilize or improve the status of the species in some areas (Service 2011, pp. 6-9). Although progress has been made to secure some existing populations and establish new populations (Service 2011, pp. 6-9), the status of the species continues to be affected by threats such that the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Due primarily to ongoing conservation measures and the existence of relatively robust populations and metapopulations, we have determined that the species is not in immediate danger of extinction (i.e., on the brink of extinction) (Service 2011, p. 30). However, because we believe that the present threats are likely to continue in the future (such as chytrid fungus and nonnative predators spreading and increasing in prevalence and range, and affecting more populations of the leopard frog, thus increasing the threats in the foreseeable future), we have determined that the Chiricahua leopard frog is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, we determine that the Chiricahua leopard frog meets the definition of a threatened species under the Act.

Special Rule Under Section 4(d) of the Act

The June 13, 2002, final rule (67 FR 40790) listing the Chiricahua leopard frog as threatened included a special rule as defined under section 4(d) of the Act to ease the general take prohibitions for livestock use at or maintenance activities of livestock tanks located on private, State, or Tribal lands (see 50 CFR 17.43(b)). Under section 4(d) of the Act, the Secretary may publish a special rule that modifies the standard protections for threatened species in the Service's regulations at 50 CFR 17.31, which implement section 9 of the Act, with special measures that are determined to be necessary and advisable to provide for the conservation of the species. Based on changes made to the listed entity, we reevaluated the existing 4(d) rule to see if its measures are still necessary and advisable to the conservation of the species and appropriate to apply in the expanded range of the species. We determined that the measures of the 4(d) rule are appropriate and should be applied to the whole range. Therefore, we are not changing any conditions of the June 13, 2002, special rule, and it shall remain in effect as identified in our regulations at 50 CFR 17.43(b). We are, however, making an editorial change to 50 CFR 17.43(b) to revise the paragraph's heading to reflect to currently described species
Lithobates chiricahuensis.

The special rule replaces the Act's general prohibitions against take of the Chiricahua leopard frog with special measures tailored to the conservation of the species on all non-Federal lands. Through the maintenance and operation of the stock tanks for cattle, habitat is provided for the leopard frogs; hence there is a conservation benefit to the species. Under the special rule, take of Chiricahua leopard frog caused by livestock use of or maintenance activities at livestock tanks located on private, State, or Tribal lands would be exempt from section 9 of the Act. A livestock tank is defined as an existing or future impoundment in an ephemeral drainage or upland site constructed primarily as a watering site for livestock. The rule targets tanks on private, State, and Tribal lands to encourage landowners and ranchers to continue to maintain these tanks as they provide habitat for the frogs. Livestock use and maintenance of tanks on Federal lands will be addressed through the section 7 process. When a Federal action, such as permitting livestock grazing on Federal lands, may affect a listed species, consultation between us and the action agency is required under section 7 of the Act. The conclusion of consultation may include mandatory changes in livestock programs in the form of measures to minimize take of a

listed animal or to avoid jeopardizing the continued existence of a listed species.

Available Conservation Measures

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, and local agencies; private organizations; and individuals. The Act provides for possible cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed wildlife are discussed in Effects of Critical Habitat Designation and are further discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Department of Defense, U.S. Fish and Wildlife Service, U.S. Forest Service, and Bureau of Land Management; issuance of section 404 Clean Water Act (33 U.S.C. 1251
et seq.
) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered wildlife and 50 CFR 17.31 for threatened wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered or threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 50 CFR 17.32 for threatened wildlife. You may obtain permits for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

It is our policy, as published in the
Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that will or will not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the listed species. The following activities could potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.

(2) Unauthorized release of nonnative species that compete with or prey upon the Chiricahua leopard frog within the States of Arizona or New Mexico.

(3) The unauthorized release of biological control agents that attack any life stage of this species.

(4) Unauthorized modification of the channel or water flow of any stream or water body in which the Chiricahua leopard frog is known to occur.

(5) Unauthorized activities that result in the introduction or spread of the chytrid fungus.

(6) Unauthorized recreational activities.

(7) Unauthorized livestock grazing.

(8) Unauthorized construction and maintenance of roads and utility corridors or various types of development.

(9) Unauthorized fire suppression, fuels management, or use of prescribed fire.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT
). Requests for copies of the regulations concerning listed animals and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, P.O. Box 1306, Albuquerque, NM 87103; telephone: 505-248-6633; facsimile: 505-248-6788.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features;

(a) Essential to the conservation of the species; and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the

requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the elements of physical or biological features that together provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Qualit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-5953. Public record. Not legal advice.