[Federal Register: August 18, 2009 (Volume 74, Number 158)]
[Proposed Rules]
[Page 41662-41673]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au09-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0044; 92210-1117-0000-FY09-B4]
RIN 1018-AU23
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Sonoma County Distinct Population Segment of
California Tiger Salamander (Ambystoma californiense)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; public hearing announcement.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Sonoma County distinct population
segment (DPS) of the California tiger salamander (Ambystoma
californiense) under the Endangered Species Act of 1973, as amended
(Act). In total, approximately 74,223 acres (30,037 hectares) are being
proposed for designation as critical habitat. The proposed critical
habitat is located in Sonoma County, California.
DATES: We will accept comments received or postmarked on or before
October 19, 2009. We must receive requests for public hearings, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
October 2, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R8-
ES-2009-0044.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2009-0044; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
[[Page 41663]]
FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, Cottage
Way, W-2605, Sacramento, CA 95825; telephone 916-414-6600; facsimile
916-414-6713. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from the public, other concerned governmental
agencies, the scientific community, industry, or other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531 et seq.) including whether there
are threats to the species from human activity, the degree of which can
be expected to increase due to the designation, and whether that
increase in threat outweighs the benefit of designation such that the
designation of critical habitat is not prudent;
(2) Specific information on:
The amount and distribution of California tiger salamander
(CTS) habitat,
What areas occupied at the time of listing and that
contain features essential to the conservation of the species we should
include in the designation and why, and
What areas not occupied at the time of listing are
essential for the conservation of the species and why.
(3) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of this species that would help us further
refine boundaries of critical habitat;
(4) Information that may assist us in clarifying the primary
constituent elements;
(5) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts;
(7) Information on whether the benefit of exclusion of any
particular area, such as areas covered by habitat conservation plans or
other types of management agreements, outweighs the benefit of
inclusion under section 4(b)(2) of the Act; and
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in the DATES
section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information, such as your street address, phone
number, or e-mail address, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the California tiger salamander, a physical description
of the California tiger salamander and other information about its
taxonomy, distribution, life history, and biology is included in the
Background section of the final rule to list California tiger
salamander as a threatened species, published in the Federal Register
on August 4, 2004 (69 FR 47212). Additional relevant information may be
found in the final rules to list the Santa Barbara County Distinct
Population Segment (DPS) (65 FR 57242; September 21, 2000) and the
Sonoma County DPS of California tiger salamander (68 FR 13498; March
19, 2003); the proposed rules to designate critical habitat for the
California tiger salamander in Santa Barbara County (69 FR 3064;
January 22, 2004) and the Central population of the species range (69
FR 48570; August 10, 2004); and the final rules to designate critical
habitat for the California tiger salamander in Santa Barbara County (69
FR 68568; November 24, 2004) and the Central population (70 FR 49380;
August 23, 2005). The information contained in those previous Federal
Register documents was used in developing this rule.
Previous Federal Actions
On August 4, 2004, we listed the Central California population of
the California tiger salamander as a DPS as threatened (69 FR 47211).
At that time we reclassified the California tiger salamander as
threatened throughout its range (69 FR 47211), removing the Santa
Barbara County and Sonoma County populations as separately listed DPSs
(69 FR 47241).
On August 18, 2005, as a result of litigation of the August 4,
2004, final rule (69 FR 47211) on the reclassification of the
California tiger salamander DPSs (Center for Biological Diversity et
al. v. United States Fish and Wildlife Service et al. (Case No. C-04
4324 WHA (N.D. Cal. 2005))), the District Court of Northern California
sustained the portion of the 2004 final rule pertaining to listing the
Central California tiger salamander as threatened with a special rule,
vacated the 2004 rule with regard to the Santa Barbara County and
Sonoma County DPSs, and reinstated their prior listing as endangered.
We are making the necessary changes to the information included in the
Code of Federal Regulations (CFR) in the Regulatory section of this
rule and will finalize the changes in the final critical habitat for
the Sonoma County DPS of the California tiger salamander.
With respect to critical habitat, on October 13, 2004, a complaint
was filed in the U.S. District Court for the Northern District of
California (Center for Biological Diversity et al. v. U.S. Fish and
Wildlife Service et al. (Case No. C-04 4324 FMS (N.D. Cal. 2005)),
which in part challenged the failure of designating critical habitat
for the California tiger salamander in Sonoma County. On February 3,
2005, the District Court approved a settlement agreement that required
the Service to submit a final determination on the proposed critical
habitat designation for publication in the Federal Register on or
before December 1, 2005. On August 2, 2005 (70 FR 44301), the Service
[[Page 41664]]
published a proposed rule to designate approximately 74,223 acres (ac)
(30,037 hectares (ha)) of critical habitat, and on November 17, 2005,
we published a revised proposed rule indicating we were considering
approximately 21,298 acres for the final designation (70 FR 69717). On
December 14, 2005, the Service published a final rule in the Federal
Register (70 FR 74138), which excluded all proposed critical habitat,
resulting in a designation of zero acres of critical habitat.
On February 29, 2008, we received a notice of intent to sue from
the Center for Biological Diversity that challenged the Service's final
designation of critical habitat claiming that it was not based on the
best available scientific information. On May 5, 2009, the Court
approved a stipulated settlement agreement where the Service agreed to
publish a revised proposed rule within 90 days that encompasses the
same geographic area as the August 2005 proposal. This revised proposed
rule complies with the May 1, 2009, stipulated agreement.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(I) Essential to the conservation of the species and
(II) Which may require special management considerations or
protection; and
(ii) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) requires consultation on Federal actions that
may affect critical habitat. The designation of critical habitat does
not affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other conservation area. Such designation does not allow
the government or public to access private lands. Such designation does
not require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner seeks or requests
Federal agency funding or authorization for an action that may affect a
listed species or critical habitat, the consultation requirements of
section 7(a)(2) would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the applicant is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life-cycle needs of the species (areas on which are found the
physical and biological features laid out in the appropriate quantity
and spatial arrangement for the conservation of the species). Under the
Act and regulations at 50 CFR 424.12, we can designate critical habitat
in areas outside the geographical area occupied by the species at the
time it is listed only when we determine that those areas are essential
for the conservation of the species and that designation limited to
those areas occupied at the time of listing would be inadequate to
ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that critical habitat
designated at a particular point in time may not include all of the
habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated area is
unimportant or may not be required for recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. Areas that support populations are also subject to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency 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 (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
[[Page 41665]]
Primary Constituent Elements (PCEs)
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas occupied by the species at
the time of listing to propose as critical habitat, we consider those
physical and biological features that are essential to the conservation
of the species that may require special management considerations or
protection. We consider the physical and biological features to be the
primary constituent elements (PCEs) laid out in the appropriate
quantity and spatial arrangement for the conservation of the species.
The PCEs include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific PCEs from the California tiger salamander's
biological needs. The physical and biological features are those PCEs
essential to the conservation of the species, laid out in the
appropriate quantity and spatial arrangement. All areas proposed as
critical habitat for the Sonoma population are within the species'
historical range and contain one or more of the PCEs identified as
essential for the conservation of the species. Critical habitat for the
Sonoma population includes aquatic habitat, upland nonbreeding habitat
with underground refugia, and dispersal habitat connecting occupied
California tiger salamander locations. The critical habitat we have
proposed is designed to allow for an increase in the size of California
tiger salamander populations in Sonoma County.
Standing bodies of fresh water (including natural and manmade
(e.g., stock)) ponds, vernal pools, and other ephemeral or permanent
water bodies that typically support inundation during winter rains and
hold water for a minimum of 12 consecutive weeks in a year of average
rainfall, are features that are essential for Sonoma population
breeding and for providing space, food, and cover necessary to sustain
early life-history stages of larval and juvenile California tiger
salamander. The 12 consecutive week timeframe includes the timing of
winter rains initially fill pools or ponds and signal adults to move to
these areas for breeding. Spring rains then maintain pool inundation
which allows larvae time needed to grow into metamorphosed juveniles so
they can become capable of surviving in upland habitats. During periods
of drought or less-than-average rainfall, these sites may not hold
water long enough for individuals to complete metamorphosis; however,
these sites still meet the definition of critical habitat for the
species because they constitute breeding habitat in years of average
rainfall. Without areas that have these essential features, the Sonoma
population would not survive, reproduce, and develop juveniles that
could grow into adult individual salamanders that can complete their
life cycles.
Stock ponds and vernal pools provide a significant amount of
habitat for the Sonoma population remaining in the Santa Rosa Plain.
Manmade stock ponds have joined or, in some areas, replaced vernal
pools as breeding habitat. A landscape that supports a California tiger
salamander population is typically interspersed with vernal pools or
stockponds that remain inundated for at least 12 weeks in a year with
average rainfall.
Upland habitats containing underground refugia have features that
are essential for the survival of adult salamanders and juvenile
salamanders that have recently undergone metamorphosis. Adult and
juvenile California tiger salamanders are primarily terrestrial. Adult
California tiger salamanders enter aquatic habitats only for relatively
short periods of time to breed. For the majority of their life cycle,
California tiger salamanders depend on upland habitats containing
underground refugia in the form of small mammal burrows or other
underground structures for their survival. These burrows provide
protection from the hot, dry weather typical of California in the
nonbreeding season. California tiger salamanders also find food in
these refugia and rely on them for protection from predators. The
presence of small burrowing mammal populations is a key element for the
survival of the California tiger salamander because they construct
burrows used by California tiger salamanders. Because California tiger
salamanders do not construct burrows of their own, without the
continuing presence of small mammal burrows in upland habitats,
California tiger salamanders would not be able to survive.
Upland areas associated with the water bodies are an important
source of nutrients to stock ponds or vernal pools (Swanson 1974, p.
406). These nutrients provide the foundation for the aquatic
community's food chain, which includes invertebrate and vertebrate
animals constituting important food sources for salamanders (Morin
1987, p. 184).
Dispersal habitats for this species are generally upland areas
adjacent to aquatic habitats which provide connectivity among
California tiger salamander suitable aquatic and upland habitats. While
California tiger salamander can bypass many obstacles, and do not
require a particular type of habitat for dispersal, the habitats
connecting essential aquatic and upland habitats need to be accessible
(no physical or biological attributes that prevent access to adjacent
areas) to function effectively. Agricultural lands such as row crops,
orchards, vineyards, and pastures do not constitute barriers to the
dispersal of California tiger salamanders, however, a busy highway or
interstate may constitute a barrier. The extent to which any attribute
is a barrier is a function of the specific geography of the area and
its contribution to limiting salamander access to a greater or lesser
extent.
Dispersal habitats are needed for the conservation of the
California tiger salamander. Protecting the ability of California tiger
salamanders to move freely across the landscape in search of suitable
aquatic and upland habitats is essential in maintaining gene flow and
for recolonization of sites that may become temporarily extirpated.
Lifetime reproductive success for the California tiger salamander and
other tiger salamanders may be naturally low. Trenham et al. (2000, p.
372) found the average female bred 1.4 times and produced 8.5 young
that survived to metamorphosis per reproductive effort. This
reproduction resulted in roughly 12 metamorphic offspring over the
lifetime of a female. In part, this low reproductive rate may be due to
the extended time it takes for California tiger salamanders to reach
sexual maturity; most do not breed until 4 or 5 years of age. While
individuals may survive for more than 10 years, it is possible that
many breed only once. This presumed low breeding rate, combined with a
hypothesized low survivorship of metamorphosed individuals, indicates
that reproductive output may not be sufficient to maintain populations.
Dispersal habitats help to preserve the population structure of the
California tiger salamander. The life history and
[[Page 41666]]
ecology of the California tiger salamander make it likely that this
species has a metapopulation structure. A metapopulation is a set of
breeding sites within an area, where typical migration from one local
occurrence or breeding site to other areas containing suitable habitat
is possible, but not routine. Movement between areas containing
suitable upland and aquatic habitats (i.e., dispersal) is restricted
due to inhospitable conditions around and between areas of suitable
habitats. Because many of the areas of suitable habitats may be small
and support small numbers of salamanders, local extinction of these
small units may be common. The persistence of a metapopulation depends
on the combined dynamics of these local extinctions and the subsequent
recolonization of these areas through dispersal (Hanski and Gilpin
1991, pp. 7-9; Hanski 1994, p. 151).
Based on the above needs and our knowledge of the life history,
biology, and ecology of the species and the requirements of the habitat
to sustain the essential life-history functions of the species, we have
determined that the primary constituent elements for the California
tiger salamander in Sonoma County are:
(1) Standing bodies of fresh water (including natural and manmade
(e.g., stock)) ponds, vernal pools and other ephemeral or permanent
water bodies that typically support inundation during winter/early
spring and hold water for a minimum of 12 consecutive weeks in a year
of average rainfall.
(2) Upland habitats adjacent and accessible to and from breeding
ponds that contain small mammal burrows or other underground refugia
that California tiger salamanders depend upon for food, shelter, and
protection from the elements and predation.
(3) Accessible upland dispersal habitat between occupied locations
that allow for movement between such sites.
Methods
This proposal is an updating of the 2005 proposed critical habitat
designation for the Sonoma County DPS of the California tiger
salamander. As required by section 4(b)(1)(A) of the Act, we used the
best scientific and commercial data available in determining areas that
contain the features that are essential to the conservation of the
California tiger salamander in Sonoma County. We reviewed the overall
approach to the conservation of the California tiger salamander
undertaken by local, State, and Federal agencies operating within the
species' range within Sonoma County and those efforts related to the
conservation strategy being undertaken by the resource agencies, local
governments, and representatives from the environmental and building
communities.
We based the extent of the proposed critical habitat for the
California tiger salamander in Sonoma County on historical and current
range of the species as well as the Santa Rosa Plain conservation
strategy. Historical records for the species and/or its habitat have
been documented throughout the Santa Rosa Plain and into the Petaluma
River watershed. Additional criteria used in refining the extent of the
critical habitat were the specific soil types associated with habitat
for the species and below the 200-foot (61-meter) elevation. Major
water courses or floodplains were used to delineate boundaries where
information on their location and extent was available. In addition, we
used aerial photography to examine historic and current habitat as well
as land use patterns.
We have also reviewed available information that pertains to the
upland and aquatic habitat requirements of this species. Based on the
best available information, we included areas where the species
historically occurred, or currently occurs, or has the potential to
occur based on the suitability of habitat. We identified areas that
represent the range of environmental, ecological, and genetic variation
of the California tiger salamander in Sonoma County and contain the
primary constituent elements (see Primary Constituent Elements).
After identifying the PCEs, we used the PCEs in combination with
information on California tiger salamander locations, geographic
distribution, vegetation, topography, geology, soils, distribution of
California tiger salamander occurrences within and between vernal pool
types, watersheds, current land uses, scientific information on the
biology and ecology of the California tiger salamander, and
conservation principles to identify essential habitat. As a result of
this process, the proposed critical habitat unit possesses a
combination of occupied and potential aquatic and upland habitat types,
including topography, landscape features, and surrounding land uses,
and represents the geographical range and environmental variability of
habitat for the California tiger salamander.
This proposed unit was delineated by digitizing a polygon (map
unit) using ArcView (Environmental Systems Research Institute, Inc.)
GIS program. The polygon was created by modifying the Potential Range
of the California tiger salamander polygon as identified in the Santa
Rosa Plain Conservation Strategy Map (California Department of Fish and
Game 2005, p. 1). We evaluated the historic and current geographic
range and potential suitable habitat, and identified areas of
nonessential habitat (i.e., not containing PCEs) (see Primary
Constituent Elements). Those undeveloped areas within and adjacent to
developed areas that contain the PCEs are considered potential critical
habitat for the species.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
within the geographical area occupied at the time of listing contain
features essential to the conservation of the species that may require
special management considerations or protection.
Within the single unit proposed as critical habitat, we find that
the features essential to the conservation of the California tiger
salamander may require special management considerations or protection
because of the threats outlined below:
(1) Activities that would threaten the utility of California tiger
salamander breeding ponds in Sonoma County, such as introduction of
nonnative predators, including bullfrogs and nonnative fish;
(2) Activities that could disturb aquatic breeding habitats during
the breeding season, such as heavy equipment operation, ground
disturbance, maintenance projects (e.g., pipelines, roads, powerlines),
off-road travel, or recreation;
(3) Activities that impair the water quality of aquatic breeding
habitat;
(4) Activities that would reduce small mammal populations to the
point that there are insufficient underground refugia used by
California tiger salamander in Sonoma County for foraging, protection
from predators, and shelter from the elements;
(5) Activities that create barriers impassable for salamanders or
increase mortality in upland habitat between extant occurrences in
breeding habitat; and
(6) Activities that disrupt vernal pool complexes' ability to
support California tiger salamander breeding function.
In the case of the California tiger salamander in Sonoma County,
natural repopulation is likely not possible without human assistance
and landowner cooperation. Examples of such proactive activities that
benefit the California tiger salamander include enhancement or creation
of breeding ponds and control of nonnative
[[Page 41667]]
predators. These are the types of proactive, voluntary conservation
efforts that are necessary to prevent the extinction and promote the
recovery of many other species (Wilcove and Lee 2004, p. 639; Shogren
et al. 1999, p. 1260; Wilcove and Chen 1998, p. 1260; Wilcove et al.,
1996, pp. 3-5).
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act and according to section
424.12 of our implementing regulations in the Code of Federal
Regulations, we used the best scientific data available in determining
areas within the geographical area occupied at the time of listing that
contain the features essential to the conservation of the California
tiger salamander, and areas outside of the geographical area occupied
at the time of listing that are essential for the conservation of the
California tiger salamander. We are proposing for designation of
critical habitat lands that we have determined were occupied at the
time of listing and contain the features essential to the conservation
of the California tiger salamander in Sonoma County.
When determining proposed critical habitat boundaries within this
proposed rule, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack PCEs for the California tiger salamander. The
scale of the map we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these undesignated
lands would not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the PCEs in the adjacent designated
critical habitat.
Proposed Critical Habitat Designation
We are proposing to designate as a single unit critical habitat for
the California tiger salamander in the Santa Rosa Plain Region. The
critical habitat area described below constitutes our current best
assessment of the areas that meet the definition of critical habitat
for the California tiger salamander.
The approximate area encompassed within the proposed critical
habitat is 74,223 acres (ac) (30,037 hectares (ha)), including
approximately 887 ac (359 ha) of State lands (676 ac (274 ha)
California Department of Fish and Game lands and 211 ac (85 ha) State
Commission lands), 26 ac (10.5 ha) of County Regional Park land, and
73,336 ac (29,678 ha) of private and other lands. The area estimate
reflects all land within the critical habitat unit boundary. No Federal
lands are included in this proposed unit.
We present a brief unit description below and an explanation why it
meets the definition of critical habitat for California tiger
salamander in Sonoma County. The unit is located in central Sonoma
County, bordered on the west by the Laguna de Santa Rosa, on the south
by Skillman Road northwest of Petaluma, on the east by the foothills,
and on the north by Windsor Creek.
The Santa Rosa Plain and adjacent areas are characterized by vernal
pools, seasonal wetlands, and associated grassland habitat. This
proposed designation represents the northernmost part of the geographic
distribution of California tiger salamander and includes lands that
support California tiger salamander breeding in various vernal pool
complexes. This unit contains the physical and biological features
essential to the conservation of the California tiger salamander in
Sonoma County. The proposed designation encompasses nine vernal pool
complexes, each of which contains wetlands that currently support
breeding California tiger salamander in Sonoma County. At the time of
listing (2003), eight of these complexes were known breeding sites, a
ninth breeding location was determined subsequent to listing.
The physical and biological features essential to the conservation
of the California tiger salamander in Sonoma County may require special
management considerations or protections to minimize impacts from:
nonnative predators; disturbance of aquatic breeding habitats;
activities that impair the water quality of aquatic breeding habitat;
activities that reduce underground refugia; creation of impassable
barriers; and disruption of vernal pool complex processes (see Special
Management Considerations or Protections section above).
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. Decisions
by the Fifth and Ninth Circuits Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain those PCEs that relate to the ability of the area
to periodically support the species) to serve its intended conservation
role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or 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. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' 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;
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction;
Are economically and technologically feasible; and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or
[[Page 41668]]
destroying or adversely modifying 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the California tiger salamander
or its designated critical habitat require section 7 consultation under
the Act. Activities on State, Tribal, local, or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from us under section 10 of the Act) or involving
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local, or private lands that are
not Federally funded, authorized, or permitted, do not require section
7 consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or retain those PCEs that relate to
the ability of the area to periodically support the species. Activities
that may destroy or adversely modify critical habitat are those that
alter the PCEs to an extent that appreciably reduces the conservation
value of critical habitat for the California tiger salamander. As
discussed above, the role of critical habitat is to support the life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the California tiger salamander include, but are
not limited to:
(1) Actions that would significantly compromise the function of
vernal pools, swales, ponds, and other seasonal wetlands as described
in the Primary Constituent Elements section (see PCE number 1). Such
activities could include, but are not limited to, constructing new
structures, vineyards, and roads; disking; grading; and water
diversion. These activities could destroy California tiger salamander
breeding sites, reduce the hydrological regime necessary for successful
larval metamorphosis, and/or eliminate or reduce the habitat necessary
for the growth and reproduction of the California tiger salamander.
(2) Actions that would significantly fragment and isolate aquatic
and upland habitat. Such activities could include, but are not limited
to, constructing new structures and new roads. These activities could
limit or prevent the dispersal of California tiger salamanders from
breeding sites to upland habitat or vice versa due to obstructions to
movement composed of structures, certain types of curbs, or increased
traffic density. These activities could compromise the metapopulation
structure of the Sonoma population by reducing opportunities for
recolonization of some sites that may have experienced natural local
extinctions.
All lands proposed for designation as critical habitat are within
the geographic area occupied by the species, and may be used by the
California tiger salamander, whether for foraging, breeding, growth of
larvae and juveniles, dispersal, migration, genetic exchange, or
sheltering. Areas within the Santa Rosa Plain proposed critical habitat
unit that contain the PCEs are essential to the conservation of the
California tiger salamander. Federal agencies already consult with us
on activities in areas currently occupied by the species or if the
species may be affected by the action to ensure that their actions do
not jeopardize the continued existence of the species. Consultations
could arise if a project is proposed within a currently unoccupied
portion of a critical habitat unit and the PCEs of the designated
critical habitat may be adversely affected by the project.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands within the proposed
critical habitat designation; therefore, there are no exemptions in
this proposed rule.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise
[[Page 41669]]
critical habitat on the basis of the best available scientific data
after taking into consideration the economic impact, national security
impact, and any other relevant impact of specifying any particular area
as critical habitat. The Secretary may exclude an area from critical
habitat if he determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species. In making that determination, the
legislative history is clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we make the determination that
the benefits of exclusion outweigh the benefits of inclusion, we can
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
We will announce the availability of the draft economic analysis in
the Federal Register as soon as it is completed, at which time we will
seek public review and comment. At that time, copies of the draft
economic analysis will be available for downloading from the Internet
at http://www.regulations.gov, or by contacting the Sacramento Fish
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for the California tiger salamander are not owned or
managed by the DOD, and therefore, anticipate no impact to national
security. There are no areas proposed for exclusion based on impacts on
national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we are requesting comments on the
benefit to the California tiger salamander from the Sonoma County
Office of Education's Low-Effect HCP, which covers approximately 4.42
ac (1.79 ha) in Santa Rosa, California; however, at this time, we are
not proposing the exclusion of any areas in the proposed revised
critical habitat for the Sonoma population of the California tiger
salamander. We also request comments or information on any other
management plans for the California tiger salamander within the
proposed critical habitat unit. We have determined that the proposed
designation does not include any Tribal lands or trust resources, and
we anticipate no impact to Tribal lands or trust resources from this
proposed critical habitat designation.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on the data used, specific
assumptions, and conclusions regarding the proposed designation of
critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final rule may differ from this proposed
rule.
Public Hearing
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days after the date
of publication of this proposed rule in the Federal Register. Such
requests must be sent to the address shown in FOR FURTHER INFORMATION
CONTACT. We will schedule public hearings on this proposal, if any are
requested, and announce the dates, times, and places of those hearings,
as well as how to obtain reasonable accommodations, in the Federal
Register and local newspapers at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review
Executive Order 12866 requires Federal agencies to submit proposed
and final significant rules to the Office of Management and Budget
(OMB) prior to publication in the FR. The Executive Order defines a
rule as significant if it meets one of the following four criteria:
(a) The rule will have an annual effect of $100 million or more on
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government;
(b) The rule will create inconsistencies with other Federal
agencies' actions;
(c) The rule will materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients;
or
(d) The rule raises novel legal or policy issues.
It has been determined that this rule is not ``significant.''
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small
[[Page 41670]]
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the Regulatory
Flexibility Act (RFA) to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and E.O.
12866. This draft economic analysis will provide the required factual
basis for the RFA finding. Upon completion of the draft economic
analysis, we will announce availability of the draft economic analysis
of the proposed designation in the Federal Register and reopen the
public comment period for the proposed designation. We will include
with this announcement, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provide the necessary opportunity for public comment.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and [T]ribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or [T]ribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. The lands being proposed for critical habitat
are mostly private lands with some other local government lands. Given
the distribution of this species, small governments will not be
uniquely affected by this proposed rule. Small governments will not be
affected at all unless they propose an action requiring Federal funds,
permits, or other authorization. Any such activity will require that
the involved Federal agency ensure that the action is not likely to
adversely modify or destroy designated critical habitat. However, as
discussed above, Federal agencies are currently required to ensure that
any such activity is not likely to jeopardize the species, and no
further regulatory impacts from the designation of critical habitat are
anticipated. Because we believe this rule will not significantly or
uniquely affect small governments, a Small Government Agency Plan is
not required. However, we will further evaluate this issue as we
conduct our economic analysis, and review and revise this assessment if
appropriate.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the California tiger salamander in a
takings implications assessment. The takings implications assessment
concludes that this designation of critical habitat for the California
tiger salamander does not pose significant takings implications for
lands within or affected by the designation.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State of
California resource agencies. The designation may have some benefit to
these governments in that the areas essential to the conservation of
the species are more clearly defined, and the primary constituent
elements of the habitat necessary to the survival of the species are
specifically identified. This information does not alter where and what
Federally sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or
[[Page 41671]]
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency.
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Endangered Species Act. This
proposed rule uses standard property descriptions and identifies the
primary constituent elements within the designated areas to assist the
public in understanding the habitat needs of the California tiger
salamander.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's Manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 ``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act'', we readily acknowledge our responsibilities to work directly
with Tribes in developing programs for healthy ecosystems, to
acknowledge that Tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes.
We have determined that there are no Tribal lands essential for the
conservation of the California tiger salamander. Therefore, designation
of critical habitat for the Sonoma population of the California tiger
salamander has not been designated on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Based on the previous proposal and final designation of critical
habitat in this area, we do not expect it to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Field Supervisor, Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Salamander, California
tiger'' under ``AMPHIBIANS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 41672]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------- population where When
Historic range endangered or Status listed Critical habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
AMPHIBIANS
* * * * * * *
Salamander, California tiger.. Ambystoma U.S.A. (CA)........ U.S.A. (CA-Santa E............ 667E, 702 17.95(d)......... NA.
californiense. Barbara County).
Do........................... ......do........ ......do........... U.S.A. (CA- E............ 729E, 734 ......do......... ......do
Sonoma County).
Do........................... ......do........ ......do........... ................ T............ .......... ......do......... 17.43(c).
* * * * * * *
U.S.A. (CA- 744
Central).
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(d) by revising critical habitat for the
California tiger salamander (Ambystoma californiense) in Sonoma County
to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
California Tiger Salamander (Ambystoma californiense)
* * * * *
California Tiger Salamander in Sonoma County
(52) The critical habitat unit for Sonoma County, CA, is depicted
on the map below.
(53) The primary constituent elements of critical habitat for the
Sonoma County population of the California tiger salamander are the
habitat components that provide:
(i) Standing bodies of fresh water (including natural and manmade
(e.g., stock)) ponds, vernal pools, and other ephemeral or permanent
water bodies that typically support inundation during winter and early
spring and hold water for a minimum of 12 weeks in a year of average
rainfall.
(ii) Upland habitats adjacent and accessible to and from breeding
ponds that contain small mammal burrows, or other underground refugia
that California tiger salamanders depend upon for food, shelter, and
protection from the elements and predation.
(iii) Accessible upland dispersal habitat between occupied
locations that allow for movement between such sites.
(54) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(55) Critical Habitat Unit: Santa Rosa Plain Unit, Sonoma County,
CA. Data layers defining the map unit were created on a base of USGS
7.5' quadrangles, and the critical habitat unit was then mapped using
Universal Transverse Mercator (UTM) coordinates.
(56) Santa Rosa Plain Unit, Sonoma County, CA. From USGS 1:24,000
quadrangle map Healdsburg, Sebastopol, Santa Rosa, Two Rock, Cotati,
Petaluma, and Mark West Springs, CA. Note: Map of Santa Rosa Plain Unit
follows:
BILLING CODE 4310-55-P
[[Page 41673]]
[GRAPHIC] [TIFF OMITTED] TP18AU09.000
* * * * *
Dated: August 3, 2009.
Jane Lyder,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-18885 Filed 8-17-09; 8:45 am]
BILLING CODE 4310-55-C