Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Callippe Silverspot Butterfly and the Behren's Silverspot Butterfly and Threatened Status for the Alameda Whipsnake

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC32

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Callippe Silverspot Butterfly and the

Behren's Silverspot Butterfly and Threatened Status for the Alameda

Whipsnake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered

status pursuant to the Endangered Species Act of 1973, as amended (Act)

for the callippe silverspot butterfly (Speyeria callippe callippe) and

Behren's silverspot butterfly (Speyeria zerene behrensii) and

threatened status for the Alameda whipsnake (Alameda striped racer)

(Masticophis lateralis euryxanthus). The callippe silverspot butterfly

is found at two sites on grasslands in the San Francisco Bay

[[Page 64307]]

area. Behren's silverspot butterfly is found within coastal terrace

prairie at one site in southern Mendocino County. These butterflies are

imperiled by overcollecting, urban development, alien plant invasion

and competition, and excessive livestock grazing. The Alameda whipsnake

occurs in the northern coastal scrub and chaparral habitats of Contra

Costa and Alameda counties. This snake and its associated habitat are

threatened by fire suppression and related wildfire problems associated

with lack of fuel reduction, urban development, genetic isolation, and

excessive livestock grazing. This rule implements Federal protection

and recovery provisions afforded by the Act for these animals.

DATES: Effective December 5, 1997.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours, at the

Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino

Ave., Suite 130, Sacramento, California 95821.

FOR FURTHER INFORMATION CONTACT: Mike Westphal or Diane Windham, staff

biologists, at the above address or by telephone (916/979-2725).

SUPPLEMENTARY INFORMATION:

Background

The callippe silverspot butterfly (Speyeria callippe) is a member

of the brush foot family (Nymphalidae). The animal was described by

J.A. Boisduval (1852) from specimens collected during the month of June

by Pierre Lorquin in San Francisco, California (dos Passos and Grey

1947). It is a medium sized butterfly with a wingspan of approximately

5.5 centimeters (cm) (2.2 inches (in)). The upper wings are brown with

extensive black spots and lines, and the basal areas are extremely

melanic (dark-colored). Wing undersides are brown, orange-brown, and

tan with black lines and distinctive black and bright silver spots.

Basal areas of the wings and body are densely pubescent (hairy).

The discal area on the upper hind wings of the callippe silverspot

butterfly is a darker, more extensive yellow than on the related

Lilian's silverspot butterfly (Speyeria callippe liliana). The callippe

silverspot butterfly is larger and has a darker ground color with more

melanic areas on the basal areas of the wings than Comstock's

silverspot butterfly (Speyeria callippe comstocki), another related

taxon.

The callippe silverspot butterfly is found in native grassland and

associated habitats (Thomas Reid Associates 1982; Steiner 1990;

Mattoon, in litt., November 22, 1992). The females lay their eggs on

the dry remains of the larvae foodplant, Johnny jump-up (Viola

pedunculata), or on the surrounding debris (Arnold 1981, Thomas Reid

Associates 1982). Within about 1 week of hatching the larvae eat their

egg shells. The caterpillars wander a short distance and spin a silk

pad upon which they pass the summer and winter. The larvae are dark

colored with many branching sharp spines on their backs.

The caterpillars immediately seek out the foodplant upon

termination of their diapause in the spring. In May, after having gone

through five instars, each larva forms a pupa within a chamber of

leaves drawn together with silk. Adults emerge in about 2 weeks and

live for approximately 3 weeks. Depending upon environmental

conditions, the flight period of this single-brooded butterfly ranges

from mid-May to late July. The adults exhibit hilltopping behavior, a

phenomenon in which males and virgin or multiple-mated females seek a

topographic summit on which to mate (Shields 1967).

Arnold (1983, 1985) conducted taxonomic studies on the subspecies

of Speyeria callippe using wing characters. He concluded that the

species consisted of 3 subspecies rather than the widely recognized and

accepted 16 subspecies. Based on his study, the range of Speyeria

callippe callippe would extend from Oregon to southern California and

east into the Great Basin (Arnold 1985). A comprehensive analysis of

this species found that the original classification remains more

appropriate and that subspecies callippe is restricted to the San

Francisco Bay region (Hammond 1986; Murphy undated). The Service

recognizes the conclusions of Hammond (1986) and the distribution of

the callippe silverspot butterfly as described by Sterling Mattoon (S.

Mattoon, in litt., November 22, 1992).

The callippe silverspot butterfly is known from 14 historic

populations in the San Francisco Bay region. The historic range of the

callippe silverspot butterfly includes the inner Coast Ranges on the

eastern shore of San Francisco Bay from northwestern Contra Costa

County south to the Castro Valley area in Alameda County (S. Mattoon,

in litt., November 22, 1992). On the west side of the Bay, it ranged

from San Francisco south to the vicinity of La Honda in San Mateo

County. Five colonies, including the one located at Twin Peaks in San

Francisco have been extirpated for a variety of reasons. Currently,

extant colonies are known only from private land on San Bruno Mountain

in San Mateo County, and a city park in Alameda County (S. Mattoon, in

litt., November 22, 1992).

Behren's silverspot butterfly (Speyeria zerene behrensii) is also a

member of the brush foot family (Nymphalidae). William H. Edwards

described this taxon in 1869 based on an adult male collected by an

unknown lepidopterist in Mendocino, California (Edwards 1869, dos

Passos and Grey 1947). It is a medium-sized butterfly with a wingspan

of approximately 5.5 cm (2.2 in). The upper surfaces are golden brown

with numerous black spots and lines. Wing undersides are brown, orange-

brown, and tan with black lines and distinctive silver and black spots.

Basal areas of the wings and body are densely pubescent.

Behren's silverspot butterfly is similar in appearance to two other

subspecies of Speyeria zerene (Howe 1975, Hammond 1980, McCorkle and

Hammond 1988). The Oregon silverspot butterfly (Speyeria zerene

hippolyta), federally listed as threatened, has lighter basal suffusion

on the upper sides of the wings than Behren's silverspot butterfly.

Another related taxon, the endangered Myrtle's silverspot butterfly

(Speyeria zerene myrtleae) is larger in size and also lighter in color

than Speyeria zerene behrensii.

Behren's silverspot butterfly inhabits coastal terrace prairie

habitat. The life history of Behren's silverspot butterfly is similar

to the callippe silverspot butterfly. The females lay their eggs in the

debris and dried stems of the larval foodplant, violet (Viola adunca)

(McCorkle 1980, McCorkle and Hammond 1988). Upon hatching, the

caterpillars wander a short distance and spin a silk pad upon which

they pass the fall and winter. The larvae are dark-colored with many

branching, sharp spines on their backs. The caterpillars immediately

seek out the foodplant upon termination of their diapause in the

spring. They pass through five instars before forming a pupa within a

chamber of leaves that they draw together with silk. The adults emerge

in about 2 weeks and live for approximately 3 weeks. Depending upon

environmental conditions, the flight period of this single-brooded

butterfly ranges from July to August. Adult males patrol open areas in

search of newly emerged females.

The historic range of Behren's silverspot butterfly extends from

the mouth of the Russian River in Sonoma County northward along the

immediate coast to southern Mendocino County in the vicinity of Point

Arena (S. Mattoon, in litt., August 4, 1989). Six historic populations

are known from coastal terrace prairie and associated habitats.

[[Page 64308]]

The single extant population is located on private land near Point

Arena in Mendocino County.

The Alameda whipsnake (Alameda striped racer) (Masticophis

lateralis euryxanthus) is a member of the family Colubridae (Stebbins

1985). It was described by William J. Riemer (1954) from a total of six

specimens collected in the vicinity of Berkeley, Alameda County, and

near Somersville, Contra Costa County, and from Mount Diablo, Contra

Costa County, California. The Alameda whipsnake is a slender, fast-

moving, diurnal snake with a narrow neck and a relatively broad head

with large eyes. The dorsal surface is colored sooty black with a

distinct yellow-orange stripe down each side. The anterior portion of

the ventral surface is orange-rufous colored, the midsection is cream

colored, and the posterior and tail are pinkish. Adults range in length

from 91 to 122 cm (3 to 4 feet (ft)).

The Alameda whipsnake inhabits the inner Coast Ranges in western

and central Contra Costa and Alameda counties (Jennings 1983, McGinnis

1992, Swaim 1994). Urban development has fragmented the originally

continuous range of the whipsnake into five populations centered in the

(1) Sobrante Ridge, Tilden/Wildcat Regional Parks area to the Briones

Hills, in Contra Costa County (Tilden-Briones population); (2) Oakland

Hills, Anthony Chabot area to Las Trampas Ridge, in Contra Costa County

(Oakland-Las Trampas population); (3) Hayward Hills, Palomares area to

Pleasanton Ridge, in Alameda County (Hayward-Pleasanton Ridge

population); (4) Mount Diablo vicinity and the Black Hills, in Contra

Costa County (Mount Diablo-Black Hills population); and (5) Wauhab

Ridge, Del Valle area to the Cedar Mountain Ridge, in Alameda County

(Sunol-Cedar Mountain population). These populations all occur on

private or public, non-Federal, land.

Due to the fragmentation of the range of the Alameda whipsnake,

little or no interchange occurs among the five populations. The ability

of the whipsnake to interchange among the first three populations

described above is contingent on their dispersing over the Caldecott

Tunnel in Contra Costa County and under Highway 580 in Alameda County

at the Eden Canyon interchange, the Dublin Boulevard undercrossing, or

where San Lorenzo Creek passes under the highway. The ability of the

Alameda whipsnake to interchange between the Hayward-Pleasanton Ridge

and Sunol-Cedar Mountain populations depends on their dispersing along

Alameda Creek in Alameda County and crossing under Highway 680 where

the creek passes under the highway, or crossing under the highway at

Scott's Corner along Vallecitos Creek, or where two unnamed tributaries

to Arroyo de la Laguna cross under Highway 680 north of Scott's Corner.

The Mount Diablo-Black Hills population has no path for dispersal to

any of the other populations.

The Alameda whipsnake is distinguished from the chaparral whipsnake

(Masticophis lateralis lateralis) by its sooty black dorsum, by wider

yellow-orange stripes that run laterally down each side, the lack of a

dark line across the rostral, an uninterrupted light stripe between the

rostral and eye, and the virtual absence of spotting on the venter of

the head and neck.

The Alameda whipsnake is typically found in northern coastal scrub,

coastal sage scrub and chaparral plant communities (Ornduff 1974, Swaim

1994), but may also occur in adjacent grasslands and oak and oak/bay

woodlands (Swaim 1994). They demonstrate a preference for open-canopy

stands and habitats with woody debris and exposed rock outcrops, and

they tend to be found on southeast, south, and southwest facing slopes

(Swaim 1994). This extremely fast-moving snake holds its head high off

the ground to peer over grass or rocks for potential prey and is an

active diurnal predator. Its diet includes lizards, small mammals,

snakes, and nesting birds.

Radiotelemetry data suggest that Alameda whipsnakes can occupy home

ranges varying in size from 1.9 to 8.7 hectares (ha) (5.0 to 21.5 acres

(ac)). Home ranges of marked snakes overlapped (Swaim 1994). Some

animals were recorded to have moved over 1.8 kilometers (km) (1 mile

(mi)) while crisscrossing their areas (McGinnis 1992).

Alameda whipsnakes breed from March through June, with mating

appearing to occur near the hibernacula of the female (Swaim 1994).

Whipsnakes lay clutches of 6 to 11 eggs, May through July (Stebbins

1985), and the young hatch and emerge in the late-summer to early-fall

(Swaim 1994).

Previous Federal Action

A proposed rule to list the callippe silverspot butterfly as

endangered with critical habitat was published on July 3, 1978 (43 FR

28938). The critical habitat portion of this proposal was withdrawn by

the Service on March 6, 1979 (44 FR 12382) because of procedural and

other substantive changes in the Act by the amendments of 1978. The

Service again published a proposed rule to designate critical habitat

for the callippe silverspot butterfly on March 28, 1980 (45 FR 20503).

The proposal to list the callippe silverspot butterfly and the

reproposal of critical habitat were withdrawn on September 30, 1980 (45

FR 64607) because the Act amendments of 1978 required that the final

rule for the species be completed within 2 years after the date of

publication of the proposal to list it as endangered or threatened.

This insect was listed as a category 2 candidate species in the Animal

Notice of Review on May 22, 1984 (49 FR 21664) and January 6, 1989 (54

FR 554). Category 2 species were those taxa for which the Service had

data that indicated listing was possibly appropriate, but for which

substantial data on their biological vulnerability and threats was not

currently available to support issuance of proposed listing rules. The

callippe silverspot butterfly was listed as a category 1 species in the

Animal Notice of Review on November 21, 1991 (56 FR 58804), because of

increased threats from overcollecting (see Factor B in the ``Summary of

Factors Affecting the Species'' section of this rule). Category 1

species were those taxa for which the Service had on file sufficient

information on biological vulnerability and threats to support proposed

listing rules. As announced in a notice published in the February 28,

1996, Federal Register (61 FR 7596), the designation of multiple

categories of candidates has been discontinued, and only former

category 1 species are now recognized as candidates for listing

purposes.

Ms. Dee Warenycia petitioned the Service to list the callippe

silverspot butterfly as an endangered species in a letter dated January

14, 1991, which was received on January 22, 1991. The Service completed

a status review and determined that sufficient information existed to

propose the species for listing. The 12-month petition finding was

published on February 4, 1994, with the proposed rule (59 FR 5377).

On March 20, 1975, Behren's silverspot butterfly was listed as one

of 42 insects whose status was being reviewed for listing as either

endangered or threatened by the Service (40 FR 12691). This insect was

listed as a category 2 species in the Animal Notice of Review on May

22, 1984 (49 FR 21664), and January 6, 1989 (54 FR 554). Dr. Dennis

Murphy of Stanford University petitioned the Service to list Behren's

silverspot butterfly as an endangered species in a letter dated June

28, 1989, which was received on June 29, 1989. The Service determined

that the petition contained substantial information indicating that the

action requested may be warranted and

[[Page 64309]]

published notice of the 90-day finding on November 1, 1990 (55 FR

46080). It was listed as a category 1 species in the Animal Notice of

Review on November 21, 1991 (56 FR 58804), on the basis of significant

increases in habitat loss and threats occurring throughout its range.

The 12-month petition finding was published with the proposed rule to

list the species on February 4, 1994 (59 FR 5377).

On September 18, 1985, the Service published the Vertebrate

Wildlife Notice of Review (50 FR 37958) which included the Alameda

whipsnake as a category 2 candidate species for possible future listing

as endangered or threatened. The January 6, 1989, Animal Notice of

Review (54 FR 554) solicited information on its status as a category 2

candidate species. The Alameda whipsnake was moved to category 1 in the

November 21, 1991, Animal Notice of Review (56 FR 58804) on the basis

of significant increases in habitat loss and threats occurring

throughout its range. On February 4, 1994, the Service published a

proposed rule in the Federal Register (59 FR 5377) to list the Alameda

whipsnake as an endangered species.

The processing of this final rule follows the Service's listing

priority guidance published in the Federal Register on December 5, 1996

(61 FR 64475). This guidance clarifies the order in which the Service

will process rulemakings following two related events--(1) the lifting,

on April 26, 1996, of the moratorium on final listings imposed on April

10, 1995 (Public Law 104-6), and (2) the restoration of significant

funding for listing through passage of the Omnibus Budget

Reconciliation Act following severe funding constraints imposed by a

number of continuing resolutions between November 1995 and April 1996.

Under this guidance, highest priority (Tier 1) is given to processing

emergency listings, and second highest priority (Tier 2) is given to

resolving the listing status of outstanding proposed listings. The

third highest priority (Tier 3) is assigned to resolving the

conservation status of candidate species and processing administrative

findings on petitions to add species to the lists or reclassify species

from threatened to endangered status. The lowest priority (Tier 4) is

given to processing critical habitat determinations, delistings, and

other types of reclassifications. Processing of this final rule is a

Tier 2 action.

Summary of Comments and Recommendations

In the February 4, 1994, proposed rule (59 FR 5377) and associated

notifications, all interested parties were requested to submit factual

information that might assist the Service in determining whether these

taxa warrant listing. Appropriate State and Federal agencies, county

governments, scientific organizations, and other interested parties

were contacted and requested to comment. Notices of this proposal were

published in the San Francisco Chronicle and San Mateo Times on

February 8, 1994, and the Oakland Tribune on February 10, 1994.

During the comment period, the Service received comments from 16

commenters. Six commenters supported the listing of all three taxa.

Five commenters supported the listing of the callippe silverspot. The

East Bay Regional Park District (EBRPD) supported the listing of the

Alameda whipsnake. One commenter provided information on conservation

methods for the callippe silverspot, but did not express an opinion on

the listing. Letters from the City of Danville, California Department

of Parks and Recreation (CDPR), and the U.S. National Biological Survey

(now the Biological Resources Division of the U.S. Geological Survey)

provided additional information on the Alameda whipsnake but did not

express an opinion on the listing. No public hearing was requested.

On November 1, 1996, the Service published in the Federal Register

(61 FR 56501) a notice reopening the comment period for 30 days for

these taxa. The basis for this reopening was the length of time that

had elapsed since closure of the initial comment period, changing

procedural and biological circumstances, and the need to review the

best scientific information available during the decision-making

process. Specifically, the Service requested information regarding--(1)

the known or potential effects of fire suppression and general fire

management practices on the Alameda whipsnake and its habitat; (2) any

other threats to these taxa; and (3) the size, number, or distribution

of populations of these taxa. During the 30-day reopened comment

period, the Service received comments from 10 entities and individuals.

One commenter stated that the listing of the callippe silverspot

butterfly would not be beneficial. Two commenters supported listing of

all three taxa and one commenter expressed no opinion on the listing of

all three taxa. The remaining letters mentioned only the Alameda

whipsnake, with two supporting the listing, one opposing the listing,

and three expressing no opinion. In accordance with the Service policy

on peer review, published in the Federal Register on July 1, 1994 (59

FR 34270), the opinions of three independent scientists were also

solicited. No responses were received from these specialists.

The Service has reviewed all of the written comments described

above. New information received since publication of the proposed rule

is incorporated in the ``Background'' and ``Summary of Factors

Affecting the Species'' sections of this final rule. The issues raised

in comments received and the Service's responses are summarized as

follows:

Issue 1: One commenter disagreed that the Alameda whipsnake would

not be impacted by construction and operation of the proposed Los

Vaqueros Reservoir. The commenter stated that the snake would be

adversely affected by the reservoir project if there are historic

records of the snake from the areas that would be inundated.

Service Response: The quarrying operations for the Los Vaqueros

project will not be undertaken at the location first proposed for the

project, where an Alameda whipsnake was observed (Jones and Stokes

1992). The Service is not aware of any records showing that this

species had ever occurred in the inundation zone.

Issue 2: One commenter stated that feral pigs (Sus scrofa) prey on

snakes and other wildlife.

Service Response: The Service has incorporated this information in

this final rule.

Issue 3: One commenter believed that commercial collecting of the

Alameda whipsnake was an overstated threat and contended that this was

incorrectly used as a justification for not designating critical

habitat. Another commenter stated that the location of the callippe

silverspot butterfly population at San Bruno Mountain was well known to

butterfly collectors. He asserted that the threat of collecting was not

a justification for determining that designation of critical habitat is

not prudent for the callippe silverspot butterfly.

Service Response: Under section 4(a)(3)(A) of the Act and 50 CFR

424.12, the Secretary must designate critical habitat if such

designation is prudent and determinable. Section 4(b)(2) of the Act

further states that any area may be excluded from critical habitat if

it is determined that the benefits of such exclusion outweigh the

benefits of specifying such area as part of the critical habitat. In

the case of the

[[Page 64310]]

Alameda whipsnake and callippe silverspot butterfly, the Service

believes that designation of critical habitat for these species would

confer little, if any, conservation benefit to these species beyond

that provided by listing. Application of the statute and its

regulations are described in more detail in the ``Critical Habitat''

section of this rule.

Issue 4: Several commenters contended that the failure of the San

Bruno Mountain Habitat Conservation Plan (HCP) is the primary cause of

the decline of the callippe silverspot butterfly.

Service Response: In 1982, a Section 10(a)(1)(B) incidental take

permit was issued to the cities of Brisbane, Daly City, South San

Francisco, and the County of San Mateo for the endangered mission blue

butterfly (Icaricia icarioides missionensis), San Bruno elfin butterfly

(Incisalia mossii bayensis), and San Francisco garter snake (Thamnophis

sirtalis tetrataenia). This permit and HCP is described in the

``Available Conservation Measures'' section of this rule. The Service

is not aware of any documented evidence or data showing that the

callippe silverspot butterfly is declining as a result of the San Bruno

Mountain HCP. However, the HCP does not regulate collecting threats to

the callippe silverspot butterfly or other butterfly species inhabiting

San Bruno Mountain. Listing the callippe silverspot butterfly will

provide this species with regulatory protection from collection and

other impacts.

Issue 5: One commenter thought that designation of San Bruno

Mountain as critical habitat for the callippe silverspot butterfly

would lead to increased levels of environmental review and greater

protection for the species.

Service Response: Critical habitat extends additional protection to

listed species through section 7 of the Act by requiring that Federal

agencies ensure that any actions they fund, authorize, or carry out do

not destroy or adversely modify critical habitat. However, because

development activities on callippe silverspot butterfly habitat on San

Bruno Mountain have already been completed, designation of critical

habitat would not provide additional benefits to the species. A section

10(a)(1)(B) HCP currently protects habitat in the area.

Issue 6: One commenter was concerned that particulate matter from

vehicle exhaust and quarry operations may pose a significant threat to

the callippe silverspot butterfly.

Service Response: The adult and early stages of the callippe

silverspot butterfly and other lepidopterans may be prone to injury and

mortality from dust because their respiratory apparatus (spiracles) are

easily clogged. The Service is concerned that high levels of dust from

quarry operations on San Bruno Mountain may adversely affect the

butterflies in areas immediately bordering this location.

Issue 7: One commenter claimed that the three species are being

used by environmentalists as ``roadblocks'' to economic uses of private

property. Another commenter stated that public lands should be managed

for productivity and sustainability and that the economic impact,

customs, traditions and culture of local communities should be

considered during the listing process.

Service Response: Under section 4(a)(1)(A) of the Act, a listing

determination must be based solely on the best scientific and

commercial data available. The legislative history of this provision

clearly states the intent of Congress to ``ensure'' listing decisions

are ``based solely on biological criteria and to prevent non-biological

considerations from affecting such decisions'' (H.R. Rep. No. 97-835,

97th Cong. 2d Sess. 19 (1982)). As further stated in the legislative

history, ``* * * economic considerations have no relevance to

determinations regarding the status of species * * *.'' Because the

Service is specifically precluded from considering economic impacts,

either positive or negative, in a decision on listing any species, the

Service does not evaluate or consider the economic impacts of listing

these species.

Section 2(a)(3) of the Act recognizes that species of fish,

wildlife, and plants are of esthetic, ecological, educational,

historical, recreational, and scientific value to the Nation and its

people. The Service recognizes that the species included in this

listing have esthetic, ecological, education, historical and scientific

value.

Issue 8: One commenter thought it would be prudent for the Service

to indicate the percentage of Alameda whipsnake habitat lost since

1971, the year the species was listed as ``threatened'' under the

California Endangered Species Act, to document the level of protection

afforded the species with State listing.

Service Response: The Service mapped Alameda whipsnake habitat that

was extant in 1970 and identified areas where conversion and

encroachment into potential habitat had occurred from then until 1996.

To the extent determinable from aerial photographs and slides, projects

impacting habitat during the 1970-1996 period were mapped. Such

projects included road construction and widening, subdivision

construction and expansion, and brush removal. Approximately 25

projects in Alameda County and 41 projects in Contra Costa County

either converted or encroached upon chaparral in the 1970-1996 period.

The extent of conversion and encroachment ranged from approximately 0.8

to 2.0 ha (2 to 5 ac) to approximately 8 to 20 ha (20 to 50 ac) for

larger projects. Freeway construction and residential and commercial

development have added dispersal barriers measuring up to 4.8 km (3.0

mi) wide. The Service's conclusion, from this review, was that regional

development has significantly fragmented the remaining Alameda

whipsnake populations and that natural genetic exchange between the

five remaining populations is unlikely.

A precise assessment of the amount of habitat loss is difficult,

because Alameda whipsnakes are known to use adjacent habitats at a high

level (McGinnis 1992), and may be found at distances up to

approximately 500 meters (1,640 feet) from scrub and chaparral habitat

and utilize riparian habitat as a corridor (Swaim 1994). The

substantial amount of habitat loss documented by the Service brings

into question the effectiveness of current regulatory protection which

is further discussed under factor D in the ``Summary of Factors''

section of this rule.

The issues raised in comments received during the 30 days that the

comment period was reopened and the Service's responses to these issues

are summarized as follows:

Issue 9: Several commenters noted the benefits of fuels management

for snake habitat maintenance and public safety. One commenter noted

the difficulty in conducting prescribed burns near residential

communities. Another commenter recommended that the Service explicitly

recognize the tradeoff between protecting individual snakes from

mortality during fuels management and the benefits of maintaining long-

term suitable habitat conditions. The commenter further noted that

restrictions on fuels treatment activities should meet appropriate

standards for reasonableness, given the critical need to provide for

public safety.

Service Response: The subject of the effects of fire suppression

and general fire management practices on the Alameda whipsnake and its

habitat was a factor in deciding to reopen the comment period. The

Service is concerned that fire suppression has had, and continues to

have, negative impacts

[[Page 64311]]

on habitat for the Alameda whipsnake. Fire suppression is discussed in

depth under factor E of the ``Summary of Factors'' section of this

rule. The Service also recognizes the need for efficient fire control

in urban areas and would work with appropriate management agencies to

develop fuels management plans that protect the public while affording

the maximum practicable conservation benefit to Alameda whipsnakes.

Issue 10: One commenter expressed concern that the proposed rule to

list these taxa may not have complied with the regulatory policies

announced by the Department of the Interior on July 1, 1994. In

particular, the commenter expressed concern that the listing proposal

had not been subjected to peer review, as required by the Notice of

Policy Statement published in the Federal Register on that date (59 FR

34270).

Service Response: The proposed rule to list these taxa was

published on February 4, 1994 (59 FR 5377), predating the Service's

formal policy on peer review made final on July 1, 1994 (59 FR 34270).

However, the list of interested parties to whom the Service sent the

proposed rule for comment included several experts on the life history,

taxonomy, and ecology of the taxa proposed for listing. During the

reopened comment period discussed above in the ``Previous Federal

Actions'' section, the opinions of three independent specialists were

solicited in accordance with this policy. No responses were received

from these specialists.

Issue 11: One commenter noted that because California has

experienced severe fires during the past several years, fire

suppression may not be a threat to the Alameda whipsnake.

Service Response: Several areas of California, particularly

southern California, have recently experienced wildfires. Within the

range of the Alameda whipsnake, however, there have been few large

wildfires within the last 10 years with the notable exception of the

Oakland Hills firestorm of 1991. Although this fire occurred within the

range of the species, the burned areas were mostly located in developed

portions of the Oakland Hills that did not contain habitat suitable for

the whipsnake. Fire suppression practices that do not include

controlled burning can lead to severe fires that damage both urban and

wildlife areas, whereas controlled burning can benefit both wildlife

habitat and reduce the risk of catastrophes such as the 1991 fire. Fire

suppression is discussed in detail under factor E of the ``Summary of

Factors'' section of this rule.

Issue 12: One commenter was concerned over the method by which

information was gathered on private property.

Service Response: The Service is not aware of any information that

was gathered without the permission of the property owner. Information

was obtained from Environmental Impact Reports or Statements that are

required under the California Environmental Quality Act (CEQA) or

National Environmental Protection Act, reports and data summaries

prepared by State agencies and independent scientists, information

submitted during public comment periods, and other information

published in the scientific journals or available in student

dissertations.

Issue 13: One commenter stated that the Service did not use sound

scientific information as indicated by its use of phrases such as ``may

be threatened.''

Service Response: Section 4(b)(a)(A) of the Act requires that

listing determinations be based on the best scientific and commercial

data available. The Service has relied on the best available scientific

and commercial data in making this listing determination. The data upon

which this determination is based were collected by the petitioners and

qualified scientists. The phrase ``may be threatened,'' in particular,

is used to indicate that a potential threat may become an actual one in

the foreseeable future. The Service believes that it is sound and

responsible science to acknowledge a lack of absolute certainty when

that is the case.

Issue 14: One commenter asked what scientific information was used

to determine what constitutes ``inappropriate grazing levels.''

Service Response: The final rule includes livestock grazing as one

of many factors affecting the species, and ranks it as a contributing

factor, rather than as a major factor. Indeed, this final rule states

that some grazing could help to keep other plants from outcompeting the

butterflies' host plants. Studies on Alameda whipsnakes that have been

equipped with radiotelemetry units have shown that the whipsnake

forages in grassland between stands of scrub. Livestock grazing that

significantly reduces or eliminates plant cover in these grasslands

would lead to an increased loss of snakes and their prey to other

predators. The Service believes that livestock grazing, if

appropriately managed, can benefit both the Alameda whipsnake and the

two species of butterflies.

Issue 15: One commenter stated that involvement of State and local

governments, as well as all types of land users, should be required

prior to listing a species.

Service Response: To solicit comments from the public, a notice of

the February 4, 1994, proposed rule (59 FR 5377) was published in the

San Francisco Chronicle and San Mateo Times on February 8, 1994, and in

the Oakland Tribune on February 10, 1994. In addition, appropriate

State agencies, county governments, Federal agencies, scientific

organizations, and other interested parties were contacted and

requested to comment. On November 1, 1996 (61 FR 56501), the Service

reopened for public comment the proposed listing of the three species

with a closing date of December 2, 1996, to allow further comments from

the public.

Issue 16: One commenter stated that the expense of amending the San

Bruno Mountain HCP to permit incidental take of callippe silverspot

butterflies would preclude other habitat management activities.

Service Response: The Service will work with the permit holders

involved in the San Bruno Mountain HCP to ensure that the process of

amending their Section 10(a)(1)(B) permit will not cause undue

diversion of funding from other habitat management activities.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the callippe silverspot

butterfly (Speyeria callippe callippe) and Behren's silverspot

butterfly (Speyeria zerene behrensii) should be classified as

endangered species, and the Alameda whipsnake (Masticophis lateralis

euryxanthus) should be classified as a threatened species. Procedures

found at section 4(a)(1) of the Act and regulations (50 CFR part 424)

implementing the listing provisions of the Act were followed. A species

may be determined to be endangered or threatened due to one or more of

the five factors described in section 4(a)(1). These factors and their

application to the callippe silverspot butterfly (Speyeria callippe

callippe), Behren's silverspot butterfly (Speyeria zerene behrensii),

and Alameda whipsnake (Masticophis lateralis euryxanthus) are as

follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Habitat or Range

The primary causes of the decline in the callippe silverspot

butterfly and

[[Page 64312]]

Behren's silverspot butterfly is the loss and degradation of habitat

from human activities, including off-road vehicle use, trampling by

hikers and equestrians, inappropriate levels of livestock grazing, and

invasive exotic vegetation. Off-road vehicles and uncontrolled off-

trail foot traffic pose a threat to the colonies of the two butterfly

species. These activities could harass, injure, or kill individuals of

the two species by trampling or crushing the early life stages, the

foodplants of the larvae, or the adults' nectar sources. The Behren's

silverspot butterfly also is imperiled by residential and commercial

development.

The callippe silverspot butterfly was once considerably more

widespread in the San Francisco Bay area, and at least five populations

of this species have been eliminated by urban development and other

causes. The species was known historically from 14 sites in San Mateo,

Alameda, Sonoma, and Solano counties, only 2 of which are still extant.

One of the known extant populations of the callippe silverspot

butterfly is located in a city park in Alameda County. This colony is

small and likely to be imperiled by anthropogenic and natural causes

(S. Mattoon, in litt., November 22, 1992). The population at San Bruno

Mountain in San Mateo County is largely protected against further loss

of habitat, which will remain undeveloped in perpetuity by virtue of

the San Bruno Mountain HCP (Thomas Reid Associates 1982; S. Mattoon, in

litt., November 22, 1992). However, overcollection of specimens by

lepidopterists at San Bruno Mountain and at sites where hybrids can be

found in Solano County continues to pose a threat (see Factor B).

Behren's silverspot butterfly has been extirpated from a

significant portion of its former range, which extended from the mouth

of the Russian River in Sonoma County north to southern Mendocino

County. One of the six historically known colonies was eliminated by a

housing development (S. Mattoon, in litt., August 7, 1989). Currently,

this species is known from a single locality near Point Arena in

Mendocino County (Sally DeBecker, Pacific Gas and Electric, in litt.,

1990). The site is subject to grazing by livestock. Although no

development plans have been proposed for this site, urban development

is occurring in the vicinity. No specimens have been observed at the

sites of the other historically known colonies since 1987.

The current threats to the habitat of the Alameda whipsnake are

urban development and associated impacts due to increased population

densities, inappropriate grazing practices, and alteration of suitable

habitat from fire suppression (see factor E below for a full discussion

of the effects of fire suppression on Alameda whipsnake habitat). The

central and western portions of Alameda and Contra Costa counties are

highly urbanized and continue to be subject to increased urbanization.

Habitat fragmentation from urban development and associated highway and

road construction has led to isolation of the five populations by

wholly preventing or severely reducing movement of individuals between

areas of suitable habitat as described earlier in this rule. These

activities have also reduced the total amount of suitable habitat

available for the Alameda whipsnake. Swaim (1994) listed 55 historical

localities for this species, of which only 25 are considered to be

extant.

McGinnis (1992) documented colonies scattered throughout the range

of the snake that are likely to be adversely impacted by various

residential developments. In addition, the Service has identified

numerous housing developments that threaten the Alameda whipsnake

populations. Some housing developments in Alameda County will further

fragment habitat areas of the Hayward-Pleasanton Ridge population.

These developments include the proposed 200 ha (500 ac) Schaefer Ranch

Project with approximately 474 homes, and the 58 ha (146 ac) Hansen

Ranch Project, both of which could potentially impact suitable habitat

for the Alameda whipsnake. The Schaefer Ranch contains suitable habitat

and the adjacent Hansen Ranch is in close proximity to an Alameda

whipsnake sighting (California Department of Fish and Game (CDFG), in

litt., February 13, 1996). In addition, the proposed dedication of

approximately 64 ha (161 ac) of the Schaefer Ranch project to the EBRPD

will increase public use and associated recreational impacts to habitat

of the Alameda whipsnake. The proximity of urban development will also

increase the likelihood of predation from domestic and feral cats to

EBRPD lands that are otherwise protected from development (DelVecchio

1997) (see factor C below).

Two other proposed projects to the south affect the Hayward-

Pleasanton Ridge population. The 632 ha (1,580 ac) Hayward 1900 project

and the 156 ha (391 ac) Bailey Ranch are adjacent housing developments

along Walpert Ridge in Hayward (Planning Collaborative 1995, City of

Hayward 1996). Both the Walpert Ridge and the Bailey Ranch sites have

habitat occupied by the Alameda whipsnake (McGinnis 1992). In addition,

contiguous habitat exists between known occupied habitat to the west

and east of the Bailey Ranch and Hayward 1900 development projects.

Although Bailey Ranch has proposed mitigation to offset impacts to the

Alameda whipsnake, both developments will further impact and fragment

the Hayward-Pleasanton Ridge population. Hayward 1900 has proposed open

space but is planning to construct trails and vineyards in the proposed

open space (Planning Collaborative 1995). Vineyards, associated

agricultural land uses, and trails could eliminate and fragment

whipsnake habitat and further restrict the movement of snakes.

Within the Oakland-Las Trampas population, several proposed

developments may impact Alameda whipsnakes and their habitat. Several

of these proposed projects are located contiguous to the east side of

Las Trampas Regional Wilderness and contain habitat known to be

occupied by Alameda whipsnakes. The proposed 9 ha (22 ac) Rossmoor

Neighborhood Nine Project would result in the direct loss of snake

habitat and could potentially impact mitigation habitat previously

provided to offset impacts from an earlier phase of the project (CDFG,

in litt., November 25, 1995). The proposed expansion of the Oakland Zoo

could potentially impact suitable snake habitat (K. Swaim and S.

McGinnis, Hayward State University, pers. comm., 1996). Some of these

projects have, or may, set aside suitable habitat for the Alameda

whipsnake, preserved either as open space or as mitigation for habitat

losses associated with the project. Although these proposed

developments may mitigate for impacts to Alameda whipsnakes, the

undeveloped hillsides that support chaparral growth will be subject to

increased fire suppression due to the close proximity of urban

development. This fire suppression will result in habitat degradation

and an increased probability of catastrophic wildfires as discussed

under factor E below.

The Mount Diablo-Black Hills, Tilden-Briones, and Sunol-Cedar

populations are indirectly threatened by urban development. The Mount

Diablo-Black Hills population will be adversely affected by the urban

expansion of the cities of Pittsburg, Oakley, Brentwood, and Antioch.

These cities are projected to expand by over 40,000 units, which will

result in increased visitation and

[[Page 64313]]

associated impacts to nearby EBRPD parks and Mt. Diablo State Park.

Specific developments such as the 115-unit Clayton Ranch (412 ha (1,030

ac)) and 5,200-unit Cowell Ranch (1,709 ha (4,272 ac)) will expose the

eastern flank of the Mt. Diablo-Black Hills population to these

indirect impacts of urbanization. The Mt. Diablo-Black Hills population

is also subject to increased urban impacts on the south side from the

proposed Dougherty Valley (2,400 ha (6,000 ac)) and Tassajara Valley

(1,600 ha, (4,000 ac)) projects, which total over 17,000 units. The

Tilden-Briones population will be subject to increased population

pressure from the north by the approved 800-unit Franklin Canyon (392

ha (980 ac)) projects (Mooers, 1996). Additional developments are

approved or proposed adjacent to the Sunol-Cedar population in the

rapidly growing areas near Dublin and Pleasanton in Alameda County.

These projects will increase human disturbance from recreational use on

regional and state parks, and as urban development encroaches into the

current open space buffers between existing developments and whipsnake

habitat on public lands, the threat of predation and harassment from

domestic and feral cats increases (Coleman et al. 1997). Predation

threats are discussed in more detail under factor C below.

The past and ongoing fragmentation of Alameda whipsnake habitat

makes some populations of this species more vulnerable to extinction.

The Tilden-Briones and Oakland-Las Trampas populations occupy a narrow,

interrupted band of ridgetop chaparral dividing the heavily urbanized

Oakland/Berkeley region to the west from the rapidly urbanizing Highway

680 corridor to the east (USGS 1997). Habitat patches with high ratios

of edge to interior are known to provide less value for some species

than round or square patches provide (Jimerson and Hoover 1991;

Saunders et al. 1991). In fragmented habitats, species most prone to

extinction are those that depend on native vegetation, require

combinations of different habitat types, require large territories, and

exist at low densities (Saunders et al. 1991). Alameda whipsnakes have

been shown to be associated with native Diablan sage scrub, to forage

in adjacent grasslands, and to migrate along riparian corridors. While

the home range of the Alameda whipsnake, estimated to vary between 2

and 9 ha (5 and 20 ac), is not large compared to that of some animals,

the narrow habitats of the Tilden-Briones and Oakland-Las Trampas

populations, less than 1.6 km (1 mi) wide in some places, may impose a

significant constraint on the species. Few individuals have been

captured during trapping studies conducted over thousands of trap days,

indicating that Alameda whipsnakes may be sparse even in suitable

habitat (Swaim 1994). These factors may combine to cause Alameda

whipsnakes to be vulnerable to extinction in small habitat patches

resulting from habitat fragmentation.

B. Overutilization for Commercial, Recreational, Scientific or

Educational Purposes

The callippe silverspot butterfly and Behren's silverspot butterfly

are highly prized by insect collectors. Although no studies

specifically document the impact of the removal of individuals on

natural populations of either butterfly species, based on studies of

another endangered nymphalid butterfly (Gall, 1984a and 1984b) and a

lycaenid butterfly (Duffey 1968), both butterflies are vulnerable to

impacts from collection due to their isolated, possibly small

populations. Butterfly collectors have been observed on San Bruno

Mountain (S. Stern, in litt., June 21, 1994). Some of these specimens

are being traded for other butterfly taxa or are being held by the

collectors in anticipation of their greater value should the species be

listed. The Service also is aware of reports that Behren's silverspot

butterfly is actively sought by amateur lepidopterists. Both collecting

from small colonies and scientific studies that repeatedly handle and

mark individuals (particularly of females and in years of low

abundance) could seriously damage the populations through loss of

individuals and the resulting loss of genetic variability within the

population (Singer and Wedlake 1981, Gall 1984b, Murphy 1988).

Collection of females dispersing from a colony also can reduce the

probability that new colonies will be founded. Collectors pose a threat

because they may be unable to recognize when they are depleting

butterfly colonies below the thresholds of survival or recovery,

especially when they lack appropriate biological training or when they

visit the area for a short period of time (Collins and Morris 1985).

An extensive commercial trade has been documented for the callippe

silverspot butterfly and the Behren's silverspot butterfly, as well as

for other imperiled and rare butterflies (U.S. Attorney's Office 1994,

United States v. Richard J. Skalski, Thomas W. Kral, and Marc L.

Grinnell, Case No. CR932013, 1993). The Service is concerned that

issuance of a final rule for these animals that is not effective

immediately upon publication will result in greatly intensified level

of collecting and commercial trade in the callippe silverspot butterfly

and Behren's silverspot butterfly. Because of the immediate threat

posed by these on-going activities, the Service finds that good cause

exists for this rule to take effect immediately upon publication in

accordance with 5 U.S.C. 553(d)(3).

The Alameda whipsnake does not appear to be particularly popular

among reptile collectors; however, Federal listing could raise the

value of the animals within reptilian trade markets and increase the

threat of unauthorized collection above current levels (K. McCloud,

U.S. Fish and Wildlife Service, Law Enforcement Division, pers. comm.,

1994 and 1996). Even limited interest in the species among reptile

collectors could pose a serious threat to smaller populations of the

snake.

C. Disease or Predation

It appears that predation or disease do not pose a significant

threat to the callippe silverspot butterfly or Behren's silverspot

butterfly. The potential impact of disease on the Alameda whipsnake is

unknown.

A number of native and exotic mammals and birds are known or likely

to be predators of the Alameda whipsnake including the California

kingsnake (Lampropeltis getula californiae), raccoon (Procyon lotor),

striped skunk (Mephitis mephitis), opossum (Didelphis virginianus),

coyote (Canis latrans), gray fox (Vulpes cinereoargenteus), and hawk

(Buteo species). Urbanization can lead to increased numbers and access

to habitat by native predators, leading to increased levels of

predation on native fauna (Goodrich and Buskirk 1995). The recent

introduction of the red fox (Vulpes vulpes), a species not native to

this region of the State, poses an additional threat to the Alameda

whipsnake. In situations where Alameda whipsnake habitat has become

fragmented, isolated, and otherwise degraded by human activities,

increased predatory pressure may become excessive, especially where

alien species, such as rats (Rattus species), feral pigs (Sus scrofa),

and feral and domestic cats (Felis domestica) and dogs (Canis

familiaris) are introduced. These additional threats become

particularly acute where urban development immediately abuts Alameda

whipsnake habitat. A growing movement to maintain feral cats in

parklands is an additional potential

[[Page 64314]]

threats from predation on wildlife (Coleman et al. 1997, Roberto 1995).

The EBRPD is currently facing public pressure to allow private

individuals to maintain feral cats on park lands (DelVecchio 1997).

Although the actual impact of predation on Alameda whipsnakes under

such situations has not been studied, feral cats are know to prey on

reptiles, including yellow racers (Hubbs 1951), a fast, diurnal snake

closely related to the Alameda whipsnake (Stebbins 1985). Predation

pressure on Alameda whipsnakes may increase from maintained colonies of

feral cats in Alameda whipsnake habitat.

D. The Inadequacy of Existing Regulatory Mechanisms

The callippe silverspot butterfly and Behren's silverspot butterfly

are not specifically protected under any Federal, State or local law.

The California Endangered Species Act (CESA) does not provide

protection to insects (sections 2062, 2067 and 2068, Fish and Game

Code). Although the San Bruno Mountain HCP provides protection from

habitat destruction, butterfly collectors have been observed on San

Bruno Mountain (S. Stern, in litt., June 21, 1994) and unauthorized

collection remains an ongoing threat. The extent of illegal trade in

these and other butterfly species and the potential threat poaching

poses to small populations is discussed in detail under factor B above.

The California Environmental Quality Act (CEQA) requires a full

public disclosure of the potential environmental impact of proposed

projects. The public agency with primary authority or jurisdiction over

the project is designated as the lead agency and is responsible for

conducting a review of the project and consulting with other agencies

concerned with resources affected by the project. Section 15065 of the

CEQA guidelines requires a finding of significance if a project has the

potential to ``reduce the number or restrict the range of a rare or

endangered plant or animal.'' Species that are eligible for listing as

rare, threatened, or endangered but are not so listed are given the

same protection as those species that are officially listed with the

State. Once significant impacts are identified, the lead agency has the

option to require mitigation for effects through changes in the project

or to decide that overriding considerations make mitigation infeasible.

In the latter case, projects may be approved that cause significant

environmental damage, such as destruction of endangered species.

Protection of listed species through CEQA is, therefore, at the

discretion of the lead agency. The CEQA provides that, when overriding

social and economic considerations can be demonstrated, project

proposals may go forward, even in cases where the continued existence

of the species may be jeopardized, or where adverse impacts are not

mitigated to the point of insignificance. In addition, proposed

revisions to CEQA guidelines, if made final, may weaken protections for

threatened, endangered, and other sensitive species.

The CEQA and CESA afford the Alameda whipsnake some conservation

benefits. The animal was listed as a threatened species by the State of

California in 1971 (CDFG 1987). Although these State laws provide a

measure of protection to the species, resulting in the formulation of

mitigation measures to reduce or offset impacts for projects proposed

in certain areas of Alameda whipsnake habitat, these laws are not

adequate to protect the species in all cases. Further, only State, and

not Federal, agencies are required to consult under CESA. In response

to a comment on the proposed rule, the Service mapped Alameda whipsnake

habitat that was extant in 1970 and identified areas where conversion

and encroachment into suitable habitat has occurred since the State

listed the Alameda whipsnake as threatened in 1971. Based upon this

analysis, the Service has determined that approximately 25 projects in

Alameda County, and approximately 41 projects in Contra Costa County,

either converted or encroached upon suitable habitat from 1970 to 1996.

The extent of conversion and encroachment ranged from approximately 2

to 5 ac to approximately 20 to 50 ac for larger projects. Although some

of these projects were required to set aside and preserve suitable

habitat for the Alameda whipsnake as open space or as mitigation for

habitat losses associated with the project, many of these preserved

areas remain threatened by fire suppression practices and catastrophic

wildfire for the reasons identified and discussed in factor E below.

With appropriate management, areas of open space managed by the

EBRPD, East Bay Municipal Utilities District (EBMUD), and Mount Diablo

State Park, conservation strategies for Alameda whipsnake may be

developed. Although these public lands include substantial areas

occupied by the whipsnake, the quality of the habitat continues to

decline because of surrounding urban encroachment. Urban encroachment

also exacerbates the habitat fragmentation problems, and greatly

restricts the ability of these agencies to conduct effective fire

management practices that have the potential to sustain suitable

habitat for the Alameda whipsnake and prevent catastrophic wildfires.

E. Other Natural or Man-Made Factors Affecting Their Continued

Existence

The use of insecticides would threaten the callippe silverspot

butterfly and the Behren's silverspot butterfly if use occurred in

proximity to occupied habitat. Silverspot butterfly larvae are

extremely sensitive to pesticides, and even the accumulation of runoff

in the soil after spraying has proven lethal to the larvae of members

of the genus Speyeria (Mattoon et al. 1971). However, the Service is

not aware of plans to apply insecticides or pesticides on or near the

habitat occupied by either of these two species.

Livestock grazing could threaten the two butterfly species if it

occurs at harmful levels, such that the vegetation is overgrazed and

the foodplants and nectar sources of these butterflies are eliminated

or greatly reduced in abundance. Grazing animals can also trample the

larval foodplants and adult nectar sources. Significant reduction or

loss of these food sources could threaten the population viability of

these butterflies. However, some livestock grazing could keep other

plants from outcompeting the butterflies' host plants.

McGinnis (1992) has suggested that grazing has impacted the habitat

of the Alameda whipsnake in many areas east of the Coast Range.

Livestock grazing that significantly reduces or eliminates shrub and

grass cover can be detrimental to this snake. Many snake species,

including the Alameda whipsnake, avoid such open areas because of the

increased danger from predators and the lack of prey (McGinnis 1992).

The invasion of California's native grassland and coastal prairie

by alien plants has adversely affected native flora and fauna. Numerous

non-native species have invaded these plant communities (Heady 1988,

Heady et al. 1988). Introduced alien plants, such as iceplant

(Carprobrotus sp.), gum trees (Eucalyptus spp.), and gorse (Ulex

europaeus), often outcompete and supplant native vegetation. In the

absence of control and eradication programs, invasive alien plants may

eliminate the remaining native plants, including the host plants of

Behren's and callippe silverspot butterflies. Adequate levels of Viola

species are

[[Page 64315]]

especially critical for the long term survival of populations of these

butterflies (S. Mattoon, in litt., August 4, 1989, and November 22,

1992). Non-native plants may also replace native vegetation in habitat

for the Alameda whipsnake, potentially degrading the habitat and

reducing the prey base. Radiotelemetry data indicate that Alameda

whipsnakes tend to avoid dense stands of eucalyptus (Swaim 1994).

Periodic fires can be an important factor in maintaining the

grassland and coastal prairie habitat of the callippe silverspot

butterfly and the Behren's silverspot butterfly. Without fire,

succession will eliminate the foodplants of the larvae of the two

butterflies (Orsak 1980, Hammond and McCorkle 1984). Periodic cool,

fast-moving fires appear important for the maintenance of the habitat

of these two species. Dead grass and other vegetation from previous

years may not decay quickly enough and may gradually accumulate to form

a thick layer of thatch that smothers violets. The larvae of the

silverspot butterflies may survive fires that move rapidly through

grassland habitats, whereas hotter, slow-moving brush and woodland

fires may kill them (Orsak 1980, Hammond and McCorkle 1984). In

addition, under windy conditions, fast-moving grassland fires burn in

patches that leave ``islands'' of unburned habitat where any

butterflies present are not harmed.

The Alameda whipsnake is threatened directly and indirectly by the

effects of fire suppression. Fire suppression exacerbates the effects

of wildfires through the buildup of fuel (underbrush and woody debris),

creating conditions for slow-moving, hot fires as described above. The

highest intensity fires occur in the summer and early fall when

accumulated fuel is abundant and dry. During this period, hatchling and

adult Alameda whipsnakes are aboveground (Swaim 1994), and populations

are likely to sustain the heaviest losses from fires. The development

of a closed scrub canopy also results in a buildup of flammable fuels

over time (Parker 1987, Rundel 1987). Fire suppression has led to the

encroachment of nonindigenous and ornamental trees into grassland

habitats, further increasing flammable fuel loads in and around Alameda

whipsnake habitat.

Fire suppression can alter the structure of snake habitat by

allowing plants to establish a closed canopy (Parker 1987) that will

tend to create relatively cool conditions. Alameda whipsnakes have a

higher mean active body temperature (33.4 degrees centigrade) and a

higher degree of body temperature stability (stenothermy) than has been

documented in any other species of snake under natural conditions

(Swaim 1994). Alameda whipsnakes apparently can maintain this high,

stable body temperature by using open and partially open and/or low

growing shrub communities that provide cover from predators while

providing a mosaic of sunny and shady areas between which Alameda

whipsnakes can move to regulate their body temperatures (Swaim 1994).

Tall, shaded stands of vegetation, such as poison oak (Toxicodendron

diversilobum), coyote brush (Baccharis pilularis), or other vegetation

may not provide the optimum temperature gradient for Alameda

whipsnakes. Survey data show that Alameda whipsnakes are less likely to

be found where these plant species create a closed canopy (Swaim 1994).

In addition, many of the native coastal scrub and chaparral plant

species require periodic fires to stimulate new sprouting, seedling

recruitment, and seed dispersal (Parker 1987; Keeley 1987, 1992). The

natural fire frequency necessary to provide this stimulus in this

habitat type is debated by scientists but ranges from 10 to 30 years

(Keeley and Keeley 1987, Rundel 1987). Therefore, depending on the rate

of fuel accumulation, prescribed burns can be conducted in areas where

fires have been suppressed with a frequency of 10 to 30 years (J.

Ferreira, CDPR, pers. comm. 1996).

The California Department of Forestry and Fire Protection (CDFFP)

has primary authority for wildfire management in the State of

California. Where joint jurisdiction exists, such as with regional or

State park lands, a memorandum of understanding (MOU) is often

developed. Through these MOUs, consideration of cultural, esthetic, and

natural resources, can be addressed during planning and implementation

of wildfire management. However, CDFFP has the final decision on

wildfire management. The policy of the CDFFP for unprescribed fires,

such as those resulting from lightning strikes, is to put them out

immediately (B. Harrington, CDFFP, pers. comm. 1996). Similarly, while

CDFFP is engaging in some prescribed burn programs, they remain

hesitant to fully endorse prescribed burning, especially where there is

an urban-parkland interface (CDFFP 1989; J. Di Donato, EBRPD, pers.

comm. 1996).

The CDPR has management responsibilities for Mount Diablo State

Park, where a considerable portion of the suitable whipsnake habitat

occurs. Residential development has occurred around most of the

perimeter of the Park (J. Ferreira, pers. comm. 1996). The urban-

parkland interface has necessitated that CDPR, with CDFFP, develop and

implement a wildfire management plan and program. According to a MOU

with CDPR, the CDFFP is the designated lead agency on fire management

in Mount Diablo State Park and, therefore, has the final decision on

how to manage each fire on CDPR lands (CDPR and CDFFP 1995). The CDPR

drafted the Mount Diablo Wildfire Management Plan for the Park in 1987.

This plan originally sought to reduce the high levels of livestock

grazing on parklands to an ``interpretive level'' to manage more

successfully for wildlife values (J. Ferreira, pers. comm. 1996). Local

ranchers who grazed cattle on or adjacent to parklands were opposed to

this plan and gained the support of local fire agencies to continue

grazing because grazing was seen as a form of fire management (J.

Ferreira, pers. comm. 1996).

In 1995, grazing pressure was significantly reduced and CDPR took a

new approach in fire management planning by revising the Mount Diablo

Wildfire Management Plan. The revised plan was developed in

coordination with CDFFP and outlines presuppression, suppression, and

fire management programs (CDPR and CDFFP 1995). These programs identify

areas for prescribed burns, fire breaks to be maintained, and unique

cultural resources, rare and endangered plants, and structures. Rare

and endangered animal species (including the Alameda whipsnake) are not

specifically identified in the plan. The ultimate decision on ``initial

attack'' of any given fire occurrence still lies with CDFFP, which

generally prefers to suppress fires on Mount Diablo. In addition, CDFFP

has been concerned about conducting prescribed burns due to the

proximity of the urban-parkland interface (J. Ferreira, pers. comm.,

1996).

Encroaching urban development has necessitated the implementation

of rigorous fire suppression practices in and around suitable habitat

areas for the Alameda whipsnake by land management agencies to protect

people and property. The EBRPD guidelines state that opportunities for

prescribed burning on their lands is limited because of the urban-

parkland interface and the risk of the fire escaping control lines

(EBRPD 1992). Another obstacle the regional climatic conditions

required to conduct prescribed burning safely. Although the EBRPD has

developed prescribed burning plans and strategies to manage their

lands, implementation of these plans has been

[[Page 64316]]

hindered by the close proximity of adjacent residential and commercial

development areas (J. Di Donato, pers. comm., 1996). Although the EBRPD

is in the process of updating their prescribed burn program in response

to the 1991 Oakland Hills firestorm, the public does not fully endorse

prescribed burning (EBRPD 1995).

The breeding of closely related individuals can cause genetic

problems in small populations, particularly the expression of

deleterious genes (known as inbreeding depression). Both the callippe

silverspot butterfly and the Behren's silverspot butterfly exist only

as very small, isolated populations (S. Mattoon, in litt., August 4,

1989, and November 22, 1992). Alameda whipsnakes tend to be relatively

rare even in suitable habitat as is indicated by trapping studies that

show low capture rates and relatively high recapture rates (about 3

captures, 1 recapture per 1,000 trap days) (Swaim 1994). Individuals

and populations possessing deleterious genetic material are less able

to adapt to changes in environmental conditions, even relatively minor

changes. Further, small populations are vulnerable to the effects of

genetic drift (the loss of genetic variability). This phenomenon also

reduces the ability of individuals and populations to successfully

respond to environmental stresses. Overall, these factors influence the

survivability of smaller, genetically isolated populations of each of

the three species listed herein.

The callippe silverspot butterfly, Behren's silverspot butterfly,

and the Alameda whipsnake are all vulnerable to the effects of habitat

fragmentation. Subdivision of natural land into smaller blocks of

suitable habitat is often the result of human activities such as urban

development, road construction, fire management policies, and

inappropriate livestock grazing practices. Further reduction of

population size and genetic interchange among populations through

isolation, genetic drift, and inbreeding depression, may result in less

vigorous and adaptable populations of these three species listed

herein. Small, isolated populations are vulnerable to extinction from

random fluctuations in population size or variations in population

characteristics (e.g., sex ratios) caused by annual weather patterns,

food availability, and other factors. Because most of the populations

of these species are isolated from other conspecific populations,

natural recolonization from other populations is unlikely or

impossible, and the vulnerability of each population to natural events

is high.

An additional threat to the San Bruno Mountain population of the

callippe silverspot butterfly is the high level of dust from quarry

operations in the vicinity. Adult and early stages of the taxon may be

prone to injury and mortality from dust because their respiratory

apparatus (spiracles) are easily clogged.

The Service has carefully assessed the best scientific and

commercial information regarding past, present, and future threats

faced by these species in determining this final rule. Based on this

evaluation, the preferred action is to list the callippe silverspot

butterfly and Behren's silverspot butterfly as endangered species, and

the Alameda whipsnake as a threatened species. The current range

restrictions of these species make them increasingly vulnerable to

threats described above under factors A through E.

Urban development threatens both the callippe silverspot butterfly

and Behren's silverspot butterfly. One of the two known extant colonies

of the callippe silverspot butterfly is imminently imperiled, and both

colonies are threatened by overcollection. The single known population

of Behren's silverspot butterfly is similarly threatened. Available

habitat and population levels are depleted to the extent that these

butterflies are near the brink of extinction. Because the callippe

silverspot butterfly and Behren's silverspot butterfly are in danger of

extinction throughout all or a significant portion of their ranges,

these species fit the definition of endangered as defined by the Act.

All five remaining populations of the Alameda whipsnake are

threatened by a variety of factors. Each of these populations consist

of several to numerous subpopulations with varying degrees of

connectivity between them. In the western portion of the species'

range, the Tilden-Briones population is threatened by a high potential

for catastrophic wildfire and urban development. However, the remaining

habitat, regional parklands, and municipal watersheds in this area

overlap to the extent that a regional preserve may be possible. The

Oakland-Las Trampas population is threatened by a high potential for

catastrophic wildfire and the effects of habitat fragmentation and

urban development. The Hayward-Pleasanton Ridge population is the most

susceptible to extirpation. This population is scattered in

distribution and is, therefore, more vulnerable to the effects of

development and subsequent habitat fragmentation. In the eastern

portion of the species' range, the Mount Diablo-Black Hills population

is threatened by a high potential for catastrophic wildfire,

development and its associated impacts, and inappropriate grazing

practices. Because of the location of public lands and the potential

for improved fire and grazing management on parklands, this population

is a good candidate for recovery, if urbanization threats can be

controlled. The Sunol-Cedar Mountain population is threatened by

development and inappropriate grazing practices. Overall, the Oakland-

Las Trampas and Hayward-Pleasanton Ridge populations are the most

immediately imperiled with habitat fragmentation becoming prevalent

enough to compromise their long-term viability.

In the proposed rule (59 FR 5377), the Service proposed to list the

Alameda whipsnake as endangered based primarily on the threats of

urbanization and invasive alien vegetation. The Service has reevaluated

the available information, including information provided during the

public comment period, regarding threats to the species. Urbanization

and the negative effects of structural changes in both the native and

alien vegetative component of whipsnake habitat continue to threaten

the survival of the Alameda whipsnake. However, these threats are not

now of sufficient magnitude to create a danger of extinction throughout

all, or a significant portion, of the range of the species. The Service

now concludes that the failure to implement appropriate fire management

practices on public lands to sustain suitable Alameda whipsnake

habitat, coupled with the rate of loss of suitable habitat on private

lands, make it likely that the Alameda whipsnake will become in danger

of extinction throughout all, or a significant portion, of its range in

the foreseeable future. Because the Alameda whipsnake is likely to

become an endangered species within the foreseeable future, this

species fits the definition of threatened as defined by the Act.

Critical Habitat

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

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection and; (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use

[[Page 64317]]

of all methods and procedures needed to bring the species to the point

at which listing under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. Service

regulations (50 CFR 424.12(a)) state that critical habitat is not

determinable if information sufficient to perform required analyses of

the impacts of the designation is lacking or if the biological needs of

the species are not sufficiently known to permit identification of an

area as critical habitat. Section 4(b)(2) of the Act requires the

Service to consider economic and other relevant impacts of designating

a particular area as critical habitat on the basis of the best

scientific data available. The Secretary may exclude any area from

critical habitat if he determines that the benefits of such exclusion

outweigh the conservation benefits, unless to do such would result in

the extinction of the species. Service regulations (50 CFR

424.12(a)(1)) state that designation of critical habitat is not prudent

when one or both of the following situations exist--(1) The species is

threatened by taking or other human activity, and identification of

critical habitat can be expected to increase the degree of threat to

the species, or (2) such designation of critical habitat would not be

beneficial to the species.

The Callippe Silverspot and Behren's Silverspot Butterflies

As discussed under factor B in the ``Summary of Factors Affecting

the Species'' section above, an extensive international commercial

trade has been documented to exist for butterflies in general (Collins

and Morris 1985) and for threatened or endangered species of

butterflies in particular, which are accorded higher value because of

the formal recognition of their rarity (United States v. Richard J.

Skalski, Thomas W. Kral, and Marc L. Grinnell, Case No. CR932013,

1993). This trade includes several species of the genus Speyeria,

including the callippe silverspot butterfly which was illegally

collected after the species was proposed for listing under the Act, the

Myrtle's silverspot butterfly (Speyeria zerene myrtleae), and the

Oregon silverspot butterfly (S. zerene hippolyta), the last two of

which are listed federally subspecies that are similar in appearance to

the Behren's silverspot butterfly (S. zerene behrensii) included in

this rule (Howe 1975, Hammond 1980, McCorkle and Hammond 1988). Illegal

collecting has been observed at one of the two remaining sites for the

callippe silverspot butterfly (S. Stern, in litt., 1994).

The Service is also aware of reports that Behren's silverspot

butterfly is actively sought by collectors. The fact that this species

is not yet a commodity in illegal trade is likely attributable to the

lack of specific knowledge of the location of its sole remaining

population. Trade in these specimens is not limited to the occasional

adult butterfly, but can include dozens of individuals and hundreds of

larvae (United States v. Richard J. Skalski, Thomas W. Kral, and Marc

L. Grinnell, Case No. CR932013, 1993). The effects that even limited

collecting can have on small populations are discussed in detail under

factor B in the ``Summary of Factors Affecting the Species'' section

above. Because of the increased value of listed species, the illicit

commercial trade in the callippe silverspot butterfly and Behren's

silverspot butterfly would be likely to increase upon listing. Although

the San Bruno Mountain locality is purportedly known to collectors (see

issue 3 under the ``Summary of Comments and Recommendations'' section

above), this is a large area (340 ha (850 ac)) and precise maps and

descriptions of critical habitat, such as those which would appear in

the Federal Register if critical habitat was designated, are not now

available to the general public. The specific localities of the two

other localities of the callippe or silverspot butterflies are not well

known, but they are near roads or trails and could be easily accessed

by the public if precise locality information is provided.

In addition, neither the callippe silverspot butterfly nor the

Behren's silverspot butterfly would receive any benefit from the

designation of critical habitat beyond that provided by listing.

Critical habitat only applies to activities on Federal lands and

activities on private lands involving Federal authorization or funding.

All known populations of these species occur on non-Federal land. The

only Federal land within the historical range of Behren's silverspot

butterfly is a small parcel at the U.S. Coast Guard lighthouse at Point

Arena. Although this installation is in close proximity to the only

known site for this species, no specific records document any

historical occurrence at this site. The habitat at this site, and

elsewhere within the historical range of the species, is presumed to be

currently unsuitable for the species. No activity involving a Federal

action currently occurs on the sole site where the species remains.

Even if a future Federal project were to occur in the area, it would

require consultation with the Service pursuant to section 7 of the Act

before it could be implemented. Because this butterfly exists only as a

single, small population, any future activity involving a Federal

action that would adversely modify critical habitat, that is, would

appreciably diminish the value of the critical habitat for the survival

and recovery of the species, would also likely jeopardize the species'

continued existence.

Colonies of the callippe silverspot butterfly are known only to

exist at two sites, both of which are privately owned. The callippe

silverspot butterfly was considered during the formulation of the San

Bruno Mountain HCP under the provisions of a section 10(a)(1)(B) of the

Act. This HCP, in which the callippe silverspot butterfly was

designated as a species of concern, permanently protects approximately

92 percent of its habitat on San Bruno Mountain. The HCP also includes

management activities, funded by development projects, that benefit the

butterfly including annual monitoring of the colonies on the site (V.

Harris, in litt., 1996). Habitat for the other known population is

partially protected in a city park in Alameda County. No Federal

actions, authorizations, or licensing currently occurs on this site.

Although there are scattered Federal landholdings throughout the

historical range of the callippe silverspot butterfly, there are no

historical collections of this species from any Federal lands. Because

of the extensive urbanization within its historical range, no suitable

habitat remains for the species other than at the two sites at which it

is currently known to persist (Orsak 1980; Steiner 1990; S. Mattoon, in

litt., 1992). Federal agency involvement, therefore, is not likely to

occur on either of the two sites at which the callippe silverspot

butterfly persists. Even if a future Federal project were to occur at

either site, it would require consultation with the Service pursuant to

section 7 of the Act before it could be implemented. Because only two

small populations of this butterfly remain, any future activity

involving a Federal action that would adversely modify critical

habitat, that is, would appreciably diminish the value of the critical

habitat for the survival and recovery of the species, would also likely

jeopardize the species' continued existence.

Critical habitat designation in areas outside of the currently

occupied territory of the callippe silverspot butterfly also would

serve no purpose

[[Page 64318]]

because these areas are highly urbanized and essentially have no

practical value for the survival and recovery of the species. In

addition, activities within these areas are very unlikely to involve a

Federal action which would trigger section 7 consultation. Furthermore,

in the unlikely event that an activity involving a Federal action is

proposed in one of these areas, it is very unlikely that the Service

would determine that the activity would appreciably diminish the value

of the area for the survival and recovery of the species because these

areas essentially have no such value to the species currently. Critical

habitat designation in areas outside of the currently occupied

territory of the Behren's silverspot butterfly also would serve little

purpose because activities within these areas are very unlikely to

involve a Federal action which would trigger section 7 consultation.

The Service finds, therefore, that designation of critical habitat

for the callippe silverspot butterfly and the Behren's silverspot

butterfly is not prudent because doing so would make these butterflies

more vulnerable to incidents of collection further contributing to

their decline. Designation of critical habitat for the callippe

silverspot butterfly and the Behren's silverspot butterfly is also not

prudent because it would confer no benefit to the species beyond that

provided by listing.

Alameda Whipsnake

As discussed earlier, the historical range of the whipsnake has

been fragmented by urbanization into five populations, each of which is

effectively isolated from the others. The core of each of these five

populations is comprised of relatively large expanses of public, non-

Federal lands, which comprise about 80 percent of known whipsnake

habitat. Although these public lands are protected from development,

other threats to the whipsnake remain, including the negative effects

of fire suppression on the structure of whipsnake habitat, the indirect

effects of urban development (e.g., increased recreational use of the

public lands, increased predation by pets, etc.), and other factors

discussed in the ``Summary of Factors Affecting the Species'' section

above. The Service is not aware of any Federal lands within the range

of the Alameda whipsnake, and activities involving a Federal action are

not likely to occur on the public, non-Federal lands.

Private lands comprise the other 20 percent of known whipsnake

habitat. There is a remote possibility of Federal agency involvement on

these lands in the form of insurance provided by the Department of

Housing and Urban Development (HUD) for housing loans. Such actions

within whipsnake habitat, however, are likely to be rare. In addition,

urban development will only occur along the periphery of the core areas

of whipsnake populations. Because of the need for an active fire

management program in the form of prescribed burns to maintain the

necessary habitat structure for the whipsnake, areas slated for

development in this urban-wildland interface do not offer suitable

long-term habitat potential for the whipsnake and, therefore, cannot be

considered to be habitat essential to the conservation of the species

nor habitat requiring special management considerations. Even if

Federal involvement in the form of housing loans were to occur in these

areas, it would require consultation with the Service pursuant to

section 7 of the Act before it could be implemented. The potential for

the involvement of other Federal agencies within the historical range

of the Alameda whipsnake is discussed in the ``Available Conservation

Measures'' section below.

Critical habitat designation outside of the areas where the Alameda

whipsnake currently occurs also would serve no purpose because these

areas are not essential for the survival and recovery of the species.

The Service believes that sufficient occupied habitat remains which, if

managed for greater benefits for the Alameda whipsnake, would ensure

the survival and provide for the recovery of the species.

Any potential conservation benefit from designation of critical

habitat for the Alameda whipsnake is undermined by the risk of

overcollection. The demand for live reptiles as collectibles and exotic

pets has increased rapidly in recent years and the high level of demand

by reptile collectors often encourages smuggling of wild-caught

specimens (U.S. Fish and Wildlife Service 1996). While the Alameda

whipsnake has not been particularly popular among reptile collectors in

the past, the act of listing increases the attractiveness and value of

listed entities to collectors, thereby potentially increasing the

threat of unauthorized collection (K. McCloud, pers. comm. 1994, 1996).

The identification of localities of the whipsnake through designation

of critical habitat would exacerbate the threat of overcollection

because many areas in which the whipsnake occurs are readily accessible

by road or public trail. The effects that even limited collecting can

have on small populations are discussed in detail under factor B in the

``Summary of Factors Affecting the Species'' section above. Because of

the likelihood for an increase in the value of a species upon listing,

any current illicit commercial trade in the Alameda whipsnake would

likely increase with this listing.

Because of the expected rarity of Federal agency involvement and

the low conservation value of lands on which Federal involvement is

most likely to occur, the Service finds that critical habitat

designation is not prudent for the Alameda whipsnake due to lack of any

significant benefit beyond that conferred by listing. Moreover, the

publication of precise maps and descriptions of critical habitat in the

Federal Register would make this snake more vulnerable to incidents of

collection further contributing to its decline. Any benefit which might

be derived from the designation of critical habitat for the Alameda

whipsnake is outweighed by the increased threat of collection.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires recovery actions be carried

out for all listed species. The protection required of Federal agencies

and prohibitions against taking are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(2) requires Federal agencies to insure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of such a species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

As noted previously, HUD may insure housing loans in areas that

presently support the Alameda whipsnake. Such actions are likely to be

rare but these loans would be subject to review by the Service under

section 7 of the Act.

[[Page 64319]]

Other Federal agencies that possibly could be affected if these animals

are listed would include the Army Corps of Engineers and the Department

of Transportation (Federal Highways Administration). Both agencies

cooperate in projects within the historical range of the Alameda

whipsnake. The projects, however, are typically confined to waterways

and highways both of which occur in low-lying areas that no longer

provide suitable habitat for the whipsnake. Such areas are surrounded

by intense urban development and are, in combination with the urban

areas, the primary landscape components that have already effectively

isolated the five core populations of the whipsnake. Involvement by the

Army Corps of Engineers or the Federal Highway Administration in the

core areas that comprise the remaining habitat for the whipsnake is

highly unlikely since these areas are comprised primarily of steep

mountainous terrain where projects that impact regulated wetlands,

flood control projects, and highway construction projects rarely occur.

No populations of the callippe silverspot butterfly, Behren's

silverspot butterfly, or Alameda whipsnake are known to occur on

property owned by the Federal government.

One of the two known extant populations of the callippe silverspot

butterfly is protected by the San Bruno Mountain HCP (USFWS permit

number PRT 2-9818). In 1982, a Section 10(a) incidental take permit was

issued to the cities of Brisbane, Daly City, South San Francisco, and

the County of San Mateo, for the endangered mission blue butterfly, San

Bruno elfin butterfly, and San Francisco garter snake. The permit

allows for the loss of animals and habitat through urban development of

approximately 344 ha (850 ac) of San Bruno Mountain. The HCP

permanently protects about 1,114 ha (2,752 ac) of natural habitat at

this site. The conference report on the 1982 amendments to the Act

indicates that Congress intended HCPs to encompass both listed and

unlisted species, especially unlisted species that may later require

protection. Although the callippe silverspot butterfly was not included

as a ``covered'' species in the Section 10(a) permit, the HCP included

specific provisions for the butterfly in the event it did become listed

by the Service. These provisions protect 92 percent of the species'

habitat at the site through various mechanisms (such as landowner

obligations for land dedications, open space set-asides, mitigation

measures, and habitat enhancement), implement annual monitoring of its

population, and allow for adaptive management to conserve the species.

However, no specific provisions were included in the HCP to protect the

callippe silverspot butterfly from poachers.

The listing of the callippe silverspot butterfly, Behren's

silverspot butterfly, and the Alameda whipsnake will also bring

sections 5 and 6 of the Act into effect. Section 5 authorizes

acquisition of lands by the Secretary of the Interior (and Secretary of

Agriculture in certain cases) for the purposes of conserving endangered

and threatened species. Pursuant to section 6, the Service would be

able to grant funds to affected states for management actions aiding in

protection and recovery of these animals.

Listing the callippe silverspot butterfly and the Behren's

silverspot butterfly as endangered and the Alameda whipsnake as

threatened provides for the development of recovery plans for them.

Such plans will bring together State and Federal efforts for

conservation of the animals. The plans will establish a framework for

agencies to coordinate activities and cooperate with each other in

conservation efforts. The plans will set recovery priorities and

estimate costs of various tasks necessary to accomplish them. They also

will describe site-specific management actions necessary to achieve

conservation of the species.

Listing of the Alameda whipsnake will likely result in the

increased ability of public land agencies to promote management plans

that address the need to manage for Alameda whipsnakes, including, but

not limited to, increased ability to conduct prescribed burns, manage

predators, control feral pigs and other feral animals, regulate

recreational use, and develop educational programs for the benefit of

the Alameda whipsnake.

The Act and implementing regulations found at 50 CFR 17.21 for

endangered species and 17.31 for threatened species set forth a series

of prohibitions and exceptions that apply to all endangered wildlife

and to threatened wildlife not covered by a special rule. These

prohibitions, in part, make it illegal for any person subject to the

jurisdiction of the United States to take, import or export, transport

in interstate or foreign commerce in the course of commercial activity,

or sell or offer for sale in interstate or foreign commerce any such

species. It also is illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that was illegally taken. Certain

exceptions can apply to agents of the Service and State conservation

agencies.

It is the policy of the Service published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify, to the maximum extent

practicable at the time a species is listed, those activities that

would or would not constitute a violation of section 9 of the Act. The

intent of this policy is increase public awareness of the effect of

this listing on proposed and ongoing activities within a species'

range.

With respect to the callippe silverspot butterfly or Behren's

silverspot butterfly, the Service believes that neither observing the

species (without capture) nor light to moderate grazing of its habitat

by livestock would likely result in a violation of section 9.

With respect to the callippe silverspot butterfly or Behren's

silverspot butterfly, the following actions likely would be considered

a violation of section 9:

(1) Capture or collection of adults or any other life history

stages;

(2) Collection, damage, or destruction of foodplants (Viola

species) or other nectar sources within the species range; and,

(3) Destruction of the species' occupied habitat by actions

including, but not limited to, road, street or highway construction;

subdivision construction; application of herbicides or other chemical

agents; brush removal; or off-road vehicle use.

With respect to the Alameda whipsnakes, the following actions

likely would be considered a violation of section 9:

(1) Unauthorized collecting or handling of whipsnakes;

(2) Destruction or degradation of occupied whipsnake habitat by

actions including, but not limited to, road construction, road

widening, subdivision construction, brush removal, or off-road vehicle

use; and,

(3) Destruction or degradation of occupied whipsnake habitat by

livestock grazing if conducted following notification by the Service

that such grazing constitutes ``take'' of whipsnakes.

Permits may be issued to carry out otherwise prohibited activities

involving endangered and threatened animal species under certain

circumstances. Regulations governing permits are found in 50 CFR 17.22,

17.23, and 17.32. For endangered species, such permits are available

for scientific purposes, to enhance the propagation or survival of the

species, to alleviate economic hardship in certain circumstances, and/

or for incidental take in connection with otherwise

[[Page 64320]]

lawful activities. For threatened species there are also permits for

zoological exhibition, educational purposes or other purposes

consistent with the purposes of the Act. Further information regarding

regulations and requirements for permits may be obtained from the U.S.

Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 11th

Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063, facsimile

503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Endangered

Species Act of 1973, as amended. A notice outlining the Service's

reasons for this determination was published in the Federal Register on

October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements.

References Cited

A complete list of all references cited in this rule are available

upon request from the Sacramento Field Office (see ADDRESSES section).

Authors

The primary authors of this final rule are Mike Westphal, Sheila

Larsen and Diane Windham, Sacramento Field Office (see ADDRESSES

section).

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulations Promulgation

Accordingly, Part 17, Subchapter B of Chapter I, Title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for Part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following in alphabetical

order under REPTILES to the List of Endangered and Threatened Wildlife:

3. Amend Sec. 17.11(h) by adding the following in alphabetical

order under INSECTS to the List of Endangered and Threatened Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

Reptiles

* * * * * * *

Whipsnake, Alameda (=striped Masticophis U.S.A. (CA)........ NA................. T 628 NA NA

racer, Alameda). lateralis

euryxanthus.

* * * * * * *

Insects

* * * * * * *

Butterfly, Behren's silverspot... Speyeria zerene U.S.A. (CA)........ NA................. E 628 NA NA

behrensii.

Butterfly, callippe silverspot... Speyeria callippe U.S.A. (CA)........ NA................. E 628 NA NA

callippe.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: November 18, 1997.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 97-31836 Filed 12-4-97; 8:45 am]

BILLING CODE 4310-55-P