Federal Register, Volume 78 Issue 168 (Thursday, August 29, 2013) 2013 Federal Register, 78 FR 53537-53579; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53537-53579]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20985]

[[Page 53537]]

Vol. 78

Thursday,

No. 168

August 29, 2013

Part III

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; Designation of Critical
Habitat for the Oregon Spotted Frog; Proposed Rule

Federal Register / Vol. 78 , No. 168 / Thursday, August 29, 2013 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2013-0088; 4500030114]
RIN 1018-AZ56

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Oregon Spotted Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for the Oregon spotted frog under the Endangered
Species Act. We are proposing critical habitat for this species in
Washington and Oregon, and this action fulfills our obligations under
the Endangered Species Act and a court-approved settlement agreement.
The effect of this regulation will be to designate critical habitat for
the Oregon spotted frogs' habitat under the Endangered Species Act.

DATES: We will accept comments received or postmarked on or before
October 28, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by October 15, 2013.

ADDRESSES: Written Comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2013-0088,
which is the docket number for this rulemaking. You may submit a
comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R1-ES-2013-0088; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. 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 Information Requested section below for more information).
The coordinates or plot points or both from which the critical
habitat maps are generated are included in the administrative record
for this rulemaking and are available at http://www.fws.gov/wafwo and
http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, and at
the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we may
develop for this rulemaking will also be available at the U.S. Fish and
Wildlife Service Web site and Field Office set out above, and may also
be included at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive SE., Suite 102, Lacey, WA 98503, by telephone 360-753-9440 or by
facsimile 360-753-9445. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species that is
determined to be an endangered or threatened species requires that
critical habitat be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can be
completed only by issuing a rule. Elsewhere in today's Federal
Register, we have proposed to list the Oregon spotted frog (Rana
pretiosa) as a threatened species under the Act.
The basis for our action. Under the Endangered Species Act, any
species that is determined to be a threatened or endangered species
shall, to the maximum extent prudent and determinable, have habitat
designated that is considered to be critical habitat. Section 4(b)(2)
of the Endangered Species Act states that the Secretary shall designate
and make revisions to 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.
We are preparing an economic analysis of the proposed designation
of 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 as soon as it is completed,
at which time we will seek additional public review and comment.
In this rule we propose to designate critical habitat for this
species. We are proposing to designate 68,192 acres (27,597 hectares),
and approximately 24 stream miles (38 km) as critical habitat in
Washington and Oregon. The proposed critical habitat areas are under
ownership or management by Federal and State agencies, Counties, local
municipalities, and private individuals. We are considering excluding
one area in Washington and three areas in Oregon from critical habitat
designation under section 4(b)(2) of the Act, based on the existence of
partnerships as evidenced by conservation plans. These areas encompass
10,277 acres (4,158 hectares). All comments received will be fully
considered in the Secretary's final determination regarding the
potential exclusion of these areas and any other areas for which
exclusion may be appropriate.
We will seek peer review. We are seeking comments from
knowledgeable individuals with scientific expertise to review our
analysis of the best available science and application of that science
and to provide any additional scientific information to improve this
proposed rule. Because we will consider all comments and information
received during the comment period, our final determinations may differ
from this proposal.

Information Requested

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, Native American tribes, the scientific community, industry,
or any other interested parties 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 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

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in threats outweighs the benefit of designation such that the
designation of critical habitat is not prudent.
(2) Specific information on:
(a) The amount and distribution of Oregon spotted frog habitat;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the Oregon spotted frog;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(f) What areas not occupied at the time of listing are essential
for the conservation of the species and why;
(g) Whether there are any specific areas where the proposed
critical habitat boundaries should be expanded to include adjacent
riparian areas, what factors or features should be considered in
determining an appropriate boundary revision, and why this would be
biologically necessary or unnecessary; and
(h) Additional research studies or information regarding the
movement distances or patterns of Oregon spotted frogs.
(3) Land use designations and current or planned activities in the
areas proposed to be designated as critical habitat, and possible
impacts of these activities on the proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Oregon spotted frog within the proposed critical
habitat areas.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular; any impacts on small entities or families,
and the benefits of including or excluding areas from the proposed
designation that exhibit these impacts.
(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.
(7) The likelihood of adverse social reactions to the designation
of critical habitat and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(8) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(9) Whether the areas being considered for exclusion under section
4(b)(2) of the Act in this proposed rule should be excluded, and
whether the benefits of excluding these areas would outweigh the
benefits of including them in the designation.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, 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. We
will post all hardcopy submissions on http://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
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, Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

Please see the proposed listing rule published in today's Federal
Register for a complete history of previous Federal actions.
In a settlement agreement with plaintiff WildEarth Guardians on May
10, 2011, the Service submitted a workplan to the U.S. District Court
for the District of Columbia in re Endangered Species Act Section 4
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D. DC May
10, 2011), and obtained the court's approval to systematically, over a
period of 6 years, review and address the needs of more than 250
candidate species to determine if they should be added to the Federal
Lists of Endangered and Threatened Wildlife and Plants. The Oregon
spotted frog is 1 of 251 candidate species identified in the May 2011
workplan. Accordingly, a proposed rule to list the Oregon spotted frog
as a threatened species under the Act is published in today's Federal
Register.

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Oregon spotted frog in this
section of the proposed rule. For more information on Oregon spotted
frog species description, taxonomy, life history, habitat and
distribution descriptions, refer to the proposed rule to list the
Oregon spotted frog as a threatened species under the Act published in
today's Federal Register.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided

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pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species, and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features essential to the conservation of the species (such as space,
food, cover, and protected habitat). In identifying those physical or
biological features within an area, we focus on the principal
biological or physical constituent elements (primary constituent
elements such as roost sites, nesting grounds, seasonal wetlands, water
quality, tide, soil type) that are essential to the conservation of the
species. Primary constituent elements are those specific elements of
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) such designation of critical habitat would not be beneficial to
the species.
Currently no imminent threat of take is attributed to collection or
vandalism to the Oregon spotted frog, and identification and mapping of
critical habitat is not expected to initiate any such threat. In the
absence of finding that the designation of critical habitat would
increase threats to a species, if critical habitat designation would
result in any benefits, then a prudent finding is warranted. Here, the
potential

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benefits of designation include: (1) Triggering consultation under
section 7 of the Act, in new areas for actions in which there may be a
Federal nexus where it would not otherwise occur because, for example,
it is or has become unoccupied or the occupancy is in question; (2)
focusing conservation activities on the most essential features and
areas; (3) providing educational benefits to State or county
governments or private entities; and (4) preventing people from causing
inadvertent harm to the species. Therefore, because we have determined
that the designation of critical habitat will not likely increase the
degree of threat to the species and may provide some measure of
benefit, we find that designation of critical habitat is prudent for
the Oregon spotted frog.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act, we must find whether critical habitat for the
Oregon spotted frog is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(1) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(2) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Oregon spotted frog.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species, and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
We derive the specific physical or biological features required for
the Oregon spotted frog from studies of this species' habitat, ecology,
and life history as described below. We have determined that the
following physical or biological features are essential for the Oregon
spotted frog:

Space for Individual and Population Growth and for Normal Behavior

The Oregon spotted frog is the most aquatic native frog species in
the Pacific Northwest. It is almost always found in or near a perennial
body of water, such as a spring, pond, lake, sluggish stream,
irrigation canal, or roadside ditch. For completion of their life
cycle, Oregon spotted frogs require shallow, stable water areas for egg
and tadpole survival and development; perennial, deep, moderately
vegetated pools for adult and juvenile survival in the dry season; and
perennial water overlying emergent vegetation for protecting all age
classes during cold wet weather (Watson et al. 2003, p. 298; Pearl and
Hayes 2004, p. 18). This scenario essentially equates to ``an expansive
meadow/wetland with a continuum of vegetation densities along edges and
in pools and an absence of introduced predators'' (Watson et al. 2003,
p. 298).
Oregon spotted frogs exhibit fidelity to seasonal pools throughout
all seasons (breeding, dry, and wet) (Watson et al. 2003, p. 295), and
these seasonal pools need to be connected by water, at least through
the spring and again in the fall, for frogs to access them. Subadult
and adult frogs may be able to make short terrestrial movements, but
wetted movement corridors are preferred. A wetted movement corridor
with a gradual topographic gradient (less than or equal to three
percent) is necessary to enable tadpole movement out of shallow egg-
laying sites into deeper, more permanent water, as water levels recede
during the dry season (Watson et al. 2003, p. 298; Pearl and Hayes
2004, p. 20). Impediments to movement may include, but are not limited
to, hard barriers such as dams and inhospitable habitat, such as lakes
or rivers/creeks without refugia from predators.
Therefore, based on the information above, we identify the
following physical or biological features needed by Oregon spotted
frogs to provide space for their individual and population growth and
for normal behavior: (1) Perennial bodies of water (such as, but not
limited to springs, ponds, lakes, and sluggish streams) or other water
bodies that retain water year round (such as irrigation canals or
roadside ditches) with a continuum of vegetation densities along edges;
(2) a gradual topographic gradient that enables movement out of shallow
oviposition (egg-laying) sites into deeper, more permanent water; and,
(3) barrier-free movement corridors.

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

The ecosystems utilized by Oregon spotted frogs have inherent
community dynamics that sustain the food web. Habitats, therefore, must
maintain sufficient water quality to sustain all life stages, as well
as acceptable ranges for maintaining the underlying ecological
community. These key physical parameters include pH, temperature,
nutrients, and uncontaminated water.
For tadpoles and frogs living in productive wetland habitats, food
is not usually a limiting factor. Post-metamorphic Oregon spotted frogs
are opportunistic predators feeding on live animals found in or near
water (important prey species information is provided in the life
history section of the listing document). Tadpoles are grazers, having
rough tooth rows for scraping plant surfaces and ingesting plant tissue
and bacteria, algae, detritus, and probably carrion (Licht 1974, p.
624; McAllister and Leonard 1997, p. 13). Competitors for food
resources include nonnative fish species, bullfrogs, and green frogs.
Pearl and Hayes (2004, pp. 8-9) posit that Oregon spotted frogs are
limited by both latitude and elevation to areas that provide warm-water
marsh conditions (summer shallow water exceeding 20 degrees Celsius (C)
(68 degrees Fahrenheit (F)) based on the observed temperatures and slow
developmental rates in egg stages (compared to other pond-breeding
ranid frogs) and increased surface activity in adult frogs as water
temperatures exceed 20 degrees C (68 degrees F) and when the
differentiation between surface and subsurface is greater than 3
degrees C (37 degrees F) (Watson et al. 2003, p. 299). Warmer water is
important for embryonic development and plant food

[[Page 53542]]

production for larval rearing (Watson et al. 2003, p. 299) and to allow
subadults and adults to bask.
Therefore, based on the information above, we identify the
following physical or biological features needed by Oregon spotted
frogs to provide for their nutritional and physiological requirements:
(1) Sufficient quality of water to support habitat used by Oregon
spotted frogs (including providing for a sufficient prey base); (2)
absence of competition from introduced fish and bullfrogs; and (3)
shallow (warmer) water.

Cover or Shelter

During the dry season, Oregon spotted frogs move to deeper,
permanent pools or creeks and show a preference for areas with greater
than 50 percent surface water and/or less than 50 percent vegetation
closure (Watson et al. 2003, pp. 295, 297), avoiding dense stands of
grasses with greater than 75 percent closure. They are often observed
near the water surface basking and feeding in beds of floating and
shallow subsurface vegetation (Watson et al. 2003, pp. 291-298; Pearl
et al. 2005a, pp. 36-37) that appears to allow them to effectively use
ambush behaviors in habitats with high prey availability, and the off-
shore vegetation mats offer basking habitat that is less accessible to
some terrestrial predators (Pearl et al 2005a, p. 37). Proximity to
escape cover such as aggregated organic substrates also may be
particularly important for Oregon spotted frogs to successfully evade
avian, terrestrial, and amphibian predators (Licht 1986b, p. 241;
Hallock and Pearson 2001, pp. 14-15; Pearl & Hayes 2004, p. 26).
Oregon spotted frogs, which are palatable to fish and bullfrogs,
did not evolve with introduced species and, in some areas, such as
high-elevation lakes, did not evolve with native fish. Therefore,
Oregon spotted frogs may not have the mechanisms to avoid the predatory
fish that prey on the tadpoles. The warm-water microhabitat requirement
of the Oregon spotted frog, unique among native ranids of the Pacific
Northwest, exposes it to a number of introduced fish species (Hayes
1994, p. 25), the most common being brook trout (Salvelinus
fontinalis). During drought years, as dropping water levels reduce
wetland refuges, Oregon spotted frog larvae become concentrated and are
exposed to brook trout predation (Hayes et al. 1997, p. 5; Hayes 1998a,
p. 15), resulting in lower Oregon spotted frog recruitment (Pearl 1999,
p. 18). Demographic data suggest introduced fish have a negative effect
on Oregon spotted frogs because sites with significant numbers of brook
trout and/or fathead minnow have a disproportionate ratio of older
spotted frogs to juvenile frogs (i.e., poor recruitment) (Hayes 1997,
pp. 42-43). Overwintering locations of Oregon spotted frogs, where
nonnative fish have limited or no access, improve the winter survival
rates of males and females (Chelgren et al. 2008, p. 749), and the
associated breeding areas have a significantly higher (0.89 times)
number of egg masses (Pearl et al. 2009a, p. 142). In addition,
nonnative fish (in particular wide-gape fish like bluegill sunfish) may
be facilitating the distribution and abundance of bullfrogs by preying
upon macroinvertebrates that would otherwise consume bullfrog tadpoles
(Adams et al. 2003, p. 349).
Bullfrogs share similar habitat and temperature requirements with
the Oregon spotted frog, but adult bullfrogs achieve larger body size
than native western ranids and even juvenile bullfrogs can consume
post-metamorphic native frogs (Hayes and Jennings 1986, p. 492; Pearl
et al. 2004, p. 16). In addition, bullfrog larvae can outcompete or
displace native larvae from their habitat or optimal conditions by
harassing native larvae at feeding stations or inhibiting native larvae
feeding patterns (Kupferberg 1997, pp. 1741-1746, Kiesecker and
Blaustein 1998, pp. 783-784, Kiesecker et al. 2001b, pp. 1966-1967).
Therefore, Oregon spotted frogs require areas that are sheltered from
competition with, or predation by, bullfrogs.
Within the current range of the Oregon spotted frog are two
different winter regimes. In British Columbia and Washington, the Puget
Trough climate is maritime with mild summer and winter temperatures.
Subfreezing conditions occur only for short periods in November through
March, but ice rarely persists for more than a week. The Cascades
winter conditions are cold enough to produce ice-capped water bodies
from December to February, and temperatures regularly extend below
freezing between mid-October and early April. Known overwintering sites
are associated with flowing systems, such as springs and creeks, that
provide well-oxygenated water (Hallock and Pearson 2001, p. 15; Hayes
et al. 2001, pp. 20-23; Tattersall and Ultsch 2008, pp. 123, 129, 136)
and sheltering locations protected from predators and freezing
(Risenhoover et al. 2001b, pp. 13-26; Watson et al. 2003, p. 295; Pearl
and Hayes 2004, pp. 32-33). Oregon spotted frogs may burrow in mud,
silty substrate, or clumps of emergent vegetation during periods of
prolonged or severe cold (Watson et al. 2003, p. 295; McAllister and
Leonard 1997, p. 17) but may remain active throughout most of the
winter (Hallock and Pearson 2001, p. 17). Therefore, overwintering
habitat needs to retain water during the winter (October through March
or early April), and, to facilitate movement, these areas need to be
hydrologically connected via surface water to breeding and rearing
habitat.
In the areas of the range where water bodies become capped by ice
and snow for several weeks during the winter, hypoxic water conditions
can occur due to cessation of photosynthesis combined with oxygen
consumption by decomposers (Wetzel 1983, pp. 162-170). While lethal
oxygen levels for Oregon spotted frogs have not been evaluated, other
ranid species have been found to use overwintering microhabitat with
well-oxygenated waters (Ultsch et al. 2000, p. 315; Lamoureux and
Madison 1999, p. 434), and most fish cannot tolerate levels below 2.0
mg/L (Wetzel 1983, p. 170). However, some evidence indicates that
Oregon spotted frogs can tolerate levels at or somewhat below 2.0 mg/L
and do not purposefully avoid areas with low oxygen levels, at least
for short periods (Hayes et al. 2001, pp. 20-22; Risenhoover et al.
2001b, pp. 17-18).
Therefore, based on the information above, we identify the
following physical or biological features needed by Oregon spotted
frogs to provide for their cover and shelter requirements: (1)
Permanent fresh water bodies, including natural and manmade, that have
greater than 50 percent surface water with floating and shallow
subsurface vegetation during the summer and that are hydrologically
connected via surface water to breeding and rearing habitat; (2)
permanent fresh water bodies, including natural and manmade, that hold
water from October to March and are hydrologically connected via
surface water to breeding and rearing habitat; (3) physical cover from
avian and terrestrial predators, and lack of predation by introduced
fish and bullfrogs; and (4) refuge from lethal overwintering conditions
(freezing and anoxia).

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

Oregon spotted frog breeding sites are generally temporarily
inundated (flooded or underwater) shallows (2-12 in (5-30 cm) deep)
that are hydrologically connected to permanent waters (Licht 1971, p.
120, Hayes et al. 2000 entire, Pearl and Bury 2000 entire, Risenhoover
et al. 2001a, pp. 13-15, Watson et al. 2003, p. 295) and include pools,
gradually receding shorelines,

[[Page 53543]]

benches of seasonal lakes and marshes, and wet meadows. Egg-laying
microhabitats are gradually sloped and relatively close to shorelines
(Hayes et al. 2000, p. 5; Pearl and Bury 2000, p. 6; Pearl and Hayes
2004, p. 20) and are usually associated with submergent or the previous
year's emergent vegetation. Characteristic vegetation includes grasses,
sedges, and rushes. Vegetation coverage beneath egg masses is generally
high, and Oregon spotted frog egg masses are rarely found over open
soil or rock substrates (Pearl and Bury 2000, p. 6; Lewis et al. 2001,
pp. 9-10). Full solar exposure seems to be a significant factor in
breeding habitat selection and eggs are laid where the vegetation is
low or sparse, such that vegetation structure does not shade the eggs
(McAllister and Leonard 1997, pp. 8, 17; McAllister and White 2001, pp.
10-11; Pearl and Bury 2000, p. 6; Pearl et al. 2009a, pp. 141-142).
To be considered essential breeding habitat, water must be
permanent enough to support breeding, tadpole development to
metamorphosis (approximately 4 months), and survival of frogs. Egg-
laying can begin as early as February in British Columbia and
Washington and as late as April/May in the higher elevations. In
addition, breeding habitat must be hydrologically connected to
permanent waters. The heaviest losses to predation are thought to occur
shortly after tadpoles emerge from eggs, when they are relatively
exposed and poor swimmers (Licht 1974, p. 624). Significant mortality
can also result when tadpoles become isolated in breeding pools away
from more permanent waters (Licht 1974, p. 619; Watson et al. 2003, p.
298). Watson et al. (2000, p. 28) reported nearly total reproductive
failure in 1998 when the egg-laying pools dried due to dry weather
following breeding. In addition to being vulnerable to desiccation,
tadpoles may succumb to low dissolved oxygen levels in isolated pools
and ponds during summer (Watson et al. 2000, p. 28).
Therefore, based on the information above, we identify the
following physical or biological features needed by Oregon spotted
frogs to provide for sites for breeding reproduction, or rearing
(development) of offspring: (1) Standing bodies of fresh water,
including natural and manmade ponds, slow-moving streams or pools
within streams, and other ephemeral or permanent water bodies that
typically become inundated during winter rains and hold water for a
minimum of 4 months (from egg-laying through metamorphosis); (2)
shallow (less than or equal to 12 inches (30cm)) water areas (shallow
water may also occur over vegetation that is in deeper water); (3) a
hydrological connection to a permanent water body; (4) gradual
topographic gradient; (5) emergent wetland vegetation (or vegetation
that can mimic emergent vegetation via manipulation, for example reed
canarygrass that can be mowed); and (6) full solar exposure.

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

Dispersal habitat may consist of ephemeral (water present for only
a short time), intermittent, or perennial drainages that are generally
not suitable for breeding but can provide corridors that afford
movement. This habitat also offers areas for the establishment of home
ranges by juvenile recruits, maintenance of gene flow through the
movement of juveniles and adults between populations, and recruitment
into new breeding habitat or recolonization of breeding habitat after
local extirpations. Detailed studies of dispersal and population
dynamics of Oregon spotted frogs are limited. However, home ranges in a
Washington study averaged 5.4 ac (2.2 ha), and daily movement was 16-23
feet (ft) (5-7 meters (m)) throughout the year (Watson et al. 2003, p.
295). Oregon spotted frogs at the Sunriver site in Oregon routinely
make annual migrations of 0.31-0.81 mi (0.5-1.3 km) between the major
egg-laying complex and an overwintering site (Bowerman 2006, pers.
comm.). Longer travel distances, while infrequent, have been observed
between years and within a single year between seasons. The maximum
observed movement distance in Washington was 1.5 mi (2.4 km) between
seasons along lower Dempsey Creek to the creek's mouth from the point
where the frogs were marked (McAllister and Walker 2003, p. 6). In
Oregon, the maximum observed movement was 1.74 mi (2.8 km) downstream
(Cushman and Pearl 2007, p. 13). While these movement studies are
specific to Oregon spotted frogs, the number of studies and size of the
study areas are limited and studies have not been conducted over
multiple seasons or years. In addition, the ability to detect frogs is
challenging because of the difficult terrain in light of the need for
the receiver and transmitter to be in close proximity. Hammerson (2005)
recommends that a 3.1-mile (5-km) separation distance for suitable
habitat be applied to all ranid frog species because the movement data
for ranids are consistent and the preponderance of data indicates that
a separation distance of several kilometers may be appropriate and
practical for delineation of occupancy, despite occasional movements
that are longer or that may allow some genetic interchange between
distant populations (for example, the 10-km (6.2-mi) distance noted by
Blouin et al. 2010, pp. 2186, 2188). Therefore, for the purposes of
evaluating the connectedness of Oregon spotted frog breeding areas and
individual frogs' ability to move between areas of suitable habitat, we
will assume a maximum movement distance of 3.1 mi (5 km). In addition,
these aquatic movement corridors should be free of impediments to
movement, including but not limited to hard barriers such as dams and
biological barriers such as abundant predators.
Maintenance of populations across a diversity of ecological
landscapes is necessary to provide sufficient protection against
changing environmental circumstances (such as climate change). This
diversity of habitat areas provides functional redundancy to safeguard
against stochastic events (such as droughts) and may also be necessary
as different regions or microclimates respond to changing climate
conditions. Establishing or maintaining populations across a broad
geographic area spreads out the risk to individual populations across
the range of the species, thereby conferring species resilience.
Finally, protecting a wide range of habitats across the occupied range
of the species simultaneously maintains genetic diversity of the
species, which protects the underlying integrity of the major genetic
groups (Blouin et al. 2010, pp. 2184-2185) whose persistence is
important to the ecological fitness of the species as a whole (Blouin
et al. 2010, p. 2190).
Therefore, based on the information above, we identify the
following physical or biological features needed by Oregon spotted
frogs to provide habitats protected from disturbance and representative
of the historical, geographic, and ecological distribution: (1) Wetted
corridors within 3.1 mi (5 km) of breeding habitat that are free of
barriers to movement, and (2) a diversity of high-quality habitats
across multiple sub-basins throughout the geographic extent of the
species' range sufficiently representing the major genetic groups.

Primary Constituent Elements for Oregon Spotted Frog

Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Oregon spotted frog in areas occupied at

[[Page 53544]]

the time of listing, focusing on the features' primary constituent
elements (PCEs). Primary constituent elements are those specific
elements of the physical or biological features (PBFs) that provide for
a species' life-history processes and are essential to the conservation
of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Oregon spotted frog are:
(1) Primary constituent element 1--Nonbreeding (N), Breeding (B),
Rearing (R), and Overwintering Habitat (O). Ephemeral or permanent
bodies of fresh water, including, but not limited to natural or manmade
ponds, springs, lakes, slow-moving streams, or pools within or oxbows
adjacent to streams, canals, and ditches, that have one or more of the
following characteristics:
Inundated for a minimum of 4 months per year (B, R)
(timing varies by elevation but may begin as early as February and last
as long as September);
Inundated from October through March (O);
If ephemeral, areas are hydrologically connected by
surface water flow to a permanent water body (e.g., pools, springs,
ponds, lakes, streams, canals, or ditches) (B, R);
Shallow water areas (less than or equal to 30 centimeters
(12 inches), or water of this depth over vegetation in deeper water (B,
R);
Total surface area with less than 50 percent vegetative
cover (N);
Gradual topographic gradient (less than 3 percent slope)
from shallow water toward deeper, permanent water (B, R);
Herbaceous wetland vegetation (i.e., emergent, submergent,
and floating-leaved aquatic plants), or vegetation that can
structurally mimic emergent wetland vegetation through manipulation (B,
R);
Shallow water areas with high solar exposure or low
(short) canopy cover (B, R);
An absence or low density of nonnative predators (B, R, N)
(2) Primary constituent element 2--Aquatic movement corridors.
Ephemeral or permanent bodies of fresh water that have one or more of
the following characteristics:
Less than or equal to 5 kilometers (3.1 miles) linear
distance from breeding areas;
Impediment free (including, but not limited to, hard
barriers such as dams, biological barriers such as abundant predators,
or lack of refugia from predators).
(3) Primary constituent element 3--Refugia habitat. Nonbreeding,
breeding, rearing, or overwintering habitat or aquatic movement
corridors with habitat characteristics (e.g., dense vegetation and/or
an abundance of woody debris) that provide refugia from predators
(e.g., nonnative fish or bullfrogs).
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features essential to the conservation of the
species and which may require special management considerations or
protection. Here we describe the type of special management
considerations or protections that may be required for the physical or
biological features identified as essential for the Oregon spotted
frog. The specific critical habitat units and subunits where these
management considerations or protections apply for each species are
identified in Unit Descriptions.
A detailed discussion of activities influencing the Oregon spotted
frog and their habitat can be found in the proposed listing rule.
Threats to the physical or biological features that are essential to
the conservation of this species and that may warrant special
management considerations or protection include, but are not limited
to: (1) Habitat modifications brought on by nonnative plant invasions
or native vegetation encroachment (trees and shrubs); (2) loss of
habitat from conversion to other uses; (3) hydrologic manipulation; (4)
removal of beavers; (5) livestock grazing; and (6) predation by
invasive fish and bullfrogs. These threats also have the potential to
affect the PCEs if conducted within or adjacent to designated units.
The physical or biological features essential to the conservation
of the Oregon spotted frog may require special management
considerations or protection to ensure the provision of wetland
conditions and landscape context of sufficient quantity and quality for
long-term conservation and recovery of the species. Management
activities that could ameliorate the threats described above include
(but are not limited to) treatment or removal of exotic and encroaching
vegetation (for example mowing, burning, grazing, herbicide treatment,
shrub/tree removal); modifications to fish stocking and beaver removal
practices in specific water bodies; nonnative predator control;
stabilization of extreme water level fluctuations; restoration of
habitat features; and implementation of appropriate livestock grazing
practices.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We review available information pertaining to the habitat requirements
of the species. In accordance with the Act and its implementing
regulation at 50 CFR 424.12(e), we consider whether designating
additional areas--outside those currently occupied as well as those
occupied at the time of listing--is necessary to ensure the
conservation of the species. All areas currently known to be occupied
by Oregon spotted frogs constitute the specific areas within the
geographical area occupied by the species at the time of its proposed
listing on which are found those physical or biological features
essential to the conservation of the species and which may require
special management considerations or protections. These areas are
identified as occupied in each of the unit or subunit descriptions
below. We are also proposing to designate areas that are currently
``not known to be occupied'' that are also essential for the
conservation of the species. The distinction between ``occupied'' and
``not known to be occupied'' areas is based primarily on a lack of
survey data for the latter areas (i.e., these areas may be either
occupied or unoccupied, but have not been surveyed because of access
limitations). Our determination of the areas occupied at the time of
listing and the rationale for why ``not known to be occupied'' areas
are essential for the conservation of the species are provided below.
We used information from reports and databases prepared by Federal
and State agencies and private researchers to identify the specific
locations used by Oregon spotted frogs for egg-laying, rearing,
nonbreeding, and overwintering. Occurrence data used for determining
occupancy includes the time period between 2000 and 2012; older
occurrence data were not considered to be a reliable predictor for
current occupancy. In only three locations throughout the species'
range is occurrence data used prior to 2005 (i.e., 2000-2004).
Therefore, the majority of occupied occurrence data was collected in
2005 or later.
The presence of primary constituent elements (PCEs) are not a
mandatory requirement for areas proposed for

[[Page 53545]]

designation as unoccupied critical habitat (i.e., the ``not known to be
occupied'' areas in this proposed rule) (50 CFR 424.02(d)). However,
the presence of PCEs was evaluated in mapping these areas, since areas
having those features would have greater likelihood of providing
habitat features essential to Oregon spotted frog conservation. To
determine whether the currently occupied areas and the ``not known to
be occupied'' areas contain the primary constituent elements, we
plotted all occurrence records in ArcGIS, version 9 or 10
(Environmental Systems Research Institute, Inc.), a computer geographic
information system program, and overlaid them on National Agriculture
Imagery Program (NAIP) digital imagery, National Wetland Inventory
(NWI) data, National Hydrologic Data (NHD), and slope data. Where NWI
data were available and appeared to well-represent the potential
habitat as seen on the NAIP imagery, the NWI data were used to
approximate primary constituent elements. These areas are referred to
as ``wetlands'' in the unit descriptions. However, in many cases the
NWI features were either too expansive or not expansive enough to
capture the known occurrences; in these cases, NAIP imagery, slope, and
local knowledge were utilized to approximate the primary constituent
elements. These areas are referred to as ``seasonally wetted'' in the
unit descriptions. In order to capture primary constituent element 2-
aquatic movement corridors, we used the NHD to map 3.1 mi (5 km)
distance up and downstream from the occurrence data. NAIP imagery and
local knowledge were used to refine NHD line features (for example,
adjusting alignment with actual water course).
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for Oregon spotted frog. The scale of
the maps 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 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 physical or biological features in the adjacent critical
habitat.
We are proposing for designation of critical habitat lands that we
have determined are occupied by the Oregon spotted frog at the time of
listing and contain sufficient elements of physical or biological
features to support life-history processes essential for the
conservation of the species. The physical or biological features relate
to Oregon spotted frog nonbreeding, breeding, rearing, and
overwintering habitat needs, the specifics of which are discussed in
greater detail under ``Primary Constituent Elements for Oregon spotted
frog'' above. We determined occupancy in these areas based on
occurrence data as described above. These occupied areas provide the
physical or biological features essential to the conservation of the
species, which may require special management considerations or
protection.
In addition, we are proposing to designate critical habitat within
areas ``not known to be occupied'' at the time of listing, but that we
have determined to be essential for the conservation of the species. We
can designate critical habitat in areas outside the geographic area
occupied by a species only when a designation limited to its range
would be inadequate to ensure the conservation of the species. For
areas not occupied by the species at the time of listing, we must
demonstrate that these areas are essential to the conservation of the
species in order to include them in our critical habitat designation.
For purposes of this proposed rule and our analysis, the ``not known to
be occupied areas'' are defined as specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this Act, upon a
determination by the Secretary that such areas are essential for the
conservation of the species. To determine if ``not known to be
occupied'' areas met the criteria for critical habitat, we considered:
(1) The importance of the area to the overall status of the species to
prevent extinction and contribute to future recovery of the species;
(2) whether the area presently provides the essential physical or
biological features, or could be managed and restored to contain the
necessary physical or biological features to support the species; and
(3) whether individuals were likely to use or colonize the area. While
the Act does not require that such features be present in order to
designate areas as unoccupied critical habitat, these presently ``not
known to be occupied'' areas generally provide the physical or
biological features essential for the conservation of the species and
may require special management considerations or protection. In
general, these areas are ``not known to be occupied'' because they have
not been surveyed. However, each of these areas are within occupied
sub-basins, contain habitat features similar to known occupied areas,
hydrologically connect (via surface water) occupied areas, and do not
contain barriers that would inhibit Oregon spotted frog movement
between occupied areas.
Within Critical Habitat Unit 1 (Lower Chilliwack River Washington),
approximately 137 ac (55 ha) and 0.38 river mi (0.61 km) are being
proposed as unoccupied critical habitat (i.e., ``not known to be
occupied''--see discussion below), and within Critical Habitat Unit 8
(Upper Deschutes River Oregon (subunit 8A)), approximately 177 ac (72
ha) fall within this category. In Critical Habitat Unit 9 (Little
Deschutes River, Oregon), approximately 45 ac (18 ha), 13 ac (5 ha)
within Critical Habitat Unit 12 (Williamson River Oregon), and 83 ac
(33 ha) within Critical Habitat Unit 13 (Upper Klamath Lake Oregon) are
within unoccupied critical habitat. In total, approximately 455 ac (184
ha), and 0.38 river mile are proposed as unoccupied critical habitat.
Each of the areas proposed as unoccupied critical habitat are adjacent
to known occupied sites, where a number of threats remain operative.
Although these areas are being treated as if they are unoccupied
for purposes of this proposed rule, substantial uncertainty surrounds
their occupancy status. There is no conclusive evidence that the Oregon
spotted frog is completely absent from these areas, since: (1) Surveys
have not been conducted (because of access limitations on private
property or resource limitations on public lands); (2) the unoccupied
reaches have appropriate habitat based on the best available
information; (3) these areas are between or connected to known occupied
areas; and (4) there are no barriers that would constrain upstream or
downstream movement.
The species has been extirpated from up to 90 percent of its
historical range, and limiting the proposed designation to the known
currently occupied sites would not be adequate to ensure the
conservation of the species. Including the proposed designation of
unoccupied habitat is essential to ensure adequate resilience,
redundancy, and representation in the wild. Resilience describes
characteristics of a species

[[Page 53546]]

and its habitat that allow it to recover from periodic disturbance.
Redundancy (having multiple populations distributed across the
landscape) is needed to provide a margin of safety for the species to
withstand catastrophic events. Representation (the range of variation
found in a species) ensures that the species' adaptive capabilities are
conserved. These terms are not independent of each other, and some
characteristic of a species or area may contribute to all three.
The inclusion of unoccupied critical habitat in the proposed rule
provides for the connectivity of upstream and downstream populations,
facilitating gene flow and allowing for recolonization of sites that
may become lost due to threats or other factors. Six of the unoccupied
areas included in the proposed designation comprise river segments and
their adjacent seasonally flooded areas. These areas contain some of
the physical and biological features necessary to support Oregon
spotted frogs and provide a corridor between known occupied areas. Two
additional unoccupied areas included in the proposed designation are
areas that also contain some of the physical and biological features
necessary to support Oregon spotted frogs, and are adjacent to occupied
areas. The designation of unoccupied critical habitat connecting known
occupied areas or adjacent to known occupied sites is essential because
it provides: (1) Areas for dispersal and the establishment of new
breeding populations; (2) sites for future reintroduction efforts
should that be part of a recovery strategy; and (3) nearby nonbreeding,
breeding, rearing, and overwintering habitat opportunities should
threats, natural catastrophic, or stochastic events render existing
occupied sites nonfunctional. All of the unoccupied areas are within
occupied sub-basins, contain habitat features similar to known occupied
areas, are hydrologically connected (via surface water) occupied areas,
and do not contain barriers that would inhibit Oregon spotted frog
movement between occupied areas.
Areas proposed as critical habitat for the Oregon spotted frog are
not representative of the entire known historical geographic
distribution of the species. We are not proposing to designate critical
habitat in areas where the species has been extirpated, such as in
California or the Willamette Valley in Oregon. These historical areas
do not meet the criteria for critical habitat since they are not
essential to the conservation of the species.
We are proposing 14 units of critical habitat for designation based
on sufficient elements of physical or biological features being present
to support Oregon spotted frog life-history processes. These units are
delineated by the sub-basins where Oregon spotted frogs remain extant.
The threats are relatively consistent across each unit, with the
exception of one unit where threats are significantly different (Unit 8
Upper Deschutes River). This unit is further subdivided into two
subunits. Each unit contains areas occupied by Oregon spotted frogs and
all of the identified elements of physical or biological features and
supports multiple life-history processes. Some segments within the
units contain only some elements of the physical or biological features
necessary to support the Oregon spotted frog's particular use of that
habitat. In addition, some segments within the units are not known to
be presently occupied, but we have determined them to be essential for
the conservation of the species. Therefore, we are also proposing these
``not known to be occupied'' areas as critical habitat for the Oregon
spotted frog.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-ES-R1-2013-0088, on our Internet
site http://www.fws.gov/wafwo, and at the field office responsible for
the designation (see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

We are proposing 14 units as critical habitat for Oregon spotted
frog. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for Oregon spotted frog. The 14 areas we propose as critical
habitat are: (1) Lower Chilliwack River; (2) South Fork Nooksack River;
(3) Samish River; (4) Black River; (5) White Salmon River; (6) Middle
Klickitat River; (7) Lower Deschutes River; (8) Upper Deschutes River;
(9) Little Deschutes River; (10) McKenzie River; (11) Middle Fork
Willamette River; (12) Williamson River; (13) Upper Klamath Lake; and
(14) Upper Klamath. All units contain areas occupied by Oregon spotted
frogs. However, as previously discussed, some units also contain areas
``not known to be occupied'' by Oregon spotted frogs; more details
about these areas are included within each individual critical habitat
unit description below. The approximate area and river mileage of each
proposed critical habitat unit and its relevant subunits, as well as
landownership within each unit, are shown in Tables 1 and 2. Unlike
Washington, no river miles alone were proposed for designation in
Oregon as these areas were included within the area of the larger Unit
designation. River miles alone were applied only where we were unable
to delineate a polygon to encompass the PBF, such as in incised
channels or developed areas. Otherwise, all of the river miles are
encompassed in the acreage totals.

Table 1--Approximate Area and Landownership in Proposed Critical Habitat Units for the Oregon Spotted Frog
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private/Local
Critical habitat unit Federal Ac (Ha) State Ac (Ha) County Ac (Ha) municipalities Ac Total
(Ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington:
1. Lower Chilliwack River............................ 0 0 13 (5) 267 (108) 280 (113)
2. South Fork Nooksack River......................... 0 0 0 111 (45) 111 (45)
3. Samish River...................................... 0 1 (<1) 1 (<1) 982 (398) 984 (398)
4. Black River....................................... 877 (355) 375 (151) 151 (61) 3,478 (1,408) 4,881 (1,975)
5. White Salmon River................................ 108 (44) 1,084 (439) 0 33 (13) 1,225 (496)
6. Middle Klickitat River............................ 4,048 (1,638) 0 2 (1) 2,796 (1132) 6,846 (2,770)
Oregon:
7. Lower Deschutes River............................. 63 (25) 0 0 6 (2.5) 69 (28)

[[Page 53547]]

8. Upper Deschutes River............................. 23,211 (9,393) 180 (73) 45 (18) 962 (389) 24,398 (9,873)
8A. Upper Deschutes River, Below Wickiup Dam......... 1,180 (477) 180 (73) 45 (18) 961 (389) 2,366 (958)
8B. Upper Deschutes River, Above Wickiup Dam......... 22,031 (8,916) 0 0 <1 22,031 (8,916)
9. Little Deschutes River............................ 5,275 (2,135) 216 (87) 81 (33) 5,789 (2,343) 11,361 (4,598)
10. McKenzie River................................... 98 (40) 0 0 0 98 (40)
11. Middle Fork Willamette River..................... 292 (118) 0 0 0 292 (118)
12. Williamson River................................. 10,335 (4,182) 0 0 4,817 (1,949) 15,152 (6,132)
13. Upper Klamath Lake............................... 1,243 (503) 6 (3) 0 1,002 (405) 2,251 (911)
14. Upper Klamath.................................... 85 (34) 0 0 160 (65) 245 (99)
----------------------------------------------------------------------------------------------
Total............................................ 45,635 (18, 647) 1,862 (753) 293 (118) 20,402 (8,258) 68,192 (27,597)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and stream miles within critical habitat unit boundaries, except those
stream miles included in Table 2.

TABLE 2--Approximate River Mileage and Ownership Within Proposed Critical Habitat Units for the Oregon Spotted Frog
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Private/Local
Federal river Federal/ State river State/Private County river County/Private municipalities
Ownership * mile (km) Private river mile (km) river mile mile (km) river mile river mile Total
mile (km) (km) (km) (km)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Lower Chilliwack River....................................... 0 0 0 0 0 0 7.63 (12.28) 7.63 (12.28)
2. South Fork Nooksack River.................................... 0 0 0 0 0 0 3.56 (5.73) 3.56 (5.73)
3. Samish River................................................. 0 0 0 0 0 0 1.73 (2.78) 1.73 (2.78)
4. Black River.................................................. 0.06 (0.10) 0.06 (0.09) 0.45 (0.73) 0.05 (0.07) 0.64 (1.02) 0.27 (0.43) 5.90 (9.49) 7.42 (11.94)
5. White Salmon River........................................... 0.91 (1.46) 0 0 0 0 0 2.30 (3.70) 3.20 (5.15)
-------------------------------------------------------------------------------------------------------------------------------
Total....................................................... 0.97 (1.55) 0.06 (0.09) 0.5 (0.8) 0.05 (0.07) 0.63 (1.02) 0.27 (0.43) 21.12 (33.97) 23.54 (37.88)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Ownership--multi-ownership (such as Federal/Private) indicate different ownership on each side of the river/stream/creek.
Note: River miles (km) may not sum due to rounding. Mileage estimates reflect stream miles within critical habitat unit boundaries that are not included in area estimates in Table 1.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Oregon spotted frog, below.
In some cases, multiple data sources are used to inform our
determinations. These multiple data sources include various unpublished
reports, databases, and spreadsheets provided by our partner agencies.
These sources are identified in the literature cited list, which is
included as supplementary information on http://www.regulations.gov for
this proposed rule. These sources are available upon request from the
Washington Fish and Wildlife Office (see ADDRESSES).

Critical Habitat Unit 1: Lower Chilliwack River

The Lower Chilliwack River unit consists of 280 ac (113 ha) and 8
river miles (12 river kilometers) in Whatcom County, Washington. This
unit includes the Sumas River and adjacent seasonally wetted areas from
approximately the intersection with Hopewell Road downstream to the
intersection with Gillies Road. This unit also includes portions of
Swift Creek and an unnamed tributary just south of Swift Creek, along
with their adjacent seasonally wetted areas. Oregon spotted frogs are
known to currently occupy 143 ac (58 ha) and 7 river miles (11 river
kilometers) in this unit (Bohannon et al. 2012). Currently, a 137-ac
(55-ha) area and a river segment of 0.38 river miles (0.61 river
kilometers) are ``not known to be occupied'' (see explanation of this
definition above). We consider the ``not known to be occupied'' acres
and river miles to be essential for the conservation of the species
because they provide egg-laying habitat and an aquatic movement
corridor for the Oregon spotted frogs in the unnamed tributary. Within
this unit, currently, 13 ac (5 ha) are managed by Whatcom County, and
267 ac (108 ha) and 8 river miles (12 river kilometers) are privately
owned. All of the essential physical or biological features are found
within the unit, but are impacted by invasive plants (reed
canarygrass), woody vegetation plantings, and hydrologic modification
of river flows. The essential features within this unit may require
special management considerations or protection to ensure maintenance
or improvement of the existing nonbreeding, breeding, rearing, and
overwintering habitat; aquatic movement corridors; or refugia habitat,
and to address any changes that could affect these features.

Critical Habitat Unit 2: South Fork Nooksack River

The South Fork Nooksack River unit consists of 111 ac (45 ha) and 4
river miles (6 river kilometers) in Whatcom County, Washington. This
unit includes the Black Slough and adjacent seasonally wetted areas
from the headwaters to the confluence with South Fork Nooksack River.
This unit also includes wetlands and seasonally wetted areas along
Tinling Creek and the unnamed tributary to the Black Slough. Oregon
spotted frogs are known to currently occupy this unit (Bohannon et al.
2012). The entire area within this unit is under private ownership,
including one nonprofit conservation organization. All of the essential
physical or biological features are found within the unit, but are
impacted by

[[Page 53548]]

invasive plants (reed canarygrass), woody vegetation plantings and
succession, and beaver removal efforts. The essential features within
this unit may require special management considerations or protection
to ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 3: Samish River

The Samish River unit consists of 984 ac (398 ha) and 2 river miles
(3 river kilometers) in Whatcom and Skagit Counties, Washington. This
unit includes the Samish River and adjacent seasonally wetted areas
from the headwaters downstream to the confluence with Dry Creek. Oregon
spotted frogs are known to currently occupy this unit (Bohannon et al.
2012). Within this unit, currently less than 1 ac (less than 1 ha) is
managed by Washington Department of Natural Resources (WDNR), 1 ac
(less than 1 ha) is managed by Skagit County, and 982 ac (397 ha) and 2
river miles (3 river kilometers) are privately owned, including two
nonprofit conservation organizations. All of the essential physical or
biological features are found within the unit, but are impacted by
invasive plants (reed canarygrass), woody vegetation plantings and
succession, and beaver removal efforts. The essential features within
this unit may require special management considerations or protection
to ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 4: Black River

The Black River unit consists of 4,881 ac (1,975 ha) and 7 river
miles (12 river kilometers) in Thurston County, Washington. This unit
includes the Black River and adjacent seasonally wetted areas from
Black Lake downstream to approximately 3 mi (5 km) south of the
confluence with Mima Creek. This unit also includes six tributaries to
the Black River (Dempsey Creek, Salmon Creek, Blooms Ditch, Allen
Creek, Beaver Creek, and Mima Creek), one tributary to Black Lake (Fish
Pond Creek), and their adjacent seasonally wetted areas. Oregon spotted
frogs are known to currently occupy this unit (Hallock 2013). Within
this unit, currently 877 ac (355 ha) are Federally managed by the
Nisqually NWR (873 ac (353 ha)) and the Department of Energy (4 ac (2
ha)); 375 ac (151 ha) are managed by State agencies, including the
Washington Department of Fish and Wildlife and Department of Natural
Resources; 151 ac (61 ha) are City or County managed; and 3,478 ac
(1,408 ha) are privately owned, including two nonprofit conservation
organizations. Within this unit, currently 6 river miles (10 river
kilometers) are privately owned; less than 1 river mile (less than 1
river kilometer) is dually managed/owned (i.e., different owners on
opposite sides of the river); and less than 1 river mile (less than 1
river kilometer) is managed by each of the following: Nisqually NWR,
State agencies, and Thurston County. All of the essential physical or
biological features are found within the unit, but are impacted by
invasive plants (reed canarygrass), woody vegetation plantings and
succession, and beaver removal efforts. The essential features within
this unit may require special management considerations or protection
to ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 5: White Salmon River

The White Salmon River unit consists of 1,225 ac (496 ha) and 3
river miles (5 river kilometers) in Skamania and Klickitat Counties,
Washington. This unit includes the Trout Lake Creek from the confluence
with Little Goose Creek downstream to the confluence with White Salmon
River, Trout Lake, and the adjacent seasonally-wetted areas. Oregon
spotted frogs are known to currently occupy this unit (Hallock 2011 and
Hallock 2012). Within this unit, currently 108 ac (44 ha) and 1 river
mile (2 river kilometers) are managed by the U.S. Forest Service
(USFS), 1,084 ac (439 ha) are managed by Washington Department of
Natural Resources as the Trout Lake NAP, and 33 ac (13 ha) and 2 river
miles (4 river kilometers) are privately owned. All of the essential
physical or biological features are found within the unit, but are
impacted by invasive plants and nonnative predaceous fish. The
essential features within this unit may require special management
considerations or protection to ensure maintenance or improvement of
the existing nonbreeding, breeding, rearing, and overwintering habitat;
aquatic movement corridors; or refugia habitat, and to address any
changes that could affect these features. The Trout Lake NAP (WDNR) has
a draft Management Plan that is used for management on WDNR lands in
this unit and we are considering exclusion of these lands under section
4(b)(2) of the Act (see Exclusions, below).

Critical Habitat Unit 6: Middle Klickitat River

The Middle Klickitat River unit consists of 6,846 ac (2,770 ha) in
Klickitat County, Washington. This unit encompasses Conboy Lake, Camas
Prairie, and all water bodies therein, and extends to the northeast
along Outlet Creek to Mill Pond. The southwestern edge is approximately
Laurel Road, the southern edge is approximately BZ Glenwood Highway,
and the northern edge follows the edge of Camas Prairie to
approximately Willard Spring. Oregon spotted frogs are known to
currently occupy this unit (Hayes and Hicks 2011). Within this unit,
currently 4,048 ac (1,638 ha) are managed by the Conboy Lake National
Wildlife Refuge; 2 ac (1 ha) are managed by Klickitat County, and 2,796
ac (1,132 ha) are privately owned. All of the essential physical or
biological features are found within the unit, but are impacted by
water management, exotic plant invasion, native tree encroachment, and
nonnative predaceous fish and bullfrogs. The essential features within
this unit may require special management considerations or protection
to ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 7: Lower Deschutes River

The Lower Deschutes River unit consists of 69 acres (28 ha) in
Wasco County, Oregon. This Unit includes Camas Prairie and Camas Creek,
a tributary to the White River and is located on the Mt. Hood National
Forest. Oregon spotted frogs are known to currently occupy this unit
(C. Corkran, pers. comm. 2012). Within this unit, 63 ac (25 ha) are
managed by the USFS Mt. Hood National Forest, and 6 ac (2.5 ha) are
privately owned. All of the essential physical or biological features
are found within the unit but are impacted by vegetation succession
(conifer encroachment). The essential features within this unit may
require special management considerations or protection to ensure
maintenance or improvement of the existing nonbreeding, breeding,
rearing, and overwintering habitat; aquatic

[[Page 53549]]

movement corridors; or refugia habitat, and to address any changes that
could affect these features.

Critical Habitat Unit 8: Upper Deschutes River

The Upper Deschutes River unit includes 24,398 ac (9,873 ha) in
Deschutes County, Oregon, in the Upper Deschutes River sub-basin. The
Upper Deschutes River unit extends from headwater streams and wetlands
draining to Crane Prairie and Wickiup Reservoirs to the Deschutes River
downstream to Bend, Oregon. This unit also includes Odell Creek and
Davis Lake. Within this unit, currently 23,210 ac (9,393 ha) are
managed by the USFS Deschutes National Forest, 180 ac (73 ha) are
managed by Oregon Parks and Recreation Department, 45 ac (18 ha) are
owned by the county, and 962 ac (389 ha) are privately owned. The Upper
Deschutes River unit consists of two subunits: Below Wickiup Dam
(Subunit 8A) and Above Wickiup Dam (Subunit 8B). Oregon spotted frogs
are known to currently occupy 24,221 ac (9,801 ha) in unit 8 (USGS,
Bowerman, and USFS multiple data sources). Within subunit 8A, 177 ac
(72 ha) are ``not known to be occupied,'' but are essential to the
conservation of the species for the reasons identified in the subunit
description below. The essential features within this unit may require
special management considerations or protection to ensure maintenance
or improvement of the existing nonbreeding, breeding, rearing, and
overwintering habitat; aquatic movement corridors; or refugia habitat,
and to address any changes that could affect these features. Within
this unit, we are considering exclusion of lands that may be managed
under a Sunriver Candidate Conservation Agreement with Assurances
(CCAA), the Old Mill Pond Oregon spotted frog CCAA, and the Deschutes
Basin Habitat Conservation Plan under section 4(b)(2) of the Act (see
Exclusions, below).

Subunit 8A: Below Wickiup Dam

This subunit includes 2,366 ac (958 ha). This subunit consists of
the Deschutes River and associated wetlands downstream of Wickiup Dam
to Bend, Oregon, beginning at the outlet of an unnamed tributary
draining Dilman Meadow. Currently, two areas totaling 177 ac (72 ha)
are ``not known to be occupied''. We consider the ``not known to be
occupied'' acres to be essential for recovery of the species because
they provide aquatic movement corridors between the few remaining
populations below Wickiup Dam (e.g., Dilman Meadow and frog populations
downstream along the Deschutes River). Within this subunit, currently
1,180 ac (477 ha) are managed by the USFS Deschutes National Forest,
180 ac (73 ha) are managed by Oregon Parks and Recreation Department,
45 ac (18 ha) are managed by Deschutes County, and 962 ac (389 ha) are
privately owned. All of the essential physical or biological features
are found within the subunit but are impacted by hydrologic
modification of river flows, reed canarygrass, predaceous fish, and
bullfrogs. The essential features within occupied habitat within this
subunit may require special management considerations or protection to
ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Subunit 8B: Above Wickiup Dam

This subunit includes 22,031 ac (8,916 ha). This subunit includes
the following lakes, including associated wetlands, in the upper
watersheds that flow into the Crane Prairie/Wickiup Reservoir system:
Hosmer Lake, Lava Lake, Little Lava Lake, Winopee Lake, Muskrat Lake,
and Little Cultus Lake, Crane Prairie, Wickiup Reservoirs, and Davis
Lake. Deep water areas (i.e., greater than 20 ft (6 m) without floating
or submerged aquatic vegetation are not included as critical habitat
within these waterbodies because they do not contain the primary
constituent elements of critical habitat for Oregon spotted frog. The
following riverine waterbodies and associated wetlands are critical
habitat: Deschutes River from Lava Lake to Wickiup Reservoir, Cultus
Creek downstream of Cultus Lake, Deer Creek downstream of Little Cultus
Lake, and Odell Creek from an occupied unnamed tributary to the outlet
in Davis Lake. The land within this subunit is primarily under USFS
ownership. Oregon spotted frogs are known to currently occupy this
subunit (USGS 2006 and 2012 datasets; USFS 2012 dataset). Within this
subunit, currently 22,031 ac (8,916 ha) are managed by the USFS
Deschutes National Forest and less than one acre (0.14 ha) is in
private ownership. All of the essential physical or biological features
are found within the subunit but are impacted by vegetation succession
and nonnative predaceous fish. The essential features within this
subunit may require special management considerations or protection to
ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 9: Little Deschutes River

The Little Deschutes River unit consists of 11,361 ac (4,598 ha) in
Klamath and Deschutes Counties, Oregon. The Little Deschutes River unit
includes the extent of the Little Deschutes River and associated
wetlands from the headwaters to the confluence with the Deschutes
River, 1 mile (1.6 km) south of Sunriver and approximately 20 miles
(32.2 km) south of Bend, Oregon. This unit includes the following
tributaries, including adjacent wetlands: Big Marsh Creek, Crescent
Creek, and Long Prairie Creek. Oregon spotted frogs are known to
currently occupy 11,316 ac (4,490 ha) in this unit (USGS, Bowerman, and
USFS multiple data sources). Currently, one 45-ac (18-ha) area is ``not
known to be occupied.'' We consider the ``not known to be occupied''
acres to be essential for the conservation of the species because they
provide an aquatic movement corridor between populations along the
Little Deschutes River. Within this unit, currently 5,275 ac (2,135 ha)
are managed by the USFS Deschutes National Forest and Prineville BLM,
216 ac (87 ha) are managed by the State of Oregon, 81 ac (33 ha) are
managed by Deschutes and Klamath Counties, and 5,789 ac (2,343 ha) are
privately owned. Additionally, the essential physical or biological
features are found within the unit but are impacted by hydrologic
manipulation of water levels for irrigation, nonnative predaceous fish,
reed canarygrass, and bullfrogs. The essential features within occupied
areas within this unit may require special management considerations or
protection to ensure maintenance or improvement of the existing
nonbreeding, breeding, rearing, and overwintering habitat; aquatic
movement corridors; or refugia habitat, and to address any changes that
could affect these features. Within this unit, we are considering
exclusion of lands that may be managed under the Deschutes Basin
Habitat Conservation Plan under section 4(b)(2) of the Act (see
Exclusions, below).

Critical Habitat Unit 10: McKenzie River Sub-Basin

The McKenzie River unit consists of 98 ac (40 ha) in Lane County,
Oregon. This critical habitat unit occurs in the Mink Lake Basin,
located in the headwaters of the main South Fork of the McKenzie River
on the McKenzie River Ranger District of the Willamette

[[Page 53550]]

National Forest. The McKenzie River unit includes seven wilderness
lakes, marshes, and ponds: Penn Lake, Corner Lake, Boat Lake, Cabin
Meadows, two unnamed marshes and a pond northeast of Penn Lake. A small
segment of the South Fork McKenzie River between the two unnamed
marshes also is included within this critical habitat unit. The entire
area within this unit is under USFS ownership. Oregon spotted frogs are
known to currently occupy this unit (Adams et al. 2011). All of the
essential physical or biological features are found within the unit,
but are impacted by nonnative predaceous fish, isolation, and
vegetation encroachment. The essential features within this unit may
require special management considerations or protection to ensure
maintenance or improvement of the existing nonbreeding, breeding,
rearing, and overwintering habitat; aquatic movement corridors; or
refugia habitat, and to address any changes that could affect these
features.

Critical Habitat Unit 11: Middle Fork Willamette River

The Middle Fork Willamette River unit consists of 292 ac (118 ha)
in Lane County, Oregon. This unit includes Gold Lake and bog, which are
located in the 465-acre (188-ha) Gold Lake Bog Research Natural Area on
the upstream end of Gold Lake on the Willamette National Forest. The
entire area within this unit is under USFS ownership. Oregon spotted
frogs are known to currently occupy this unit (USDA Forest Service
2011). All of the essential physical or biological features are found
within the unit, but are impacted by nonnative predaceous fish,
isolation, and vegetation encroachment. The essential features within
this unit may require special management considerations or protection
to ensure maintenance or improvement of the existing nonbreeding,
breeding, rearing, and overwintering habitat; aquatic movement
corridors; or refugia habitat, and to address any changes that could
affect these features.

Critical Habitat Unit 12: Williamson River

The Williamson River unit consists of 15,152 ac (6,132 ha) in
Klamath County, Oregon. This unit includes the Williamson River and
adjacent seasonally wetted areas in Klamath Marsh National Wildlife
Refuge (NWR) 4.89 mi (7.87 km) east of Silver Lake Highway, north to
0.998 mi (1.61 km) southeast of Big Springs, north through the Refuge
to 0.24 mi (0.36 km) southeast of Three Creek spring, and upstream to
2.14 mi (3.44 km) north of the confluence with Aspen Creek. This unit
also includes a portion of one tributary to the Williamson River (Jack
Creek) and its adjacent seasonally wetted areas from National Forest
Road 94 to 0.132 mi (0.212 km) south of National Forest Road 88. Oregon
spotted frogs are known to currently occupy 15,139 ac (6,127 ha) in
this unit (USGS, USFS, and USFWS multiple data sources). Currently, one
13-ac (5-ha) area is ``not known to be occupied.'' We consider the
``not known to be occupied'' acres to be essential for the conservation
of the species because they provide an aquatic movement corridor
between Oregon spotted frogs in the Klamath Marsh NWR to frogs in the
Upper Williamson River. Within this unit, 10,335 ac (4,182 ha) are
federally managed by the Klamath Marsh National Wildlife Refuge and the
USFS Fremont-Winema National Forest, and 4,817 ac (1,949 ha) are
privately owned. Additionally, the essential physical or biological
features are found within the unit, but are impacted by invasive plants
(reed canarygrass), woody vegetation succession, absence of beaver, and
nonnative predators. The essential features within occupied areas
within this unit may require special management considerations or
protection to ensure maintenance or improvement of the existing
nonbreeding, breeding, rearing, and overwintering habitat; aquatic
movement corridors; or refugia habitat, and to address any changes that
could affect these features.

Critical Habitat Unit 13: Upper Klamath Lake

The Upper Klamath Lake unit consists of 2,251 ac (911 ha) in
Klamath County, Oregon. This unit includes the Wood River and its
adjacent seasonally wetted areas from its headwaters downstream to the
Bureau of Land Management (BLM) south levee road just north of the
confluence with Agency Lake as well as the complete length of the Wood
River Canal (west of the Wood River) and its adjacent seasonally-wetted
areas starting 1.80 mi (2.90 km) south of Weed Road and continuing
south. This unit also includes one tributary to the Wood River (Fort
Creek) and its adjacent seasonally wetted areas. In addition, this unit
includes three creeks (Sevenmile, Crane, and Fourmile) that flow into
Sevenmile Canal and then into Agency Lake and their adjacent seasonally
wetted areas.
Sevenmile Creek includes 1.40 mi (2.25 km) beginning north of
Nicholson Road, south to the confluence of Crane Creek as well as two
tributaries (Blue Spring and Short Creek) and the associated, adjacent
seasonally wetted areas. Crane Creek includes adjacent seasonally
wetted areas 0.28 mi (0.44 km) from its headwaters south to the
confluence with Sevenmile Creek as well as two tributaries (Mares Egg
spring and a portion of an unnamed spring to the west of Crane Creek
0.16 mi (0.30 km) south of three unnamed springs near Sevenmile Road).
Fourmile Creek includes the adjacent seasonally wetted areas associated
with the historical Crane Creek channel, Threemile Creek, Cherry Creek,
Jack springs, Fourmile springs, the confluence of Nannie Creek, and the
north-south canals that connect Fourmile Creek to Crane Creek.
Oregon spotted frogs are known to currently occupy 2,168 ac (877
ha) in this unit (BLM, USFS, USGS, and USFWS multiple data sources).
Currently, two areas totaling 83 ac (33 ha) are ``not known to be
occupied.'' We consider the ``not known to be occupied acres'' to be
essential for the conservation of the species because they contain some
of the physical and biological features necessary to support Oregon
spotted frogs and are adjacent to areas known to be occupied by Oregon
spotted frogs (Fort Creek to the Wood River). In addition, they provide
an aquatic movement corridor between Oregon spotted frogs in Sevenmile
Creek to frogs in Crane Creek and its associated tributaries.
Within this unit, 1,243 ac (503 ha) are managed by the BLM and
Fremont-Winema National Forest, 6 ac (3 ha) are managed by Oregon State
Parks, and 1,002 ac (405 ha) are privately owned. All of the essential
physical or biological features are found within the unit, but are
impacted by invasive plants (reed canarygrass), woody vegetation
plantings and succession, hydrological changes, and nonnative
predators. The essential features within this unit may require special
management considerations or protection to ensure maintenance or
improvement of the existing nonbreeding, breeding, rearing, and
overwintering habitat; aquatic movement corridors; or refugia habitat,
and to address any changes that could affect these features.

Critical Habitat Unit 14: Upper Klamath

The Upper Klamath unit consists of 245 ac (99 ha) of lakes and
creeks in Klamath and Jackson Counties, Oregon. In Klamath County, Buck
Lake critical habitat includes seasonally wetted areas adjacent to the
western edge of Buck Lake encompassing Spencer Creek, three unnamed
springs, and Tunnel Creek. Parsnip Lakes, in Jackson County, includes
seasonally wetted

[[Page 53551]]

areas associated with Keene Creek from the Keene Creek dam to 0.55 mi
(0.88 km) east from the confluence of Mill Creek as well as four lakes
associated with the creek. Oregon spotted frogs are known to currently
occupy this unit (BLM, USFS, USGS, and USFWS multiple data sources).
Within this unit, 85 ac (34 ha) are managed by the BLM and Fremont-
Winema National Forest, and 160 ac (65 ha) are privately owned. All of
the essential physical or biological features are found within the
unit, but are impacted by woody vegetation succession, nonnative
predators, lack of beaver, and hydrological changes. The essential
features within this unit may require special management considerations
or protection to ensure maintenance or improvement of the existing
nonbreeding, breeding, rearing, and overwintering habitat; aquatic
movement corridors; or refugia habitat, and to address any changes that
could affect these features.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory 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 continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require 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 the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 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 and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of 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 sometimes may 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.

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. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Oregon spotted frog. As
discussed above, the role of critical habitat is to support 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 may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Oregon spotted frog, including Federal actions
that occur outside of critical habitat that impact physical or
biological features within critical habitat. The regulations at 50 CFR
402.02 define the ``action area'' as all areas to be affected directly
or indirectly by the Federal action, and not merely the immediate area
involved in the action. These activities include, but are not limited
to:
(1) Actions that would significantly alter the structure and
function of the wetland, pond, channel, lake, oxbow, spring, or
seasonally flooded areas morphology, geometry, or water availability/
permanence. Such actions or activities could include, but are not
limited to:

[[Page 53552]]

(1) Filling or excavation; channelization; impoundment;
(2) road and bridge construction; urban, agricultural, or
recreational development;
(3) mining;
(4) groundwater pumping;
(5) dredging;
(6) construction or destruction of dams or impoundments;
(7) water diversion;
(8) water withdrawal;
(9) hydropower generation;
(10) livestock grazing;
(11) beaver removal;
(12) destruction of riparian or wetland vegetation;
(13) pond construction; and
(14) river restoration, including channel reconstruction, placement
of large woody debris, vegetation planting, reconnecting riverine
floodplain, or gravel placement.
These activities may lead to changes in the hydrologic function of
the aquatic habitat and alter the timing, duration, water flows, and
water depth. These changes may be designed to be beneficial to the
Oregon spotted frog and actually increase habitat in the long term or
may degrade or eliminate Oregon spotted frog habitat and could lead to
the reduction in available breeding, rearing, nonbreeding, and
overwintering habitat necessary for the frog to complete its life
cycle. If the permanence of an aquatic system declines so that it
regularly dries up, it may lose its ability to support Oregon spotted
frogs. If the quantity of water declines, it may reduce the likelihood
that the site will support a population of frogs that is robust enough
to be viable over time. Similarly, ephemeral, intermittent, or
perennial ponds can be important stop-over points for frogs moving
among breeding areas or between breeding, rearing, dry season, or
wintering areas. Reducing the permanence of these sites may reduce
their ability to facilitate frog movements. However, in some cases,
increasing permanence can be detrimental as well, if it creates
favorable habitat for predatory fish or bullfrogs that otherwise could
not exist in the system.
(2) Actions that would significantly alter the vegetation structure
in and around habitat. Such actions or activities could include, but
are not limited to, removing, cutting, burning, or planting vegetation
for restoration actions, creation or maintenance of urban or
recreational developments, agricultural activities, and grazing. The
alteration of the vegetation structure may change the habitat
characteristics by changing the microhabitat (e.g., change in
temperature, water depth, basking opportunities, and cover) and thereby
negatively affect whether the Oregon spotted frog is able to complete
all normal behaviors and necessary life functions or may allow invasion
of competitors or predators.
(3) Actions that would significantly degrade water quality (for
example, alter water chemistry or temperature). Such actions or
activities could include, but are not limited to, release of chemicals
or biological pollutants into surface water or into connected ground
water at a point source or by dispersed release (nonpoint source);
livestock grazing that results in sedimentation, urine, or feces in
surface water; runoff from agricultural fields; and application of
pesticides (including aerial overspray). These actions could adversely
affect the ability of the habitat to support survival and reproduction
of Oregon spotted frogs. Variances in water chemistry or temperature
could also affect the frog's ability to survive with Bd, oomycete water
mold Saprolegnia, or Ribeiroia.
(4) Actions that would directly or indirectly result in
introduction of nonnative predators, increase the abundance of extant
predators, or introduce disease. Such actions could include, but are
not limited to: Introduction or stocking of fish or bullfrogs; water
diversions, canals, or other water conveyance that moves water from one
place to another and through which inadvertent transport of predators
into Oregon spotted frog habitat may occur; and movement of water, mud,
wet equipment, or vehicles from one aquatic site to another, through
which inadvertent transport of eggs, tadpoles, or pathogens may occur.
These actions could adversely affect the ability of the habitat to
support survival and reproduction of Oregon spotted frogs.
Additionally, the stocking of introduced fishes could prevent or
preclude recolonization of otherwise available breeding or
overwintering habitats, which are necessary for the conservation of
Oregon spotted frogs.
(5) Actions and structures that would physically block aquatic
movement corridors. Such actions and structures include, but are not
limited to: Urban, industrial, or agricultural development; water
diversions (such as dams, canals, pipes); water bodies stocked with
predatory fishes or bullfrogs; roads that do not include culverts; or
other structures that physically block movement. These actions and
structures could reduce or eliminate immigration and emigration within
a sub-basin.
(6) Inclusion of lands in conservation agreements or easements that
result in any of the actions discussed above. Such easements could
include, but are not limited to NRCS Wetland Reserve Program, USDA Farm
Service Agency's Conservation Reserve and Conservation Reserve
Enhancement Programs, Habitat Conservation Plans, Safe Harbor
Agreements, or Candidate Conservation Agreements with Assurances.

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 resources 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:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) 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 geographic 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.

[[Page 53553]]

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to 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 statute on its face, as well
as the legislative history are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise his discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of the Oregon spotted frog, the benefits of critical
habitat include public awareness of the species presence and the
importance of habitat protection, and in cases where a Federal nexus
exists, increased habitat protection for Oregon spotted frogs due to
the protection from adverse modification or destruction of critical
habitat.
When we evaluate a conservation plan during our consideration of
the benefits of exclusion, we assess a variety of factors, including
but not limited to, whether the plan is finalized, how it provides for
the conservation of the essential physical or biological features,
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future, whether the conservation strategies in
the plan are likely to be effective, and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will evaluate
whether certain lands in the proposed critical habitat are appropriate
for exclusion from the final designation under section 4(b)(2) of the
Act. If the analysis indicates that the benefits of excluding lands
from the final designation outweigh the benefits of designating those
lands as critical habitat, then the Secretary may exercise his
discretion to exclude the lands from the final designation.
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 have identified potential effects to land use sectors that
may be associated with the following activities: (1) Species and
habitat management; (2) residential, commercial, or industrial
development; (3) agriculture, including cattle grazing, dairy farms,
and hay production; (4) construction of new, or maintenance of, roads
and highways; (5) maintenance (including vegetation removal or
alteration) of drainage ditches; (6) construction or maintenance of
recreational facilities; and (7) construction or maintenance of dams or
water diversion structures.
During the development of a final designation, we will consider
economic impacts based on information in our economic analysis, 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 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 Oregon spotted frog are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. Consequently, the Secretary is not intending to
exercise his discretion to exclude any areas from the final designation
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 conservation plans 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 have determined that the proposed
designation does not include any tribal lands. Therefore, we have not
proposed designation of critical habitat for the Oregon spotted frog on
tribal lands. However, we will coordinate with the tribes in nearby
areas should there be any concerns or questions arising from this
proposed critical habitat designation. Because we are not proposing
designation of critical habitat for the Oregon spotted frog on any
tribal lands, we anticipate no impact to tribal lands.
We have identified certain areas that we are considering excluding
from the

[[Page 53554]]

final critical habitat designation for the Oregon spotted frog based on
conservation partnerships. However, we solicit comments on the
inclusion or exclusion of such particular areas (see ``Public
Comments'' section). During the development of the final designation,
we will consider economic and other relevant impacts, public comments,
and other new information before deciding if inclusion or exclusion of
these areas is warranted. As a result, additional areas, in addition to
those identified below for potential exclusion in this proposed rule,
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act. Alternatively, we may decide not to exclude
these lands based on information received during the public comment
period or other information.

Table 3--Lands Proposed or That May Be Considered for Exclusion From the Final Rule To Designate Critical
Habitat for Oregon Spotted Frog
----------------------------------------------------------------------------------------------------------------
Critical habitat unit Name of agreement/
Type of conservation plan name State entity Acres Hectares
----------------------------------------------------------------------------------------------------------------
Draft Management Plan........ Middle Klickitat WA Trout Lake NAP... 1,084 439
River.
Candidate Conservation Upper Deschutes River OR Sunriver......... 219 88
Agreement.
Candidate Conservation Upper Deschutes River OR Old Mill Pond.... 26 10
Agreement.
Habitat Conservation Plan.... Upper Deschutes River OR Deschutes Basin.. 8,948 3,621
Little Deschutes
River.
----------------------------------------------------------------------------------
Total Considered......... ..................... ............. ................. 10,277 4,158
----------------------------------------------------------------------------------------------------------------

Management Plans or Conservation Partnerships on Non-Federal Lands

In determining how the benefits of exclusion and the benefits of
inclusion are affected by the existence of conservation plans and
partnerships, we evaluate a variety of factors, which may include (but
are not limited to), the plan's implementation history and demonstrated
success; whether the plan is finalized; how the plan provides for the
conservation of the essential habitat features for the species; whether
there is a reasonable expectation of future implementation; and whether
the plan contains a monitoring and adaptive management program to
ensure that the conservation measures are effective in response to new
information, if necessary.
Trout Lake Natural Area Preserve Draft Management Plan
We are considering excluding 1,084 ac (439 ha) of lands managed by
the Washington Department of Natural Resources as the Trout Lake NAP.
These lands are located in Unit 5 in Klickitat County, Washington. NAPs
are established to provide the highest level of protection for
excellent examples of unique or typical land features in Washington
State and have three objectives: (1) To protect outstanding examples of
rare or vanishing terrestrial or aquatic ecosystems, rare plant and
animal species, and unique geologic features; (2) to serve as baselines
against which the influences of human activities in similar, but
differently managed ecosystems can be compared; and (3) to provide
areas that are important to preserving natural features of scientific
or educational value.
The Trout Lake NAP was proposed in 1995 to protect three natural
features, one of which was the Oregon spotted frog. A draft Trout Lake
NAP management plan was completed in 2001, but has not been finalized
or approved. The guiding principle for managing this NAP is to permit
natural ecological and physical processes to predominate, while
controlling activities that directly or indirectly modify these
processes. Exceptions may occur when a primary feature (e.g., Oregon
spotted frog) for which the site was designated would be jeopardized
without active intervention. The management goal, as it pertains to
Oregon spotted frogs, is to maintain a stable or increasing population
where they are found on the NAP through maintenance and restoration of
habitat and key natural processes.
Over the last decade, multiple management actions within the NAP
have been implemented to benefit Oregon spotted frogs, including water
management and reed canarygrass treatments. Based on discussions with
managers of the NAP, we expect actions that benefit Oregon spotted
frogs will continue to be implemented in the future; however, funding
for these actions is uncertain. We intend to work with the NAP managers
to revise and finalize the draft NAP Plan for continued use on the
Trout Lake NAP. If we determine prior to our final rulemaking that
conservation efforts identified in the newly revised and finalized NAP
Plan will provide a conservation benefit to the Oregon spotted frog, we
may exclude the identified lands from the final designation of critical
habitat.
Sunriver Candidate Conservation Agreement
In 2004, the Service prepared a draft Candidate Conservation
Agreement with Assurances (CCAA) with the Sunriver Nature Center,
Sunriver Owners Association (SROA), Sunriver Resort Limited Partnership
(SRLP), Crosswater Owners Association, and Vandevert Acres to promote
conservation measures for Oregon spotted frogs on private lands in the
vicinity of Sunriver, Oregon. Although the agreement was not finalized
due to herbicide and pesticide use on golf courses, the Sunriver Nature
Center and other parties covered under the agreement have participated
in monitoring for Oregon spotted frog on private golf courses and
ranches. Additionally, water management practices conducted by the
Sunriver Nature Center that stabilize water levels from breeding
through metamorphosis have facilitated conservation and recovery of
Oregon spotted frog in the Sunriver area, which hosts the largest
population of Oregon spotted frogs in the Upper Deschutes River sub-
basin. The Service has been discussing the development of a new CCAA
that is specific to management of water levels using weirs on lands
owned by SROA and SRLP. If a CCAA is completed prior to the final
critical habitat rule for Oregon spotted frog that includes adequate
conservation measures and implementation is assured to promote
conservation of Oregon spotted frog, we will consider excluding 219 ac
(89 ha) under this agreement from critical habitat if the conservation
efforts will provide a conservation benefit of excluding that outweighs
the benefit of including. These lands are located in Unit 8.

[[Page 53555]]

Old Mill Pond--Oregon Spotted Frog CCAA
In July 2012, a new population of Oregon spotted frogs was
discovered in a water retention pond at The Old Mill District Shops in
downtown Bend, Oregon. In October 2012, frog occupancy was confirmed in
a nearby wetland adjacent to the Deschutes River on the Old Mill
property. The Service has been discussing the development of a CCAA for
the pond and riverine wetland with the owner of the Old Mill District
property. This area is located in Unit 8. If a CCAA is completed prior
to the final critical habitat rule for Oregon spotted frog that has
adequate conservation measures, and its implementation is assured to
promote the conservation of Oregon spotted frog, we will consider
excluding 26 ac (11 ha) under this agreement from the final critical
habitat designation.
Deschutes Basin Habitat Conservation Plan
The Deschutes Basin Board of Control (DBBC) and the City of
Prineville are preparing the Upper Deschutes Basin Multi-species
Habitat Conservation Plan (HCP). These lands are located in Units 8 and
9. The DBBC consists of seven member irrigation districts including
Arnold Irrigation District, Central Oregon Irrigation District, North
Unit Irrigation District, Ochoco Irrigation District, Swalley
Irrigation District, Three Sisters Irrigation District, and Tumalo
Irrigation District. They are preparing a Habitat Conservation Plan for
16 species that occur within the Upper Deschutes and Little Deschutes
sub-basins including the Oregon spotted frog. If the conservation
measures within an HCP are deemed adequate and implementation is
assured to promote the conservation of Oregon spotted frog prior to the
final critical habitat rule, we will consider excluding approximately
8,948 ac (3,621 ha) of lands within the Upper Deschutes and Little
Deschutes sub-basin covered under the HCP from the final critical
habitat designation.

Peer Review

In accordance with our joint policy on peer review 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 peer review is to ensure
that our listing determination and critical habitat designation are
based on scientifically sound data, assumptions, and analyses. We have
invited these peer reviewers to comment during this public comment
period.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.

Public Hearings

Section 4(b)(5) of the Act provides for a public hearing 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 Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking only on those entities directly regulated by the

[[Page 53556]]

rulemaking itself, and not the potential impacts to indirectly affected
entities. The regulatory mechanism through which critical habitat
protections are realized is section 7 of the Act, which requires
Federal agencies, in consultation with the Service, to ensure that any
action authorized, funded, or carried out by the Agency is not likely
to destroy or adversely modify critical habitat. Therefore, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our draft economic analysis,
we will conduct a brief evaluation of the potential number of third
parties participating in consultations on an annual basis in order to
ensure a more complete examination of the incremental effects of this
proposed rule in the context of the RFA.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will directly regulate only Federal
agencies, which are not by definition small business entities. And as
such, we certify that, if promulgated, this designation of critical
habitat would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required. However, though not necessarily
required by the RFA, in our draft economic analysis for this proposal
we will consider and evaluate the potential effects to third parties
that may be involved with consultations with Federal action agencies
related to this action.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use because there are no energy supply facilities included in the
areas proposed for designation and, where distribution corridors
intersect the proposed critical habitat, activities in those corridors
are not anticipated to adversely affect the primary constituent
elements. 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.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) 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, or Indian
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 Indian 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 Indian 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 Indian
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 onto State governments.
(2) We have determined that this rule will not significantly or
uniquely affect small governments because the designation of critical
habitat imposes no obligations on State or local governments. By
definition, Federal agencies are not considered small entities,
although the activities they fund or permit may be proposed or carried
out by small entities. Consequently, we do not believe that the
critical habitat designation would significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required. Further, it will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.

Takings--Executive Order 12630

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 Oregon spotted frog in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require

[[Page 53557]]

Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward. The
takings implications assessment concludes that this designation of
critical habitat for Oregon spotted frog does not pose significant
takings implications for lands within or affected by the designation.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism assessment is not required. In keeping with Department of
the Interior and Department of Commerce policy, we requested
information from, and coordinated development of, this proposed
critical habitat designation with appropriate State resource agencies
in Washington and Oregon. The designation of critical habitat in areas
currently occupied by the Oregon spotted frog imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation of critical habitat in areas currently occupied by the
Oregon spotted frog may impose nominal additional regulatory
restrictions to those currently in place and, therefore, may have
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
because the areas that contain the physical or biological features
essential to the conservation of the species are more clearly defined,
and the elements of the features of the habitat necessary to the
conservation 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 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--Executive Order 12988

In accordance with Executive Order 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 Act. This
proposed rule uses standard property descriptions and identifies the
elements of physical or biological features essential to the
conservation of the Oregon spotted frog within the designated areas to
assist the public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

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 (42 U.S.C. 4321 et seq.)

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as an endangered or
threatened species under the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
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 pursuant to NEPA in connection with designating
critical habitat under the Endangered Species 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)).]

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 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
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 determined that there are no tribal
lands that were occupied by the Oregon spotted frog at the time of
listing that contain the features essential for conservation of the
species, and no tribal lands unoccupied by the Oregon spotted frog that
are essential for the conservation of the species. Therefore, we are
not proposing to designate critical habitat for the Oregon spotted frog
on tribal lands.

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:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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.

[[Page 53558]]

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this package are the staff members of the
Washington Fish and Wildlife Office, Oregon Fish and Wildlife Office--
Bend Field Office, and Klamath Falls Fish and Wildlife Office.

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--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. In Sec. 17.95, amend paragraph (d) by adding an entry for ``Oregon
Spotted Frog (Rana pretiosa),'' to follow the entry for ``Mountain
Yellow-legged Frog (Rana muscosa), Southern California DPS'', to read
as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

(d) Amphibians.
* * * * *
Oregon Spotted Frog (Rana pretiosa)
(1) Critical habitat units are depicted for Klickitat, Skagit,
Skamania, Thurston, and Whatcom Counties in Washington and Deschutes,
Jackson, Klamath, Lane, and Wasco Counties in Oregon, on the maps
below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of Oregon
spotted frog consist of three components:
(i) Primary constituent element 1.--Nonbreeding (N), Breeding (B),
Rearing (R), and Overwintering (O) Habitat. Ephemeral or permanent
bodies of fresh water, including, but not limited to, natural or
manmade ponds, springs, lakes, slow-moving streams, or pools within or
oxbows adjacent to streams, canals, and ditches, that have one or more
of the following characteristics:
(A) Inundated for a minimum of 4 months per year (B, R) (timing
varies by elevation but may begin as early as February and last as long
as September);
(B) Inundated from October through March (O);
(C) If ephemeral, areas are hydrologically connected by surface
water flow to a permanent water body (e.g., pools, springs, ponds,
lakes, streams, canals, or ditches) (B, R);
(D) Shallow water areas (less than or equal to 30 centimeters (12
inches), or water of this depth over vegetation in deeper water (B, R);
(E) Total surface area with less than 50 percent vegetative cover
(N);
(F) Gradual topographic gradient (less than 3 percent slope) from
shallow water toward deeper, permanent water (B, R);
(G) Herbaceous wetland vegetation (i.e. emergent, submergent, and
floating-leaved aquatic plants), or vegetation that can structurally
mimic emergent wetland vegetation through manipulation (B, R);
(H) Shallow water areas with high solar exposure or low (short)
canopy cover (B, R); and
(I) An absence or low density of nonnative predators (B, R, N).
(ii) Primary constituent element 2.--Aquatic movement corridors.
Ephemeral or permanent bodies of fresh water that have one or more of
the following characteristics:
(A) Less than or equal to 5 kilometers (3.1 miles) linear distance
from breeding areas; and
(B) Impediment free (including, but not limited to, hard barriers
such as dams, biological barriers such as abundant predators, or lack
of refugia from predators).
(iii) Primary constituent element 3.--Refugia habitat. Nonbreeding,
breeding, rearing, or overwintering habitat or aquatic movement
corridors with habitat characteristics (e.g., dense vegetation and/or
an abundance of woody debris) that provide refugia from predators
(e.g., nonnative fish or bullfrogs).
(3) 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
[INSERT EFFECTIVE DATE OF THE FINAL RULE].
(4) Critical habitat map units. Data layers defining map units were
created from 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's internet site (http://www.fws.gov/wafwo), http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, and at the field
office(s) responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.

[[Page 53559]]

(5) Note: Index map follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.000

BILLING CODE 4310-55-P

[[Page 53560]]

(6) Unit 1: Lower Chilliwack River, Whatcom County, Washington. Map
of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.001

[[Page 53561]]

(7) Unit 2: South Fork Nooksack River, Whatcom County, Washington.
Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.002

[[Page 53562]]

(8) Unit 3: Samish River, Whatcom and Skagit Counties, Washington.
Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.003

[[Page 53563]]

(9) Unit 4: Black River, Thurston County, Washington. Map of Unit 4
follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.004

[[Page 53564]]

(10) Unit 5: White Salmon River, Skamania and Klickitat Counties,
Washington. Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.005

[[Page 53565]]

(11) Unit 6: Middle Klickitat River, Klickitat County, Washington.
Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.006

[[Page 53566]]

(12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of
Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.007

[[Page 53567]]

(13) Unit 8A: Upper Deschutes River, Subunit: Below Wickiup Dam,
Oregon.
(i) Map 1 of 2, Upper Deschutes River, Below Wickiup Dam, Deschutes
County, Oregon. Map 1 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.008

[[Page 53568]]

(ii) Map 2 of 2, Upper Deschutes River, Below Wickiup Dam,
Deschutes County, Oregon. Map 2 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.009

[[Page 53569]]

(14) Unit 8B: Upper Deschutes River, Subunit: Above Wickiup Dam,
Oregon.
(i) Map 1 of 2, Upper Deschutes River, Above Wickiup Dam, Deschutes
and Klamath Counties, Oregon. Map 1 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.010

[[Page 53570]]

(ii) Map 2 of 2, Upper Deschutes River, Above Wickiup Dam,
Deschutes and Klamath Counties, Oregon. Map 2 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.011

[[Page 53571]]

(15) Unit 9: Little Deschutes River, Deschutes and Klamath
Counties, Oregon.
(i) Map 1 of 3, Little Deschutes River, Deschutes and Klamath
Counties, Oregon. Map 1 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.012

[[Page 53572]]

(ii) Map 2 of 3, Little Deschutes River, Deschutes and Klamath
Counties, Oregon. Map 2 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.013

[[Page 53573]]

(iii) Map 3 of 3, Little Deschutes River, Deschutes and Klamath
Counties, Oregon. Map 3 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.014

[[Page 53574]]

(16) Unit 10: McKenzie River, Lane County, Oregon. Map of Unit 10
follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.015

[[Page 53575]]

(17) Unit 11: Middle Fork Willamette River, Lane County, Oregon.
Map of Unit 11 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.016

[[Page 53576]]

(18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit
12 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.017

[[Page 53577]]

(19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of
Unit 13 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.018

[[Page 53578]]

(20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon.
Map of Unit 14 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.019

[[Page 53579]]

* * * * *

Dated: August 6, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-20985 Filed 8-28-13; 8:45 am]
BILLING CODE 4310-55-C