# 70 FR 60608: Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Alameda Whipsnake

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_05-20145

## Section

- **Citation:** 70 FR 60608
- **Heading:** Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Alameda Whipsnake
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 70 / 70 FR 60608

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_05-20145. Check the current official text before relying on it. Not legal advice.