Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sierra Nevada Yellow-Legged Frog, the Northern DPS of the Mountain Yellow-Legged Frog, and the Yosemite Toad

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2012-0074; 4500030113]

RIN 1018-AY07

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sierra Nevada Yellow-Legged Frog, the Northern DPS of the Mountain Yellow-Legged Frog, and the Yosemite Toad

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Sierra Nevada yellow-legged frog (

Rana sierrae

), the northern distinct population segment (DPS) of the mountain yellow-legged frog (

Rana muscosa

), and the Yosemite toad (

Anaxyrus canorus

) under the Endangered Species Act of 1973, as amended (Act). There is significant overlap in the critical habitat designations for these three species. The designated area, taking into account overlap in the critical habitat designations for these three species, is in total approximately 733,357 hectares (ha) (1,812,164 acres (ac)) in Alpine, Amador, Calaveras, El Dorado, Fresno, Inyo, Lassen, Madera, Mariposa, Mono, Nevada, Placer, Plumas, Sierra, Tulare, and Tuolumne Counties, California. All critical habitat units and subunits are occupied by the respective species. The effect of this rule is to designate critical habitat under the Act for the conservation of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad.

DATES:

This rule is effective September 26, 2016.

ADDRESSES:

This final rule is available on the Internet at

http://www.regulations.gov

and

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

Comments and materials we received, as well as supporting documentation we used in preparing this final rule, are available for public inspection at

http://www.regulations.gov.

All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours, at: U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento CA 95825; telephone 916-414-6600; facsimile 916-414-6612.

The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at

http://www.regulations.gov

at Docket No. FWS-R8-ES-2012-0074, and at the Sacramento Fish and Wildlife Office (

http://www.fws.gov/sacramento

; see

FOR FURTHER INFORMATION CONTACT

, below). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble of this rule and at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Jennifer Norris, Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento CA 95825; telephone 916-414-6700; facsimile 916-414-6612. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

This is a final rule to designate critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Under the Endangered Species Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

We listed the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog as endangered species, and the Yosemite toad as a threatened species, on April 29, 2014 (79 FR 24256). On April 25, 2013, we published in the

Federal Register

a proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR 24516). Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Here we are designating:

• Approximately 437,929 ha (1,082,147 ac) for the Sierra Nevada yellow-legged frog in Plumas, Lassen, Sierra, Nevada, Placer, El Dorado, Amador, Calaveras, Alpine, Mariposa, Mono, Madera, Tuolumne, Fresno, and Inyo Counties, California;

• Approximately 89,637 hectares (221,498 acres) for the northern DPS of the mountain yellow-legged frog in Fresno, Inyo and Tulare Counties, California; and

• Approximately 303,889 hectares (750,926 acres) for the Yosemite toad in Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California.

This rule is a final rule designating critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. This rule designates critical habitat necessary for the conservation of these listed species.

We have prepared an economic analysis of the designation of critical habitat.

In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) in the

Federal Register

on January 10, 2014 (79 FR 1805), allowing the public to provide comments on our DEA. We have incorporated the comments and have completed the final economic analysis (FEA) concurrently with this final determination.

Peer review and public comment.

We formally sought comments from five independent specialists to ensure that our designations are based on scientifically sound data and analyses. We obtained opinions from three knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and whether or not we had used the best available information. These peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in these final designations. We also considered all comments and information we received from the public during the comment periods.

Previous Federal Actions

Please refer to the proposed listing rule for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR 24472, April 25, 2013) for a detailed description of previous Federal actions concerning these species.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad during three comment periods. The first comment period associated with the publication of the proposed designation (78 FR 24516) opened on April 25, 2013, and closed on June 24, 2013. A second comment period opened on July 19, 2013, and closed on November 18, 2013 (78 FR 43122). We also requested comments on the proposed critical habitat designation and associated draft economic analysis (DEA) during a third comment period that opened on January 10, 2014, and closed on March 11, 2014 (79 FR 1805). We received requests for public hearings, and two were held in Sacramento, California, on January 30, 2014. We also held two public informational meetings, one in Bridgeport, California, on January 8, 2014, and the other in Fresno, California, on January 13, 2014. We also participated in several public forums, one sponsored by Congressman McClintock and two sponsored by Congressman LaMalfa. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and DEA during these comment periods.

During the first comment period, we received six comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received 545 comment letters addressing the proposed critical habitat designation or DEA. During the third comment period, we received 221 comment letters addressing the proposed critical habitat designation or DEA. During the January 30, 2014, public hearings, 21 individuals or organizations made comments on the designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad.

All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below. Comments we received are either directly answered, or are sometimes grouped into general issues specifically relating to the proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, and are addressed in the following summary and incorporated into the final rule as appropriate.

Comments From Federal Agencies

We received comments from three Federal agencies regarding the proposed critical habitat designations for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Comments we received are addressed below.

(1)

Comment:

The U.S. Forest Service (USFS) suggested removal of certain areas from the proposed critical habitat in the Inyo National Forest for Sierra Nevada yellow-legged frog due to local extirpation, and the removal of Echo Lakes from subunit 2E due to high recreational use and conflicts with Lahontan cutthroat trout introductions.

Our Response:

We do not agree that populations are extirpated in these areas of Inyo National Forest, and we are therefore not removing these areas from critical habitat. Our records indicate that the populations in these areas remain extant, based on the criteria we used to determine occupancy. These criteria require three consecutive zero-count visual-encounter surveys of the Sierra Nevada yellow-legged frog to confirm extirpation using post-1995 frog survey records. With regard to critical habitat exclusions, we have evaluated the requests from USFS and many others (see

Comments from States

and

Public Comments,

below), and have reconsidered the inclusion of a limited number of developed reservoirs from our final critical habitat designation. As a result of this reconsideration, Echo Lakes (Upper and Lower) are not included in this final critical habitat designation. A list of other reservoirs affected by our reconsideration, and our associated rationale and criteria used to derive this list, are explained below (see Criteria Used To Identify Critical Habitat, below).

(2)

Comment:

USFS requested a mix of critical habitat additions for the Sierra Nevada yellow-legged frog and Yosemite toad in certain areas, and they commented that we did not propose critical habitat to provide connectivity between occupied habitat subunits. Specific areas recommended for expansion of Sierra Nevada yellow-legged frog critical habitat included: Hellhole Meadow in the Lake Tahoe Basin Management Unit; Bourland Meadow, Moore Creek, and Skull Creek in the Stanislaus National Forest; Middle Creek in the El Dorado National Forest; additions to areas in the Plumas National Forest, including subunit 1D, subunit 1B, and areas to merge subunit 1B and 1C across extant localities and to increase connectivity and protect newly discovered localities in subunit 2A; and the Witcher Meadow/Birch Creek area to provide a source for frog translocations into Rock Creek drainage and Eastern Brook Lakes in the Inyo National Forest. USFS also asked about the potential for future critical habitat additions.

Our Response:

We concur that our proposed designation of critical habitat did not include broad-scale connectivity across subunits. However, in many areas of high-quality habitat, we are designating large areas that do allow connectivity between likely metapopulations as well as some areas for dispersal of individuals to recolonize historical habitat should management result in positive population trends. We acknowledge that for genetic clades with greater numbers of extant populations, we did not include every Sierra Nevada yellow-legged frog locality. However, designation as critical habitat is not a prerequisite for future conservation actions (such as those through a conservation strategy and recovery plan) implemented by the agencies with appropriate jurisdiction. Currently, we are working with USFS and the National Park Service (NPS) on the development of a conservation strategy that can help guide conservation actions until the completion of a recovery plan for Sierra Nevada yellow-legged frog and Yosemite toad. We agree that these areas are important habitat to consider during development of these plans and will be factored into the conservation of Sierra Nevada yellow-legged frog and Yosemite toad. We are optimistic that our positive collaborative partnership with USFS and NPS will continue in the future. Additional critical habitat would only be designated under a revision of the current critical habitat rule, which we do not currently envision.

(3)

Comment:

USFS and others commented that our database was lacking records for all occurrences or that, in some cases, populations that we considered extant were actually extirpated.

Our Response:

As discussed in the occurrence criteria, we used available location data from multiple sources for frog localities seen in surveys since 1995 (that have not been confirmed to be extirpated through subsequent surveys) and for Yosemite toad localities documented since 2000. It appears that some highlighted data discrepancies are a function of multiple data sources, as not all agencies are aware of the same records. In some areas, we missed localities, either because we did not receive the data during our initial data request period, or the populations were actually discovered after drafting the proposed critical habitat designation. We often must institute a cutoff date for receipt of new information in order to complete our critical habitat designations in time for internal review and subsequent publication. However, we did have the vast majority of information available during the drafting of proposed rule to designate critical habitat.

We have re-evaluated all the available occupancy data, and other than a portion of subunit 1A for the Sierra Nevada yellow-legged frog, we have not changed our designation as a result of the occupancy information for any subunits for Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or Yosemite toad. The limited areas that do have extant populations, unknown to us at the time of drafting, are not currently essential for the overall conservation of the species because of their limited extent. However, through the development of a final conservation strategy and recovery plan, the potential for these areas to contribute to species recovery will be considered.

(4)

Comment:

USFS commented that there is overlap in critical habitat designations for the Yosemite toad and Lahontan cutthroat trout (

Oncorhynchus clarkii henshawi

) in the El Dorado, Inyo, Stanislaus, and Sierra National Forests; for the Yosemite toad and Paiute cutthroat trout (

Oncorhynchus clarkii seleniris

) in the Sierra National Forest; for the Sierra Nevada yellow-legged frog and Paiute cutthroat trout in the Humboldt-Toiyabe National Forest; for the Sierra Nevada yellow-legged frog and Lahontan cutthroat trout in the El Dorado, Inyo, Tahoe, and Humboldt-Toiyabe National Forests, and the Lake Tahoe Basin Management Unit; and between the northern DPS of the mountain yellow-legged frog and Little Kern golden trout (

Oncorhynchus mykiss whitei,

listed as

Oncorhynchus aguabonita whitei

) in the Sequoia National Forest. They suggested considering this overlap and the possibly conflicting restoration objectives as a reason to exclude critical habitat for the frogs and toad in these areas.

Our Response:

We concur that these critical habitat designations do overlap as outlined by USFS. Such overlap is to be expected when methodology for habitat designation is based on physical or biological features. We do not intend for the designation of critical habitat for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog to necessarily preclude restoration opportunities for listed fish species in these areas. We intend to factor in the consideration of conflicting species restoration goals during the respective conservation planning efforts that will be coordinated amongst the Federal and State resource agencies, rather than at the stage of the critical habitat designation process.

(5)

Comment:

The United States Marine Corps (USMC) requested that the Marine Corps Mountain Warfare Training Center near Bridgeport be exempted under section 4(a)(3) of the Act (16 U.S.C. 1531

et seq.

) due to a draft integrated natural resources management plan (INRMP) that is in preparation, and they also requested an exclusion under section 4(b)(2) of the Act because of impacts to national security. The Marine Corps Mountain Warfare Training Center itself includes a base camp and residence quarters, but training activities take place across a wide area of the Humboldt-Toiyabe National Forest.

Our Response:

We appreciate the unique nature and value of this training center for the USMC and other Armed Services to meet their high-altitude training needs. However, we find that the section 4(a)(3) exemption does not apply in this case because the INRMP remains in draft form, and thereby does not fully meet the section 4(a)(3) exemption standard. In addition, based on the draft INRMP map, the base camp itself is not located within the critical habitat designation. We appreciate the USMC's efforts to address natural resources at their training facility, and we will continue to work with them to finalize their INRMP.

The USMC also requested exclusion of the Marine Corps Mountain Warfare Training under section 4(b)(2) of the Act because of impacts to national security. Critical habitat designation and subsequent consultation under the Act focuses upon potential effects to the primary constituent elements (PCEs). Based on the information contained within the draft INRMP and information from the Humboldt-Toiyabe National Forest (USFS) regarding training conducted in subunit 2H, we do not anticipate significant impact on USMC training activities and thus national security in this area. Therefore, the Secretary is not exercising her discretion to exclude the Marine Corps Mountain Warfare Training under section 4(b)(2) of the Act for purposes of national security within subunit 2H. We look forward to working with the USMC and USFS to coordinate future activities within critical habitat.

(6)

Comment:

NPS commented that including upland habitat in the critical habitat designation for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog is not required because frogs are not expected to be in these areas unless they are within aquatic habitat complexes. NPS proposed an alternate buffer of 300 meters (m) (980 feet (ft)) to buffer the frogs' primary habitat.

Our Response:

While we concur that the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow legged frog spend a predominant amount of their lives in wetland habitats, they are known to travel across mesic terrestrial habitat, and such dispersal and migration is required to recolonize habitat areas from which they have been extirpated. Therefore, this is an essential component of the species' life-history requirements, and inclusion of corridors in mesic habitat connecting wetland habitats is an element of our criteria defining habitat that is essential to the species' conservation. We do not interpret NPS's comment to suggest that we exclude these mesic upland areas.

We do concur that frogs are very unlikely to be found in xeric upslope habitats (catchments up to ridgelines where NPS does request exclusions), some of which were included in the designation. The Sierra Nevada yellow-legged frog and northern DPS of the mountain yellow-legged frog, being amphibians, are quite likely sensitive to a wide range of aquatic contaminants, and the PCE of water quality is potentially influenced by upgradient activities. Further, in light of future threats associated with climate change, the PCE of water quantity to provide for the critical wetland areas is relevant.

We understand NPS's contention that NPS-managed catchments do not include many of the threat factors extant within other federally managed lands, and as such, recreational land uses predominant in the National Parks are unlikely to impact natural hydrology. However, the PCEs were written to take into consideration physical or biological features of habitat, regardless of jurisdiction or magnitude of operative

threats. It is appropriate to apply the same criteria across jurisdictional boundaries based on habitat attributes as outlined in the discussion of physical or biological features section of this document.

In these instances where PCEs are not affected by the action (

i.e.,

no threats to habitat are introduced through Federal activities), a `not likely to adversely affect' determination may be reached. During informal consultation, factors such as project area proximity to known frog localities and the specific nature of the project are factored in to the determination.

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.” We did not receive comments from the State of California pertaining to the Yosemite toad proposed critical habitat designation. Comments received from the California Department of Fish and Wildlife (CDFW) regarding the proposal to designate critical habitat for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are addressed below.

(7)

Comment:

CDFW recommended various Sierra Nevada yellow-legged frog critical habitat subunit removals based on differences in our data records (CDFW's current records do not indicate frogs in certain subunits because their current records do not include all USFS data), and because some of these areas experience heavy recreational use and have very low restoration potential.

Our Response:

Based on the comments from CDFW that provided additional survey results, we have updated our records for the Sierra Nevada yellow-legged frog. We evaluated these updated data, in addition to the data we were provided by USFS, and we currently have a comprehensive occurrence database for the Sierra Nevada yellow-legged frog based on the best scientific data available. We recently reviewed all records based on the criteria followed by CDFW for their status evaluation conducted by the State to determine whether the species warrants listing under the California Endangered Species Act (CDFW (formerly CDFG) 2011, pp. 12-16) (

i.e.,

extant since 1995, unless three consecutive zero count surveys indicate extirpation). Our current records indicate that all proposed critical habitat units and subunits are occupied by extant populations. With this rule, we are designating these units and subunits as critical habitat for the Sierra Nevada yellow-legged frog.

We concur with the CDFW that certain reservoirs with higher degrees of development (managed reservoirs that have high water-level fluctuations and are surrounded by developed infrastructure such as significant number of cabins and/or a marina) and high public-use pressure (paved road-accessible reservoirs) have lower restoration potential. We have evaluated such reservoirs for removal from critical habitat in light of our existing criteria. This is discussed in full detail below (see Criteria Used To Identify Critical Habitat, below).

(8)

Comment:

CDFW recommended additions to Sierra Nevada yellow-legged frog critical habitat and the northern DPS of the mountain yellow-legged frog critical habitat to increase connectivity between certain subunits and to take advantage of good habitat areas for restoration opportunities in areas where we did not propose critical habitat.

Our Response:

Based on their distance from existing known frog populations, we did not propose these additional areas for critical habitat designation. Please refer also to our response to Comment (2), above. We do agree that the areas recommended by CDFW represent potential areas for translocation of frogs once methods have been proven successful, and will consider including such areas in the final conservation strategy currently being developed in coordination with CDFW, USFS, and NPS, and in a future recovery plan.

Public Comments

(9)

Comment:

We received several comments that we should not designate private lands as critical habitat.

Our Response:

According to section 4(a)(3)(A) of the Act, the Secretary of the Interior shall, to the maximum extent prudent and determinable, concurrently with making a determination that a species is an endangered species or a threatened species, designate critical habitat for that species. As directed by the Act, we proposed as critical habitat those areas occupied by the species at the time of listing and that contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. The Act does not provide for any distinction between landownerships in those areas that meet the definition of critical habitat.

(10)

Comment:

We received numerous comments expressing general and specific concerns about restrictions that commenters believe will be imposed on private lands as a result of critical habitat designation. We received several comments expressing concerns regarding the taking of private property through designation of critical habitat.

Our Response:

When prudent and determinable, the Service is required to designate critical habitat under the Act. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership or establish any closures or place any restrictions on use of or access to the designated areas. Critical habitat designation also does not establish specific land management standards or prescriptions. 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.

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. Where a landowner requests Federal agency funding or is required to obtain Federal agency authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act 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.

(11)

Comment:

We received several comments expressing concern that roads, buildings, ski resorts, hydroelectric facilities and infrastructure, etc., have been included in proposed critical habitat.

Our Response:

When determining critical habitat boundaries within the proposed rule, we followed a habitat/species distribution (MaxEnt) model (see “(3) Habitat Unit Delineation,” below) for determining critical habitat areas in the case of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog. This model did not incorporate extant stressors, such as level of development or fish presence, for example. To do so may have biased against the assurance that the appropriate areas requiring special management considerations be

identified. In the case of the Yosemite toad, a similar model was utilized, but not relied upon, because of its implicit consideration of stressors in the model inputs.

For all three species, we made an effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack the physical or biological features. The maps we prepared may not reflect the non-inclusion of such developed lands. Any such lands left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat.

Areas that have been partially developed, or undeveloped areas proximate to developed structures, may and often do have physical or biological features that can sustain the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or the Yosemite toad during at least part of their life cycle, or may serve as habitat corridors to connect more suitable areas and allow dispersal, migration, and recolonization of historical habitat. These areas with the essential physical or biological features, or that may act as corridors, remain in the final critical habitat designation.

(12)

Comment:

We received numerous comments expressing concerns regarding access to public lands (road closures, off-highway vehicle (OHV) restrictions, grazing, fishing, etc.). We received numerous comments requesting specific exclusions for recreational reasons, primarily fishing within the range of the Sierra Nevada yellow-legged frog.

Our Response:

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. However, the designation of critical habitat does not prevent access to any land, whether private, tribal, State, or Federal. Designation of critical habitat does not affect land ownership. Critical habitat designation also does not establish specific land management standards or prescriptions. Critical habitat also does not preclude access to fishing in any specific lakes.

We considered a section 4(b)(2) exclusion for other relevant impacts (including recreational fishing) at a number of sites within the proposed critical habitat. However, in responding to public, agency, and peer review comments, and upon re-examination, we determined that these areas have very low restoration potential because of high public use, their developed state, and their distance from known frog occurrences. Using our revised criteria for identifying critical habitat, we found that many of these areas do not meet the criteria for inclusion in the designation, and, therefore, we have not included them in this final designation.

(13)

Comment:

Several commenters expressed concern about the use of the incremental approach to quantify the cost of the proposed rulemaking. One commenter states that the DEA should instead rely on a coextensive or full impact approach. The commenter asserts that the incremental approach withholds information about the true economic impacts of designating certain areas as critical habitat. In particular, the commenter asserts the incremental approach fails to adequately address secondary and indirect effects of the designation or account for the cumulative and synergistic effects of multiple laws restricting the use of land and water resources within proposed critical habitat.

Our Response:

Because the purpose of the economic analysis is to facilitate the mandatory consideration of the economic impact of the designation of critical habitat, to inform the discretionary section 4(b)(2) exclusion analysis, and to determine compliance with relevant statutes and Executive Orders, focusing the economic analysis of the designation of critical habitat for the three Sierra amphibians on the incremental impact of the designation is appropriate. We acknowledge that significant debate has occurred regarding the incremental approach, with several courts issuing divergent opinions. Most recently, the U.S. Ninth Circuit Court of Appeals concluded that the incremental approach is appropriate, and the U.S. Supreme Court declined to hear the case (

Home Builders Association of Northern California

v.

United States Fish and Wildlife Service,

616 F.3d 983 (9th Cir. 2010), cert. denied, 179 L. Ed. 2d 301, 2011 U.S. Lexis 1392, 79 U.S.L.W. 3475 (2011);

Arizona Cattle Growers

v.

Salazar,

606 F.3d 1160 (9th Cir. 2010), cert. denied, 179 L. Ed. 2d 300, 2011 U.S. Lexis 1362, 79 U.S. L.W. 3475 (2011)). Subsequently, on August 28, 2013, we revised our approach to conducting impact analyses for designations of critical habitat, specifying that the incremental approach should be used (78 FR 53058, p. 53062).

(14)

Comment:

Several commenters assert that the baseline of the analysis is flawed. They assert that because critical habitat must be designated concurrently with a listing decision, there would be no listing without a critical habitat designation. Therefore, the baseline for the economic analysis should be the existing state of regulation prior to the listing of the species under the Act.

Our Response:

Critical habitat cannot be designated for a species that is not listed under section 4 of the Act. However, it is possible to list a species without simultaneously designating critical habitat. A listing decision always precedes a critical habitat designation, even if they are promulgated concurrently. The U.S. Office of Management and Budget's (OMB) guidelines for best practices concerning the conduct of economic analysis of Federal regulations (Circular A-4) direct agencies to measure the costs of a regulatory action against a baseline, which it defines as the “best assessment of the way the world would look absent the proposed action.” OMB's direction is reflected in our regulations specifying the approach we use to conduct impact analyses for designations of critical habitat (78 FR 53058; August 28, 2013).

(15)

Comment:

Several commenters assert that the Service can no longer segregate and disregard probable economic impacts on the basis that they are not quantifiable. The commenters state that prior court decisions within the Ninth Circuit allowed the Service to meet its obligation to consider probable economic impacts by analyzing only those impacts that the Service, in its discretion, deemed to be certain and quantifiable (historically, the costs of section 7 consultation). They assert that the DEA, however, is misleading if the economic impact of critical habitat designation is limited only to the costs incurred by Federal agencies during section 7 consultation. One commenter suggests that probable economic impacts include impacts to non-Federal activities that would be affected by the section 7 constraints on the Federal activities. The commenter also indicates that the DEA should consider economics related to non-Federal activities. Another commenter also cites 50 CFR 424.19, effective October 30, 2013, which explicitly recognizes that impacts which may only be (or may be better) analyzed qualitatively are properly addressed in an economic analysis.

Our Response:

Economic impacts to non-Federal entities are considered in quantitative terms, where data allow, and qualitatively throughout the DEA. First, Exhibit 2-1 of the DEA presents the unit incremental administrative costs of section 7 consultation used in

the economic analysis. The total unit cost presented in that exhibit includes costs to the Service, other Federal agencies, and third parties. Third parties include such non-Federal entities as project proponents (

e.g.,

hydroelectric and timber harvest activities) and State agencies (

e.g.,

CDFW) that may also participate in the consultation process. Thus, the economic analysis is not limited only to costs incurred by Federal agencies. Incremental costs incurred by third parties during the consultation process range from $260 to $1,400 per consultation.

Other potential impacts, where data limitations prevent quantification, are described qualitatively in the DEA. For example, in assessing the potential incremental cost of the proposed rule on hydroelectric facilities, section 4.2.2 of the DEA considers the potential for additional time delays that may occur because of the need to complete the section 7 consultation process. Similarly for timber harvest activities on privately owned lands, section 4.2.5 of the DEA considers the potential for the designation of critical habitat to cause unintended changes in the behavior of individual landowners, other Federal agencies, State, or local permitting or regulatory agencies. Specifically, this section of the DEA recognizes potential costs that may arise from changes in the public's perception of the burden placed on privately owned land from the designation of critical habitat.

In accordance with 50 CFR 424.19(b), which states, “Impacts may be qualitatively or quantitatively described,” the Service considers both the qualitative and quantitative effects listed in the economic analysis when developing the critical habitat for these species.

(16)

Comment:

One commenter states that the DEA effectively ignores impacts related to different conservation efforts since the DEA is unable to predict the types of projects that may require different conservation efforts. The commenter cites a passage from the DEA on page ES-6, which states: “At this time, however, the Service is unable to predict the types of projects that may require different conservation efforts. Thus, impacts occurring under such circumstances are not quantified in this analysis. We focus on quantifying incremental impacts associated with the additional administrative effort required when addressing potential adverse modification of critical habitat in section 7 consultation.” The commenter states that the lack of consideration of economic impacts related to conservation efforts makes the DEA useless and fraudulent, and suggests withdrawing the proposed critical habitat designation until a properly conducted economic analysis is available.

Our Response:

Section 2.3 of the DEA describes the reasons why we do not anticipate these critical habitat designations will result in additional conservation requirements. Additionally, Appendix C of the DEA includes a memorandum, titled “Comments on How the DEA Should Estimate Incremental Costs for Sierra Nevada Yellow-legged Frog, Northern DPS of the Mountain Yellow-legged Frog, and Yosemite Toad Proposed Critical Habitat Designation,” describing our reasoning on this issue. In general, where critical habitat is occupied by the listed species, conservation measures implemented in response to the species' listing status under the Act are expected to sufficiently avoid potential destruction or adverse modification of critical habitat. Thus, generally such projects are already avoiding adverse modification under the regulatory baseline, and no additional conservation measures or project modifications are expected following the critical habitat designation. In such instances, the DEA assumes that the incremental costs of the designations are limited to the portion of administrative effort required to address adverse modification during section 7 consultation. These assumptions are highlighted in the DEA as the chief source of uncertainty in the analysis. As discussed in section 2.3 of the DEA, we do acknowledge that there may be “limited instances” in which an action proposed by a Federal agency could result in adverse modification but not jeopardy of the species. However, information that would allow the identification of such instances is not available.

(17)

Comment:

Two commenters state that the DEA fails to adequately account for the costs to energy activities. One commenter asserts that the Service failed to prepare and submit a “Statement of Energy Effects,” which is required for all “significant energy actions.” The commenter further states that the Service should seek public input and review of the Statement of Energy Effects before submitting it, to assure it is done honestly and accurately.

Our Response:

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. These outcomes include, for example, reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity, or increases in the cost of energy production or distribution in excess of one percent.

As presented in chapter 4 of the DEA, impacts to the energy industry from the designation of critical habitat for the three Sierra amphibians is expected to be limited to additional administrative costs, and is not anticipated to result in any impacts to the supply, distribution, or use of energy. As shown in Exhibit 2-1 of the DEA, incremental costs incurred by third parties during the consultation process are approximately $875 per consultation. Based on the revenues of the energy companies reported in section A.1.2, the designation is unlikely to affect the cost of energy production or distribution.

(18)

Comment:

Several commenters assert that the assumption in the DEA that the entire designation is considered occupied is flawed. One commenter notes that the critical habitat units are generally large, and while at least one population may exist in each unit, the vast majority of acreage, water bodies, and meadows in any given subunit are likely to be unoccupied. Thus, assigning an “occupied” status to the entire unit misrepresents the extent of the species' distribution and is indefensible.

Our Response:

As stated in section 4.1 of the DEA, in determining whether a specific critical habitat unit is considered occupied by the respective species, the DEA relies on information regarding species occupancy from the proposed rule. Specifically, the Service states: “All units and subunits proposed for designation as critical habitat are currently occupied by the Sierra Nevada mountain yellow-legged frogs, the northern DPS of the mountain yellow-legged frogs, or Yosemite toads . . . We are proposing to designate only geographic areas occupied by the species because the present geographic range is of similar extent to the historical range and therefore sufficient for the conservation of the species” (78 FR 24516, April 25, 2014, pp. 24522, 24523). In other words, the best available information suggests that all areas proposed as critical habitat be treated as occupied during consultation. See also the response to Comment (7), above.

In addition, we also considered the possibility that due to the large size of some critical habitat units, species occupancy may be uncertain for a

specific project location within an occupied unit. In these instances, the Federal action agency may not be aware of the need to consult under the jeopardy standard, and the designation of critical habitat may therefore result in an increase in the number of consultations. In such instances, the full costs of section 7 consultation and resulting project modifications would be considered incremental. As stated in section 4.1 of the DEA, discussions with USFS, NPS, and CDFW, the three agencies most likely to consult with the Service in the study area, indicate that the designation is unlikely to have such an effect. All three agencies typically consult with the Service on a programmatic level across much of the State, and thus would be aware of the potential presence of the species throughout its range. Furthermore, all three agencies already have in place programs that protect the amphibians and their habitat. As a result, impacts to the amphibians and their habitat are already considered across the array of economic activities identified as threats to species conservation and recovery. Consequently, we assume that the designation is unlikely to change the section 7 consultation process or incur associated project modifications due solely to the designation of critical habitat.

(19)

Comment:

A commenter states that if the Service provided Industrial Economics Incorporated (IEc) with likely conservation efforts to be imposed, these efforts should be shared with the public. The commenter also cites paragraph 90 of the DEA, which provides categories of conservation efforts, including “non-native fish eradication, installation of fish barriers, modifications of fish stocking activities, changes in grazing activities, minimizing disturbance of streamside and riparian vegetation, minimizing soil and compaction and minimizing impacts on local hydrology.” The commenter asks whether there are specific examples of when and where these conservation efforts would be considered and what the conservation measures associated with each effort are. The commenter goes on to state that conferencing is required during the listing decision-making period. Through conferencing, the Service should have a general idea of what conservation measures are being requested and what conservation measures might be imposed by the Service. The commenter asks about what measures are being requested and recommended during conferencing.

Our Response:

The information presented in the DEA regarding possible conservation measures to protect the three Sierra amphibians was obtained from the proposed listing rule. The Service did not provide any additional information regarding possible conservation measures. More importantly, however, we reiterate that because all areas are considered occupied, the economic analysis concluded that the designation is unlikely to result in the requirement of additional conservation measures above and beyond those required to avoid jeopardy (

i.e.,

in response to the listing of the species). In other words, the designation of conservation measures required to avoid jeopardy is expected to sufficiently avoid potential destruction or adverse modification of critical habitat.

As to the availability of additional information on conservation measures from conferencing, due to the timing of the proposed rules to list and designate critical habitat for these three species, information on project modifications from conferencing was unavailable at the time the DEA was developed. Since the publication of the DEA, the Service released a programmatic biological opinion on the forest programs associated with nine National Forests in the Sierra Nevada of California for the amphibians. The biological opinion, released in December 2014, provides more detailed information on general conservation measures as well as program-specific conservation measures for the three Sierra amphibians. The full biological opinion is publicly available at:

http://www.fws.gov/sacramento/es/Survey-Protocols-Guidelines/Documents/USFS_SNA_pbo.pdf.

The conservation measures included in this biological opinion are intended to ensure activities at the National Forest do not jeopardize the species and provide additional evidence of the types of baseline protection likely to be provided by the listing of the species. We updated the FEA to reference the new information on species conservation measures available from the December 2014 biological opinion.

(20)

Comment:

One commenter states that similar economic impacts were reviewed in the August 2006 Economic Analysis of Critical Habitat Designation for the Mountain Yellow-Legged Frog. The critical habitat designation for the Mountain Yellow-Legged Frog included 8,770 acres in Los Angeles, San Bernardino, and Riverside Counties. The commenter highlighted the findings from that analysis, which estimated total future impacts between $11.4 million to $12.9 million (undiscounted) over 20 years, of which impacts to recreational trout fishing accounted for 57 percent of total impacts. The commenter states that this designation is over 200 times larger than the designation proposed in southern California, yet the DEA found only $17,500 in impacts related to fishing over 17 years.

Our Response:

The economic analysis for the critical habitat designation for the southern DPS of the mountain yellow-legged frog is not comparable with the economic analysis conducted for the critical habitat designation for the three Sierra amphibians. Specifically, the 2006 economic analysis for the critical habitat designation for the southern DPS of the mountain yellow-legged frog relied on the coextensive methodology of estimating economic impacts. However, the current policy directs the Service to use the incremental approach to economic analyses based in part on several legal precedents, including

Arizona Cattle Growers' Assoc.

v.

Salazar,

606 F.3d 1160 (9th Cir. 2010), cert. denied, 179 L. Ed. 2d 300, 2011 U.S. Lexis 1362, 79 U.S. L.W. 3475 (2011) and

Cape Hatteras Access Preservation Alliance

v.

DOI,

2010 U.S. Dist. Lexis 84515 (D.D.C. August 17, 2010). As such, the DEA for the three Sierra amphibians relies on the incremental approach (see also Comment (13), above).

(21)

Comment:

One commenter states that the Service should engage the public for their input when writing the DEA.

Our Response:

In the process of developing the DEA, we conducted two rounds of outreach actions. First, we reached out to each of the 10 National Forests and 2 National Parks that fall within proposed critical habitat boundaries. The majority of the proposed critical habitat falls within areas managed by the USFS (61 percent) and the NPS (36 percent). Through these conversations, Federal entities indicated that they will undertake actions to protect the species regardless of whether critical habitat is designated. These agencies are the parties entrusted with public land management, as more than 95 percent of all the land designated as critical habitat is under their ownership and jurisdiction. Second, we conducted outreach with third-party entities that may participate in section 7 consultations because they may seek permits to conduct activities on Federal lands. For example, in evaluating potential impacts to dams and water diversions located within the proposed critical habitat boundaries, we reached out to hydroelectric project owners as stated in section 4.2.2 of the DEA. These affected parties are ideal candidates to help frame economic impacts of critical

habitat designation and consultation with the Service.

(22)

Comment:

One commenter states that the assumed consultation costs are extremely low and that man hours should also be shown to help discern the level of effort assumed for consultation.

Our Response:

The DEA relies on the best available information to estimate the administrative costs of section 7 consultation. As described in Exhibit 2-1 of the DEA, the consultation cost model is based on a review of consultation records and interviews with staff from three Service field offices, telephone interviews with Federal action agencies (

e.g.,

BLM, USFS, and U.S. Army Corps of Engineers), and telephone interviews with private consulting firms who perform work in support of permittees. In the case of Service and Federal agency contacts, we determined the typical level of effort required to complete several different types of consultations (

i.e.,

hours or days of time), as well as the typical Government Service (GS) level of the staff member performing this work. In the case of private consultants, we interviewed representatives of firms in California and New England to determine the typical cost charged to clients for these efforts (

e.g.,

biological survey, preparation of materials to support a biological assessment). The model is periodically updated with new information received in the course of data collection efforts supporting economic analyses and public comment on more recent critical habitat rules. In addition, the GS rates are updated annually.

(23)

Comment:

One commenter states that the DEA fails to include costs associated with additional reviews required under the California Environmental Quality Act (CEQA) for lands designated as critical habitat for the three Sierra amphibians. Whenever a public agency authorizes, approves, funds, or carries out an activity that will result in a physical change to the environment, CEQA requires the entity to undertake an environmental review. The commenter asserts that the DEA improperly excludes a discussion of the additional costs of processing projects under CEQA due to the designation.

Our Response:

The potential for incremental impacts related to the triggering of new requirements under CEQA is relevant to non-Federal lands included in the proposed rule, which account for less than 5 percent of the total designation. Section 2.3.2 of the DEA provides a general discussion of the potential for critical habitat to trigger other State and local laws. The DEA concludes that such incremental impacts are unlikely in the case of the three Sierra amphibians due to the widespread awareness of the species and their habitats and existing management strategies to protect the species. For a discussion of these management strategies, see chapter 3 of the DEA.

Importantly, the three Sierra amphibians are thought to occupy all the areas proposed for designation. Thus, for activities occurring on private land, such as logging activities requiring a State-approved timber harvest plan, CEQA is likely to be triggered due to the presence of a listed species, regardless of whether critical habitat is present. Furthermore, the Sierra Nevada yellow-legged frog and the mountain yellow-legged frog are listed species under the California Endangered Species Act; thus, the presence of these species would already trigger CEQA absent the designation of critical habitat.

(24)

Comment:

Several commenters state that the DEA does not adequately address regional economic impacts. One commenter states that the DEA only presents costs to managing governmental agencies rather than regional economic impacts. Another commenter is particularly concerned with distributional impacts related to recreation on Squaw Ridge in Amador County.

Our Response:

Given the limited nature of incremental impacts likely to result from this designation, measurable regional impacts are not anticipated as a result of this designation. Therefore, we did not use a regional input-output model to estimate regional impacts. Section 2.2.2 of the DEA discusses distributional and regional economic effects in greater depth.

(25)

Comment:

Several commenters identify the chytrid fungus (

Batrachochytrium dendrobatidis

(Bd)) epidemic as a significant threat to the amphibians and their habitat. The commenters state that the DEA should include the economic cost of eradicating Bd. Without a plan to reduce or eliminate Bd, the commenters note it is debatable whether creating critical habitat designations would have much benefit to the species.

Our Response:

We agree that disease and pathogens, including Bd, represent a significant threat to the amphibians. Chytridiomycosis, the disease caused by Bd, directly affects individual members of the species. However, it does not result in adverse modification of critical habitat as a result of Federal activities. Further, there are currently no known methods (and therefore no plans or restoration efforts to associate with costs) to eliminate Bd, and reducing its spread among areas is the only current known mitigation measure. These mitigation measures were already in place prior to the listing of the species. In other words, no additional conservation efforts intended to reduce the spread of Bd would be undertaken in response to the critical habitat designation. Therefore, we do not anticipate that this critical habitat designation will result in incremental costs associated with Bd mitigation efforts.

(26)

Comment:

Several commenters are concerned about economic impacts related to fishing, and they state that the elimination or reduction of fish in this area would create immense economic impacts to affected areas and to the life and livelihood of all who live and work in the area.

Our Response:

As discussed in section 4.2.1 of the DEA, the proposed rulemaking is not anticipated to result in the elimination or reduction of fish within areas designated as critical habitat. In other words, any changes in fish stocking activities would occur regardless of the critical habitat designation, as these will occur in response to the listing of the species. As discussed in chapter 3 of the DEA, there are a number of programs that provide significant baseline protections to the amphibians from fish predation, including the California Department of Fish and Wildlife (CDFW) High Mountain Lakes Project, the Restoration of Native Species in High Elevation Aquatic Ecosystems Plan under development by the Sequoia & Kings Canyon National Park, and the High Elevation Aquatic Ecosystem Recovery and Stewardship Plan under development by the Yosemite National Park. With the listing of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog (the species' for which fish presence is a threat), additional regulatory protections are now in place. The DEA assumes that the incremental costs of the designation associated with fish stocking programs would be limited to the administrative costs of the additional effort to address adverse modification during consultation.

(27)

Comment:

Several commenters express concern that the designation will affect fishing in affected counties and highlight the importance of fishing to the local economies affected by the designation. For example, recreational fishing contributes more than $2 billion annually to California's economy, and within Mono County, investments in fish stocking and tourism are estimated

to total approximately $8.8 million over the next 17 years.

Our Response:

As discussed in Comment (26), we do not anticipate that the critical habitat designation will result in changes to fish-stocking activities over and above protections that are already in place as a consequence of the State and Federal listings of the frogs. As a result, reductions in visitors and associated spending are not anticipated. We added a description of the importance of recreational fishing to the regional economy to the FEA.

(28)

Comment:

Several commenters are concerned about the economic impact to livestock and packstock grazing activities. One commenter states that the loss of use, or reduction in available use, of grazing allotments on National Forests would significantly impact the ranchers who currently depend on the livestock forage provided by Federal grazing allotments. Another commenter asserts that the designation will prevent ranchers from accessing and using existing property rights within federally controlled lands, including water rights, easements, rights-of-way, and grazing preferences within BLM and USFS grazing allotments designated as critical habitat. The commenter states that the DEA should include analysis of the economic effects of excluding ranching.

Our Response:

The act of designating critical habitat does not summarily preclude access to any land, whether private, tribal, State or Federal. 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. Furthermore, designation of critical habitat does not affect land ownership, or establish any closures or any restrictions on use of or access to the designated areas through the designation process, nor does it establish specific land management standards or prescriptions, although Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. Finally, as discussed in section 4.2.3 of the DEA, the rulemaking is not anticipated to result in the loss of or reduction in grazing activities on Federal lands designated as critical habitat. This conclusion is consistent with discussions with USFS staff. Notably, USFS has routinely considered measures to protect the amphibians and their habitat since the three amphibians were designated as “Sensitive Species” in 1998. Consequently, we anticipate that the incremental cost of the designation is limited to the additional administrative effort incurred by USFS staff during consultation.

(29)

Comment:

Several commenters are concerned that the DEA does not use current and accurate data for its analysis of grazing impacts, and these commenters state that text and exhibits in chapter 4 of the DEA summarizing information related to grazing allotments by National Forests do not include information for the Humboldt-Toiyabe National Forest (HTNF). The commenters provide acreage, activity status, and animal use month numbers for allotments in HTNF within Sierra Nevada yellow-legged frog and Yosemite toad proposed critical habitat.

Our Response:

Section 4.2.3 of the FEA has been updated to include grazing activities in HTNF. Specifically, we identify a total of seven grazing allotments in HTNF that overlap the designation. This new information affects the upper bound estimate, increasing the total incremental costs of the designation associated with grazing activities by a total of approximately $3,000, from $152,200 to $155,100.

(30)

Comment:

One commenter questions whether the DEA considered packstock operations in HTNF and in Inyo National Forest (INF). The commenter mentions six different pack operations in the two forests and gives service day numbers for these operations.

Our Response:

Section 4.2.3 of the FEA has been updated to include the additional six packstock operations identified by the commenter in HTNF and INF. Specifically, this new information affects the upper bound estimate, increasing the total incremental costs of the designation associated with packstock grazing activities by a total $17,300, from $45,900 to $63,200.

(31)

Comment:

Multiple commenters express concern about the potential impacts of the designation on the region's tourism and recreation economy and highlight the importance of tourism and recreation to the region's economy.

Our Response:

As discussed in chapter 4 of the DEA, the Service is unlikely to require additional conservation measures that would reduce or eliminate recreational activities within areas designated as critical habitat due solely to the designation of critical habitat. Because all areas designated as critical habitat are considered to be currently occupied, any changes in recreational activities on Federal lands are likely to occur even in the absence of the designation. We added a description of the importance of recreation to the regional economy in the FEA.

(32)

Comment:

One commenter states that timber harvests on private lands are also likely to be affected by the designation and expects that critical habitat designation will add additional costs to private timber harvest activities through additional monitoring requirements. Family forest landowners, of which there are 197,000 in California, operate their forests on very thin economic margins. Additional costs can make harvest uneconomical and lead to a huge loss in the economic value of the property.

Our Response:

In section 4.2.5 of the DEA, we qualitatively discuss potential indirect impacts of stigma on private lands where past timber harvest activity has occurred. Timber harvest activities on private lands in California must comply with the California Forest Practice Rules (CFPR). The CFPR includes measures that provide significant baseline conservation benefits to the amphibians and their habitat within timber harvest areas on private lands. Given the extensive protection already required by State law and regulation, it is unlikely any new requirements will be imposed due solely to the designation of critical habitat.

(33)

Comment:

One commenter states that the fact that private property values would decline is not a “stigma”; it is a reality. As the Federal Government introduces regulatory burdens (in essence de facto “liens” against a property), the value goes down.

Our Response:

Section 4.2.5 of the DEA discusses potential indirect impacts of stigma. We agree that stigma effects, if they occur, may result in real economic losses. All else equal, a property that is designated as critical habitat may have a lower market value than an identical property that is not within the boundaries of critical habitat due to the public's perception of limitations or restrictions. As the public becomes aware of the true regulatory burden imposed by critical habitat (

e.g.,

regulation under section 7 of the Act is unlikely), the impact of the designation on property markets may decrease. If stigma effects on markets were to occur, these impacts would be considered indirect, incremental impacts of the designation. Data limitations prevent the quantification of these effects.

(34)

Comment:

One commenter states that the DEA has not addressed the economic impact of foregone opportunities to manage vegetation and

cites declines in timber harvest levels on National Forests between the 1980s and present day and attributes these declines to the northern spotted owl (

Strix occidentalis caurina

) and subsequent standards for the California spotted owl (

Strix occidentalis occidentalis

). The commenter estimates a total economic jobs impact of $867 million annually in lost payroll. A 1.8-million acre critical habitat designation for the frogs and toad will have a significant economic impact that the economic analysis has failed to address. It is impossible to quantify the impacts because the proposed rule does not identify how much of the proposed designation is productive forest land.

Our Response:

As discussed in chapter 4 of the DEA, the Service is unlikely to require additional conservation measures that would reduce or eliminate vegetation management activities within areas designated as critical habitat due solely to the designation of critical habitat. Because all areas we are designating as critical habitat are considered to be currently occupied, any changes in vegetation management activities on Federal lands are likely to occur even in the absence of the designation.

Moreover, the geographic overlap between amphibians (whose habitat is largely at higher elevations than most timber harvest activities) and managed forests is relatively minimal across the range of area we are designating as critical habitat. Exhibit 4-15 of the DEA identifies the critical habitat units where timber harvests are likely and, within each unit, the number of acres suitable for timber harvests. Specifically, these acres include: (1) Areas identified by USFS under Land Suitability Classes 1 and 2; (2) areas included in past timber harvest plans from 1997 to 2013; and (3) areas included in past non-industrial timber management plans from 1991 to 2013. Based on these criteria, the economic analysis identifies approximately 5,396 acres as suitable for timber harvest activities in seven critical habitat units.

(35)

Comment:

Several commenters are concerned that the critical habitat designation will impose limitations on fuel reduction projects. The commenters mention the recent Rim Fire in Tuolumne County, which burned over 257,000 acres primarily in the Stanislaus National Forest and cost over $127 million to get under control. Another commenter states that overgrown forests are far more likely to result in catastrophic wildfire and adversely modify habitat if fire management activities, such as water drafting, chemical retardant use, and construction of fuel breaks, are limited. Such fires would have devastating impacts to the frogs and economic impacts to communities.

Our Response:

We agree with the commenter that catastrophic wildfires represent a direct threat to the species and their habitat. In the final listing rule, the Service discusses in more detail the complex relationship between the amphibians, their habitats, and fire (79 FR 24256; April 29, 2014). We updated the FEA to better recognize the threat that catastrophic fire poses to the species and their habitat and the positive role that fuels management can play in reducing the adverse effects of catastrophic fire.

Since the publication of the DEA, we released a programmatic biological opinion for forest programs in nine National Forests in the Sierra Nevada of California for the amphibians. The biological opinion provides information on conservation measures, including many derived from best management practices included in the 2004 Sierra Nevada Forest Plan Amendment. One such conservation measure suggests, “the use of prescribed fire or mechanical methods to achieve resource objectives to reduce flooding and erosion perturbations. This may be achieved by managing the frequency, intensity and extent of wildfire.” Thus, we acknowledge the importance of managing wildfires as it relates to species and habitat conservation. Other conservation measures related to maintaining water quality and soil stability are also included.

(36)

Comment:

Multiple commenters state that the baseline conditions for fuel management and timber harvest as articulated in paragraphs 160-163 of the DEA are based on treatments over the last 5 to 10 years, a period of known reductions in fuel and timber harvest activities now recognized as a major cause of catastrophic wildfire. The commenters state that activity levels are currently well below that needed to sustain the forest environment, and these commenters expect fuel management and timber harvest activities to dramatically increase in the next few years. One commenter cites the USFS California Region's Ecological Restoration: Leadership Intent publication, which states that the USFS intends to perform forest health and fuels reduction treatments on up to 9 million acres of National Forest land over the next 15 to 20 years, which represents a three- to four-fold increase in current intensity of activity.

Our Response:

According to communications with USFS and NPS staff (see discussion in section 4.2.4 of the DEA), fire management activities are infrequently implemented at the high elevations in wilderness areas where the amphibians are generally located. According to communications with USFS, based on the infrequent nature of fuels management activities in proposed critical habitat areas, as well as the repetitive nature of fuels management practices, staff anticipate pursuing a programmatic consultation for fuels management activities. As a result, the DEA forecasted one programmatic consultation for fuels management activities in 2014 (a consultation that has since been completed). As no historical fuels management activities were identified on NPS lands proposed as critical habitat, we do not forecast section 7 consultations associated with fuels management activities on NPS lands over the analysis period. To allocate the administrative costs of section 7 consultation across proposed critical habitat areas, this analysis relies on the number of acres in each affected unit classified as “wildland urban interface” (WUI). In the FEA, we add a discussion of the uncertainty associated with our forecast of the amount of fuels management activities likely to be undertaken in the future. Because USFS is addressing its section 7 consultation obligations through a single programmatic consultation, even if the degree of activity increases, impacts on forecast administrative costs are likely to be minimal.

(37)

Comment:

Multiple commenters state that the baseline WUI described in paragraph 163 of the DEA is inaccurate. The DEA does not estimate any WUI acres within the East Amador subunit (Subunit 2F), but, according to the commenters, this subunit includes the Bear River home track, Silver Lake home tracks, and numerous other private homes, all surrounded by WUIs. Additionally, Amador County is in the process of defining the WUIs in the forested areas through a community wildfire protection plan, which will likely define much of the area as WUI. The commenters ask whether community wildfire protection plans and USFS district rangers were included in the informational resources for WUI designations.

Our Response:

As stated in section 4.2.4 of the DEA, our analysis of fire management activities was based on communication with USFS staff, who indicated that they would likely pursue a programmatic consultation for fuels management activities given the infrequent and repetitive nature of these activities. As stated in this section of the DEA, our analysis estimates that approximately 131,300 acres are

classified as WUI within National Forest boundaries and the 15 critical habitat units and subunits where fuels management activities are identified as a threat. This analysis is based on WUI Geographic Information System (GIS) data available from Region 5 of the USFS. The commenter is correct that there are WUI acres in Subunit 2F. As a result of a transcription error, Exhibit 4-13 of the DEA indicates that there are no acres of WUI in Subunit 2F. The correct number of acres classified as WUI should be 34,485 acres for Subunit 2F. This error has been corrected in the FEA. The present value and annualized incremental impact values reported in the table in the FEA are correct. The $2,200 estimate is reached by multiplying the incremental administrative cost of a programmatic consultation by the ratio of WUI acres in subunit 2F to total WUI acres within proposed critical habitat (34,485/131,312 = 0.26).

(38)

Comment:

One commenter states that the designation will likely cause severe restrictions on land access and could limit or forbid mining.

Our Response:

The act of designating critical habitat does not summarily preclude access to any land, whether private, tribal, State, or Federal. 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. Furthermore, designation of critical habitat does not affect land ownership, or establish any closures or any restrictions on use of or access to the designated areas through the designation process, nor does it establish specific land management standards or prescriptions, although Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat.

(39)

Comment:

One commenter states that the DEA does not analyze the impacts of the designation on the administration of connective waterways and adjoining lands. In particular, the commenter expresses concern that the designation will change the manner in which the Carson Water Subconservancy District's exercises its water rights to Lost Lakes, including its ability to release these waters to the West Fork of the Carson River.

Our Response:

As discussed in chapter 4 of the DEA, the Service is unlikely to require additional conservation measures that would impact water management within areas we are designating as critical habitat due solely to the designation of critical habitat. Because all areas we are designating as critical habitat are considered to be currently occupied, any changes in water management activities on Federal lands are likely to occur even in the absence of the designation.

(40)

Comment:

One commenter states that Exhibit 4-3 of the DEA incorrectly indicates that the Big Creek Dam projects are located in Yosemite Toad Unit 4, and that these projects are not located in Mono County but are more likely located in Unit 14. This error is then carried through to economic impact calculations in Exhibit 4-21 of the DEA.

Our Response:

The commenter is correct. According to the California Energy Commission's Hydroelectric Generation Facilities map, the Big Creek facilities are located in Fresno and Madera Counties. We have updated the FEA to reflect that consultation costs for these projects are now attributed to Unit 14 rather than Unit 4. This change does not affect the total incremental impacts estimated for water management activities.

(41)

Comment:

Several commenters object to the DEA's interpretation of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601

et seq.

) and state that the Service is not excused from the consideration of economic impacts to small entities under section 4(b)(2) of the Act. One commenter states that the Federal agency must provide a factual basis for “no significant economic certification.” According to the commenter, in the DEA, the factual basis for the certification is lacking. The commenter states that the Service ignored substantial information on the record documenting the probable impacts of the proposed designation on small businesses, small organizations, and small government jurisdictions in order to make the requisite certification under the RFA.

Our Response:

Under the RFA, Federal agencies are only required to evaluate the potential incremental impacts of a rulemaking on directly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is the Service's position that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule, as well as this final designation, will not have a significant economic impact on a substantial number of small entities. Because certification is possible, no initial or final regulatory flexibility analysis is required.

(42)

Comment:

One commenter states that the absence of quantitative economic benefits provides no reference point for comparative economic analysis. The commenter does not accept that, whatever the economic loss, compensation in biological returns will occur and states that, by using subjective determinations, the benefits will always outweigh the costs and the legitimate concerns of the affected parties are undermined, essentially making the DEA irrelevant.

Our Response:

Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The DEA and updated FEA provide the best available estimate of the economic costs associated specifically with the designation. These costs may be evaluated against qualitative values, but also must be considered in the broader context of the mandates of the Act to conserve endangered species and designate as critical habitat those areas with the physical or biological features in need of special management considerations or protections that are essential to the species' conservation. Section 4(b)(2) of the Act states that the Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. The designation of critical habitat must by law consider economic costs, but this is not the sole determinant of the final decision; that decision is not solely a cost-benefit analysis.

(43)

Comment:

One commenter states that the Service should better address the economic benefits of the critical habitat designation, including benefits to water quality, benefits to other rare

species, benefits to areas where people recreate, and health benefits that may accrue from better air or water quality. The commenter states that these benefits should be more clearly addressed qualitatively and, where possible, the value of these critical ecosystem services should be quantified.

Our Response:

Chapter 5 of the DEA describes the economic benefits of the critical habitat designation. It is not possible to predict at this time what, if any, economic benefits will accrue solely as a result of critical habitat designation. Following the incremental cost approach, the designation of critical habitat is unlikely to result in ancillary benefits identified by the commenter, as these will already be in place as a consequence of listing the species. Regardless, as stated in the response to Comment (42), above, the economic analysis is not a traditional cost-benefit analysis necessitating full estimation and quantitative (or qualitative) evaluation of economic benefits to weigh against costs in order the provide the Secretary with the information needed to use her discretion in considering areas for section 4(b)(2) exclusion.

(44)

Comment:

We received several comments indicating that protections for the frogs and toad are already in place, and that critical habitat designation is unnecessary or will not help. Specifically, many mentioned CDFW already has a conservation program in place or that protections afforded by Wilderness Areas and NPS lands are sufficient.

Our Response:

The Service is not relieved of its statutory obligation to designate critical habitat based on the contention that it is unnecessary or will not help the species. Moreover, we do not agree with the argument that specific areas and essential features within critical habitat do not require special management considerations or protection because adequate protections are already in place. In

Center for Biological Diversity

v.

Norton,

240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that the Act does not direct us to designate critical habitat only in those areas where “additional” special management considerations or protection is needed. If any area provides the physical or biological features essential to the conservation of the species, even if that area is already well managed or protected, that area still qualifies as critical habitat under the statutory definition if special management is needed.

In the case of the ongoing aquatic biodiversity management planning (ABMP) process being conducted by CDFW, these plans remain incomplete, and the specific criteria applied during the decision process selecting protected native amphibian areas do not necessarily reflect the same ultimate conservation outcome that we are tasked to accomplish (

i.e.,

the conservation of the Sierra Nevada yellow-legged frog). We are currently collaborating with CDFW on a conservation strategy for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog. This strategy (as well as the CDFW's ABMPs) is not complete; therefore, conservation actions are not yet assured, and critical habitat designation is still required.

In the case of Wilderness Areas and NPS lands, these Federal lands remain as multiple-use resource areas, even though they offer a greater relative degree of protection when compared to National Forests without Wilderness status. Nonetheless, designation of critical habitat requires that Federal agencies consult with the Service to ensure their actions do not destroy or adversely modify critical habitat. While NPS in particular has an exemplary record in managing these species, even before listing, the designation of critical habitat and the consultation process will provide additional assurance that activities in these areas will not destroy or adversely modify the habitat of these species.

(45)

Comment:

We received many comments with concerns that we proposed designation of too much habitat, including numerous comments specifically questioning why aquatic-dependent species needed a critical habitat designation that is not solely comprised of wetland areas.

Our Response:

We define critical habitat to the extent it is essential to conserve endangered or threatened species under the Act. Such species are in decline and their habitat is in need of protection, special management, and restoration in order to reverse population declines and reduce extinction risk. In determining the amount of habitat essential to conserve a species, we consider factors such as: The need for replicate occurrences of the species across the landscape; connectivity between habitat areas to allow movement, adaptation, and natural recolonization to offset localized losses; and sufficient populations safeguarded to preserve genetic and ecological diversity. The areas we are designating as critical habitat in this final rule contain the physical or biological features essential for the conservation of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad in view of the factors above and the uncertainty of future habitat conditions as a result of climate change.

The inclusion of upland areas within critical habitat is to protect habitat areas required for normal metapopulation dispersal, habitat use, and recolonization of suitable habitat not currently containing the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad, and to protect the primary constituent elements of water quality and quantity (see our response to Comment (6), above). In addition, the Yosemite toad does utilize upland habitats extensively (see

Physical or Biological Features for the Yosemite Toad,

below).

(46)

Comment:

One commenter asked us to substantiate our critical habitat designations with population numbers.

Our Response:

Critical habitat designation is not based on absolute abundances, and we also generally do not have nor require such data before designating critical habitat. Although we utilized the most up-to-date scientific information reflected in survey data from the last few decades (historic, plus extant localities since 1995), the protocols set up for these surveys did not include mark-recapture type techniques, which are required to assess actual abundances. We have raw count values from visual encounter surveys, which are helpful in establishing relative abundance, but not definitive population counts. Note also, at low abundances, visual encounter survey methods may miss extant populations due to low encounter probabilities. Also, while the survey coverage by USFS and CDFW is extensive, it is not exhaustive. This means it is very likely there are extant localities we have missed. Given all these considerations, we cannot provide absolute abundance data at the scale of each critical habitat subunit.

This critical habitat designation is based on the identification of specific areas within the geographical area occupied by the species at the time of listing that contain the physical or biological features essential for the conservation of the species. We also use a set of criteria to identify the geographic boundaries of the designation. A critical habitat designation does not require definitive data regarding abundances; such data are pertinent to the overall determination of whether a species is considered an endangered or threatened species under the Act. Regardless, we are required to use the best scientific data available to inform our critical

habitat determination, and we have done so in this final designation for the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad.

(47)

Comment:

One commenter submitted information regarding wetland pollution by livestock grazing and suggested the results of studies did not support large critical habitat designations for the Yosemite toad.

Our Response:

We appreciate the additional information provided. Our critical habitat designations are based on multiple criteria, and the delineation of critical habitat for the Yosemite toad is based on the types of areas utilized by the toad during its varied lifestages and areas needed for dispersal and emigration in order to provide for the conservation of the species. Critical habitat designation is based upon the presence of physical or biological features required by the Yosemite toad, not on the relative degree of any given threat. Threats themselves are evaluated in the context of a listing decision.

(48)

Comment:

One commenter asked whether we utilized the California Wildlife Habitat Relationships (CWHR) model to derive proposed critical habitat.

Our Response:

We did not use the CWHR range map to derive critical habitat. In the case of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog, a superior modeling tool was available in the form of a MaxEnt 3.3.3 model (see “(3) Habitat Unit Delineation” under

Sierra Nevada Yellow-Legged Frog and Northern DPS of the Mountain Yellow-legged Frog

in Criteria Used to Identify Critical Habitat, below), which CDFW had also utilized during their status evaluation (CDFW (formerly CDFG) 2011, pp. A-1—A-4). We used this base model along with other criteria as outlined below to define critical habitat. In the case of the Yosemite toad, we initially approached CDFW for their CWHR layer, but they informed us that it had not yet passed their own internal quality control review for reliability, and so we had to rely on other resources for defining the Yosemite toad's habitat. We have since received a range map from USFS, and we used that information as supplemental information to this final critical habitat designation.

(49)

Comment:

One commenter was concerned about the designation of Slate Creek as critical habitat and how it may affect suction dredge mining, and this commenter expressed an opinion that fish removal would be more effective at frog restoration than critical habitat designation.

Our Response:

Critical habitat designation is necessary to identify areas, containing the physical or biological features that may require protection or special management considerations, in order to conserve an endangered or threatened species. It is true that fish removal is one potential restoration tool amongst a suite of possible actions. It does not follow, however, that all designated areas will involve such restoration measures. For any potential risk factors, including suction dredge mining, adverse modification to critical habitat will be analyzed through consultation on projects that have a Federal nexus, and these situations will be handled on a project-by-project basis, unless covered in a programmatic consultation process.

(50)

Comment:

We received several comments stating that critical habitat is not determinable because we cannot know where the fungal pathogen

Batrachochytrium dendrobatidis

(Bd) will spread, the magnitude of its dispersal, nor its persistence time in the environment of contaminated habitats. The commenters asserted, therefore, that no “safe” habitat exists for the species and critical habitat designation will not be helpful.

Our Response:

We concur that there is scientific uncertainty regarding the rate of spread of Bd and its persistence in affected habitat areas. However, critical habitat designation does not target only “safe” habitats where species are expected to persist. Critical habitat designations cover the areas containing the physical or biological features that may require special management considerations and protection to allow for the conservation of the species. Critical habitat designation is based on the physical or biological features essential for the conservation of the species, not the absence of threat factors.

(51)

Comment:

We received several comments indicating we came close to violating 16 U.S.C. 1532(5)(C), which states that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.”

Our Response:

16 U.S.C. 1532(5)(C) states, “Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” We currently have the definitive range maps for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Frog ranges were derived using information received from the University of California at Santa Barbara Sierra Nevada Aquatic Research Lab, and the Yosemite toad's range was provided by USFS, recently updated by expert input. The historical range of the Sierra Nevada yellow-legged frog is nearly 6 million acres. The historical range of the northern DPS of the mountain yellow-legged frog is almost 1.2 million acres. The historical range of the Yosemite toad is greater than 2.6 million acres. In addition, we are aware of extant locations of these species outside of our critical habitat designations. Therefore, we did not propose, nor are we designating now, the entire geographical areas that could be occupied by the respective species.

(52)

Comment:

One commenter indicated that grazing is not a threat factor to the Yosemite toad, and, therefore, critical habitat for this species should be kept as small as possible around currently occupied areas.

Our Response:

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The criteria used to determine the extent of this area are based on whether such area contains the essential physical or biological features, among other factors. However, the presence of a particular threat factor is not a criterion by which the extent of the area is defined.

(53)

Comment:

We received a comment from Pacific Gas and Electric Company that we should exclude two reservoirs in subunit 1A for the Sierra Nevada yellow-legged frog. USFS also commented that these areas and acreage proximate to these reservoirs within the Lassen National Forest should be excluded because they are not occupied by Sierra Nevada yellow-legged frogs.

Our Response:

Subsequent to the publication of the proposed critical habitat designation, CDFW indicated to us that two of our extant records of Sierra Nevada yellow-legged frogs in the watershed on the western portion of subunit 1A for the Sierra Nevada yellow-legged frog were erroneous. We deleted the localities from our database, and per the criteria used to designate critical habitat, these reservoirs and surrounding lands have been removed from subunit 1A. This change results in a reduction of approximately 6,057 ha (15,012 ac) in subunit 1A for Sierra Nevada yellow-legged frog.

(54)

Comment:

We received a comment from Pacific Gas and Electric Company that we exclude the Blue Lakes Unit from the Yosemite toad

critical habitat designation because it is a hybridization zone with western toad (

Anaxyrus boreas

).

Our Response:

We are aware that the Blue Lakes Unit is within a zone of hybridization. Given the difficulty in differentiating the Yosemite toad from western toad (or, for that matter, either species from hybrids), and given that the presence of hybrids indicates that native genes are also extant within the area, removing the unit from critical habitat designation is not warranted. Despite hybridization, this area still meets the definition of critical habitat.

(55)

Comment:

We received one comment encouraging us to designate additional critical habitat for the northern DPS of the mountain yellow-legged frog. Specific areas identified included Breckenridge Mountain within the Giant Sequoia National Monument, and Taylor Meadow in the Sequoia National Forest, to effectively decrease the gap between the critical habitat units for the northern and southern DPS by 31 miles.

Our Response:

The criteria we applied in determining critical habitat boundaries were based on the identification of specific areas with the physical or biological features essential to the conservation of the species, but also focused on areas with proximity to known, extant populations. The first reason for this approach is to protect important habitat areas (the areas containing physical or biological features requiring special management considerations and protection). This approach also works under the rationale that natural dispersal and recolonization in proximate areas is preferable to translocation, or captive propagation and reintroduction to restored historical habitat. While captive rearing and reintroduction can and may be utilized within an overall recovery effort for the respective species, this more detailed level of planning is not completed to date.

With regard to increasing connectivity between the southern DPS of the mountain yellow-legged frog and the northern DPS of the mountain yellow-legged frog, it is unclear if restoring connectivity between the DPSs will be an appropriate recovery target, because natural interchange is impossible and these metapopulations are discrete and significant, comprising different genetic clades.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occur, and conservation biology principles. We received responses from three of the five peer reviewers about our proposed critical habitat designation.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and 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

(56)

Comment:

Two peer reviewers noted that certain populations were not included in critical habitat. These included populations in the southwest portion of Sierra Nevada yellow-legged frog Clade 3 in the western Sierra National Forest (Lakecamp Lake and Ershim Meadow), and the peer reviewers suggested inclusion due to the ecological uniqueness of the habitat (as meadow/stream populations). Other locations not included were Upper and Lower Summit Meadows in Yosemite National Park, Calaveras Big Trees, and Birch Creek and Dry Creek/Crooked Meadows in the Inyo National Forest.

Our Response:

We concur that these populations occur in ecologically unique habitats. For genetic clades with more extant metapopulations, we did not include every locality within the critical habitat designation. If populations were geographically removed, and opportunities for natural dispersal between occupied habitat are limited within such genetic clades, some of these populations were not included in the critical habitat designation (whereas other populations that were geographically closer and had natural dispersal between occupied habitat within such clades were included). Please refer also to our response to Comment (2), above.

(57)

Comment:

One peer reviewer indicated that the loss of populations from designated subunits would jeopardize the long-term viability of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog, and, therefore, considerable research and management efforts focused upon fish eradications, frog translocations, reintroductions, and Bd treatments will be necessary to ensure the persistence of frog populations in some units or subunits.

Our Response:

We concur that considerable research, restoration, and management efforts are critical to the conservation of both species of frogs. We anticipate that all mentioned elements will be central to the upcoming conservation strategy and future recovery plan.

(58)

Comment:

Two peer reviewers highlighted that the MaxEnt model used to delineate critical habitat may be biased toward high mountain lakes and underrepresent stream-based populations.

Our Response:

We acknowledge these comments. One of the peer reviewers (Dr. Knapp, the developer of the model) indicated this bias is based on differences in survey intensity of lake versus stream habitats, but presumed the bias to be relatively small and ultimately unquantifiable. Subsequent review of our criteria as written for the proposed critical habitat designation indicates that we inadvertently omitted one aspect of our delineation methodology. Specifically, in stream-based populations, because Dr. Knapp had indicated that the MaxEnt model was potentially less reliable for streams, we utilized the 0.2 probability of occurrence in such systems, as opposed to the 0.4 threshold we utilized for lake-based delineations. This oversight has been amended in the narrative for the criteria outlined in this final critical habitat designation. This change in narrative is a clarification of methodology, and did not result in a change to any critical habitat boundaries.

(59)

Comment:

One peer reviewer noted two areas with relatively high toad abundances that were not included in the proposed Yosemite toad critical habitat: Headwaters of West Walker in the Humboldt-Toiyabe National Forest and meadows southwest of Volcanic Knob on the Sierra National Forest.

Our Response:

We acknowledge and appreciate this comment. We did not include every known Yosemite toad locality in our proposed critical habitat designation, but rather we included those areas containing the physical or biological features that are essential to the conservation of the species. Please also refer to responses to Comments (2) and (3), above.

(60)

Comment:

One peer reviewer suggested that we split Sierra Nevada yellow-legged frog subunit 3B into three distinct units due the likelihood that this subunit is in fact comprised of clades 2 and 3, not simply clade 3 following Vredenburg

et al.

(2007).

Our Response:

We concur that the most plausible genetic clade designations follow the peer reviewer's comment. However, the entirety of subunit 3B for the Sierra Nevada yellow-legged frog, as delineated, encompasses watersheds with mixed genetic lineage (clades 2 and 3), and, therefore, it was difficult to segregate one from the other without designating multiple subunits within an entirely contiguous area. This condition also holds for subunits 3C and 4C for the Sierra Nevada yellow-legged frog. Given that the regulatory protections for the actual lands are identical regardless of nomenclature, we opted for simplicity and kept subunits 3B and 3C as single subunits and numbered them for their predominant genetic clade per Vredenburg

et al.

(2007). For subunit 4C, we assigned the number based on the range map we used, which was developed and provided to us by the same peer reviewer. We are hopeful that future genetic studies elucidate the genetic lineage of each specific locale in these regions.

Summary of Changes From Proposed Rule

Based on comments we received following publication of the proposed critical habitat designation, we revised PCEs 1 and 2 for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog to better clarify the intent of the PCE language with respect to the presence of introduced fish within critical habitat. It was clear from public and agency input that readers misinterpreted what we meant regarding PCE 1. We intended to say that PCE 1 (aquatic breeding habitat) ideally should not have introduced fishes present, but that introduced fishes may be present in PCE 2. Given that an area only has to have one physical or biological feature present to meet the definition of critical habitat, areas that have fish present are still considered critical habitat if they meet PCE 2. Therefore, we did not intend to imply that areas have to be “free of fish” to be critical habitat. The specific changes include: Clarification regarding the “fishless” component within PCE 1 (aquatic breeding habitat) and a typographical error within PCE 2 (non-breeding aquatic habitat) to clarify that prey base was meant to sustain juvenile and adult frogs intermittently using this habitat (not tadpoles). Other updates since our last proposed rule include adding the known manageable threat of fish persistence and stocking for the Northern DPS of the mountain yellow-legged frog for critical habitat units 4A Frypan Meadows, 4B Granite Basin, 4C Sequoia Kings, 4D Kaweah River, and 5A Blossom Lakes to Table 6. In addition, the known threats that may affect the essential physical or biological features identified for the critical habitat units for the Yosemite toad have been updated since our last proposed rule and the adjustments are included in the Threats column of Table 7. We have also included minor corrections or clarifications following our peer reviewer comments. We provide the full revised PCEs below.

Additionally, based on comments received from the public, State and Federal agencies, and the peer reviewer who developed the habitat model used in part to identify areas with the requisite physical or biological features, we have reevaluated our criteria for determining critical habitat. This reevaluation has resulted in the reduction of the number of sites included in this final critical habitat designation for the Sierra Nevada yellow-legged frog because current habitat conditions were not reflected in our original analysis (see “(4) Additional Criteria Applied to Final Critical Habitat Designation for Sierra Nevada Yellow-legged Frog” under

Sierra Nevada Yellow-Legged Frog and Northern DPS of the Mountain Yellow-legged Frog

in Criteria Used to Identify Critical Habitat, below). Therefore, we are not finalizing designation of some sites that we proposed for critical habitat designation the Sierra Nevada yellow-legged frog (see Table 2, below). We are also not finalizing 6,057 ac (15,012 ha) in subunit 1A because of information we received from CDFW regarding occupancy of the proposed subunit (see Comment (53), above). In total, these changes result in a reduction of approximately 9,412 ha (23,253 ac) in the critical habitat designation for the Sierra Nevada yellow-legged frog from what we proposed for this species (see Table 2, below). The boundaries of critical habitat designations for the northern DPS of the mountain yellow-legged frog and the Yosemite toad remain the same as what we proposed. Finally, we are changing the name of Subunit 2F from Squaw Ridge to East Amador. A full list of designated units and subunits is provided below (see Tables 1, 3, and 4). In the incremental effects memorandum, we indicated that we did not anticipate a substantial number of consultations that would result in adverse modification from the designation of critical habitat and, therefore, we did not anticipate a substantial difference in administrative effort to analyze projects that include critical habitat from those that would only include the species. In reducing the area of final critical habitat for the Sierra Nevada yellow-legged frog, and maintaining the area proposed for critical habitat within the final designations for the northern DPS of the mountain yellow-legged frog and Yosemite toad, we believe the economic impacts to Federal agencies remain small and insignificant.

The known manageable threat of fish persistence and stocking has been identified for the Northern DPS of the mountain yellow-legged frog for critical habitat units 4AFrypan Meadows, 4B Granite Basin, 4C Sequoia Kings, 4D Kaweah River, and 5A Blossom Lakes since our last proposed rule.

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 pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the 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 those specific elements of the physical or biological features that 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 Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. On February 11, 2016, we published a final rule in the

Federal Register

(81 FR 7413) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on March 14, 2016, but, as stated in that rule, the amendments it sets forth apply to “rules for which a proposed rule was published after March 14, 2016.” We published our proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad on April 25, 2013 (78 FR 24516); therefore, the amendments set forth in the February 11, 2016, final rule at 81 FR 7413 do not apply to this final designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad.

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific physical or biological features essential for the Sierra Nevada yellow-legged frog, the

northern DPS of the mountain yellow-legged frog, and the Yosemite toad from studies of these species' habitat, ecology, and life history as described in the proposed rule to designate critical habitat published in the

Federal Register

on April 25, 2013 (78 FR 24516), and in the information presented below. Additional information can be found in the final listing rule published in the

Federal Register

on April 29, 2014 (79 FR 24256). Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Physical or Biological Features for the Sierra Nevada Yellow-Legged Frog and the Northern DPS of the Mountain Yellow-Legged Frog

We have determined that the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog (hereafter referred to collectively as mountain yellow-legged frogs) require the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

Mountain yellow-legged frogs are highly aquatic (Stebbins 1951, p. 340; Mullally and Cunningham 1956, p. 191; Bradford

et al.

1993, p. 886). Although they tend to stay closely associated with high-elevation water bodies, they are capable of longer distance travel, whether along stream courses or over land in between breeding, foraging, and overwintering habitat within lake complexes. Individuals may use different water bodies or different areas within the same water body for breeding, foraging, and overwintering (Matthews and Pope 1999, pp. 620-623; Wengert 2008, p. 18). Within water bodies, adults and tadpoles prefer shallower areas and shelves (Mullally and Cunningham 1956, p. 191; Jennings and Hayes 1994, p. 77) with solar exposure (features rendering these areas warmer (Bradford 1984, p. 973), which also make them more suitable as prey species). High-elevation habitats tend to have lower relative productivity (suggesting populations are often resource limited); therefore, sufficient space is also needed to avoid competition with other frogs and tadpoles for limited food resources.

Therefore, based on the information above, we identify high-elevation water bodies and adjacent lands within and proximate to water bodies utilized by extant frog metapopulations (mountain lakes and streams) to be a physical or biological feature needed by mountain yellow-legged frogs to provide space for their individual and population growth and for normal behavior.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Adult mountain yellow-legged frogs are thought to feed preferentially upon terrestrial insects and adult stages of aquatic insects while on the shore and in shallow water (Bradford 1983, p. 1171); however, feeding studies on mountain yellow-legged frogs in the Sierra Nevada are limited. Remains found inside the stomachs of mountain yellow-legged frogs in southern California represented a wide variety of invertebrates, including beetles, ants, bees, wasps, flies, true bugs, and dragonflies (Long 1970, p. 7). Larger frogs have been observed to eat more aquatic true bugs (Order Hemiptera) (Jennings and Hayes 1994, p. 77). Adult mountain yellow-legged frogs have also been found to eat Yosemite toad tadpoles (Mullally 1953, p. 183; Zeiner

et al.

1988, p. 88) and Pacific treefrog tadpoles (Pope 1999b, pp. 163-164), and they are also cannibalistic (Heller 1960, p. 127; Vredenburg

et al.

2005, p. 565).

Mountain yellow-legged frog tadpoles graze on benthic detritus, algae, and diatoms along rocky bottoms in streams, lakes, and ponds (Bradford 1983, p. 1171; Zeiner

et al.

1988, p. 88). Tadpoles have also been observed cannibalizing eggs (Vredenburg 2000, p. 170) and feeding on the carcasses of dead metamorphosed frogs (Vredenburg

et al.

2005, p. 565). Other species may compete with frogs and tadpoles for limited food resources. Introduced fishes are the primary competitors, reducing the available prey base for mountain yellow-legged frogs (Finlay and Vredenburg 2007, p. 2187).

The ecosystems utilized by mountain yellow-legged frogs have inherent community dynamics that sustain the food web. Habitats, therefore, must maintain sufficient water quality to sustain the frogs within the tolerance range of healthy individual frogs, as well as acceptable ranges for maintaining the underlying ecological community. These key physical parameters include pH, temperature, nutrients, and uncontaminated water. The high-elevation habitats that support mountain yellow-legged frogs require sufficient sunlight to warm the water where they congregate, and to allow subadults and adults to sun themselves.

Persistence of frog populations is dependent on a sufficient volume of water feeding into their habitats to provide the aquatic conditions necessary to sustain multiyear tadpoles through metamorphosis. This makes the hydrologic basin (or catchment area) a critical source of water for supplying downgradient habitats. The catchment area sustains water levels in lakes and streams used by mountain yellow-legged frogs via surface and ground water transport, which are crucially important for maintaining frog habitat.

Therefore, based on the information above, we identify sufficient quantity and quality of source waters that support habitat used by mountain yellow-legged frogs (including the balance of constituents to support a sustainable food web with a sufficient prey base), absence of competition from introduced fishes, exposure to solar radiation, and shallow (warmer) areas or shelves within ponds or pools to be a physical or biological feature needed by mountain yellow-legged frogs to provide for their nutritional and physiological requirements.

Cover or Shelter

Mountain yellow-legged frogs require conditions that allow for overwinter survival, including lakes or pools within streams that do not freeze to the bottom, or refugia within or adjacent to such systems (such as underwater crevices) so that overwintering tadpoles and frogs do not freeze or experience anoxic conditions during their winter dormancy period (Bradford 1983, pp. 1173-1179; Matthews and Pope 1999, pp. 622-623; Pope 1999a, pp. 42-43; Vredenburg

et al.

2005, p. 565). Cover for adults to protect themselves from terrestrial and avian predators is also an important habitat feature, especially in cases where aquatic habitat itself does not provide adequate protection from terrestrial or avian predators due to insufficient water depth. Although cover within aquatic habitat may be important in the short term to avoid fish predation, the observation of low coexistence between introduced trout and frog populations (Knapp 1996, pp. 1-44) suggests that cover alone is insufficient to preclude extirpation by fish predation.

Therefore, based on the information above, we identify refuge from lethal overwintering conditions (freezing and anoxia), and physical cover from

aquatic, avian, and terrestrial predators to be a physical or biological feature needed by the mountain yellow-legged frog.

Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

Mountain yellow-legged frogs are known to utilize habitats differently depending on season (Matthews and Pope 1999, pp. 620-623; Wengert 2008, p. 18). Reproduction and rearing require water bodies (or adequate refugia) that are sufficiently deep that they do not dry out in summer or freeze through in winter (except infrequently). Therefore, the conditions within the catchment for these habitats must be maintained such that sufficient volume and timing of snowmelt and adequate transport of precipitation to these rearing water bodies sustain the appropriate balance of conditions to maintain mountain yellow-legged frog's life-history needs. Conditions that determine the depth, siltation rates, or persistence of these water bodies (including sufficient perennial water at depths that do not freeze overwinter) are key determinants of habitat functionality (within tolerance ranges of each particular system). Finally, pre-breeding adult frogs need access to these water bodies in order to utilize resources available within nonbreeding habitat.

Therefore, based on the information above, we find the persistence of breeding and rearing habitats and access to and from seasonal habitat areas (whether via aquatic or terrestrial migration) to be a physical or biological feature needed by the mountain yellow-legged frog to allow successful reproduction and development of offspring.

Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species

In addition to migration routes (areas that provide back and forth between habitat patches within the metapopulation) without impediments across the landscape between proximal ponds within the ranges of functional metapopulations, mountain yellow-legged frogs require dispersal corridors (areas for recolonization and range expansion) to reestablish populations in extirpated areas within its current range to provide ecological and geographic resiliency (U.S. Forest Service

et al.

2015, p. 35). Maintenance and reestablishment of such populations across a diversity of ecological landscapes is necessary to provide sufficient protection against changing environmental circumstances (such as climate change). This provides functional redundancy to safeguard against stochastic events (such as wildfires), but this redundancy also may be necessary as different regions or microclimates respond to changing climate conditions.

Establishing or maintaining populations across a broad geographic area spreads out the risk to individual populations across the range of the species, thereby conferring species resilience. Finally, protecting a wide range of habitats across the occupied range of the species simultaneously maintains genetic diversity of the species, which protects the underlying integrity of the major genetic clades (Vredenburg

et al.

2007, pp. 370-371), whose persistence is important to the ecological fitness of these species as a whole (Allentoft and O'Brien 2010 pp. 47-71; Johansson

et al.

2007, pp. 2693-2700).

Therefore, based on the information above, we identify dispersal routes (generally fish free), habitat connectivity, and a diversity of high-quality habitats across multiple watersheds throughout the geographic extent of the species' ranges and sufficiently representative of the major genetic clades to be a physical or biological feature needed by the mountain yellow-legged frog.

Primary Constituent Elements for Sierra Nevada Yellow-Legged Frog and the Northern DPS of the Mountain Yellow-Legged Frog

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are:

(1)

Aquatic habitat for breeding and rearing.

Habitat that consists of permanent water bodies, or those that are either hydrologically connected with, or close to, permanent water bodies, including, but not limited to, lakes, streams, rivers, tarns, perennial creeks (or permanent plunge pools within intermittent creeks), pools (such as a body of impounded water contained above a natural dam), and other forms of aquatic habitat. This habitat must:

(a) For lakes, be of sufficient depth not to freeze solid (to the bottom) during the winter (no less than 1.7 m (5.6 ft), but generally greater than 2.5 m (8.2 ft), and optimally 5 m (16.4 ft) or deeper (unless some other refuge from freezing is available)).

(b) Maintain a natural flow pattern, including periodic flooding, and have functional community dynamics in order to provide sufficient productivity and a prey base to support the growth and development of rearing tadpoles and metamorphs.

(c) Be free of introduced predators.

(d) Maintain water during the entire tadpole growth phase (a minimum of 2 years). During periods of drought, these breeding sites may not hold water long enough for individuals to complete metamorphosis, but they may still be considered essential breeding habitat if they provide sufficient habitat in most years to foster recruitment within the reproductive lifespan of individual adult frogs.

(e) Contain:

(i) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);

(ii) Shallower microhabitat with solar exposure to warm lake areas and to foster primary productivity of the food web;

(iii) Open gravel banks and rocks or other structures projecting above or just beneath the surface of the water for adult sunning posts;

(iv) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators; and

(v) Sufficient food resources to provide for tadpole growth and development.

(2)

Aquatic nonbreeding habitat (including overwintering habitat).

This habitat may contain the same characteristics as aquatic breeding and rearing habitat (often at the same locale), and may include lakes, ponds, tarns, streams, rivers, creeks, plunge pools within intermittent creeks, seeps, and springs that may not hold water long enough for the species to complete its aquatic life cycle. This habitat provides for shelter, foraging, predator avoidance, and aquatic dispersal of juvenile and adult mountain yellow-legged frogs. Aquatic nonbreeding habitat contains:

(a) Bank and pool substrates consisting of varying percentages of soil or silt, sand, gravel, cobble, rock, and boulders (for basking and cover);

(b) Open gravel banks and rocks projecting above or just beneath the surface of the water for adult sunning posts;

(c) Aquatic refugia, including pools with bank overhangs, downfall logs or branches, or rocks and vegetation to provide cover from predators;

(d) Sufficient food resources to support juvenile and adult foraging;

(e) Overwintering refugia, where thermal properties of the microhabitat protect hibernating life stages from winter freezing, such as crevices or holes within bedrock, in and near shore; and/or

(f) Streams, stream reaches, or wet meadow habitats that can function as corridors for movement between aquatic habitats used as breeding or foraging sites.

(3)

Upland areas.

(a) Upland areas adjacent to or surrounding breeding and nonbreeding aquatic habitat that provide area for feeding and movement by mountain yellow-legged frogs.

(i) For stream habitats, this area extends 25 m (82 ft) from the bank or shoreline.

(ii) In areas that contain riparian habitat and upland vegetation (for example, mixed conifer, ponderosa pine, montane conifer, and montane riparian woodlands), the canopy overstory should be sufficiently thin (generally not to exceed 85 percent) to allow sunlight to reach the aquatic habitat and thereby provide basking areas for the species.

(iii) For areas between proximate (within 300 m (984 ft)) water bodies (typical of some high mountain lake habitats), the upland area extends from the bank or shoreline between such water bodies.

(iv) Within mesic habitats such as lake and meadow systems, the entire area of physically contiguous or proximate habitat is suitable for dispersal and foraging.

(b) Upland areas (catchments) adjacent to and surrounding both breeding and nonbreeding aquatic habitat that provide for the natural hydrologic regime (water quantity) of aquatic habitats. These upland areas should also allow for the maintenance of sufficient water quality to provide for the various life stages of the frog and its prey base.

Physical or Biological Features for the Yosemite Toad

We have determined that the Yosemite toad requires the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

The Yosemite toad is commonly associated with wet meadow habitats in the Sierra Nevada of California. It occupies aquatic, riparian, and upland habitat throughout a majority of its range. Suitable habitat for the Yosemite toad is created and maintained by the natural hydrologic and ecological processes that occur within the aquatic breeding habitats and adjacent upland areas. Yosemite toads have been documented breeding in wet meadows and slow-flowing streams (Jennings and Hayes 1994, pp. 50-53), shallow ponds, and shallow areas of lakes (Mullally 1953, pp. 182-183). Upland habitat use varies among the different sexes and life stages of the toad (Morton and Pereyra 2010, p. 391); however, all Yosemite toads utilize areas within 1.5 km (0.9 mi) of breeding sites for foraging and overwintering, with juveniles predominantly overwintering in close proximity to breeding areas (Martin 2008, p. 154; Morton and Pereyra 2010, p. 391; Liang

et al.

2010, p. 6).

Yosemite toads must be able to move between aquatic breeding habitats, upland foraging sites, and overwintering areas. Yosemite toads have been documented to move as far as 1.26 km (0.78 mi) between breeding and upland habitats (Liang 2010, p. ii). Based on observational data from three previous studies, Liang

et al.

(2010, p. 6) estimated the maximum travel distance for the Yosemite toad to be 1.5 km (0.9 mi). Upland habitat used for foraging includes lush meadows with herbaceous vegetation (Morton and Pereyra 2010, p. 390), alpine-dwarf scrub, red fir, lodgepole pine, and subalpine conifer vegetation types (Liang 2010, p. 81), and the edges of talus slopes (Morton and Pereyra 2010, p. 391).

Therefore, based on the information above, we identify both lentic (still) and lotic (flowing) water bodies, including meadows, and adjacent upland habitats with sufficient refugia (for example, logs, rocks) and overwintering habitat that provide space for normal behavior to be a physical or biological feature needed by Yosemite toads for their individual and population growth and for normal behavior.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Little is known about the diet of Yosemite toad tadpoles. However, their diet presumably approximates that of related

Anaxyrus

species, and likely consists of microscopic algae, bacteria, and protozoans. Given their life history, it is logical to presume they are opportunistic generalists. Martin (1991, pp. 22-23) reports tadpoles foraging on detritus and plant materials (algae), but also identifies Yosemite toad tadpoles as potential opportunistic predators, having observed them feeding on the larvae of Pacific chorus frog and predaceous diving beetle, which may have been dead or live. The adult Yosemite toad diet comprises a large variety of insects, with Hymenoptera (ants, wasps, bees, sawflies, horntails) comprising the largest proportion of the summer prey base (Martin 1991, pp. 19-22).

The habitats utilized by the Yosemite toad have inherent community dynamics that sustain the food web. Habitats also must maintain sufficient water quality and moisture availability to sustain the toads throughout their life stages, so that key physical parameters within the tolerance range of healthy individual frogs, as well as acceptable ranges for maintaining the underlying ecological community, are maintained. These parameters include, but are not limited to, pH, temperature, precipitation, slope, aspect, vegetation, and lack of anthropogenic contaminants at harmful concentrations. Yosemite toad locations are associated with low slopes, specific vegetation types (wet meadow, alpine-dwarf shrub, montane chaparral, red fir, and subalpine conifer), and certain temperature regimes (Liang and Stohlgren 2011, p. 217).

Therefore, based on the information above, we identify sufficient quantities and quality of source waters, adequate prey resources and the balance of constituents to support the natural food web, low slopes, and specific vegetation communities to be a physical or biological feature needed by Yosemite toads to provide for their nutritional and physiological requirements.

Cover or Shelter

When not actively foraging, Yosemite toads take refuge under surface objects, including logs and rocks (Stebbins 1951, pp. 245-248; Karlstrom 1962, pp. 9-10), and in rodent burrows (Liang 2010, p. 95). Thus, areas of shelter interspersed with other moist environments, such as seeps and springs, are necessary. Yosemite toads also utilize rodent burrows (Jennings and Hayes 1994, pp. 50-53), as well as cover under surface objects and below willows, for overwintering (Kagarise Sherman 1980, pers. obs., as cited in Martin 2008, p. 158).

Therefore, based on the information above, we identify surface objects, rodent burrows, and other cover or overwintering areas to be a physical or biological feature needed by the Yosemite toad to provide cover and shelter.

Sites for Breeding, Reproduction or Rearing (or Development) of Offspring

Yosemite toads are prolific breeders that lay their eggs at snowmelt. Suitable breeding and embryonic rearing habitat generally occurs in very shallow water of subalpine lentic and lotic habitats,

including wet meadows, lakes, and small ponds, as well as shallow spring channels, side channels, and sloughs. Eggs typically hatch within 4 to 6 days (Karlstrom 1962, p. 19), with rearing through metamorphosis taking approximately 5 to 7 weeks after eggs are laid (U.S. Forest Service

et al.

2015, p. 250). These times can vary depending on prey availability, temperature, and other abiotic factors.

The suitability of breeding habitat may vary from year to year due primarily to the amount of precipitation and local temperatures. Given the variability of habitats available for breeding, the high site-fidelity of breeding toads, an opportunistic breeding strategy, as well as the use of lotic systems, Yosemite toads require a variety of aquatic habitats to successfully maintain populations.

Therefore, based on the information above, we identify both lentic and slow-moving lotic aquatic systems that provide sufficient temperature for hatching and that maintain sufficient water for metamorphosis (a minimum of 5 weeks) to be a physical or biological feature needed by the Yosemite toad to allow for successful reproduction and development of offspring.

Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species

In addition to migration routes without impediments between upland areas and breeding locations across the landscape, Yosemite toads require dispersal corridors to utilize a wide range of breeding habitats in order to provide ecological and geographic resiliency in the face of changing environmental circumstances (for example, climate). This provides functional redundancy to safeguard against stochastic events, such as wildfires, but also may be necessary as different regions or microclimates respond to changing climate conditions. Maintaining populations across a broad geographic extent also reduces the risk of a stochastic event that extirpates multiple populations across the range of the species, thereby conferring species resilience. Finally, protecting a wider range of habitats across the occupied range of the species can assist in maintaining the genetic diversity of the species.

Therefore, based on the information above, we identify dispersal routes, habitat connectivity, and a diversity of habitats throughout the geographic extent of the species' range that sufficiently represent the distribution of the species (including inherent genetic diversity) to be a physical or biological feature needed by the Yosemite toad.

Primary Constituent Elements for the Yosemite Toad

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Yosemite Toad are:

(1)

Aquatic breeding habitat.

(a) This habitat consists of bodies of fresh water, including wet meadows, slow-moving streams, shallow ponds, spring systems, and shallow areas of lakes, that:

(i) Are typically (or become) inundated during snowmelt;

(ii) Hold water for a minimum of 5 weeks, but more typically 7 to 8 weeks; and

(iii) Contain sufficient food for tadpole development.

(b) During periods of drought or less than average rainfall, these breeding sites may not hold surface water long enough for individual Yosemite toads to complete metamorphosis, but they are still considered essential breeding habitat because they provide habitat in most years.

(2)

Upland areas.

(a) This habitat consists of areas adjacent to or surrounding breeding habitat up to a distance of 1.25 km (0.78 mi) in most cases (that is, depending on surrounding landscape and dispersal barriers), including seeps, springheads, talus and boulders, and areas that provide:

(i) Sufficient cover (including rodent burrows, logs, rocks, and other surface objects) to provide summer refugia,

(ii) Foraging habitat,

(iii) Adequate prey resources,

(iv) Physical structure for predator avoidance,

(v) Overwintering refugia for juvenile and adult Yosemite toads,

(vi) Dispersal corridors between aquatic breeding habitats,

(vii) Dispersal corridors between breeding habitats and areas of suitable summer and winter refugia and foraging habitat, and/or

(viii) The natural hydrologic regime of aquatic habitats (the catchment).

(b) These upland areas should also maintain sufficient water quality to provide for the various life stages of the Yosemite toad and its prey base.

With this designation of critical habitat, we identify the physical or biological features and their associated PCEs that support the life-history processes essential to the conservation of the species.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection.

The features essential to the conservation of the Sierra Nevada yellow-legged frog and northern DPS of the mountain yellow-legged frog may require special management considerations or protection to reduce the following threats: The persistence of introduced trout populations in essential habitat; the risks related to the spread of pathogens; the effects from water withdrawals and diversions; impacts associated with timber harvest and fuels reduction activities; impacts associated with inappropriate livestock grazing; and intensive use by recreationists, including packstock camping and grazing.

Conservation actions that could ameliorate the threats described above include (but are not limited to) nonnative fish eradication; installation of fish barriers; modifications to fish stocking practices in certain water bodies; physical habitat restoration; and responsible management practices covering potentially incompatible activities, such as timber harvest and fuels management, water supply development and management, inappropriate livestock grazing, packstock grazing, and other recreational uses. These management practices will protect the PCEs for the mountain yellow-legged frog by reducing the stressors currently affecting population viability. Additionally, management of critical habitat lands will help maintain the underlying habitat quality, foster recovery, and sustain populations currently in decline.

The features essential to the conservation of the Yosemite toad may require special management considerations or protection to reduce the following threats: Impacts associated with timber harvest and fuels reduction activity; impacts associated with inappropriate livestock grazing; the spread of pathogens; and intensive use by recreationists, including packstock camping and grazing.

Management activities that could ameliorate the threats described above include (but are not limited to) physical habitat restoration and responsible management practices covering potentially incompatible beneficial uses

such as timber harvest and fuels management, water supply development and management, livestock and packstock grazing, and other recreational uses. These management activities will protect the PCEs for the Yosemite toad by reducing the stressors currently affecting population viability. Additionally, management of critical habitat lands will help maintain or enhance the necessary environmental components, foster recovery, and sustain populations currently in decline.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations, we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If, after identifying currently occupied areas, we determine that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations, we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. We are not designating any areas outside the geographical area occupied by the species because occupied areas are sufficient for their conservation.

We are designating critical habitat units that we have determined based on the best scientific data available are known to be currently occupied and contain the primary constituent elements of the physical or biological features essential to the conservation of the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and the Yosemite toad (under section 3(5)(A)(i) of the Act). These species exhibit a metapopulation life-history model, and although they tend towards high site-fidelity, individuals within these populations can and do move through suitable habitat to take advantage of changing conditions. Additional areas outside the aquatic habitat within each unit or subunit were incorporated to assist in maintaining the hydrology of the aquatic features and to recognize the importance of dispersal between populations. In most instances, we aggregated areas we knew to be occupied, together with areas needed for hydrologic function and dispersal, into single units or subunits as described at 50 CFR 424.12(d) of our regulations. However, not all areas within each unit are being used by the species at all times, because, by definition, individuals within metapopulations move in space and time.

For the purposes of this final rule (as in our proposed rule), we equate the geographical area occupied at the time of listing with the current range for each of the species (50 CFR 424.12). Therefore, we are designating specific areas within the geographical area occupied at the time of listing (see criteria below) on which are found those physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection pursuant to section 3(5)(A)(i) of the Act. Within the current range of the species, based on the best scientific data available, some watersheds may or may not be actively utilized by extant frog or toad populations, but we consider these areas to be occupied at the scale of the geographic range of the species. We use the term “utilized” to refer to the finer geographic scale at the watershed or survey locality level of resolution when the species actively uses the area.

For this final rule, we completed the following basic steps to delineate critical habitat (specific methods follow below):

(1) We compiled all available data from observations of Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, and Yosemite toad;

(2) We identified, based on the best scientific data available, populations that are extant at the time of listing (current) versus those that are extirpated;

(3) We identified areas containing the components comprising the physical or biological features that may require special management considerations or protection;

(4) We circumscribed boundaries of potential critical habitat units based on the above information; and

(5) We removed, to the extent practicable, all areas that did not have the specific the physical or biological feature components, and therefore are not considered essential to the conservation of the Sierra Nevada yellow-legged frog, northern DPS of the mountain yellow-legged frog, or Yosemite toad.

(6) Following receipt of additional information from public comments along with those from USFS and CDFW, we reevaluated a number of sites in the proposed designation for the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog. The re-evaluation was necessary because the MaxEnt 3.3.3e model we used to derive the proposed critical habitat designation was based on historical habitat conditions that did not reflect current habitat conditions and land use of these sites (Knapp 2013). This information has bearing on the restoration potential of such areas. Although the model limitations applied to both frog species, none of the additional criteria used to filter the aquatic habitats within the range of the northern DPS of the mountain yellow-legged frog (see following) suggested or supported change from the proposed designation for the northern DPS of the mountain yellow-legged frog. By comparison, our reevaluation did result in a reduction of sites from the proposed designation for the Sierra Nevada yellow-legged frog. All further discussion on the additional analysis (see “(4) Additional Criteria Applied to Final Critical Habitat Designation for Sierra Nevada Yellow-legged Frog,” below) only affects the final critical habitat designation for the Sierra Nevada yellow-legged frog.

Specific criteria and methodology used to determine critical habitat unit boundaries are discussed by species below.

Sierra Nevada Yellow-Legged Frog and Northern DPS of the Mountain Yellow-Legged Frog

We are treating these two species as similar in habitat and behavior.

(1) Data Sources

We obtained observational data from the following sources to include in our Geographic Information System (GIS) database for mountain yellow-legged frog: (a) Surveys of the National Parks within the range of the mountain yellow-legged frog, including information collected by R. Knapp's Sierra Lakes Inventory Project, and G. Fellers; (b) CDFW High Mountain Lakes Project survey data; (c) Sierra Nevada Amphibian monitoring program (SNAMPH) survey data from USFS; and (d) unpublished data collected by professional biologists during systematic surveys. Collectively, our survey data spanned August 1993 through September 2010. We cross-checked our database against the California Natural Diversity Data Base (CNDDB) reports, and we opted to utilize the above sources in lieu of the CNDDB data, due to the systematic nature of the surveys and their inherent quality control.

(2) Occurrence Criteria

We considered extant all localities where presence of living mountain yellow-legged frog has been confirmed since 1995, unless the last three (or more) consecutive surveys have found no individuals of any life stage. The 1995 cutoff date was selected because it reflects a logical break point given the underlying sample coverage and relatively long lifespan of the frogs and is consistent with the recent status evaluation by CDFW, and is therefore consistent with trend analyses compiled as part of that same effort (CDFW (formerly CDFG) 2011, pp. 17-25). We considered the specific areas within the currently occupied geographic range of the species that include all higher-quality habitat (see “(3) Habitat Unit Delineation,” below) that is contiguous to extant mountain yellow-legged frog populations. To protect remnant populations, areas where surveys confirmed the presence of mountain yellow-legged frog using the criteria above were generally considered necessary to conservation, including: All hydrologically connected waters within a distance of 3 km (1.9 mi), all areas overland within 300 m (984 ft) of survey locations, and the remainder of the watershed upgradient of that location. The 3-km (1.9-mi) boundary was derived from empirical data recording frog movements using radiotelemetry (see derivation below). Watersheds containing the physical or biological features (as indicated by the MaxEnt Model), and with multiple and repeated positive survey records spread throughout the habitat area, were completely included. If two subareas within adjacent watersheds (one utilized, and one not known to be utilized) had contiguous high-quality habitat, the area was included up to approximately 3 km (1.9 mi) of the survey location. These areas are considered essential to the conservation of the species, because they are presumed to be within the dispersal capacity of extant frog metapopulations or their progeny.

Two detailed movement studies using radio telemetry have been completed for mountain yellow-legged frogs from which movement and home range data may be derived. One of the studies, focused on the mountain yellow-legged frog, occurred in a lake complex in Dusy Basin in Kings Canyon National Park (Matthews and Pope 1999, pp. 615-624). The other study included a stream-dwelling population of what was, at the time, identified as the Sierra Nevada yellow-legged frog in Plumas County, California (Wengert 2008, pp. 1-32). While recent information suggests that at least some of the frogs in the Wengert study may have actually been foothill yellow-legged frog (

Rana boylii

) (Poorten

et al.

2013, p. 4), we expect that the movement distances recorded are applicable to the Sierra Nevada yellow-legged frog within a stream-based system, because the ecology is comparable between the two similar taxa in regard to stream systems. The movement patterns of the mountain yellow-legged frog within the lake complex included average distances moved within a 5-day period ranging from 43-145 m (141-476 ft) (Matthews and Pope, 1999, p. 620), with frogs traveling greater distances in September compared to August and October. This period reflects foraging and dispersal activity during the pre-wintering phase. Estimated average home ranges from this study ranged from 53 square meters (174 square ft) in October to more than 5,300 square meters (0.4 ac) in September (Matthews and Pope 1999, p. 620). The stream telemetry study recorded movement distances from 3-2,300 m (10-7,546 ft) (average was 485 m (1,591 ft)) within a single season (July through

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