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

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Proposed Designation of

Critical Habitat for the Alameda Whipsnake; Proposed Rule

Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT93

Endangered and Threatened Wildlife and Plants; Proposed

Designation of Critical Habitat for the Alameda Whipsnake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to

designate critical habitat for the Alameda whipsnake (Masticophis

lateralis euryxanthus) pursuant to the Endangered Species Act of 1973,

as amended (Act). In total, approximately 203,342 acres (ac) (82,289

hectares (ha)) fall within the boundaries of the proposed critical

habitat designation. The proposed critical habitat is located in Contra

Costa, Alameda, San Joaquin, and Santa Clara counties, California.

DATES: We will accept comments from all interested parties until

December 19, 2005. We must receive requests for public hearings, in

writing, at the address shown in the ADDRESSES section by December 2,

2005.

within the boundaries of the proposed critical

habitat designation. The proposed critical habitat is located in Contra

Costa, Alameda, San Joaquin, and Santa Clara counties, California.

DATES: We will accept comments from all interested parties until

December 19, 2005. We must receive requests for public hearings, in

writing, at the address shown in the ADDRESSES section by December 2,

2005.

ADDRESSES: If you wish to comment, you may submit your comments and

materials concerning this proposal by any one of several methods:

1. You may submit written comments and information to Wayne White,

Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and

Wildlife Office, 2800 Cottage Way, Room 2605, Sacramento, California

95825-1846.

2. You may hand-deliver written comments to our Sacramento Fish and

Wildlife Office, at the above address.

3. You may send comments by electronic mail (e-mail) to [email protected]. Please see the Public Comments Solicited section

below for file format and other information about electronic filing.

4. You may fax your comments to Wayne White, Field Supervisor,

Sacramento Fish and Wildlife Office at (916) 414-6712.

Comments and materials received, as well as supporting

documentation used in the preparation of this proposed rule, will be

available for public inspection, by appointment, during normal business

hours at the Sacramento Fish and Wildlife Office, 2800 Cottage Way,

Room 2605, Sacramento, California 95825-1846 (telephone (916) 414-

6600).

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Listing Branch Chief,

Sacramento Fish and Wildlife Office, at the address or telephone number

above.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

pection, by appointment, during normal business

hours at the Sacramento Fish and Wildlife Office, 2800 Cottage Way,

Room 2605, Sacramento, California 95825-1846 (telephone (916) 414-

6600).

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Listing Branch Chief,

Sacramento Fish and Wildlife Office, at the address or telephone number

above.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will

be as accurate and as effective as possible. Therefore, comments or

suggestions from the public, other concerned governmental agencies, the

scientific community, industry, or any other interested party

concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) The reasons any habitat should or should not be determined to

be critical habitat as provided by section 4 of the Act, including

whether the benefit of designation will outweigh any threats to the

subspecies due to designation;

(2) Specific information on the amount and distribution of Alameda

whipsnake habitat and occurrence records, and what habitat features are

essential to the conservation of the subspecies and why;

(3) Land use designations and current or planned activities in the

subject areas and their possible impacts on proposed critical habitat;

(4) Information regarding the benefits of excluding specific lands

from, or including specific lands in, the designation of critical

habitat including but not limited to, State lands contained within the

Mount Diablo State Park in Contra Costa County; Department of Energy

lands in Alameda and San Joaquin Counties; and Bureau of Land

Management lands within Contra Costa County, including specific

information about existing management plans in place for these lands,

and the provisions of such plans for the conservation of the Alameda

whipsnake and its habitat;

State lands contained within the

Mount Diablo State Park in Contra Costa County; Department of Energy

lands in Alameda and San Joaquin Counties; and Bureau of Land

Management lands within Contra Costa County, including specific

information about existing management plans in place for these lands,

and the provisions of such plans for the conservation of the Alameda

whipsnake and its habitat;

(5) Any foreseeable economic, national security, or other potential

impacts resulting from the proposed and/or final designation of

critical habitat and, in particular, any impacts on small entities; and

(6) Whether our approach to designating critical habitat could be

improved or modified in any way to provide for greater public

participation and understanding, or to assist us in accommodating

public concerns and comments.

If you wish to comment, you may submit your comments and materials

concerning this proposal by any one of several methods (see ADDRESSES

section). Please submit Internet comments to [email protected]

in ASCII file format and avoid the use of special characters or any

form of encryption. Please also include ``Attn: Alameda whipsnake'' in

your e-mail subject header and your name and return address in the body

of your message. If you do not receive a confirmation from the system

that we have received your Internet message, contact us directly by

calling our Sacramento Fish and Wildlife Office at (916) 414-6600.

Please note that the Internet address ([email protected]) will

be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home

addresses of respondents, available for public review during regular

business hours. Individual respondents may request that we withhold

their home addresses from the rulemaking record, which we will honor to

the extent allowable by law. There also may be circumstances in which

we would withhold from the rulemaking record a respondent's identity,

as allowable by law

including names and home

addresses of respondents, available for public review during regular

business hours. Individual respondents may request that we withhold

their home addresses from the rulemaking record, which we will honor to

the extent allowable by law. There also may be circumstances in which

we would withhold from the rulemaking record a respondent's identity,

as allowable by law. If you wish us to withhold your name and/or

address, you must state this prominently at the beginning of your

comment. However, we will not consider anonymous comments. We will make

all submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, available for public inspection in their entirety.

Comments and materials received will be available for public

inspection, by appointment, during normal business hours at the

Sacramento Fish and Wildlife Office (see ADDRESSES).

Designation of Critical Habitat Provides Little Additional Protection

to Species

In 30 years of implementing the Act, the Service has found that the

designation of statutory critical habitat provides little additional

protection to most listed species, while consuming significant amounts

of available conservation resources. The Service's present system for

designating critical habitat has evolved since its original statutory

prescription into a process that provides little real conservation

benefit, is driven by litigation and the courts rather than biology,

limits our ability to fully evaluate the science involved, consumes

enormous agency resources, and imposes huge social and economic costs).

The Service believes that additional agency discretion would allow our

focus to return to those actions that provide the greatest benefit to

the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and

Implementing the Act

bility to fully evaluate the science involved, consumes

enormous agency resources, and imposes huge social and economic costs).

The Service believes that additional agency discretion would allow our

focus to return to those actions that provide the greatest benefit to

the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and

Implementing the Act

While attention to and protection of habitat is paramount to

successful conservation actions, we have consistently found that, in

most circumstances, the designation of critical habitat is of little

additional value for most listed species, yet it consumes large amounts

of conservation resources. Sidle (1987) stated, ``Because the Act can

protect species with and without critical habitat designation, critical

habitat designation may be redundant to the other consultation

requirements of section 7.'' Currently, only 466 species or 37 percent

of the 1,268 listed species in the United States under the jurisdiction

of the Service have designated critical habitat.

We address the habitat needs of all 1,268 listed species through

conservation mechanisms such as listing, section 7 consultations, the

section 4 recovery planning process, the section 9 protective

prohibitions of unauthorized take, section 6 funding to the States, and

the section 10 incidental take permit process. The Service believes

that it is these measures that may make the difference between

extinction and survival for many species.

We note, however, that two courts found our definition of adverse

modification to be invalid (March 15, 2001, decision of the United

States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish

and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth

Circuit judicial opinion, Gifford Pinchot Task Force v. United State

Fish and Wildlife Service)

d survival for many species.

We note, however, that two courts found our definition of adverse

modification to be invalid (March 15, 2001, decision of the United

States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish

and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth

Circuit judicial opinion, Gifford Pinchot Task Force v. United State

Fish and Wildlife Service). In response to these decisions, we are

reviewing the regulatory definition of adverse modification in relation

to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate

critical habitat, and we face a growing number of lawsuits challenging

critical habitat determinations once they are made. These lawsuits have

subjected the Service to an ever-increasing series of court orders and

court-approved settlement agreements, compliance with which now

consumes nearly the entire listing program budget. This leaves the

Service with little ability to prioritize its activities to direct

scarce listing resources to the listing program actions with the most

biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that

limited listing funds are used to defend active lawsuits, to respond to

Notices of Intent to sue relative to critical habitat, and to comply

with the growing number of adverse court orders. As a result, listing

petition responses, the Service's own proposals to list critically

imperiled species, and final listing determinations on existing

proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left

the Service with almost no ability to provide for adequate public

participation or to ensure a defect-free rulemaking process before

making decisions on listing and critical habitat proposals due to the

risks associated with noncompliance with judicially-imposed deadlines

ns on existing

proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left

the Service with almost no ability to provide for adequate public

participation or to ensure a defect-free rulemaking process before

making decisions on listing and critical habitat proposals due to the

risks associated with noncompliance with judicially-imposed deadlines.

This in turn fosters a second round of litigation in which those who

fear adverse impacts from critical habitat designations challenge those

designations. The cycle of litigation appears endless, is very

expensive, and in the final analysis provides relatively little

additional protection to listed species.

The costs resulting from the designation include legal costs, the

cost of preparation and publication of the designation, the analysis of

the economic effects and the cost of requesting and responding to

public comment, and in some cases the costs of compliance with the

National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347). None of

these costs result in any benefit to the species that is not already

afforded by the protections of the Act enumerated earlier, and they

directly reduce the funds available for direct and tangible

conservation actions.

Background

Subspecies Description

The Alameda whipsnake is a member of the family Colubridae

(Stebbins 1985), and one of two subspecies of Masticophis lateralis.

The Alameda whipsnake is a slender, fast-moving, diurnally active snake

with a slender neck, broad head, and large eyes. Alameda whipsnakes

range from 3 to 4 feet (ft) (91 to 122 centimeters (cm)) in length

conservation actions.

Background

Subspecies Description

The Alameda whipsnake is a member of the family Colubridae

(Stebbins 1985), and one of two subspecies of Masticophis lateralis.

The Alameda whipsnake is a slender, fast-moving, diurnally active snake

with a slender neck, broad head, and large eyes. Alameda whipsnakes

range from 3 to 4 feet (ft) (91 to 122 centimeters (cm)) in length. The

Alameda whipsnake is distinguished from the more common chaparral

whipsnake (Masticophis lateralis lateralis) by a sooty black back area,

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

of a dark line across the scale near the tip of the nose, an

uninterrupted light stripe between the tip of the nose and eye, and the

virtual absence of spotting on the underside of the head and neck. For

more information on the Alameda whipsnake, refer to the final listing

rule and previous final critical habitat designation published in the

Federal Register on December 5, 1997 (62 FR 64306), and October 3, 2000

(65 FR 58933), respectively.

Life History

Members of the genus Masticophis are slender, fast-moving, diurnal

snakes with a broad head, large eyes, and slender neck. When hunting,

these snakes commonly move with the head held high and occasionally

move it from side to side, possibly to aid in depth perception. Prey is

seized with great speed, pinioned under loops of the body, and engulfed

without constriction. The Alameda whipsnake is a lizard-eating

specialist, although its diet may include other prey (e.g.),

rattlesnakes and nesting birds) depending on an individual's size, sex,

age, and location. These snakes are good climbers that can escape into

scrub or trees. Additionally, they seek shelter in rock piles,

outcrops, or small mammal burrows (Stebbins 1985)

, and engulfed

without constriction. The Alameda whipsnake is a lizard-eating

specialist, although its diet may include other prey (e.g.),

rattlesnakes and nesting birds) depending on an individual's size, sex,

age, and location. These snakes are good climbers that can escape into

scrub or trees. Additionally, they seek shelter in rock piles,

outcrops, or small mammal burrows (Stebbins 1985).

In a study of the thermal responses of the Alameda whipsnake,

Hammerson (1979) observed that snakes emerged from burrows in the

morning with a low body temperature, often exposing just the head

first, then basking in full or partial sun until they reached a body

temperature of 91.4 to 93.4 degrees Fahrenheit (33.0 to 34.1 degrees

Celsius). Alameda whipsnakes maintained a high body temperature

(compared to other snakes) during the day, and retreated to burrows

when soil surface temperatures began to fall. Alameda whipsnakes have a

higher degree of body temperature stability than other snakes (Swaim

1994). Alameda whipsnakes maintain this high, stable body temperature

by using open and partially open and or low growing shrub communities

that provide cover from predators. Alameda whipsnakes require a mosaic

of sunny and shady areas to regulate their body temperature.

Swaim (1994) used trapping and radio telemetry to study several

aspects of Alameda whipsnake life history at multiple sites in Alameda

and Contra Costa counties. Adult snakes had a bimodal seasonal activity

pattern with peaks during the spring mating season and a smaller peak

during late summer and early fall. Although short, above-ground

movements may occur during the winter, Alameda whipsnakes generally

retreat in November into a hibernaculum (i.e.), a protective site where

the snakes remain over the

iple sites in Alameda

and Contra Costa counties. Adult snakes had a bimodal seasonal activity

pattern with peaks during the spring mating season and a smaller peak

during late summer and early fall. Although short, above-ground

movements may occur during the winter, Alameda whipsnakes generally

retreat in November into a hibernaculum (i.e.), a protective site where

the snakes remain over the

winter) and emerge in March. Courtship and mating were observed from

late March through mid-June. During this time males move around

throughout their home ranges, but females appear to remain at or near

their hibernacula where mating occurs. The home range of a male Alameda

whipsnake ranged from 4.7 to 21.5 ac (1.9 to 8.7 ha) in size (mean of

13.6 ac (5.5 ha), n = 4), and showed a high degree of spatial overlap.

Suspected egg-laying sites for two female snakes were located in

grassland with scattered shrub habitat. Similarly, recent trapping

studies have documented captures of spent females (i.e.,

morphologically identifiable as having recently laid eggs) within scrub

communities (Swaim 2002a), suggesting that these areas are in close

association with egg-laying sites. Typically, clutches of 6 to 11 eggs

are laid between May and July (Stebbins 1985), with young hatching and

emerging in late summer to early fall (Swaim 1994). These hatchlings

have been seen and captured above ground from August through November.

Prey items were occasionally detected in the stomachs of captured

hatchlings during this period, indicating that some hatchlings feed

prior to winter hibernation.

Three individual snakes monitored by Swaim (1994) for nearly an

entire activity season appeared to maintain stable home ranges.

Movements of these individuals were multi-directional and individual

snakes returned to specific areas and retreat sites after long

intervals of nonuse

achs of captured

hatchlings during this period, indicating that some hatchlings feed

prior to winter hibernation.

Three individual snakes monitored by Swaim (1994) for nearly an

entire activity season appeared to maintain stable home ranges.

Movements of these individuals were multi-directional and individual

snakes returned to specific areas and retreat sites after long

intervals of nonuse. Snakes had one or more core areas (i.e., areas of

concentrated use) within their home range as described above, with

large areas of the home range receiving little use.

Geographical Range

The Alameda whipsnake currently inhabits the inner coast range

mostly in Contra Costa and Alameda counties (Jennings 1983; McGinnis

1992; Swaim 1994), with additional occurrence records in San Joaquin

and Santa Clara counties (CNDDB 2005; Swaim 2004). Compared to the much

more common chaparral whipsnake, the Alameda whipsnake subspecies

historic range has always had a very restricted distribution. The

subspecies historic range most likely included the entirety of the

coastal scrub and oak woodland communities throughout the East Bay in

Contra Costa, Alameda, and parts of San Joaquin and Santa Clara

counties (McGinnis 1992). The current distribution of the subspecies

has been reduced from the known historic range to five separate areas

with little or no interchange due to habitat loss, alteration, and

fragmentation. The five populations remain centered in: (1) Sobrante

Ridge, Tilden/Wildcat Regional Parks 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 (Sunol-Cedar Mountain population)

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 (Sunol-Cedar Mountain population).

For more information on the current distribution of the subspecies,

refer to the Federal Register notices listing the species on December

5, 1997 (62 FR 64306) and the previous designation of critical habitat

on October 3, 2000 (65 FR 58933).

Habitat

The distribution of the Alameda whipsnake coincides most closely

with scrublands broken by grassy patches, and rocky hillsides (Stebbins

1985). Recent telemetry data indicate that, although home ranges of

Alameda whipsnakes are centered on scrub plant communities, Alameda

whipsnakes frequently venture out into adjacent habitats, including

grassland, oak savannah, and occasionally oak-bay woodland. The Alameda

whipsnake occurs typically within a mosaic of habitat types containing

scrub/shrub (chamise-redshank chaparral, mixed chaparral, coastal

scrub) communities, with a significant component of annual grassland,

as well as other wooded habitats such as blue oak-foothill pine, blue

oak woodland, coastal oak woodland, valley oak woodland, and riparian

communities (Sawyer and Keeler-Wolf 1995; Mayer and Laudenslayer 1988;

CDFG 1998) or rock outcrops. Alameda whipsnakes exhibit a preference

for open-canopy stands and habitats with woody debris and exposed rock

outcrops because these habitats provide areas for basking, cover from

predators, and an ample source of prey. Until recently, Alameda

whipsnakes were most often found on southeast, south, and southwest

facing slopes (McGinnis 1992; Swaim 1994)

ayer 1988;

CDFG 1998) or rock outcrops. Alameda whipsnakes exhibit a preference

for open-canopy stands and habitats with woody debris and exposed rock

outcrops because these habitats provide areas for basking, cover from

predators, and an ample source of prey. Until recently, Alameda

whipsnakes were most often found on southeast, south, and southwest

facing slopes (McGinnis 1992; Swaim 1994). Swaim (1994) reported that

Alameda whipsnakes have been shown to travel distances greater than 500

ft (152.5 meters (m)) over grassland and other vegetation types and

communities to exposed rock outcrops.

However, additional study has established that concentrated

activity and/or movement occurs on all slope aspects, including

northern exposures, riparian areas (e.g. stream corridors), and through

both open and closed canopy woodlands (Swaim 2000; Swaim 2002b; Swaim

2004; Swaim 2005b-d). Recent data from incidental sighting on free-

ranging Alameda whipsnakes and recapture trapping surveys show regular

use of habitats a distance of greater than 656 ft (200 m) from scrub

and chaparral and include observations of Alameda whipsnakes up to

23,950 yards (yd) (7,300 m) from scrub (Swaim 2003; Swaim 2004; Swaim

2005b), and movement of marked snakes of several thousand feet (meters)

(Swaim 2005c) in a matter of 4 to 10 days.

Telemetry data indicate that Alameda whipsnakes remain in

grasslands for periods of several hours to weeks at a time (Swaim

1994). Grassland habitats are extensively used by male Alameda

whipsnakes during the spring mating season. Female Alameda whipsnakes

use grassland areas after mating, possibly in search of egg-laying

sites.

Rock outcrops are considered an important feature of Alameda

whipsnake habitat because they provide shelter and potential

hibernacula. Rock outcrops also support lizard populations. Lizards,

especially the western fence lizard (Sceloporus occcidentalis), are a

major prey item of Alameda whipsnakes (Stebbins 1985; Swaim 1994)

assland areas after mating, possibly in search of egg-laying

sites.

Rock outcrops are considered an important feature of Alameda

whipsnake habitat because they provide shelter and potential

hibernacula. Rock outcrops also support lizard populations. Lizards,

especially the western fence lizard (Sceloporus occcidentalis), are a

major prey item of Alameda whipsnakes (Stebbins 1985; Swaim 1994). Most

telemetered locations of Alameda whipsnakes were within rock outcrops

and talus.

Threats

Current threats to Alameda whipsnake habitat are urban development

and associated impacts that result from increased human population

densities, fire suppression and resulting likelihood of catastrophic

wildfires, increased predation pressure, and incompatible grazing

practices. McGinnis (1992) identified the loss of large blocks of prime

habitat due to relatively recent urban development as the principle

reason for the decline in the subspecies. The central and western

portions of Alameda and Contra Costa counties are highly urbanized and

continue to be subjected to increased urbanization. Habitat

fragmentation from urban development and associated infrastructure

(e.g., highway and road construction) has led to isolation of the five

populations by wholly preventing or severely reducing movement of

individuals between each of the areas occupied by the five populations.

Consequently, these activities have reduced the total amount of habitat

available for the Alameda whipsnake.

Previous Federal Action

from urban development and associated infrastructure

(e.g., highway and road construction) has led to isolation of the five

populations by wholly preventing or severely reducing movement of

individuals between each of the areas occupied by the five populations.

Consequently, these activities have reduced the total amount of habitat

available for the Alameda whipsnake.

Previous Federal Action

On December 5, 1997, we published a final rule listing the Alameda

whipsnake as threatened (62 FR 64306). On October 3, 2000, we published

a final rule designating critical habitat for the Alameda whipsnake

within Alameda, Contra Costa, San Joaquin, and Santa Clara counties (65

FR 58933).

On June 7, 2001, the Home Builders Association of Northern

California and others filed a lawsuit in the Eastern District of

California against the Service, challenging the final designation of

critical habitat for the Alameda whipsnake (Home Builders Association

of Northern California, et al. v. U.S. Fish and Wildlife Service, et

al., CV F 01-5722 AWI SMS). On May 9, 2003, the U.S. District Judge

vacated and remanded the October 3, 2000, final rule designating

critical habitat for the Alameda whipsnake. On January 14, 2004, the

Service was ordered to complete and publish a proposed rule on critical

habitat designation for the Alameda whipsnake no later than October 1,

2005, and to complete and publish a final rule no later than October 1,

2006. For more information on previous Federal actions concerning the

Alameda whipsnake, refer to the final listing rule published in the

Federal Register (62 FR 64306).

Critical Habitat

was ordered to complete and publish a proposed rule on critical

habitat designation for the Alameda whipsnake no later than October 1,

2005, and to complete and publish a final rule no later than October 1,

2006. For more information on previous Federal actions concerning the

Alameda whipsnake, refer to the final listing rule published in the

Federal Register (62 FR 64306).

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 of all methods and

procedures that are necessary to bring an endangered or a threatened

species to the point at which listing under the Act is no longer

necessary.

Critical habitat receives protection under section 7 of the Act

through the prohibition against destruction or adverse modification of

critical habitat with regard to actions carried out, funded, or

authorized by a Federal agency. Section 7 requires consultation on

Federal actions that are likely to result in the destruction or adverse

modification of critical habitat. The designation of critical habitat

does not affect land ownership or establish a refuge, wilderness,

reserve, preserve, or other conservation area. Such designation does

not allow government or public access to private lands

horized by a Federal agency. Section 7 requires consultation on

Federal actions that are likely to result in the destruction or adverse

modification of critical habitat. The designation of critical habitat

does not affect land ownership or establish a refuge, wilderness,

reserve, preserve, or other conservation area. Such designation does

not allow government or public access to private lands.

To be included in a critical habitat designation, the habitat

within the area occupied by the species at the time of listing must

first have features that are ``essential to the conservation of the

species.'' Critical habitat designations identify, to the extent known

using the best scientific data available, habitat areas that provide

essential life cycle needs of the species (i.e., areas on which are

found the primary constituent elements (PCEs), as defined at 50 CFR

424.12(b)).

Habitat occupied at the time of listing may be included in critical

habitat only if the essential features thereon may require special

management or protection. Thus, we do not include areas where existing

management is sufficient to conserve the species. (As discussed below,

such areas may also be excluded from critical habitat pursuant to

section 4(b)(2) of the Act.) Accordingly, when the best available

scientific data do not demonstrate that the conservation needs of the

species so require, we will not designate critical habitat in areas

outside the geographical area occupied by the species at the time of

listing. An area currently occupied by the species but was not known to

be occupied at the time of listing will likely be essential to the

conservation of the species and, therefore, included in the critical

habitat designation.

The Service's Policy on Information Standards Under the Act,

published in the Federal Register on July 1, 1994 (59 FR 34271), and

Section 515 of the Treasury and General Government Appropriations Act

for Fiscal Year 2001 (Pub. L. 106-554; H.R

cupied at the time of listing will likely be essential to the

conservation of the species and, therefore, included in the critical

habitat designation.

The Service's Policy on Information Standards Under the Act,

published in the Federal Register on July 1, 1994 (59 FR 34271), and

Section 515 of the Treasury and General Government Appropriations Act

for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated

Information Quality Guidelines issued by the Service, provide criteria,

establish procedures, and provide guidance to ensure that decisions

made by the Service represent the best scientific data available. They

require Service biologists, to the extent consistent with the Act and

with the use of the best scientific data available, to use primary and

original sources of information as the basis for recommendations to

designate critical habitat. When determining which areas are critical

habitat, a primary source of information is generally the listing

package for the species. Additional information sources include the

recovery plan for the species, articles in peer-reviewed journals,

conservation plans developed by States and counties, scientific status

surveys and studies, biological assessments, or other unpublished

materials and expert opinion or personal knowledge. All information is

used in accordance with the provisions of Section 515 of the Treasury

and General Government Appropriations Act for Fiscal Year 2001 (Pub. L.

106-554; H.R. 5658) and the associated Information Quality Guidelines

issued by the Service.

Section 4 of the Act requires that we designate critical habitat on

the basis of the best scientific data available. Habitat is often

dynamic and may change over time due to vegetational succession,

climate, or catastrophic events (e.g., fire, landslides). As a result

of habitat change a species may move from one area to another over

time

nformation Quality Guidelines

issued by the Service.

Section 4 of the Act requires that we designate critical habitat on

the basis of the best scientific data available. Habitat is often

dynamic and may change over time due to vegetational succession,

climate, or catastrophic events (e.g., fire, landslides). As a result

of habitat change a species may move from one area to another over

time. Furthermore, we recognize that designation of critical habitat

may not include all of the habitat areas that may eventually be

determined to be necessary for the recovery of the species. For these

reasons, critical habitat designations do not signal that habitat

outside the designation is unimportant or may not be required for

recovery.

Areas that support populations, but are outside the critical

habitat designation, will continue to be subject to conservation

actions implemented under section 7(a)(1) of the Act and to the

regulatory protections afforded by the section 7(a)(2) jeopardy

standard, as determined on the basis of the best available information

at the time of the action. Federally funded or permitted projects

affecting listed species outside their designated critical habitat

areas may still result in jeopardy findings in some cases. Similarly,

critical habitat designations made on the basis of the best available

information at the time of designation will not control the direction

and substance of future recovery plans, habitat conservation plans, or

other species conservation planning efforts if new information

available to these planning efforts calls for a different outcome.

Methods

n jeopardy findings in some cases. Similarly,

critical habitat designations made on the basis of the best available

information at the time of designation will not control the direction

and substance of future recovery plans, habitat conservation plans, or

other species conservation planning efforts if new information

available to these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(1)(A) of the Act, we use the best

scientific data available in determining areas that contain the

features that are essential to the conservation of the Alameda

whipsnake, including information gathered for the Draft Recovery Plan,

information from local subspecies experts, published and unpublished

research papers (e.g., peer-reviewed journal articles in the public

domain), academic theses, abstracts of presentations at scientific

meetings, notes from our attendance at such presentations, consultation

with recognized experts in the field, and review of case studies of

other critical habitat designations. We assembled the

best and most recently available information on soil, vegetation,

Alameda whipsnake records, topography, urban development, road systems,

and aerial imagery, into a Geographic Information Systems (GIS)

database. We are not proposing to designate any areas as critical

habitat that lie outside the geographical area presently occupied by

the subspecies.

We have also reviewed available information that pertains to the

habitat requirements of this subspecies, including reports submitted

during section 7 consultations and by biologists holding section

10(a)(1)(A) recovery permits; research published in peer-reviewed

articles and presented in academic theses and agency reports; and

regional GIS coverages.

As mentioned in the Habitat and Primary Constituent Elements

sections, Alameda whipsnakes have the capability and need for long

range movement

, including reports submitted

during section 7 consultations and by biologists holding section

10(a)(1)(A) recovery permits; research published in peer-reviewed

articles and presented in academic theses and agency reports; and

regional GIS coverages.

As mentioned in the Habitat and Primary Constituent Elements

sections, Alameda whipsnakes have the capability and need for long

range movement. These movements are essential for establishment of home

ranges, finding retreats, maintenance of gene flow, recolonization of

habitat, relocation in response to disturbance, and finding mates. Such

movements have been documented by observation of snake distance from

scrub habitat (Swaim 2003) and tracking of snake movements (Swaim 2005

b-d), and are well within the general range as exemplified by other

snake species in the same family (Loughheed et al. 1999; Blouin-Demers

and Weatherhead 2002). Habitat determined to be occupied included that

habitat between recorded observations within the capable and necessary

range of movement, which has relatively high quality habitat for the

Alameda whipsnake, PCEs, and other factors (see Criteria for

Identification of Critical Habitat, below). Only such occupied habitat

has been considered in the designation of critical habitat for this

subspecies. All proposed units were occupied at the time of listing and

are currently occupied by the Alameda whipsnake.

A GIS database was constructed to overlay key layers which served

as indices of habitat quality. The critical habitat boundary was

adjusted as warranted by major landforms and features (e.g.,

ridgelines, water courses), soils, development, distance from known

records, and barriers to movement.

We determined that soil type could be employed to distinguish those

areas most likely to support Alameda whipsnake and/or its PCEs. To

determine suitability, soils were ranked by the number of Alameda

whipsnake records falling within individual soil types

major landforms and features (e.g.,

ridgelines, water courses), soils, development, distance from known

records, and barriers to movement.

We determined that soil type could be employed to distinguish those

areas most likely to support Alameda whipsnake and/or its PCEs. To

determine suitability, soils were ranked by the number of Alameda

whipsnake records falling within individual soil types. We decided to

map those soil layers with a minimum of three Alameda whipsnake

records. Because of the inherent biases in Alameda whipsnake data

collection techniques, we believe this criterion does not over-

represent areas with a single observation, nor under-represent those

areas that had numerous records as a consequence of more frequent

scientific study. The soil types associated with three or more Alameda

whipsnake records included rock outcrop, wisflat-arburua-san timoteo

complex, various types of loams, rocky loams, clay loams, and silt

loams, and riverwash. Although rock outcrops and rocky soils accounted

for a disproportionate number of Alameda whipsnake observations,

multiple Alameda whipsnake records were also associated with other soil

types. Many of the same soils associated with multiple Alameda

whipsnake records are also associated strongly with chaparral or

coastal scrub. Thus, soil type associated with multiple Alameda

whipsnake records was considered a useful indicator of the presence of

appropriate vegetation and rocky land or talus.

Vegetation quality was evaluated by examining the distribution and

pattern of the grassland and woodland vegetation types used by Alameda

whipsnake. Two primary sources were used: (1) The GIS-based land-cover

map for California (California GAP Analysis 1998), and (2) visual

inspection of digital aerial imagery from several sources

e presence of

appropriate vegetation and rocky land or talus.

Vegetation quality was evaluated by examining the distribution and

pattern of the grassland and woodland vegetation types used by Alameda

whipsnake. Two primary sources were used: (1) The GIS-based land-cover

map for California (California GAP Analysis 1998), and (2) visual

inspection of digital aerial imagery from several sources. The visual

inspection was necessary because the mapping unit for the GAP is

relative large (i.e., 100 ha) and because of a somewhat restrictive GAP

mapping criterion (designations reflect a dominant canopy species,

i.e., greater than 20 percent). In some cases, vegetation very similar

in appearance to chaparral could be seen in the aerials but was not

reported as dominant in the GAP layer. Much smaller amounts of

chaparral are likely to be distributed more widely, but could not be

detected with either the GAP or aerial imagery layers. In general,

habitat quality was deemed to be higher where all PCEs were present in

abundance, and where the vegetation consisted of a more finely

dissected mosaic. Additionally, areas which had chaparral were

considered of greater importance because of the stronger association of

snake records with this vegetation type. Quantitative limits for

average patch dimension and/or minimum amount of chaparral were not

established due to the varying size of chaparral known to support the

Alameda whipsnake.

We also examined the digital imagery for roads, structures,

cultivation, or other disturbances that would affect habitat quality

for Alameda whipsnake. Some areas were not included as critical habitat

because the level of such disturbance was determined to be high to

support the Alameda whipsnake over time.

Criteria Used To Identify Critical Habitat

l known to support the

Alameda whipsnake.

We also examined the digital imagery for roads, structures,

cultivation, or other disturbances that would affect habitat quality

for Alameda whipsnake. Some areas were not included as critical habitat

because the level of such disturbance was determined to be high to

support the Alameda whipsnake over time.

Criteria Used To Identify Critical Habitat

The criteria we utilized to designate critical habitat for Alameda

whipsnake are based on the best scientific information available about

the biology and ecology of the subspecies. In our determination of

critical habitat for the Alameda whipsnake, we selected areas that

possess the physical and biological features essential to the

conservation of the subspecies and that may require special management

considerations or protection. Application of these criteria (1)

protects the best quality habitat in areas where Alameda whipsnake

occurs; (2) maintains the current geographical, elevational, and

ecological distribution of habitat and the subspecies, thereby

preserving genetic variation within the range of the Alameda whipsnake,

and minimizing the effects of local extinction; (3) minimizes

fragmentation by establishing unit boundaries that would result in the

lowest possible ratio of perimeter/unit area, maintaining the essential

need for snake movement, dispersal, and interaction within the

population. The specific habitat quality factors that we considered in

determining critical habitat included soil type, vegetation type,

vegetation mosaic, and degree of included development (e.g., roads,

structures).

There is no firm information on the actual population of Alameda

whipsnake within its range. In addition, there has been no analysis of

the minimum viable population size necessary to maintain a stable or

increasing population of Alameda whipsnake. However, expert opinion is

that the subspecies persists in relatively low numbers throughout its

range (McGinnis 1992)

e.g., roads,

structures).

There is no firm information on the actual population of Alameda

whipsnake within its range. In addition, there has been no analysis of

the minimum viable population size necessary to maintain a stable or

increasing population of Alameda whipsnake. However, expert opinion is

that the subspecies persists in relatively low numbers throughout its

range (McGinnis 1992). Moreover, irretrievable loss of occupied Alameda

whipsnake habitat due to recent urban development is significant in

areas adjacent to several of the proposed critical habitat units. This

development has likely resulted in a commensurate reduction in

population size for the Alameda whipsnake. Accordingly, the general

pattern of habitat loss and fragmentation was taken into consideration

in the designation of critical habitat.

Connectivity has been applied as a criterion to those areas where

designation would result in a relatively high potential for dispersal

between and within units. The need for special

management considerations was applied where such management may be

essential to enhance the connectivity or the integrity of high quality

habitat within a unit.

We are proposing to designate critical habitat on lands that we

have determined are occupied at the time of listing and that contain

the features found to be essential to the conservation of the Alameda

whipsnake (PCEs). Within the boundaries of critical habitat, land that

contains developed areas such as buildings, paved areas, and other

structures has been excluded from this designation.

Section 10(a)(1)(B) of the Act authorizes us to issue permits for

the take of listed species incidental to otherwise lawful activities.

An incidental take permit application must be supported by a habitat

conservation plan (HCP) that identifies conservation measures that the

permittee agrees to implement for the species to minimize and mitigate

the impacts of the requested incidental take

n.

Section 10(a)(1)(B) of the Act authorizes us to issue permits for

the take of listed species incidental to otherwise lawful activities.

An incidental take permit application must be supported by a habitat

conservation plan (HCP) that identifies conservation measures that the

permittee agrees to implement for the species to minimize and mitigate

the impacts of the requested incidental take. We often exclude non-

Federal public lands and private lands that are covered by an existing

operative HCP and executed implementation agreement (IA) under section

10(a)(1)(B) of the Act from designated critical habitat because the

benefits of exclusion outweigh the benefits of inclusion as discussed

in section 4(b)(2) of the Act. We are proposing to exclude critical

habitat from portions of Unit 4 based on the development of the draft

East Contra Costa County HCP and lands within the East Bay Regional

Park District. See Relationship of Critical Habitat to the Draft East

Contra Costa County Habitat Conservation Plan (ECCHCP) below.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at

50 CFR 424.12, in determining which areas to propose as critical

habitat, we are required to base critical habitat determinations on the

best scientific data available and to consider those physical and

biological features (PCEs) that are essential to the conservation of

the species, and that may require special management considerations and

protection. These include, but are not limited to: space for individual

and population growth and for normal behavior; food, water, air, light,

minerals, or other nutritional or physiological requirements; cover or

shelter; sites for breeding, reproduction, and rearing (or development)

of offspring; and habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species

o: space for individual

and population growth and for normal behavior; food, water, air, light,

minerals, or other nutritional or physiological requirements; cover or

shelter; sites for breeding, reproduction, and rearing (or development)

of offspring; and habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species. The specific PCEs essential for the

conservation of the Alameda whipsnake are derived from the biological

and ecological needs of the Alameda whipsnake as described in the

Background section of this proposal and in previous listing and

critical habitat rules for the species, as well as derived from the

abiotic and biotic needs of the species as described below.

The specific feeding and foraging habits of Alameda whipsnake are

relatively well known (Stebbins 1985; Swaim 1994; Green 1998). Alameda

whipsnake prey extensively on western fence lizards (Sceloporus

occidentalis), but also have been known to prey on western skinks

(Eumeces skiltonianus), as well as frogs, birds, and other snakes

(Stebbins 1985; Swaim 1994). Its specialization on lizard prey and mode

of foraging require areas that both support abundant prey populations

and provide prey-viewing and capture opportunities. The Alameda

whipsnake is most frequently recorded in close association with

chaparral or scrub patches. These patches serve as the center of home

ranges, and provide for concealment from predators and prey-viewing

opportunities while foraging. Snakes venture into adjacent grasslands

or wooded habitats that exhibit, at a minimum, a partially open canopy.

The open canopy character is believed to allow both development of the

primary lizard prey base used by the snake, and efficient

thermoregulation and foraging activities. The Alameda whipsnake hunts

by sight, holding its head off the ground to peer over grass or rocks

for potential prey capture opportunities

t grasslands

or wooded habitats that exhibit, at a minimum, a partially open canopy.

The open canopy character is believed to allow both development of the

primary lizard prey base used by the snake, and efficient

thermoregulation and foraging activities. The Alameda whipsnake hunts

by sight, holding its head off the ground to peer over grass or rocks

for potential prey capture opportunities. Essential features of Alameda

whipsnake habitat must therefore include consideration of the habitat

needs of the prey species and for prey captures. Such opportunities, as

well as the prey base, are provided for by what is termed a ``scrub

community.'' The particular arrangement of the landscape mosaic that

supports Alameda whipsnake commonly consists of scrub patches within an

open canopy of interspersed grasslands and rocklands, but may include

closed or nearly closed scrub areas, including rocklands, and a much

lower complement of grasses. Typical scrub communities within the range

of the Alameda whipsnake include diablan sage scrub, coyote bush scrub,

and chamise chaparral (Swaim 1994), also classified as coastal scrub,

mixed chaparral, and chamise-chaparral (Mayer and Laudenslayer 1998),

and chamise, chamise-eastwood manzanita, chaparral whitethorn, and

interior live oak shrub vegetation series as identified in the Manual

of California Vegetation (Sawyer and Keeler-Wolf 1995), A Guide to

Wildlife Habitats of California (Mayer and Laudenslayer 1988), and

California Wildlife Habitat Relationship System (CDFG 1998). These

vegetation series are characterized as being less than 20 ft (6 m) in

height with sparse ground cover (the interior live oak shrub vegetation

series having variable ground cover) and form a nearly continuous cover

of closely spaced shrubs often with intertwining branches. Sufficient

light penetrates through the canopy to support a herbaceous understory.

The soils are usually nutrient poor and rocky, and stands are best

developed on steep slopes

20 ft (6 m) in

height with sparse ground cover (the interior live oak shrub vegetation

series having variable ground cover) and form a nearly continuous cover

of closely spaced shrubs often with intertwining branches. Sufficient

light penetrates through the canopy to support a herbaceous understory.

The soils are usually nutrient poor and rocky, and stands are best

developed on steep slopes. Because of complex patterns of topographic,

edaphic, and climatic variations, these vegetation series form a mosaic

pattern with inclusions of other vegetation series (blue oak, coast

live oak, California Bay, California buckeye, California annual

grassland) or open spaces. The percentage cover for these vegetation

series is variable depending on species composition and aspect. Bare

zones about 3 ft (1 m) wide may be interspersed within these vegetation

series and extend around and out into adjacent vegetation series. These

vegetation series occur on all slope aspects with patch sizes varying

from square feet (meters) to square miles (kilometers) in dimension.

The plant species associated with these vegetation series include, but

are not limited to: chamise (Adenostoma sp.), manzanita (Artostaphylos

sp.), Ceanothus sp., buckwheat (Eriogonum sp.), bush monkey flower

(Diplacus sp.), toyon (Heteromeles arbutifolia), scrub oak (Quercus

sp.), interior live oak (Q. wislizenii), canyon live oak (Q.

chrysolepis), California coffeberry Rhamnus sp.), California buckeye

(Aesculus californica), poison oak (Toxicodendron diversilobum), yerba

santa (Eriodictyon californicum), and mountain mahogany (Cercocarpus

sp.).

Swaim (1994) found that core areas (i.e., areas of concentrated use

by Alameda whipsnakes, based on telemetry and trapping data) were

predominantly located on east, southeast, south, or southwest facing

slopes and were characterized by open or partially-open canopy or

grassland within 500 ft (150 m) of scrub

), yerba

santa (Eriodictyon californicum), and mountain mahogany (Cercocarpus

sp.).

Swaim (1994) found that core areas (i.e., areas of concentrated use

by Alameda whipsnakes, based on telemetry and trapping data) were

predominantly located on east, southeast, south, or southwest facing

slopes and were characterized by open or partially-open canopy or

grassland within 500 ft (150 m) of scrub. In early studies, Alameda

whipsnakes were captured primarily where the canopy cover was open

(less than 75 percent cover) or partially open (75 to 90 percent

cover). However, more recent trapping efforts have collected Alameda

whipsnakes in scrub ranging from nearly complete or completely closed

canopies, to very open canopies with a

few patches of high quality scrub present (Swaim 2005b). These core

areas provide sun-shade mosaics that offer an opportunity for the snake

to achieve temperatures necessary for foraging, while providing retreat

from predators (Swaim 1994). The open scrub habitat supports prey

viewing opportunities, aiding foraging opportunities for this diurnal

sight-hunting snake (Swaim 1994). As previously mentioned, capture of

spent females within scrub communities (Swaim 2002a) indicates scrub

areas are in very close association with egg-laying sites, probably

located in nearby grassland. Because they provide the primary foraging,

breeding, and shelter areas for Alameda whipsnake, scrub communities

are considered a PCE essential to the conservation of this subspecies.

Although much of Alameda whipsnake activity occurs in scrub

communities, other types of vegetation are also used for foraging and

are necessary for normal behavior, breeding, reproduction, population

interaction, and dispersal. Core areas used by the snake can be

sustained by very small patches of scrub embedded within a larger

mosaic of other dominant vegetation types (Swaim 2005b)

species.

Although much of Alameda whipsnake activity occurs in scrub

communities, other types of vegetation are also used for foraging and

are necessary for normal behavior, breeding, reproduction, population

interaction, and dispersal. Core areas used by the snake can be

sustained by very small patches of scrub embedded within a larger

mosaic of other dominant vegetation types (Swaim 2005b). Our review of

available vegetation data and aerial imagery indicate that much of the

distribution of Alameda whipsnake does not consist of large unbroken

tracts of scrub community. The vegetation types adjacent to the scrub

habitat that the Alameda whipsnake needs for foraging, dispersal, and

population interactions include annual grassland, blue oak-foothill

pine, blue oak woodland, coastal oak woodland, valley oak woodland,

eucalyptus, redwood, and riparian communities (e.g. stream corridors).

McGinnis (1992) has documented Alameda whipsnakes using oak woodland/

grassland habitat as a corridor between stands of northern coastal

scrub.

Grassland habitats are used extensively by both sexes of Alameda

whipsnake during the breeding season. Males used these areas most

extensively during the spring mating season, possibly in search and

selection of mates (Swaim 1994). Female use occurred after mating,

possibly looking for egg laying sites or for dispersal to scrub habitat

(Swaim 1994, Swaim 2002a). Specifically, concentrated activity of

gravid females, and hence the suspected location of egg laying sites,

was in grassland areas with scattered shrubs within 10 to 20 ft (3 to 6

m) of true scrub habitat (Swaim 1994).

Embedded within these scrub communities and adjacent habitats are

areas consisting of rocky habitat (either rock outcrops or rock debris

piles, known as ``talus'') and small rodent burrows; however, brush

piles and deep soil crevices are also used by the snake (Swaim 1994)

ng sites,

was in grassland areas with scattered shrubs within 10 to 20 ft (3 to 6

m) of true scrub habitat (Swaim 1994).

Embedded within these scrub communities and adjacent habitats are

areas consisting of rocky habitat (either rock outcrops or rock debris

piles, known as ``talus'') and small rodent burrows; however, brush

piles and deep soil crevices are also used by the snake (Swaim 1994).

These areas are essential for normal behavior, breeding, reproduction,

dispersal, and foraging because they provide shelter from predators,

egg laying sites, over night retreats, and winter hibernacula (Swaim

1994) and are associated with areas that have increased numbers of

foraging opportunities (Stebbins 1985; Swaim 1994). Swaim (1994) found

rock outcrops were typically abundant in core areas and observed

Alameda whipsnakes mating in these outcrops. During the mating season

females remain near the retreat sites while males disperse throughout

their home ranges (Swaim 1994). Hammerson (1979 in litt.) observed

Alameda whipsnake emerging from burrows in the morning, basking in the

sun, and retreating into burrows when the soil surface temperatures

began to fall. Alameda whipsnakes retreat into winter hibernacula (e.g.

rodent burrows, crevices between rocks) around November and emerge in

March. Trapping of gravid females close to scrub communities in

grassland with scattered shrubs (Swaim 1994) and spent females in true

scrub communities (Swaim 2002a) suggests that rock outcrops, talus, and

burrows (mating habitats) need to be relatively close to scrub and

nearby grassland habitat (suspected egg laying habitats).

Dispersal habitats are essential for the conservation of Alameda

whipsnake

ing of gravid females close to scrub communities in

grassland with scattered shrubs (Swaim 1994) and spent females in true

scrub communities (Swaim 2002a) suggests that rock outcrops, talus, and

burrows (mating habitats) need to be relatively close to scrub and

nearby grassland habitat (suspected egg laying habitats).

Dispersal habitats are essential for the conservation of Alameda

whipsnake. Protecting the ability of Alameda whipsnake to move freely

across the landscape in search of habitats is essential for: (1)

Sustaining populations by providing opportunity for movement and

establishment of home ranges by juvenile recruits, (2) maintaining gene

flow by the movement of both juveniles and adults between

subpopulations, and (3) allowing recolonization of habitat after fires

or other natural events that have resulted in local extirpations. The

available information on movements of other colubrid snakes is limited

to a small minority of species, but indicates a general potential for

significant mobility. Loughheed et al. (1999) found evidence of

substantial genetic exchange among local hibernacula greater than 3.75

miles (6 km) apart, although gene flow over distances of 6.25 miles (10

km) and greater appears to be substantially less. Based on extensive

radio-tracking data, Blouin-Demers and Weatherhead (2002) found that

male and female ratsnake (Elaphe obsolete) (a species similar in size

and characteristics to the Alameda whipsnake) travel up to 5 miles (8

km) from hibernacula to mate. Therefore, it is likely that medium-sized

species of this group, such as the Alameda whipsnake, move between

areas up to a few miles apart. This is consistent with the distribution

of vegetation types in portions of the Alameda whipsnake range, where

the vegetation often has more dense closed canopy on the northeast-

facing slopes, and less dense open canopy on southwest-facing slopes

to mate. Therefore, it is likely that medium-sized

species of this group, such as the Alameda whipsnake, move between

areas up to a few miles apart. This is consistent with the distribution

of vegetation types in portions of the Alameda whipsnake range, where

the vegetation often has more dense closed canopy on the northeast-

facing slopes, and less dense open canopy on southwest-facing slopes.

Very recent trapping data has shown several instances of snakes

residing in and moving through predominantly north-facing slopes in two

of the six proposed units (Swaim 2005c, Swaim 2005d). Habitat with a

more open canopy would provide the greatest range of essential

functions. However closed-canopy areas are considered essential because

they provide avenues of dispersal and interaction between sub-

populations, and movement through such closed-canopy areas has been

documented (Swaim 2002b).

Additional trapping data has shown the maximum distance between

Alameda whipsnake observations from the nearest scrub is much larger,

up to 4.5 miles (7.3 km), than either the home range diameter or

average movements, suggesting more extensive use of grassland for

either foraging or corridor movement (Swaim 2000; Swaim 2003; Swaim

2005b). The scale of these grassland patches is on the order of several

miles (kilometers) across, and movement of this degree would permit

Alameda whipsnakes to disperse to other adjacent habitat. Large blocks

of contiguous habitat, relatively uninterrupted by roads, structures,

or other development, fulfills the essential need for interchange and

interaction among individuals and subpopulations within the limited

distribution of Alameda whipsnake. Thus, other vegetation (e.g., annual

grassland, blue oak-foothill pine, blue oak woodland, coastal oak

woodland, valley oak woodland, eucalyptus, redwood, and riparian

communities) adjacent to scrub habitat is considered a feature

essential to the conservation of the Alameda whipsnake

e and

interaction among individuals and subpopulations within the limited

distribution of Alameda whipsnake. Thus, other vegetation (e.g., annual

grassland, blue oak-foothill pine, blue oak woodland, coastal oak

woodland, valley oak woodland, eucalyptus, redwood, and riparian

communities) adjacent to scrub habitat is considered a feature

essential to the conservation of the Alameda whipsnake.

The characteristics and composition of the vegetation series

adjacent to scrub or rocky habitats which are used by Alameda whipsnake

for foraging, short and long distant dispersal, and mating can be

variable depending on location, topography, soils, and rainfall. The

woodland vegetation series are comprised of slow growing, long-lived

deciduous and evergreen trees 15 to 70 ft (4 to 21 m) tall with a mixed

understory of grass and herbaceous vegetation or shrub vegetation. Some

common species associated with the woodland vegetation series include:

blue oak (Quercus douglassi), valley oak (Quercus lobata), canyon live

oak, California black oak (Quercus kellogi), interior live oak, madrone

(Arbutus menziesii), foothill pine (Pinus sabatiana), California bay,

California buckeye, coyote brush, manzanita, gooseberry (Ribes sp.),

redwood (Sequoia sempervirens), and Eucalyptus sp. Some common species

associated with the California annual grassland vegetation series

include: wild oats (Avena sp.), soft chess (Bromus mollis), brome sp.,

barley (Hordeum sp.), and fescue (Festuca sp.). Some remnant perennial

grasses may also be distributed within this grassland vegetation series

comprised of species such as needlegrass (Nassella sp.), California

onion grass (Melica californica), and California fescue (Festuca

californica). Herbaceous vegetation within the woodland and grassland

vegetation series includes filaree sp., turkey mullein (Eremocarpus

sp.), popcorn flower (Plagiobothrys sp.), and California poppy

(Eschscholtzia california).

Primary Constituent Elements for the Alameda Whipsnake

uch as needlegrass (Nassella sp.), California

onion grass (Melica californica), and California fescue (Festuca

californica). Herbaceous vegetation within the woodland and grassland

vegetation series includes filaree sp., turkey mullein (Eremocarpus

sp.), popcorn flower (Plagiobothrys sp.), and California poppy

(Eschscholtzia california).

Primary Constituent Elements for the Alameda Whipsnake

Based on our current knowledge of the life history, biology, and

ecology of the Alameda whipsnake and the requirements of the habitat

necessary to sustain the essential life history functions of the

subspecies, we have determined that the primary constituent elements

for the Alameda whipsnake are:

(1) Scrub/shrub communities with a mosaic of open and closed

canopy: Scrub/shrub vegetation dominated by low to medium-stature woody

shrubs with a mosaic of open and closed canopy as characterized by the

chamise, chamise-eastwood manzanita, chaparral whitethorn, and interior

live oak shrub vegetation series as identified in the Manual of

California Vegetation (Sawyer and Keeler-Wolf 1995), A Guide to

Wildlife Habitats of California (Mayer and Laudenslayer 1988), and

California Wildlife Habitat Relationship System (CDFG 1998), occurring

at elevations from sea level to approximately 3,850 ft (1,170 m). Such

scrub/shrub vegetation within these series form a pattern of open and

closed canopy which is used by the Alameda whipsnake to provide shelter

from predators, temperature regulation by providing sunny and shady

locations, prey-viewing opportunities, and nesting habitat and

substrate. These features contribute to support a prey base consisting

of western fence lizards and other prey species such as skinks, frogs,

snakes, and birds.

ies form a pattern of open and

closed canopy which is used by the Alameda whipsnake to provide shelter

from predators, temperature regulation by providing sunny and shady

locations, prey-viewing opportunities, and nesting habitat and

substrate. These features contribute to support a prey base consisting

of western fence lizards and other prey species such as skinks, frogs,

snakes, and birds.

(2) Woodland or annual grassland plant communities contiguous to

lands containing PCE 1: Woodland or annual grassland vegetation series

comprised of one or more of the following: blue oak, coast live oak

(Quercus sp.), California bay (Umbellularia californica), California

buckeye, and California annual grassland vegetation series (as

identified in the Manual of California Vegetation (Sawyer and Keeler-

Wolf 1995), A Guide to Wildlife Habitats of California (Mayer and

Laudenslayer 1988), and California Wildlife Habitat Relationship System

(CDFG 1998)) are PCE 2. This mosaic of vegetation supports a prey base

consisting of western fence lizards and other prey species such as

skinks, frogs, snakes, and birds and provides opportunities for: (1)

Foraging by allowing snakes to come in contact with and visualize,

track, and capture prey (especially western fence lizards along with

other prey such as skinks, frogs, birds); (2) short and long distance

dispersal within, between, or to adjacent to areas containing essential

features (i.e., PCE 1 or PCE 3); and (3) contact with other Alameda

whipsnakes for mating and reproduction.

for: (1)

Foraging by allowing snakes to come in contact with and visualize,

track, and capture prey (especially western fence lizards along with

other prey such as skinks, frogs, birds); (2) short and long distance

dispersal within, between, or to adjacent to areas containing essential

features (i.e., PCE 1 or PCE 3); and (3) contact with other Alameda

whipsnakes for mating and reproduction.

(3) Lands containing rock outcrops, talus, and small mammal

burrows. These areas are used for retreats (shelter), hibernacula,

foraging, dispersal, and provide additional prey population support

functions.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the features

essential to the conservation of the whipsnake that have been

identified as PCEs that may require special management considerations

or protections. Special management is required when threats to the

species and features essential to its conservation exist and must be

reduced by management to conserve the species. The greatest threat to

all six units is continued urban development, which destroys and

fragments the features essential to the conservation of the subspecies

and thus the habitat used by the Alameda whipsnake. Second,

fragmentation and destruction of features essential to the conservation

of the subspecies and thus the habitat also results from road

development and widening in all six units. Third, the features

essential to the conservation of the subspecies are threatened directly

and indirectly by the effects of fire suppression. Fire suppression

exacerbates the effects of wildfires through the buildup of fuel (i.e.,

underbrush and woody debris), creating conditions for slow-moving, hot

fires that completely burn all sources of cover for the Alameda

whipsnake. Highest intensity fires occur in the summer and early fall,

when accumulated fuel is abundant and dry

rectly

and indirectly by the effects of fire suppression. Fire suppression

exacerbates the effects of wildfires through the buildup of fuel (i.e.,

underbrush and woody debris), creating conditions for slow-moving, hot

fires that completely burn all sources of cover for the Alameda

whipsnake. 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),

resulting in populations being more likely to sustain heavy losses from

fires. Fire suppression has led to the encroachment of non-indigenous

and ornamental trees into grassland habitats, further increasing

flammable fuel loads in and around Alameda whipsnake habitat. Fire

suppression has also lead to the change of scrub communities from open/

closed mosaics to closed canopy stands. As described above, Alameda

whipsnakes prefer scrub communities consisting of an open/closed

mosaic. The closed scrub canopy also results in a buildup of flammable

fuels over time (Parker 1987). Special management would be required to

properly manage fuel load and prevent catastrophic fire within the six

units.

Finally, the features essential to the conservation of the

subspecies and thus the habitat within all six units are subject to

increased predatory pressure from introduced species, such as rats

(Rattus spp.), feral pigs (Sus scrofa), and feral and domestic cats

(Felis domestica) and dogs (Canis familiaris). 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 threat to the Alameda whipsnake.

The East Bay Regional Park District (EBRP) is currently facing public

pressure to allow private individuals to maintain feral cats on park

lands (DelVecchio 1997)

se 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 threat to the Alameda whipsnake.

The East Bay Regional Park District (EBRP) is currently facing public

pressure to allow private individuals to maintain feral cats on park

lands (DelVecchio 1997). Although the actual impact of predation under

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

reptiles, including yellow racers (Coluber sp. (Hubbs 1951)), a fast,

diurnal snake closely related to the Alameda whipsnake (Stebbins 1985).

Alameda whipsnakes may be adversely affected in areas that lie adjacent

to urban development because of the associated loss of cover habitats

in combination with increased native and nonnative predators using

these areas. Special management of nonnative predators would be

required within all six units.

Proposed Critical Habitat Designation

We are proposing six units as critical habitat for the Alameda

whipsnake. The critical habitat areas described below constitute our

assessment of areas that have been determined to be occupied at the

time of listing, that contain the PCEs, and that may require special

management. The six areas proposed for designation as critical habitat

for the Alameda whipsnake are described below.

Table 1 below provides the approximate area (ac/ha) determined to

be essential to the Alameda whipsnake and the area proposed for

exclusion from the final critical habitat designation by unit.

ccupied at the

time of listing, that contain the PCEs, and that may require special

management. The six areas proposed for designation as critical habitat

for the Alameda whipsnake are described below.

Table 1 below provides the approximate area (ac/ha) determined to

be essential to the Alameda whipsnake and the area proposed for

exclusion from the final critical habitat designation by unit.

Table 1.--Areas With Essential Features for the Alameda Whipsnake and the Area Proposed for Exclusion From the

Final Critical Habitat Designation.

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

Area with essential Area Proposed for

features exclusion from the

------------------------ Final Critical Habitat

Unit Designation

ac ha -----------------------

ac ha

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

1............................................................... 34,119 13,808 8,108 3,281

2............................................................... 24,524 9,925 4,408 1,784

3............................................................... 27,551 11,150 404 163

4............................................................... 69,598 28,165 46,306 18,739

5A.............................................................. 24,723 10,005 246 100

5B.............................................................. 18,214 7,371 361 146

6............................................................... 4,612 1,866 272 110

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

Total....................................................... 203,342 82,289 60,105 24,323

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

The approximate area encompassed within each proposed critical

habitat unit by ownership is shown in Table 2.

................................................ 4,612 1,866 272 110

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

Total....................................................... 203,342 82,289 60,105 24,323

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

The approximate area encompassed within each proposed critical

habitat unit by ownership is shown in Table 2.

Table 2.--Critical Habitat Units Proposed for Alameda Whipsnake

[Area (ac/ha) estimates reflect all land within critical habitat unit boundaries]

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

Federal State Local Private Total

Unit ---------------------------------------------------------------------------------------------------

ac ha ac ha ac ha ac ha ac ha

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

1................................................... ........ ........ ........ ........ 8,108 3,281 26,012 10,527 34,119 13,808

2................................................... ........ ........ ........ ........ 4,408 1,784 20,116 8,141 24,524 9,925

3................................................... ........ ........ ........ ........ 404 164 27,146 10,986 27,551 11,149

4................................................... 61 25 13,873 5,615 3,641 1,474 52,022 21,053 69,598 28,165

5A.................................................. 2,492 1,009 ........ ........ 246 99 21,986 8,897 24,723 10,005

5B.................................................. ........ ........ ........ ........ 361 146 17,854 7,225 18,214 7,371

6................................................... ........ ........ ........ ........ 272 110 4,340 1,756 4,612 1,867

-----------

Total..........................................

.............................. 2,492 1,009 ........ ........ 246 99 21,986 8,897 24,723 10,005

5B.................................................. ........ ........ ........ ........ 361 146 17,854 7,225 18,214 7,371

6................................................... ........ ........ ........ ........ 272 110 4,340 1,756 4,612 1,867

-----------

Total........................................... 2,553 1,033 13,873 5,615 17,440 7,057 169,476 68,584 03,342 82,289

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

We present brief descriptions of all units, and reasons why they

are essential for the conservation of the Alameda whipsnake below.

Unit 1: Tilden-Briones; Alameda and Contra Costa Counties (34,119 ac

(13,808 ha))

Unit 1 is bordered approximately by State Highway 4 and the cities

of Pinole, Hercules, and Martinez to the north; by State Highway 24 and

the City of Orinda Village to the south; Interstate 80, and the cities

of Berkeley, El Cerrito, and Richmond, to the west; and Interstate 680

and the City of Pleasant Hill to the east. Unit 1 is connected to Unit

6 to the south. Land ownership within the proposed unit includes

approximately 8,108 ac (3,281 ha) of East Bay Regional Park (EBRP)

lands with the remainder of land being privately owned. We propose to

exclude from critical habitat a portion of the East Bay Regional Park

from this unit (see section ``Relationship of Critical Habitat to the

East Bay Regional Park--Exclusion Under Section 4(b)(2)'' below).

The unit contains a complex mosaic pattern of grassland with woody

scrub vegetation of several types (PCE 1 and PCE 2) as well as rock

outcrops or other talus features (PCE 3) which are uniformly

distributed throughout the unit with little habitat fragmentation

om this unit (see section ``Relationship of Critical Habitat to the

East Bay Regional Park--Exclusion Under Section 4(b)(2)'' below).

The unit contains a complex mosaic pattern of grassland with woody

scrub vegetation of several types (PCE 1 and PCE 2) as well as rock

outcrops or other talus features (PCE 3) which are uniformly

distributed throughout the unit with little habitat fragmentation.

Alameda whipsnake records occur within the unit and are also uniformly

distributed with the dates of Alameda whipsnake records spanning a time

period ranging from before the subspecies' listing to after the time of

listing (1986-present). Very limited development or habitat

fragmentation is present, with the exception of a few structures

presumably associated with livestock management. The distribution of

essential features throughout the unit allows Alameda whipsnake

populations to utilize and freely disperse within the unit, making the

overall population less vulnerable to local extinction which could

result from fire, landslide, or some other natural event (e.g. drought,

disease). The unit is included in proposed critical habitat because it

contains features essential to the conservation of the Alameda

whipsnake, it is occupied, and represents the northwestern portion of

the subspecies range and one of five population centers. The special

management actions which may be required within the unit include

re, landslide, or some other natural event (e.g. drought,

disease). The unit is included in proposed critical habitat because it

contains features essential to the conservation of the Alameda

whipsnake, it is occupied, and represents the northwestern portion of

the subspecies range and one of five population centers. The special

management actions which may be required within the unit include

prescribed burns, and management of grazing activities to maintain a

mosaic of open habitat. Additional special management which may be

required for this unit includes management of trespass, unauthorized

trail construction, dumping, feral animal control and other activities

associated with urban interface.

Unit 2: Oakland-Las Trampas; Contra Costa and Alameda Counties (24,524

ac (9,925 ha))

Unit 2 is located south of State Route 24, north of Interstate 580,

east of State Route 13, and west of Interstate 680 and the cities of

Danville, San Ramon, and Dublin. Unit 2 is connected to Unit 6 to the

north. Land ownership includes 4,408 ac (1,784 ha) of East Bay Regional

Park and East Bay Municipal Utilities District (EBMUD) lands with the

remainder of lands being privately owned. We propose to exclude from

critical habitat a portion of the East Bay Regional Park from this unit

(see section ``Relationship of Critical Habitat to the East Bay

Regional Park--Exclusion Under Section 4(b)(2)'' below).

Unit 2 contains a range of vegetation (PCE 1 and PCE 2), soil

types, and rocky features (PCE 3) essential to the conservation of the

subspecies, supports viable Alameda whipsnake populations, and has

minimal development such as roads and structures. Areas with

development or reduced soil and vegetation characteristics were not

included as proposed critical habitat for this unit

(2)'' below).

Unit 2 contains a range of vegetation (PCE 1 and PCE 2), soil

types, and rocky features (PCE 3) essential to the conservation of the

subspecies, supports viable Alameda whipsnake populations, and has

minimal development such as roads and structures. Areas with

development or reduced soil and vegetation characteristics were not

included as proposed critical habitat for this unit. Essential features

within Unit 2 which contain denser woodland habitat may be subject to

special management considerations, such as prescribed burns, to improve

the habitat quality and enhance the potential for Alameda whipsnake

movement between units. Additional special management which may be

required throughout this unit includes management of trespass,

unauthorized trail construction, dumping, feral animal control and

other activities associated with urban interface. Alameda whipsnake

records have been documented by multiple records within the unit as

well as adjacent to the unit. Dispersal between Units 2 and 1 occurs

directly through Unit 6, and impediments to such movement do not appear

to be present. Unit 2 is included in the proposed critical habitat

because it contains features essential to the conservation of the

Alameda whipsnake, it is occupied by the subspecies, and represents the

central distribution of Alameda whipsnake and one of the five

population centers.

Unit 3: Hayward-Pleasanton Ridge; Alameda County (27,551 ac (11,149

ha))

Unit 3 is generally located immediately to the west of Interstate

680 and to the south of Interstate 580. Land ownership includes 404 ac

(164 ha) of East Bay Regional Park with the remainder of lands being

privately owned. We propose to exclude from critical habitat a portion

of the East Bay Regional Park from this unit (see section

``Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)'' below)

west of Interstate

680 and to the south of Interstate 580. Land ownership includes 404 ac

(164 ha) of East Bay Regional Park with the remainder of lands being

privately owned. We propose to exclude from critical habitat a portion

of the East Bay Regional Park from this unit (see section

``Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)'' below).

Unit 3 contains the mosaic of scrub and chaparral vegetation and

rocky outcrops considered as essential features (PCE 1). The unit also

includes a variation in vegetation patch size, abundant edge between

grassland and woodland, and minimal amount of development or planned

development. The soils present are considered supportive of the scrub

and rock outcrop features essential for Alameda whipsnake. The Alameda

whipsnake records within this unit are associated with Gaviota rocky

sandy loams in particular, which likely provide talus (PCE 3) and

appear to coincide in aerial imagery to scrub or chaparral vegetation

preferred by Alameda whipsnake. Vegetation is largely woodland of

variable densities (PCE 2) and statures (trees, shrubs) interspersed

with grassland. Some peripheral portions of habitat around this unit

were not included as proposed critical habitat due to the high degree

of development-related disturbance and fragmentation of the habitat.

The unit is included in proposed critical habitat because it contains

features essential to the conservation of the Alameda whipsnake, it is

occupied by the subspecies, and represents the southwestern portion of

the subspecies range and one of the five population centers. The

special management which may be required throughout this unit includes

management of controlled burns and grazing, trespass, unauthorized

trail and road construction, dumping, feral animal control and other

activities associated with urban or recreational interface

ed by the subspecies, and represents the southwestern portion of

the subspecies range and one of the five population centers. The

special management which may be required throughout this unit includes

management of controlled burns and grazing, trespass, unauthorized

trail and road construction, dumping, feral animal control and other

activities associated with urban or recreational interface.

Unit 4: Mount Diablo-Black Hills; Contra Costa and Alameda counties

(69,598 ac (28,165 ha))

This unit encompasses Mount Diablo State Park and surrounding

lands, and is largely within Contra Costa County except a small portion

that lies in Alameda County. Lands are owned by the Bureau of Land

Management (61 ac (25 ha)), State Department of Parks and Recreation

(13,874 ac (5,615 ha)), East Bay Regional Park (3,641 ac (1,475 ha)),

and private landowners (52,022 ac (21,053 ha)).

Numerous Alameda whipsnake observations (i.e., greater than 50

records from 1972 to present) occur throughout the unit, many of which

are associated with dense rock outcrops (PCE 3) and chaparral, scrub,

and oak woodland (PCE 1, PCE 2). The pattern of woody vegetation with

grassland and rock outcrops forms an intricate landscape mosaic that is

highly functional habitat for the Alameda whipsnake. The vegetation and

soil characteristics, the mosaic habitat pattern, the abundance of

Alameda whipsnake records, and the lack of surrounding development and

relative absence of roadways, together indicate that this unit likely

provides some of the very highest quality and largest contiguous blocks

of habitat within the range of the subspecies, as well as some of its

most robust populations. Special management, such as prescribed burns,

may be required for portions of the unit with dense vegetation. Special

management required throughout this unit includes management of

grazing, trespass, unauthorized trail and road construction, dumping,

feral animal control and other activities associated with urban or

recreational interface

ies, as well as some of its

most robust populations. Special management, such as prescribed burns,

may be required for portions of the unit with dense vegetation. Special

management required throughout this unit includes management of

grazing, trespass, unauthorized trail and road construction, dumping,

feral animal control and other activities associated with urban or

recreational interface. The unit is included in proposed critical

habitat because it contains features essential to the conservation of

the Alameda whipsnake, is occupied by the subspecies, and represents

the northeastern portion of the subspecies range and one of the five

population centers. We propose to exclude from critical habitat a

portion of the East Bay Regional Park from this unit (see section

``Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)'' below).

Unit 5A: Cedar Mountain; Alameda and San Joaquin Counties (24,723 ac

(10,005 ha))

The unit is generally located east of Lake Del Valle along Cedar

Mountain Ridge and Crane Ridge to Corral Hollow west of Interstate 580.

Land ownership within the proposed unit includes approximately 2,492 ac

(1,009 ha) of Department of Energy land and 246 ac (99 ha) of East Bay

Regional Park. Lands within the remainder of the unit are privately

owned.

The vegetation pattern within this unit consists of dominance by

various woodland, scrub, and/or chaparral communities on northeast-

facing slopes (PCE 1, PCE 2). More open, grassland-dominated

communities are prominent on southwest-facing slopes, but there is also

a significant component of

246 ac (99 ha) of East Bay

Regional Park. Lands within the remainder of the unit are privately

owned.

The vegetation pattern within this unit consists of dominance by

various woodland, scrub, and/or chaparral communities on northeast-

facing slopes (PCE 1, PCE 2). More open, grassland-dominated

communities are prominent on southwest-facing slopes, but there is also

a significant component of

woodland habitat on these slopes. Significant areas of vegetation types

known to support Alameda whipsnake are present, including coastal oak,

chamise-chaparral, mixed chaparral, blue-oak-foothill pine woodland,

blue oak woodland, valley oak woodland, and montane hardwood. In most

instances, the proposed boundaries for critical habitat designation

correspond to natural breaks in plant communities and soil quality,

and/or landform (ridgelines, water features). A moderate number of

light roads are present within the unit, although there are very few

structures or other land modifications. Special management, such as

prescribed burns, may be required for portions of the unit with dense

vegetation. The special management which may be required throughout

this unit includes management of grazing, trespass, unauthorized trail

and road construction, dumping, feral animal control and other

activities associated with urban or recreational interface. The unit is

included in proposed critical habitat because it contains features

essential to the conservation of the Alameda whipsnake, it is occupied

by the subspecies, and represents the southern and eastern most

distribution of Alameda whipsnake and one of five population centers

for the subspecies. We propose to exclude from critical habitat a

portion of the East Bay Regional Park from this unit (see section

``Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)'' below)

psnake, it is occupied

by the subspecies, and represents the southern and eastern most

distribution of Alameda whipsnake and one of five population centers

for the subspecies. We propose to exclude from critical habitat a

portion of the East Bay Regional Park from this unit (see section

``Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)'' below).

Unit 5B: Alameda Creek; Alameda and Santa Clara Counties (18,214 ac

(7,371 ha))

This unit is located northeast of Calaveras Reservoir, south of the

town of Sunol including the area along Wauhab Ridge in Alameda County

and Oak Ridge in Santa Clara County. Alameda Creek is located at the

west margin of the unit, and the unit contains the Sunol Regional

Wilderness and Camp Ohlone Regional Park (approximately 361 ac (146

ha)) which are managed by the East Bay Regional Park. Vegetation is a

mix of blue oak-foothill pine and annual grassland with a significant

amount of woodland patches. Coastal live oak is present in the vicinity

of Lleyden Creek. Soil types in which Alameda whipsnakes are found

dominate the unit. This subunit contains six Alameda whipsnake records

documented between 1972 and 2000. Significant areas of vegetation types

know to support Alameda whipsnake are present, including coastal oak,

chamise-chaparral, mixed chaparral, blue-oak-foothill pine woodland,

blue oak woodland, valley oak woodland, and montane hardwood

interspersed with rock outcrops or talus (PCEs 1, 2, 3). The proposed

boundaries for critical habitat designation correspond to natural

breaks in plant communities, soil type, and or landform. A moderate

number of light roads are present within the unit, although there are

very few structures or other land modifications. Development pressure

within or adjacent to the unit is small, as a result the survey efforts

for the Alameda whipsnake have also not been as extensive as in the

other proposed units

ion correspond to natural

breaks in plant communities, soil type, and or landform. A moderate

number of light roads are present within the unit, although there are

very few structures or other land modifications. Development pressure

within or adjacent to the unit is small, as a result the survey efforts

for the Alameda whipsnake have also not been as extensive as in the

other proposed units. Special management, such as prescribed burns, may

be required for portions of the unit with dense vegetation. The special

management which may be required throughout this unit includes

management of grazing, trespass, unauthorized trail and road

construction, dumping, feral animal control and other activities

associated with urban or recreational interface. The unit is included

in proposed critical habitat because it contains features essential to

the conservation of the Alameda whipsnake, it is occupied, and

represents the southern most distribution of Alameda whipsnake and one

of the five population centers for the subspecies. We propose to

exclude from critical habitat a portion of the East Bay Regional Park

from this unit (see section ``Relationship of Critical Habitat to the

East Bay Regional Park--Exclusion Under Section 4(b)(2)'' below).

Unit 6: Caldecott Tunnel; Contra Costa and Alameda Counties (4,612 ac

(1,867 ha))

This proposed critical habitat unit lies between Units 1 and 2,

along the Alameda and Contra Cost County line. Land ownership within

this unit includes 272 ac (110 ha) of East Bay Regional Park lands with

the remainder of lands being privately owned. We propose to exclude

from critical habitat a portion of the East Bay Regional Park from this

unit (see section ``Relationship of Critical Habitat to the East Bay

Regional Park--Exclusion Under Section 4(b)(2)'' below).

The unit is bounded by dense urban development to the east and

west. However, the vegetation and soil types that are known to support

Alameda whipsnake are dominant throughout the unit (PCEs 1, 2, 3)

om critical habitat a portion of the East Bay Regional Park from this

unit (see section ``Relationship of Critical Habitat to the East Bay

Regional Park--Exclusion Under Section 4(b)(2)'' below).

The unit is bounded by dense urban development to the east and

west. However, the vegetation and soil types that are known to support

Alameda whipsnake are dominant throughout the unit (PCEs 1, 2, 3).

About eight Alameda whipsnake records are known from the unit between

1990 and 2002. Special management considerations may be warranted to

consolidate existing roads or limit additional road construction in

order to preserve a corridor function in this unit as a consequence of

the restricted width of the unit and the current presence of a moderate

number of roads. Prescribed burns may also be required to maintain the

habitat mosaic considered essential. The unit is included in proposed

critical habitat because it contains features essential to the

conservation of the Alameda whipsnake, it is occupied, and represents

the last remaining habitat connecting two of the five population

centers for the subspecies. Maintaining connectivity between units

allows for dispersal between units for the subspecies and allows for

genetic exchange between two of the five population centers for the

Alameda whipsnake.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the

Service, to ensure that actions they fund, authorize, or carry out are

not likely to destroy or adversely modify critical habitat. In our

regulations at 50 CFR 402.2, we define destruction or adverse

modification as ``a direct or indirect alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species

Federal agencies, including the

Service, to ensure that actions they fund, authorize, or carry out are

not likely to destroy or adversely modify critical habitat. In our

regulations at 50 CFR 402.2, we define destruction or adverse

modification as ``a direct or indirect alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species. Such alterations include, but are not

limited to: Alterations adversely modifying any of those physical or

biological features that were the basis for determining the habitat to

be critical.'' We are currently reviewing the regulatory definition of

adverse modification in relation to the conservation of the subspecies.

Section 7(a) of the Act requires Federal agencies, including the

Service, to evaluate their actions with respect to any species that is

proposed or listed as endangered or threatened and with respect to its

critical habitat, if any is proposed or designated. Regulations

implementing this interagency cooperation provision of the Act are

codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with

us on any action that is likely to jeopardize the continued existence

of a proposed species or result in destruction or adverse modification

of proposed critical habitat. Conference reports provide conservation

recommendations to assist the agency in eliminating conflicts that may

be caused by the proposed action. We may issue a formal conference

report if requested by a Federal agency. Formal conference reports on

proposed critical habitat contain an opinion that is prepared according

to 50 CFR 402.14, as if critical habitat were designated. We may adopt

tat. Conference reports provide conservation

recommendations to assist the agency in eliminating conflicts that may

be caused by the proposed action. We may issue a formal conference

report if requested by a Federal agency. Formal conference reports on

proposed critical habitat contain an opinion that is prepared according

to 50 CFR 402.14, as if critical habitat were designated. We may adopt

the formal conference report as the biological opinion when the

critical habitat is designated, if no substantial new information or

changes in the action alter the content of the opinion (see 50 CFR

402.10(d)). The conservation recommendations in a conference report are

advisory.

If a species is listed or critical habitat is designated, section

7(a)(2) requires Federal agencies to ensure that activities they

authorize, fund, or carry out are not likely to jeopardize the

continued existence of 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 (action agency)

must enter into consultation with us. Through this consultation, the

action agency ensures that their actions do not destroy or adversely

modify critical habitat.

When we issue a biological opinion concluding that a project is

likely to result in the destruction or adverse modification of critical

habitat, we also provide reasonable and prudent alternatives to the

project, if any are identifiable. ``Reasonable and prudent

alternatives'' are defined at 50 CFR 402.02 as alternative actions

identified during consultation that can be implemented in a manner

consistent with the intended purpose of the action, that are consistent

with the scope of the Federal agency's legal authority and

jurisdiction, that are economically and technologically feasible, and

that the Director believes would avoid destruction or adverse

modification of critical habitat

R 402.02 as alternative actions

identified during consultation that can be implemented in a manner

consistent with the intended purpose of the action, that are consistent

with the scope of the Federal agency's legal authority and

jurisdiction, that are economically and technologically feasible, and

that the Director believes would avoid destruction or adverse

modification of critical habitat. Reasonable and prudent alternatives

can vary from slight project modifications to extensive redesign or

relocation of the project. Costs associated with implementing a

reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate

consultation on previously reviewed actions in instances where critical

habitat is subsequently designated and the Federal agency has retained

discretionary involvement or control over the action or such

discretionary involvement or control is authorized by law.

Consequently, some Federal agencies may request reinitiation of

consultation or conference with us on actions for which formal

consultation has been completed, if those actions may affect designated

critical habitat or adversely modify or destroy proposed critical

habitat.

Federal activities that may affect Alameda whipsnakes or their

critical habitat will require section 7 consultation. Activities on

private or State lands requiring a permit from a Federal agency, such

as a permit from the U.S. Army Corps of Engineers under section 404 of

the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or

some other Federal action, including funding (e.g., Federal Highway

Administration or Federal Emergency Management Agency funding), will

also continue to be subject to the section 7 consultation process.

Federal actions not affecting listed species or critical habitat and

actions on non-Federal and private lands that are not federally funded,

authorized, or permitted do not require section 7 consultation

ederal action, including funding (e.g., Federal Highway

Administration or Federal Emergency Management Agency funding), will

also continue to be subject to the section 7 consultation process.

Federal actions not affecting listed species or critical habitat and

actions on non-Federal and private lands that are not federally funded,

authorized, or permitted do not require section 7 consultation.

Each of the specific areas designated in this rule as critical

habitat for the Alameda whipsnake have been determined to contain

sufficient PCEs to provide for one or more of the life history

functions for the whipsnake. In some cases, the PCEs exist as a result

of ongoing Federal actions. As a result, ongoing Federal actions at the

time of designation will be included in the baseline in any

consultation pursuant to section 7 of the Act conducted subsequent to

this designation.

Section 4(b)(8) of the Act requires us to briefly evaluate and

describe in any proposed or final regulation that designates critical

habitat those activities involving a Federal action that may destroy or

adversely modify such habitat, or that may be affected by such

designation. Activities that may destroy or adversely modify critical

habitat may also jeopardize the continued existence of the Alameda

whipsnake. Federal activities that, when carried out, may adversely

affect critical habitat for the Alameda whipsnake include, but are not

limited to:

(1) Actions that would result in altered or degraded chaparral

scrub or oak woodland communities. Such activities could include, but

are not limited to, urban development, unmanaged fire suppression

activities, and livestock overgrazing. These activities could eliminate

or reduce the habitat essential for reproduction, growth, or shelter of

Alameda whipsnake.

nclude, but are not

limited to:

(1) Actions that would result in altered or degraded chaparral

scrub or oak woodland communities. Such activities could include, but

are not limited to, urban development, unmanaged fire suppression

activities, and livestock overgrazing. These activities could eliminate

or reduce the habitat essential for reproduction, growth, or shelter of

Alameda whipsnake.

(2) Actions that would result in complete loss of habitat or

impediments to migration by development of partial or complete barriers

through habitat areas. These activities are most often funded or

permitted by the Federal Highway Administration or the State highway

system, or involve licensing of construction for communication sites by

the Federal Communications Commission. Such activities could include,

but are not limited to, new road construction, right-of-way

designation, routine maintenance and operation of existing roads, or

installation of new radio equipment and facilities. These activities

could eliminate foraging, resting, or denning habitat, as well as

reduce movement corridors essential for reproduction, sheltering, or

growth of Alameda whipsnake. Such activities could also lead to

increased road kill incidences for the subspecies.

(3) Actions that result in a discharge of dredged or fill material

into waters of the United States by the Army Corps under section 404 of

the Clean Water Act. Such activities could include, but are not limited

to, placement of fill into wetlands or channelization of stream

corridors. These activities could eliminate or reduce the habitat

essential for the reproduction, feeding, or growth of Alameda

whipsnake.

All six proposed critical habitat units are occupied by the

subspecies at the time of listing due to documented records of Alameda

whipsnakes in those units

ould include, but are not limited

to, placement of fill into wetlands or channelization of stream

corridors. These activities could eliminate or reduce the habitat

essential for the reproduction, feeding, or growth of Alameda

whipsnake.

All six proposed critical habitat units are occupied by the

subspecies at the time of listing due to documented records of Alameda

whipsnakes in those units. All lands proposed for critical habitat

designation are within the historical geographical area occupied by the

subspecies, and are likely to be used by the Alameda whipsnake whether

for foraging, breeding, growth of juveniles, dispersal, migration,

genetic exchange, or sheltering. We consider all units included in this

proposed designation to include features essential to the conservation

of the Alameda whipsnake.

Application of Sections 3(5)(A) and 4(a)(3) and Exclusions Under

Section 4(b)(2) of the Act

We are not proposing to exempt any lands from critical habitat

pursuant to section 4(a)(3) of the Act.

Section 4(b)(2) of the Act states that critical habitat shall be

designated, and revised, on the basis of the best available scientific

data after taking into consideration the economic impact, national

security impact, and any other relevant impact of specifying any

particular area as critical habitat. An area may be excluded from

critical habitat if it is determined that the benefits of exclusion

outweigh the benefits of specifying a particular area as critical

habitat, unless the failure to designate such area as critical habitat

will result in the extinction of the species.

In our critical habitat designations, we use both the provisions

outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those

specific areas that we consider proposing to designate as critical

habitat. Lands we have found that do not meet the definition of

critical habitat under section 3(5)(A) or have excluded pursuant to

section

bitat

will result in the extinction of the species.

In our critical habitat designations, we use both the provisions

outlined in sections 3(5)(A) and 4(b)(2) of the Act to evaluate those

specific areas that we consider proposing to designate as critical

habitat. Lands we have found that do not meet the definition of

critical habitat under section 3(5)(A) or have excluded pursuant to

section

4(b)(2) include those covered by the following types of plans if they

provide assurances that the conservation measures they outline will be

implemented and effective: (1) Endangered Species Management Plans

prepared by the DOD (where a 4(a)(3) exemption is not possible due to a

unsigned Integrated Natural Resource Management Plan (INRMP)); (2)

legally operative HCPs that cover the subspecies and provide assurances

that the conservation measures for the subspecies will be implemented

and effective; (3) draft HCPs that cover the subspecies, have undergone

public review and comment, and provide assurances that the conservation

measures for the subspecies will be implemented and effective (i.e.,

pending HCPs); (4) Tribal conservation plans/programs that cover the

subspecies and provide assurances that the conservation measures for

the subspecies will be implemented and effective; (5) State

conservation plans/programs that provide assurances that the

conservation measures for the subspecies will be implemented and

effective; (6) National Wildlife Refuges with Comprehensive

Conservation Plans (CCPs) or programs that provide assurances that the

conservation measures for the subspecies will be implemented and

effective; and (7) Partnerships, conservation plans/easements, or other

type of formalized relationship/agreement on private lands where a

conservation plan or program provide assurances that the conservation

measures for the subspecies will be implemented and effective.

Relationship of Critical Habitat to Habitat Conservation Plan Lands--

Exclusions Under Section 4(b)(2) of the Act

ented and

effective; and (7) Partnerships, conservation plans/easements, or other

type of formalized relationship/agreement on private lands where a

conservation plan or program provide assurances that the conservation

measures for the subspecies will be implemented and effective.

Relationship of Critical Habitat to Habitat Conservation Plan Lands--

Exclusions Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires us to consider other relevant

impacts, in addition to economic impacts, when designating critical

habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits

for the take of listed wildlife species incidental to otherwise lawful

activities. Development of an HCP is a prerequisite for the issuance of

an incidental take permit pursuant to section 10(a)(1)(B) of the Act.

An incidental take permit application must be supported by an HCP that

identifies conservation measures that the permittee agrees to implement

for the species to minimize and mitigate the impacts of the permitted

incidental take. HCPs vary in size and may provide for incidental take

coverage and conservation management for one or many Federally-listed

species. Additionally, more than one applicant may participate in the

development and implementation of an HCP. Large regional HCPs expand

upon the basic requirements set forth in section 10(a)(1)(B) of the Act

because they reflect a voluntary, cooperative approach to large-scale

habitat and species conservation planning. Many of the large regional

HCPs in southern California have been, or are being, developed to

provide for the conservation of numerous Federally-listed species and

unlisted sensitive species and the habitat that provides for their

biological needs. These HCPs are designed to proactively implement

conservation actions to address future projects that are anticipated to

occur within the planning area of the HCP

e regional

HCPs in southern California have been, or are being, developed to

provide for the conservation of numerous Federally-listed species and

unlisted sensitive species and the habitat that provides for their

biological needs. These HCPs are designed to proactively implement

conservation actions to address future projects that are anticipated to

occur within the planning area of the HCP. However, given the broad

scope of these regional HCPs, not all projects envisioned to

potentially occur may actually take place. The State of California also

has a NCCP process that is very similar to the Federal HCP process and

is often completed in conjunction with the HCP process. We recognize

that many of the projects with HCPs also have State-issued NCCPs. In

the case of approved regional HCPs and accompanying Implementing

Agreements (IAs) (e.g., those sponsored by cities, counties, or other

local jurisdictions) that provide for incidental take coverage, a

primary goal of these regional plans is to provide for the protection

and management of habitat essential for species conservation, while

directing development to other areas. We are considering excluding

lands within the Draft East Contra Costa County HCP from the

designation of critical habitat for the Alameda whipsnake pursuant to

section 4(b)(2) of the Act. This draft HCP includes lands within a

portion of proposed critical habitat Unit 4. We believe the benefits of

excluding lands within this draft HCP from the final critical habitat

designation outweigh the benefits of including them and seeking public

comment on this proposed exclusion. The following represents our

rationale for excluding this area.

Draft East Contra Costa County Habitat Conservation Plan (ECCHCP)

lands within a

portion of proposed critical habitat Unit 4. We believe the benefits of

excluding lands within this draft HCP from the final critical habitat

designation outweigh the benefits of including them and seeking public

comment on this proposed exclusion. The following represents our

rationale for excluding this area.

Draft East Contra Costa County Habitat Conservation Plan (ECCHCP)

The draft ECCHCP is currently under review and open for public

comment until December 1, 2005. The document is available at the

following Web site: http://www.cocohcp.org. The document will also be

available for public inspection, by appointment, during normal business

hours at the Sacramento Fish and Wildlife Office [see ADDRESSES].

We expect a finalized plan before the end of 2006. Participants in

the draft ECCHCP include the County of Contra Costa; the cities of

Brentwood, Clayton, Oakley, and Pittsburg, California; the Contra Costa

Water District; and the East Bay Regional Park District. The draft

ECCHCP encompasses the eastern portion of Contra Costa County from

approximately west of Concord to Sand Mound Slough and Clifton Court

Forebay on the east. The draft ECCHCP is also a subregional plan under

the State's Natural Community Conservation Planning (NCCP) process and

was developed in cooperation with the California Department of Fish and

Game. The draft ECCHCP identifies the Alameda whipsnake as a covered

species and has identified areas where growth and development are

expected to occur, as well as several conservation measures, including:

raft ECCHCP is also a subregional plan under

the State's Natural Community Conservation Planning (NCCP) process and

was developed in cooperation with the California Department of Fish and

Game. The draft ECCHCP identifies the Alameda whipsnake as a covered

species and has identified areas where growth and development are

expected to occur, as well as several conservation measures, including:

(1) Preserving between 12,254 to 13,983 ac (4,959 to 5,659 ha) of

Alameda whipsnake habitat; (2) preserving major habitat connections

linking existing public lands; (3) incorporating a range of habitat and

population management and enhancement measures including monitoring,

prescribed burning, and recreational use controls; (4) fully mitigating

the impacts to covered species; (5) maintaining ecosystem processes;

and (6) contributing to the recovery of covered species. When the

conservation measures are implemented they will benefit Alameda

whipsnake conservation by preserving and restoring existing core area

and upland movement habitat for the species. We expect that the draft

ECCHCP will provide substantial protection for all three of the primary

constituent elements for the Alameda whipsnake, and that protected

lands will receive the special management they require through funding

mechanisms that will be implemented under the ECCHCP.

(1) Benefits of Inclusion

The primary benefit to designation of critical habitat is the

requirement that Federal agencies consult with the Service under

section 7 of the Act to ensure that their actions are not likely to

result in the destruction or adverse modification of critical habitat.

If critical habitat were designated in these areas, primary constituent

elements in these areas would be protected from destruction or adverse

modification by Federal actions using a conservation standard based on

the Ninth Circuit's decision in Gifford Pinchot

on 7 of the Act to ensure that their actions are not likely to

result in the destruction or adverse modification of critical habitat.

If critical habitat were designated in these areas, primary constituent

elements in these areas would be protected from destruction or adverse

modification by Federal actions using a conservation standard based on

the Ninth Circuit's decision in Gifford Pinchot. This requirement would

be in addition to the requirement that proposed Federal actions would

not be likely to jeopardize the species' continued

existence. However, inasmuch as these areas are currently occupied by

the species, consultation for activities that might adversely impact

the species, including habitat modification (see definition of ``harm''

at 50 CFR 17.3), would be required even without the critical habitat

designation. Because habitat modification is considered under the

jeopardy analysis, we believe the benefits of habitat protection from

critical habitat is now small to moderate.

As discussed above, we expect the ECCHCP to provide substantial

protection of the PCEs and protection of essential features for the

Alameda whipsnake on ECCHCP conservation lands. We expect the ECCHCP to

provide a greater level of management for the Alameda whipsnake on

private lands than would designation of critical habitat on private

lands. As a result, we do not anticipate any action on these lands

would destroy or adversely modify the areas proposed as critical

habitat. Therefore, we do not expect that including those areas in the

final designation will lead to any changes to actions on the

conservation lands to avoid destroying or adversely modifying that

habitat. Therefore in this case, because of the ECCHCP protections,

there is little to no additional protection from critical habitat, and

thus the benefits of inclusion are small.

A benefit of including an area in a critical habitat designation is

the education of landowners and the public regarding the potential

conservation value of the area

to avoid destroying or adversely modifying that

habitat. Therefore in this case, because of the ECCHCP protections,

there is little to no additional protection from critical habitat, and

thus the benefits of inclusion are small.

A benefit of including an area in a critical habitat designation is

the education of landowners and the public regarding the potential

conservation value of the area. The inclusion of an area as critical

habitat may focus and contribute to conservation efforts by other

parties by clearly delineating areas of high conservation values for

certain species. However, we believe that this conservation benefit has

largely been achieved for the Alameda whipsnake through the hearings

and workshops that have been held in the East Bay area associated with

the listing of the species and previous critical habitat designation.

In addition, the HCP itself undergoes public review and comment,

providing another layer of educational benefit as the importance of

this area for conservation of the species. Therefore the benefits of

inclusion for educational purposes are extremely small.

(2) Benefits of Exclusion

The benefits of excluding lands within HCPs from critical habitat

designation include relieving landowners, communities, and counties of

any additional regulatory burden that might be imposed by a critical

habitat designation. Many HCPs, particularly large regional HCPs such

as the ECCHCP, take many years to develop and, upon completion, become

regional conservation plans that are consistent with the recovery

objectives for listed species that are covered within the plan area. In

fact, designating critical habitat in areas covered by a pending HCP

could result in the loss of species' benefits if participants abandon

the voluntary HCP process, in part because of the burden of the

perceived additional regulatory compliance that such designation would

entail

ans that are consistent with the recovery

objectives for listed species that are covered within the plan area. In

fact, designating critical habitat in areas covered by a pending HCP

could result in the loss of species' benefits if participants abandon

the voluntary HCP process, in part because of the burden of the

perceived additional regulatory compliance that such designation would

entail. The time and cost of regulatory compliance for a critical

habitat designation do not have to be quantified for them to be

perceived as additional Federal regulatory burden sufficient to

discourage continued voluntary participation in plans targeting listed

species conservation.

The conservation benefits of critical habitat are primarily

regulatory or prohibitive in nature. Where consistent with the

discretion provided by the Act, the Service believes it is necessary to

implement policies that provide positive incentives to private

landowners to voluntarily conserve natural resources and that remove or

reduce disincentives to conservation (Wilcove et al. 1996). Thus, we

believe it is essential for the recovery of the Alameda whipsnake to

build on continued conservation activities such as the ECCHCP, and to

provide positive incentives for other local government or private

landowners who might be considering implementing voluntary conservation

activities but have concerns about incurring incidental regulatory or

economic impacts.

Furthermore, an HCP or NCCP/HCP application must itself be

consulted upon. Such a consultation would review the effects of all

activities covered by the HCP that might adversely impact the species,

including possibly significant habitat modification (see definition of

``harm'' at 50 CFR 17.3), even without the critical habitat

designation

incurring incidental regulatory or

economic impacts.

Furthermore, an HCP or NCCP/HCP application must itself be

consulted upon. Such a consultation would review the effects of all

activities covered by the HCP that might adversely impact the species,

including possibly significant habitat modification (see definition of

``harm'' at 50 CFR 17.3), even without the critical habitat

designation. In addition, Federal actions not covered by the HCP in

areas occupied by listed species would still require consultation under

section 7 of the Act and would be reviewed for possibly significant

habitat modification in accordance with the definition of harm

referenced above. This standard also would apply to all consultation

conducted in the interim period prior to finalization of the ECCHCP,

whether or not incidental take exemption is provided under section 7 or

section 10 of the Act. Therefore, we consider the benefits of exclusion

to be moderate.

(3) Benefits of Exclusion Outweigh the Benefits of Inclusion

We have reviewed and evaluated the conservation measures identified

for the Alameda whipsnake identified in the ECCHCP. Based on this

evaluation, we currently find that the benefits of exclusion of the

lands containing features essential to the conservation of the Alameda

whipsnake in the planning area for the draft ECCHCP outweigh the

benefits of including those portions of the draft ECCHCP area within

Unit 4 as critical habitat. Our final determination will be made after

we receive public comment on this proposed critical habitat

designation.

The exclusion of these lands from critical habitat would help

preserve the partnerships that we have developed with the local

jurisdiction and project proponent in the development of the ECCHCP

including those portions of the draft ECCHCP area within

Unit 4 as critical habitat. Our final determination will be made after

we receive public comment on this proposed critical habitat

designation.

The exclusion of these lands from critical habitat would help

preserve the partnerships that we have developed with the local

jurisdiction and project proponent in the development of the ECCHCP.

The educational benefits of critical habitat, including informing the

public of areas that are essential for the long term conservation of

the species, are still accomplished from material provided on our

website and through public notice and comment procedures required to

establish the ECCHCP. The public also has been informed through the

public participation that occurs during the development of this

regional HCP. For these reasons, we believe that designating critical

habitat has little benefit in areas covered by the draft ECCHCP.

(4) Exclusion Will Not Result in Extinction of the Species

We believe that exclusion of these lands, which are considered

occupied habitat, will not result in the extinction of the Alameda

whipsnake. Actions that might adversely affect the subspecies are

expected to have a Federal nexus, and would thus undergo a consultation

with the Service under section 7 of the Act. The jeopardy standard of

section 7 of the Act, and routine implementation of habitat

preservation through the section 7 process, as discussed in the

economic analysis, provide assurance that the subspecies will not go

extinct. In addition, the subspecies is protected from take

prohibitions in section 9 of the Act. The exclusion leaves these

protections unchanged from those that would exist if the excluded areas

were designated as critical habitat

ne implementation of habitat

preservation through the section 7 process, as discussed in the

economic analysis, provide assurance that the subspecies will not go

extinct. In addition, the subspecies is protected from take

prohibitions in section 9 of the Act. The exclusion leaves these

protections unchanged from those that would exist if the excluded areas

were designated as critical habitat.

Critical habitat is being proposed for designation for the Alameda

whipsnake in other areas that will be accorded the protection from

adverse modification by Federal actions using the conservation standard

based on the Ninth Circuit decision in Gifford Pinchot. Additionally,

the species occurs on

lands protected and managed either explicitly for the species, or

indirectly through more general objectives to protect natural values;

this factor acts in concert with the other protections provided under

the Act for these lands absent designation of critical habitat on them,

and acts in concert with protections afforded each species by the

remaining critical habitat designation for the species, which leads us

to find that exclusion of these lands will not result in extinction of

the Alameda whipsnake. We do not believe that this exclusion would

result in the extinction of the subspecies because the draft ECCHCP

seeks to: (1) Preserve between 12,254 to 13,983 ac (4,959 to 5,659 ha)

of Alameda whipsnake habitat; (2) preserve major habitat connections

linking existing public lands; (3) incorporate a range of habitat and

population management and enhancement measures including monitoring,

prescribed burning, and recreational use controls; (4) fully mitigate

the impacts to covered species; (5) maintain ecosystem processes; and

etween 12,254 to 13,983 ac (4,959 to 5,659 ha)

of Alameda whipsnake habitat; (2) preserve major habitat connections

linking existing public lands; (3) incorporate a range of habitat and

population management and enhancement measures including monitoring,

prescribed burning, and recreational use controls; (4) fully mitigate

the impacts to covered species; (5) maintain ecosystem processes; and

(6) contribute to the recovery of covered species.

Relationship of Critical Habitat to the East Bay Regional Park--

Exclusion Under Section 4(b)(2)

The East Bay Regional Park District (EBRPD) manages 65 regional

parks, recreation areas, wilderness, shorelines, preserves, and land

bank areas covering over 95,000 ac (34,446 ha) in Alameda and Contra

Costa counties. The EBRPD Board of Directors adopted the EBRPD Plan on

December 17, 1996, under Resolution Number 1996-12-349. The EBRPD Plan

provides for monitoring and conservation of rare, threatened, and

endangered species, including the Alameda whipsnake. Species

conservation efforts take precedence over other park activities if

EBRPD activities are determined to have a significant adverse effect on

rare, threatened, or endangered species (EBRPD 1997).

We are proposing to exclude lands within the administrative

boundaries for EBRPD from the designation of critical habitat for the

Alameda whipsnake pursuant to section 4(b)(2) of the Act. A total of

approximately 17,440 ac (7,057 ha) is being considered for exclusion.

EBRPD activities are determined to have a significant adverse effect on

rare, threatened, or endangered species (EBRPD 1997).

We are proposing to exclude lands within the administrative

boundaries for EBRPD from the designation of critical habitat for the

Alameda whipsnake pursuant to section 4(b)(2) of the Act. A total of

approximately 17,440 ac (7,057 ha) is being considered for exclusion.

(1) Benefits of Inclusion

As stated previously, the benefits of designating critical habitat

on lands within the boundaries of approved management plans are small.

The EBRPD Plan provides for priority management and conservation of

threatened and endangered species where park activities conflict with

threatened and endangered species management. The EBRPD Plan provides a

mechanism to accomplish these goals for the Alameda whipsnake through

the implementation of specific conservation objectives outlined above.

The principal benefit of designating critical habitat is that federally

authorized or funded activities that may affect a species' critical

habitat would require consultation with us under section 7 of the Act.

In the case of the EBRPD Plan, consultation must be initiated for any

activity involving the Alameda whipsnake to evaluate the impact of the

activity on the species for which the participants are seeking

incidental take permits, pursuant to section 7 of the Act. The EBRPD

currently holds a Service recovery permit, pursuant to section

10(a)(1)(A) of the Act. As with HCPs, the benefits of designating

critical habitat on lands within the boundaries of areas properly

managed for threatened and endangered species are small.

act of the

activity on the species for which the participants are seeking

incidental take permits, pursuant to section 7 of the Act. The EBRPD

currently holds a Service recovery permit, pursuant to section

10(a)(1)(A) of the Act. As with HCPs, the benefits of designating

critical habitat on lands within the boundaries of areas properly

managed for threatened and endangered species are small.

(2) Benefits of Exclusion

The benefits of excluding lands within approved management plans

from critical habitat designation include relieving landowners,

communities, and counties of any additional regulatory burden that

might be imposed by critical habitat. Many conservation plans like the

EBRPD Plan provide conservation benefits to unlisted sensitive species.

Imposing an additional regulatory review as a result of the designation

of critical habitat may undermine conservation efforts and partnerships

in many areas. In fact, it could result in the loss of species'

benefits if participants abandon any voluntary HCP process in which

they may be involved. The EBRPD is participating in the ECCHCP, and

part of the strategy of the HCP is to link with lands such as those

managed by the EBRPD for the conservation of the Alameda whipsnake. The

loss of these connecting linkages as a part of the ECCHCP would reduce

the conservation benefit for the Alameda whipsnake. Designation of

critical habitat within the boundaries of management plans which

provide conservation for a species could be viewed as a disincentive to

those entities currently developing these plans or contemplating them

in the future, because one of the incentives for undertaking

conservation is greater ease of permitting where listed species are

affected. Addition of a new regulatory requirement would remove a

significant incentive for undertaking the time and expense of

management planning

a species could be viewed as a disincentive to

those entities currently developing these plans or contemplating them

in the future, because one of the incentives for undertaking

conservation is greater ease of permitting where listed species are

affected. Addition of a new regulatory requirement would remove a

significant incentive for undertaking the time and expense of

management planning.

A related benefit of excluding lands within management plans from

critical habitat designation is the unhindered, continued ability to

seek new partnerships with future plan participants including States,

counties, local jurisdictions, conservation organizations, and private

landowners, which together can implement conservation actions that we

would be unable to accomplish otherwise. If lands within approved

management plan areas are designated as critical habitat, it would

likely have a negative effect on our ability to establish new

partnerships to develop these plans, particularly plans that address

landscape-level conservation of species and habitats. By preemptively

excluding these lands, we preserve our current partnerships and

encourage additional conservation actions in the future.

An applicant and any agency carrying out a Federally funded

activity that may adversely affect Alameda whipsnake must enter into

consultation with the Service under section 7 of the Act. While these

consultations will not look specifically at the issue of adverse

modification to critical habitat, unless critical habitat has already

been designated within the proposed plan area, it will determine if the

actions jeopardize the species in the plan area. The jeopardy analysis

is similar to the analysis of adverse modification to critical habitat.

Additionally, Federal actions not covered by an HCP or approved

management plan in areas occupied by listed species would still require

consultation under section 7 of the Act

ady

been designated within the proposed plan area, it will determine if the

actions jeopardize the species in the plan area. The jeopardy analysis

is similar to the analysis of adverse modification to critical habitat.

Additionally, Federal actions not covered by an HCP or approved

management plan in areas occupied by listed species would still require

consultation under section 7 of the Act. Plans such as the EBRPD Plan

typically provide greater conservation benefits to the covered species

than section 7 consultations because they: (1) Assure the long-term

protection and management of a covered species and its habitat; (2)

include the development of biological information to guide conservation

efforts and assist in species conservation; and (3) create innovative

solutions to conserve species while still allowing public use of the

area.

Maps delineating essential habitat for the Alameda whipsnake,

overlaid with the boundary area for the EBRPD, are available for public

review and comment at the Sacramento Fish and Wildlife Office (see

ADDRESSES). These maps are provided to allow the public the opportunity

to adequately comment on these potential exclusions.

(3) Benefits of Exclusion Outweigh the Benefits of Inclusion

We have reviewed and evaluated the conservation measures identified

for the Alameda whipsnake identified in the EBRPD. Based on this

evaluation, we

currently find that the benefits of exclusion of the lands essential to

the conservation of the Alameda whipsnake within the boundaries of the

EBRPD land outweigh the benefits of including those portions of land as

critical habitat. Our final determination will be made after we receive

public comment on this proposed critical habitat designation.

The exclusion of these lands from critical habitat would help

preserve the partnerships that we have developed with the local

jurisdiction

he Alameda whipsnake within the boundaries of the

EBRPD land outweigh the benefits of including those portions of land as

critical habitat. Our final determination will be made after we receive

public comment on this proposed critical habitat designation.

The exclusion of these lands from critical habitat would help

preserve the partnerships that we have developed with the local

jurisdiction. The educational benefits of critical habitat, including

informing the public of areas that are essential for the long term

conservation of the species, are still accomplished from material

provided on our website and through public notice and required comment

procedures. The public also has been informed through the public

participation that occurs during the development of this proposed

designation and previous listing and critical habitat actions for the

subspecies. For these reasons, we believe that designating critical

habitat has little benefit in areas managed by the EBRPD.

(4) Exclusion Will Not Result in Extinction of the Species

We believe that exclusion of these lands, which are considered

occupied habitat, would not result in the extinction of the Alameda

whipsnake. Actions which might adversely affect the subspecies are

expected to have a Federal nexus, and would thus undergo a consultation

with the Service under section 7 of the Act. The jeopardy standard of

section 7 of the Act, and routine implementation of habitat

preservation through the section 7 process, provide assurance that the

subspecies will not go extinct. In addition, the subspecies is

protected from the take prohibitions under section 9 of the Act. The

exclusion leaves these protections unchanged from those that would

exist if the excluded areas were designated as critical habitat

section 7 of the Act, and routine implementation of habitat

preservation through the section 7 process, provide assurance that the

subspecies will not go extinct. In addition, the subspecies is

protected from the take prohibitions under section 9 of the Act. The

exclusion leaves these protections unchanged from those that would

exist if the excluded areas were designated as critical habitat.

Critical habitat is being proposed for designation for the Alameda

whipsnake in other areas that will be accorded the protection from

adverse modification by Federal actions using the conservation standard

based on the Ninth Circuit decision in Gifford Pinchot. Additionally,

the subspecies occurs on lands protected and managed either explicitly

for the subspecies, or indirectly through more general objectives to

protect natural values; this factor acts in concert with the other

protections provided under the Act for these lands absent designation

of critical habitat on them, and acts in concert with protections

afforded the subspecies by the remaining critical habitat designation

for the subspecies, which leads us to find that exclusion of these

lands will not result in extinction of the Alameda whipsnake. We do not

believe that this exclusion would result in the extinction of the

subspecies because the subspecies is found in other areas and the EBRPD

Plan provides for monitoring and conservation of rare, threatened, and

endangered species, including the Alameda whipsnake. Species

conservation efforts take precedence over other park activities if

EBRPD activities are determined to have a significant adverse effect on

rare, threatened, or endangered species (EBRPD 1997).

Relationship of Critical Habitat to the State Park Lands--Exclusion

Under Section 4(b)(2)

nitoring and conservation of rare, threatened, and

endangered species, including the Alameda whipsnake. Species

conservation efforts take precedence over other park activities if

EBRPD activities are determined to have a significant adverse effect on

rare, threatened, or endangered species (EBRPD 1997).

Relationship of Critical Habitat to the State Park Lands--Exclusion

Under Section 4(b)(2)

Mount Diablo State Park

Approximately 97 percent of the lands within the boundary of Mount

Diablo State Park are currently being proposed as critical habitat. The

total amount of State-owned lands proposed for critical habitat within

Mount Diablo State Park is approximately 13,874 ac (5,615 ha).

Currently, we know of no specific management plan or conservation

activities for the Alameda whipsnake within Mount Diablo State Park.

However, the lands within the park are publicly owned, and the natural

resources within the park are managed in a way to preserve the

ecological diversity of the area. The designation of critical habitat

would not have any appreciable effect on the development or

implementation of public education programs because these lands already

are publicly owned, and critical habitat designation provides little

gain in the way of increased recognition for special habitat values on

lands publicly protected and managed lands. Exclusion of these lands

would not increase the likelihood that management activities would be

proposed that would appreciably diminish the value of the habitat for

conservation of the Alameda whipsnake.

We are, however, not currently proposing to exclude from the

designation the State Park lands at Mount Diablo State Park. Should

information become available during the public comment period on this

proposed rule that would support an exclusion of these State lands, we

will conduct an analysis of such information and make our determination

of the appropriateness of such an exclusion in our final designation.

not currently proposing to exclude from the

designation the State Park lands at Mount Diablo State Park. Should

information become available during the public comment period on this

proposed rule that would support an exclusion of these State lands, we

will conduct an analysis of such information and make our determination

of the appropriateness of such an exclusion in our final designation.

Relationship of Critical Habitat to Department of Energy Lands--

Exclusion Under Section 4(b)(2)

Approximately 2,492 ac (1,009 ha) of proposed critical habitat for

the Alameda whipsnake within Unit 5A are owned by the Department of

Energy. The lands are located in eastern Alameda and western San

Joaquin counties. The Department of Energy has used these lands within

the past as a testing facility. Currently, we know of no specific

management plan or conservation activities for the Alameda whipsnake on

these lands. However, the lands are publicly owned and currently

protected from development. Any activities that may take place which

may affect the Alameda whipsnake or its habitat would be subject to

consultation under section 7 of the Act.

We are, however, not currently proposing to exclude from critical

habitat designation the Department of Energy lands in eastern Alameda

and western San Joaquin counties. Should information become available

during the public comment period on the proposed rule that would

support an exclusion of the Department of Energy lands, we will conduct

an analysis of such information and make our determination of the

appropriateness of such an exclusion in our final designation.

Economic Analysis

tment of Energy lands in eastern Alameda

and western San Joaquin counties. Should information become available

during the public comment period on the proposed rule that would

support an exclusion of the Department of Energy lands, we will conduct

an analysis of such information and make our determination of the

appropriateness of such an exclusion in our final designation.

Economic Analysis

An analysis of the economic impacts of proposing critical habitat

for the Alameda whipsnake is being prepared. We will announce the

availability of the draft economic analysis as soon as it is completed,

at which time we will seek public review and comment on the analysis.

At that time, copies of the draft economic analysis will be available

for downloading from the Internet at http://www.fws.gov/pacific/sacramento, or by contacting the Sacramento Fish and Wildlife Office

directly (see ADDRESSES).

After reviewing the economic analysis, the public comment on it,

and the public comment on this proposal, we may exclude additional

areas under section 4(b)(2) based on economic or other relevant impact.

Our regulations expressly contemplate that these decisions would occur

after the comment period (50 CFR 424.19), and do not require advance

public notice of intent to make specific exclusions. While we are

seeking public comment on those possible exclusions of which we are now

aware, we also want to insure that the public is aware that the

economic analysis and all public comments may lead us to exclude other

areas.

Peer Review

that these decisions would occur

after the comment period (50 CFR 424.19), and do not require advance

public notice of intent to make specific exclusions. While we are

seeking public comment on those possible exclusions of which we are now

aware, we also want to insure that the public is aware that the

economic analysis and all public comments may lead us to exclude other

areas.

Peer Review

In accordance with our joint policy published in the Federal

Register on July 1, 1994 (59 FR 34270), we will seek the expert

opinions of at least three appropriate and independent specialists

regarding this proposed rule. The purpose of such review is to ensure

that our critical habitat designation is based on scientifically sound

data, assumptions, and analyses. We will send these peer reviewers a

copy of this proposed rule immediately following publication in the

Federal Register. We will invite these peer reviewers to comment,

during the public comment period, on the specific assumptions and

conclusions regarding the proposed designation of critical habitat.

We will consider all comments and information received during

public comment periods on this proposed rule during preparation of a

final rulemaking. Accordingly, the final decision may differ from this

proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,

if requested. Requests for public hearings must be made in writing at

least 15 days prior to the close of the public comment period (see

DATES). We will schedule public hearings on this proposal, if any are

requested, and announce the dates, times, and places of those hearings

in the Federal Register and local newspapers at least 15 days prior to

the first hearing.

Clarity of the Rule

osal,

if requested. Requests for public hearings must be made in writing at

least 15 days prior to the close of the public comment period (see

DATES). We will schedule public hearings on this proposal, if any are

requested, and announce the dates, times, and places of those hearings

in the Federal Register and local newspapers at least 15 days prior to

the first hearing.

Clarity of the Rule

Executive Order 12866 requires each agency to write regulations and

notices that are easy to understand. We invite your comments on how to

make this proposed rule easier to understand, including answers to

questions such as the following: (1) Are the requirements in the

proposed rule clearly stated? (2) Does the proposed rule contain

technical jargon that interferes with the clarity? (3) Does the format

of the proposed rule (groupings and order of the sections, use of

headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is

the description of the notice in the SUPPLEMENTARY INFORMATION section

of the preamble helpful in understanding the proposed rule? What else

could we do to make this proposed rule easier to understand?

Send a copy of any comments on how we could make this proposed rule

easier to understand to: Office of Regulatory Affairs, Department of

the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You

may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

hat else

could we do to make this proposed rule easier to understand?

Send a copy of any comments on how we could make this proposed rule

easier to understand to: Office of Regulatory Affairs, Department of

the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You

may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a

significant rule in that it may raise novel legal and policy issues,

but it is not anticipated to have an annual effect on the economy of

$100 million or more or affect the economy in a material way. Due to

the tight timeline for publication in the Federal Register, the Office

of Management and Budget (OMB) has not formally reviewed this rule. We

are preparing a draft economic analysis of this proposed action, which

will be available for public comment, to determine the economic

consequences of designating the specific area as critical habitat. This

economic analysis also will be used to determine compliance with

Executive Order 12866, Regulatory Flexibility Act, Small Business

Regulatory Enforcement Fairness Act, and Executive Order 12630.

Further, Executive Order 12866 directs Federal Agencies

promulgating regulations to evaluate regulatory alternatives (Office of

Management and Budget, Circular A-4, September 17, 2003). Pursuant to

Circular A-4, once it has been determined that the Federal regulatory

action is appropriate, then the agency will need to consider

alternative regulatory approaches. Since the determination of critical

habitat is a statutory requirement pursuant to the Endangered Species

Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then

evaluate alternative regulatory approaches, where feasible, when

promulgating a designation of critical habitat

regulatory

action is appropriate, then the agency will need to consider

alternative regulatory approaches. Since the determination of critical

habitat is a statutory requirement pursuant to the Endangered Species

Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then

evaluate alternative regulatory approaches, where feasible, when

promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider

economic impacts, impacts to national security, and other relevant

impacts pursuant to section 4(b)(2) of the Act. Based on the discretion

allowable under this provision, we may exclude any particular area from

the designation of critical habitat providing that the benefits of such

exclusion outweigh the benefits of specifying the area as critical

habitat and that such exclusion would not result in the extinction of

the species. As such, we believe that the evaluation of the inclusion

or exclusion of particular areas, or a combination thereof, in a

designation constitutes our regulatory alternative analysis.

Within these areas, the types of Federal actions or authorized

activities that we have identified as potential concerns are listed

above in the section on Section 7 Consultation. The availability of the

draft economic analysis will be announced in the Federal Register and

in local newspapers so that it is available for public review and

comment. When completed, the draft economic analysis can be obtained

from the Internet website at http://www.fws.gov/pacific/sacramento/ or

by contacting the Sacramento Fish and Wildlife Office directly (see

ADDRESSES).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

mic analysis will be announced in the Federal Register and

in local newspapers so that it is available for public review and

comment. When completed, the draft economic analysis can be obtained

from the Internet website at http://www.fws.gov/pacific/sacramento/ or

by contacting the Sacramento Fish and Wildlife Office directly (see

ADDRESSES).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Our assessment of economic effect will be completed prior to any

final rulemaking based upon review of the draft economic analysis

prepared pursuant to section 4(b)(2) of the Act and E.O. 12866. This

analysis is for the purposes of compliance with the Regulatory

Flexibility Act and does not reflect our position on the type of

economic analysis required by New Mexico Cattle Growers Assn. v. U.S.

Fish & Wildlife Service 248 F.3d 1277 (10th Cir. 2001).

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as

amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996), whenever an agency is required to publish a notice

of rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis that

describes the effects of the rule on small entities (i.e., small

businesses, small organizations, and small government jurisdictions).

However, no regulatory flexibility analysis is required if the head of

the agency certifies the rule will not have a significant economic

impact on a substantial number of small entities. The SBREFA amended

the Regulatory Flexibility Act (RFA) to require Federal agencies to

provide a statement of the factual basis for certifying that the rule

will not have a significant economic impact on a substantial number of

small entities.

At this time, the Service lacks the available economic information

necessary to provide an adequate factual basis for the required RFA

finding

ities. The SBREFA amended

the Regulatory Flexibility Act (RFA) to require Federal agencies to

provide a statement of the factual basis for certifying that the rule

will not have a significant economic impact on a substantial number of

small entities.

At this time, the Service lacks the available economic information

necessary to provide an adequate factual basis for the required RFA

finding. Therefore, the RFA finding is deferred until completion of the

draft economic analysis prepared pursuant to section 4(b)(2) of the Act

and E.O. 12866. This draft economic analysis will provide the required

factual basis for the RFA finding. Upon completion of the draft

economic analysis, the Service will publish a notice of availability of

the draft economic analysis of the proposed designation and reopen the

public comment period for the proposed designation. The Service will

include with the notice of availability, as appropriate, an initial

regulatory flexibility analysis or a certification that

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