[Federal Register Volume 88, Number 232 (Tuesday, December 5, 2023)]
[Proposed Rules]
[Pages 84252-84278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26579]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2023-0095; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF06
Endangered and Threatened Wildlife and Plants: Threatened Status
With Section 4(d) Rule for the Northern and Southern Distinct
Population Segments of the Western Spadefoot
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the northern distinct population segment (DPS) of the western
spadefoot (Spea hammondii), an amphibian occurring in central and
northern California, and the southern DPS of the western spadefoot,
occurring in southern California and northwestern Mexico, as threatened
DPSs under the Endangered Species Act of 1973 (Act), as amended. This
determination serves as our 12-month finding on a petition to list the
western spadefoot range-wide. After a review of the best scientific and
commercial information available, we find that listing the northern and
southern DPSs of the western spadefoot as threatened is warranted.
Accordingly, we propose to list the northern and southern DPSs of the
western spadefoot as threatened DPSs with a rule issued under section
4(d) of the Act (``4(d) rule''). If we finalize this rule as proposed,
it would add the northern DPS and southern DPS of the western spadefoot
to the List of Endangered and Threatened Wildlife and extend the Act's
protections to the two DPSs. Due to the current lack of data sufficient
to perform required analyses, we conclude that the designation of
critical habitat for the northern DPS and southern DPS of the western
spadefoot is not determinable at this time.
DATES: We will accept comments received or postmarked on or before
February 5, 2024. 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 a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by January 19, 2024.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. enter FWS-R8-ES-2023-0095, which is the docket
number for this rulemaking. Then, click on the Search button. On the
resulting page, in the panel on the left side of the screen, under the
Document Type heading, check the Proposed Rule box to locate this
document. You may submit a comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2023-0095, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R8-ES-2023-0095.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Sacramento, CA 95825; telephone 916-414-6700. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
Please see Docket No. FWS-R8-ES-2023-0095 on https://www.regulations.gov for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. The Act defines a ``species'' as any
[[Page 84253]]
subspecies of fish or wildlife or plants, and any distinct population
segment (DPS) of any species of vertebrate fish or wildlife which
interbreeds when mature. Any reference to the term ``species'' in this
document pertains to either the northern or southern DPS, unless
otherwise noted. Under the Act, a DPS warrants listing if it meets the
definition of an endangered species (in danger of extinction throughout
all or a significant portion of its range) or a threatened species
(likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range). If we determine
that a DPS warrants listing, we must list the DPS promptly and
designate the DPS's critical habitat to the maximum extent prudent and
determinable. We have determined that the western spadefoot occurring
in the Central Valley and foothill regions in the Sierra Nevada
Mountains and along the northern Coast Ranges to Santa Barbara County
in California, and the western spadefoot in southern California from
Los Angeles County and Transverse Range south to northwestern Baja
California, Mexico are valid DPSs as described in our 1996 policy (61
FR 4722) and meet the definition of threatened species; therefore, we
are proposing to list them as such. Listing a species as an endangered
or threatened species can be completed only by issuing a rule through
the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. We have determined that the western
spadefoot is comprised of two DPSs, the northern DPS and the southern
DPS. We are proposing to list the northern DPS and southern DPS of the
western spadefoot as threatened species with a rule under section 4(d)
of the Act (a ``4(d) rule'') for both species.
The basis for our action. Under the Act, we may determine that a
DPS is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the northern DPS and
southern DPS of the western spadefoot are threatened due to the
following threats: habitat loss, fragmentation, and degradation largely
attributable to development, urbanization, and agricultural land
conversion (factor A); chemical contaminants (factor E); nonnative
predators (factor C); wildfire (factor A); noise disturbance (factor
E); and the effects associated with climate change (most notably
drought) (factor E). Of these threats, we identified habitat loss and
degradation from land conversion (factor A) and the effects of climate
change (factor E) mostly associated with severe drought as the major
influences driving the current condition of the northern DPS and
southern DPS of the western spadefoot.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. We have not yet
been able to obtain the necessary economic information needed to
develop proposed critical habitat designations for the two DPSs,
although we are in the process of obtaining this information. At this
time, we find that designation of critical habitat for the northern DPS
and southern DPS of the western spadefoot is not determinable.
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 other 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 two DPS's biology, range, and population trends, including:
(a) Biological or ecological requirements of the two DPSs,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of these two DPSs;
(d) Historical and current population levels, and current and
projected trends;
(e) Past and ongoing conservation measures for these two DPSs,
their habitat, or both; and
(f) Tribal use or cultural significance of the two species,
including traditional ecological knowledge (TEK) on the two DPSs.
(2) Threats and conservation actions affecting the two DPSs,
including:
(a) Factors that may be affecting the continued existence of the
two DPSs, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these two DPSs.
(c) Existing regulations or conservation actions that may be
addressing threats to these two DPSs.
(3) Additional information concerning the historical and current
status of these two DPSs.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the northern DPS and southern DPS of
the western spadefoot and that we can consider in developing a 4(d)
rule for these two DPSs. In particular, we seek information concerning
the extent to which we should include any of the section 9 prohibitions
in the 4(d) rule or whether we should consider any additional
exceptions from the prohibitions in the 4(d) rule.
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, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific 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 https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. 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 https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule,
[[Page 84254]]
will be available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments that we receive during the comment period as
well as any information that may become available after this proposal.
Based on the new information we receive (and, if relevant, any comments
on that new information), we may conclude that either DPS is endangered
instead of threatened, or we may conclude that either DPS does not
warrant listing as an endangered species or a threatened species. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the proposed 4(d) rule if we
conclude it is appropriate to do so in light of comments and new
information received. For example, we may expand the prohibitions to
include prohibiting additional activities if we conclude that those
additional activities are not compatible with conservation of either
DPS. Conversely, we may establish additional exceptions to the
prohibitions in the final rule if we conclude that the activities would
facilitate or are compatible with the conservation and recovery of
either DPS. In our final rule, we will clearly explain our rationale
and the basis for our final decision, including why we made changes, if
any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
In 2005, although the western spadefoot was not listed as an
endangered or threatened species under the Act, we included the species
within our final Recovery Plan for Vernal Pool Ecosystems of California
and Southern Oregon (Service 2005, entire). The recovery plan outlines
conservation and management actions to be taken to help conserve vernal
pool, swale, and ephemeral habitats, which include the habitat of the
western spadefoot. On July 11, 2012, we received a petition from the
Center for Biological Diversity (CBD) to list the western spadefoot
(CBD 2012, pp. 1-86 and 197-203). On July 1, 2015, we published our 90-
day finding in the Federal Register that found the petition to list the
western spadefoot presented substantial information to indicate that
listing may be warranted (80 FR 37568). We then added the western
spadefoot to our national workplan to complete our 12-month finding for
the species. This document serves as our 12-month finding and proposed
listing rule for the species.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the western spadefoot (Service 2023, entire). The SSA team was composed
of Service biologists, in consultation with other species experts. The
SSA report represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the western spadefoot SSA
report. We sent the draft SSA report (Service 2020a, entire) to six
independent peer reviewers and received two responses. Both peer
reviewers noted significant concerns with our analysis, including how
we characterized suitable terrestrial habitat, how we described habitat
loss now and in the future, how we used or did not use data, and how we
provided conclusions that were not justified. Because of this response,
we held a meeting on July 8 and 9, 2020, with known species experts to
receive information and guidance on ways to appropriately analyze the
species throughout both the northern and southern clades. The western
spadefoot is composed of two genetically distinct, allopatric clades
that show no evidence of interbreeding, separated by the Transverse
Mountain Range in California. In our SSA report, we refer to them as
the northern western spadefoot clade, and the southern western
spadefoot clade and assess their status separately.
The July 2020 expert meeting resulted in revisions to the condition
category tables we used in the SSA report to assess the species' status
and, therefore, also resulted in changing the results of our analysis.
After revising the SSA report, we solicited another independent
scientific review of the analysis. We sent the updated SSA report
(Service 2020b, entire) to the same two peer reviewers who responded
during the previous peer review and received responses from both.
Results of this structured peer review process can be found at https://regulations.gov. In preparing this proposed rule, we incorporated the
results of these reviews, as appropriate, into the current SSA report
(Service 2023, entire), which is the foundation for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the updated SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the contents of the SSA report. The peer
reviewers generally provided additional references, clarifications, and
wording suggestions. We revised the updated SSA report based on the
peer reviewers' comments, including changing our condition categories
for the current and future analyses, clarifying specific points where
appropriate, and adding details and suggested references where needed.
Peer reviewer comments are addressed in the following summary and were
incorporated into the current SSA report (Service 2023, entire) as
appropriate.
Comment 1: One peer reviewer stated that our assertion that there
are no differences in habitat characteristics between the northern and
southern clades of the western spadefoot was not accurate, as indicated
by habitat models (Neal et al. 2018, entire) that showed southern
locality characteristics cannot predict the northern range and vice
versa.
Our response: We acknowledge that habitat characteristics in the
northern and southern range are different and clarified our discussion
of habitat for both DPSs as indicated by habitat modeling (Neal et al.
2018, entire) as appropriate in the current SSA report and included
additional references that found western spadefoot occurrences in the
northern clade are associated with grassland habitat whereas
occurrences in the southern clade are associated with grassland and
shrub/scrub habitat (Rose et al. 2020, p. 6; Rose et al. 2022, p. 2).
The current version of the SSA
[[Page 84255]]
report reflects these differences (Service 2023, pp. 10-11).
Comment 2: One peer reviewer felt our characterization and use of
precipitation data, which were used to determine current condition,
were not adequate. They stated that our approach was too narrow, using
only the most recent 6 years of average rainfall data, and that we
should conduct a more thorough analysis using the last 100 years to
fully capture the variance in precipitation across the range of both
clades and therefore provide a more accurate current condition.
Our response: The approach we took looking at the most recent 6
years of data was similar to an analysis completed by other researchers
(Fisher et al. 2018, pp. 6124-6132), which looked at recent drought
implications on the longevity and age structure of the arroyo toad
(Anaxyrus californicus), a federally endangered species that occurs in
portions of the western spadefoot's range. Using the more recent data
allowed us to gain insight into the magnitude, extent, and frequency of
the current threats facing the species. In addition, although
additional precipitation data are available, they are not available
rangewide. As a result, we determined that the past 6 years of
precipitation data constitute the best scientific information available
for our analysis.
Comment 3: The peer reviewers questioned the assumption in the SSA
report that occurrence information from the California Natural
Diversity Database (CNDDB) can be used as proxies for breeding ponds.
They stated that many of these occurrences are likely incidental
records of adults near or crossing roads and are not indicative of a
breeding pond. They also questioned assumptions made for the abundance
analysis, including whether multiple overlapping records indicate one
breeding pond or multiple breeding ponds, the timeframe for the
occurrence data used, and how varying sampling efforts among
populations may influence abundance estimates in the SSA report.
Our response: We recognize that there are limitations with the
occurrence data we used; however, because no rangewide surveys or
assessments have occurred of ponded habitat used by western spadefoots
and the species uses ephemeral aquatic habitat for breeding (including
habitat not characterized as ponds), we determined that the CNDDB data
constitutes the best scientific information available for the rangewide
status assessment on habitat use and abundance estimates. In the
revised updated SSA report, we included additional detail on how the
occurrence data were used for the abundance assessment and clarified
our methods, such as providing additional detail on our method for
assessing abundance and estimating the effective number of breeders
within local populations.
Comment 4: One peer reviewer stated our approach to estimating the
effective number of breeders within a local population likely inflates
the estimates.
Our response: We acknowledge that our estimate of the effective
number of breeders within a local population is likely an
overestimation. The overestimation stems from our use and extrapolation
of a single study (Neal 2019, entire), which was not rangewide or over
an extended timeframe. Implementing additional surveys over a longer
period would most likely give a more accurate number of effective
breeders at occupied locations for the species. To assist in
determining if our estimates were consistent and provided meaningful
information, we compared our estimates to another amphibian species
(black toad (Bufo exsul)) that uses similar habitats and found that our
estimates for the two clades (although not exact) are similarly low and
our breeding number estimates are consistent with the other species
(Wang 2009, pp. 3852-3853). Lastly, our use and estimate of the
effective number of breeders is only one component of determining the
species' current and future resiliency in which we also considered
habitat quantity, distribution, and quality as well as various
precipitation variables. As a result, we have determined that our
estimates are based on the best scientific information available and
are appropriate to use in this assessment.
Comment 5: One peer reviewer was concerned about the current
condition analysis for regions that have no data on the estimated
effective number of breeders. They suggested using the average of the
estimated effective number of breeders from surrounding regions or
using the estimated effective number of breeders from the nearest
region.
Our response: We updated our analysis to include an abundance
category for those regions lacking data and used the estimated
effective number of breeders from the nearest region to complete our
analysis.
I. Proposed Listing Determination
Background
Below, we briefly describe information about the western spadefoot
and its habitat and range. A thorough description and other information
including life history and ecology of the western spadefoot is
presented in the SSA report (Service 2023, pp. 4-22).
Species and Habitat Information
The western spadefoot is a small amphibian often referred to as a
toad but is typical in shape to most fossorial (burrowing) frogs.
Individuals of the species vary in size from 1.5 to 2.5 inches (in)
(3.8 to 6.3 centimeters (cm)) in length. Western spadefoots have a
wedge-shaped, glossy black hardened ``spade'' on each hind foot that is
used for digging burrows in the ground to avoid desiccation during the
dry season, from late spring to early fall, or for sheltering during
the active season (early fall to late spring).
The western spadefoot is primarily terrestrial and uses nearby
aquatic habitat only for breeding and rearing (Dimmitt and Ruibal 1980,
p. 21). The species requires a variety of both terrestrial and aquatic
habitat components in close proximity and accessible to each other in
order to meet all of their life history requirements (Halstead et al.
2021, 1377-1393). The terrestrial (upland) habitat is primarily open
grasslands, scrub, or mixed woodland and grassland on flat or gently
rolling topography and provides areas for sheltering and foraging
(Stebbins and McGinnis 2012, p. 157). The aquatic habitat required for
breeding, egg laying, and tadpole and juvenile development is most
often associated with vernal pool or other ephemeral wetland areas.
Vernal pools are seasonal shallow ephemeral aquatic features that pond
in depressions that are underlain by a subsurface that limits drainage
(Keeler-Wolf et al. 1998, p. 8). Vernal pools require the appropriate
amount and timing of precipitation to fill each year. Some years with
intermittent rainfall or during periods of drought, vernal pools may
not provide habitat sufficient for successful breeding and rearing of
the species. However, the species is highly adaptable and uses many
other types of ponded water features for breeding and rearing including
any water feature such as ponded features within intermittent streams,
artificially created pools or ponds (i.e., mitigation pools and
livestock or agricultural ponds), drainage ditches, roadside pools or
ruts, and other locations where water pools or ponds after rain events
and provides sufficient time for reproduction and metamorphosis (Morey
1998, pp. 86-90; Morey 2005, p. 515; Service 2023, p. 13).
Western spadefoots are uniquely adapted to dry conditions and have
several behavioral and physiological
[[Page 84256]]
adaptations to facilitate moisture retention and lessen the impacts
associated with dry conditions (Service 2005, pp. II-228-II-229). One
of these adaptations is its construction of burrows to allow for its
long underground dry-season dormancy (Ruibal et al. 1969, pp. 573-577;
Morey 2005, p. 516). To prevent water loss in the burrows, western
spadefoots secrete a semipermeable membrane that thickens their skins
making them highly resistant to dehydration and they are able to lose
over half of their body weight due to evaporation (Duellman and Trueb
1994, pp. 197-203). While in their burrows western spadefoots are also
able to absorb moisture from the soil by maintaining higher osmotic
body fluid pressure that exceeds that of the soil moisture tension
(Ruibal et al. 1969, pp. 578-581; Shoemaker et al. 1969, pp. 585-590).
Range and Distribution
The historical range of western spadefoot as a whole is from the
vicinity of Redding in Shasta County, California, southward to
northwestern Baja California, Mexico (Stebbins and McGinnis 2012, p.
157). In California, the western spadefoot is found throughout portions
of the foothills of the Sierra Nevada Mountains up to 4,500 ft (1,385
m), the Central Valley, and in the Coast Range from Santa Clara and
Santa Cruz Counties to San Diego County (Service 2023, figure 2, p. 7).
In Mexico, western spadefoots are known to occur from the U.S.
international border south to approximately El Rosario near Mesa de San
Carlos in Baja California, Mexico (Grismer 2002, pp. 84-85; Amphibian
and Reptile Atlas 2023, entire).
Currently, the species is patchily distributed throughout its
historical range (Service 2023, p. 7). A species distribution model for
the northern portion of the western spadefoot's range (north of Santa
Barbara, California) found the areas predicted to have suitable habitat
are patchily distributed north in the Coast Range, along the foothills
surrounding both sides of the Central Valley, and in remnant habitat
within the Central Valley (Rose et al. 2020, entire; Service 2023, pp.
33-34). The species in southern California, based on survey efforts
from researchers and regional HCP monitoring and survey efforts on
Department of Defense (DOD) facilities, is also patchily distributed
with occupied areas associated with the large, urbanized areas of Los
Angeles and San Diego being mostly extirpated. The species in Baja
California, Mexico is distributed in small populations dispersed
throughout its historical range in Mexico.
Taxonomy
The western spadefoot (Spea hammondii) was first described and
named by Spencer F. Baird in 1859, from a specimen collected by Dr.
J.F. Hammond near Redding, California (Baird 1859, p. 12). Until the
late 1960s, the species was regarded as having a broad geographic range
from California to western Texas and Oklahoma with a distributional gap
in the Mojave Desert of California (Storer 1925, p. 148). In the late
1960s, researchers identified morphological, vocalization, and
reproductive differences between eastern (Arizona eastward) and western
(California and Baja California) populations, justifying species
recognition for each entity (Brown 1967, p. 759). The study identified
populations west of the Sierra Nevada Mountains and southward into
Baja, Mexico, as retaining the name Spea hammondii (with a common name
of western spadefoot), while the remainder of the populations were
designated as S. multiplicata (Mexican spadefoot) or S. intermontana
(Great Basin spadefoot).
Genetic Information
Genetic analysis of nuclear and mitochondrial DNA data from
populations throughout the range of the western spadefoot identified
two genetically distinct, allopatric (separate) clades that show no
evidence of interbreeding, and researchers agree the two clades make up
two separate entities (Neal et al. 2018, pp. 937-938; Neal 2019, p.
114).
Distinct Population Segment Evaluation
Under the Act, the term species includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any species
of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C.
1532(16)). To guide the implementation of the distinct population
segment (DPS) provisions of the Act, we, and the National Marine
Fisheries Service (National Oceanic and Atmospheric Administration--
Fisheries), published the Policy Regarding the Recognition of Distinct
Vertebrate Population Segments Under the Endangered Species Act (DPS
Policy) in the Federal Register on February 7, 1996 (61 FR 4722). Under
our DPS Policy, we use two elements to assess whether a population
segment under consideration for listing may be recognized as a DPS: (1)
The population segment's discreteness from the remainder of the species
to which it belongs, and (2) the significance of the population segment
to the species to which it belongs. If we determine that a population
segment being considered for listing is a DPS, then the population
segment's conservation status is evaluated based on the five listing
factors established by the Act to determine if listing it as either
endangered or threatened is warranted.
Under the Act, we have the authority to consider for listing any
species, subspecies, or, for vertebrates, any DPS of these taxa if
there is sufficient information to indicate that such action may be
warranted. Based on the information available regarding potential
discreteness and significance for the western spadefoot, we have
determined it is appropriate to review the status of the species by
first conducting a DPS analysis.
Discreteness
Under our DPS Policy, a population segment of a vertebrate taxon
may be considered discrete if it satisfies either of the following
conditions: (1) it is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors (Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation); or (2) it is
delimited by international governmental boundaries within which
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
For the western spadefoot, we examined recent genetic information,
the distribution of the species' populations, and a review of any
potential barriers for dispersal as our means of determining
discreteness for potential DPSs.
As discussed briefly above and in the SSA report (Service 2023,
section 3.2, p. 5), there is substantial genetic evidence that the
western spadefoot is biogeographically divided into two clades (a group
of organisms having the same ancestral lineage) with no gene flow
between the clades. Past genetic work on mitochondrial DNA analysis
(Garcia-Paris et al. 2003, pp. 16-20) hinted at such separation but the
sample size was limited. However, more recent genetic research (Neal et
al. 2018, entire; Neal 2019, entire) looking at both nuclear and
mitochondrial DNA with a larger sample size (45 sites for the northern
clade and 20 sites for the southern clade) representing the
distribution of the western spadefoot in California strongly suggests
separation of the species into two entities. The
[[Page 84257]]
results of the most recent genetic research identified that individuals
of the southern clade of Spea hammondii share more genetic
characteristics with S. intermontana that occur in eastern California
than they do with members of the western spadefoot clade in the north.
In addition, the genetic information did not identify any mitochondrial
haplotypes of the southern clade within the northern clade of the
western spadefoot, signifying no apparent mixture of the two clades.
These results confirmed that the northern and southern distributions of
the western spadefoot are two genetically distinct, allopatric clades
that show no evidence of interbreeding and are separate (Neal et al.
2018, p. 941; Neal 2019, pp. 107-114).
To further evaluate whether the northern and southern clades of
western spadefoots are separate populations based on habitat
associations, the same researchers (Neal et al. 2018, pp. 940-944; Neal
2019, pp. 1-30) used environmental niche modeling (ENM), that included
numerous bioclimatic variables and slope information, to assess and
quantify ecological differentiation that would be consistent with
functional (physical) or physiological separation between the northern
and southern populations. The results of the ENM further corroborated
the genetic analysis results discussed above, with the western
spadefoot inhabiting unique climatic niches between the northern and
southern populations of western spadefoot indicating ecological
differentiation. The genetic research and ENM identified the Transverse
Range in northern Los Angeles and southern Santa Barbara counties as an
area of unsuitable or unused habitat for the species that serves as a
barrier to dispersal between the two populations. As a result, we have
determined that the western spadefoot comprises two separately located
discrete entities (northern and southern populations) that meet the
condition of discreteness under our DPS Policy.
Significance
Under our DPS Policy, once we have determined that a population
segment is discrete, we consider its biological and ecological
significance to the larger taxon to which it belongs. This
consideration may include, but is not limited to: (1) evidence of the
persistence of the discrete population segment in an ecological setting
that is unusual or unique for the taxon, (2) evidence that loss of the
population segment would result in a significant gap in the range of
the taxon, (3) evidence that the population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historical range, or
(4) evidence that the discrete population segment differs markedly from
other populations of the species in its genetic characteristics.
We evaluated each discrete population segment to see if it meets
the conditions of significance under our DPS Policy, and we have
determined that the two entities are significant to the western
spadefoot.
The support for significance of the two DPSs is based, in part, on
evidence that loss of either of these two population segments would
result in a significant gap in the range of the taxon. The loss of
either the northern or southern DPS would result in a substantial
change in the overall range and distribution of the taxon. The loss of
either the northern or southern DPS would shift the taxon's range by
nearly half, resulting in a loss of range of approximately 450 miles
(mi) (725 kilometers (km)) either north or south respectively. As a
result, we have determined that the loss of the northern or southern
DPS would result in a significant gap in the range of the taxon.
The support for significance of the two DPSs is also based on
evidence that the two DPSs differ markedly in their genetic
characteristics, such that the loss of the northern or southern DPS
would result in the loss of a discrete genetic clade. As discussed
above, the two DPSs have been found to be genetically divergent and
thus most likely contribute to the adaptive capacity of the taxon. This
in turn may assist each DPS to adapt to both near-term and long-term
changes in its physical and biological environment, thereby maintaining
its representation. As a result, we have determined that the loss of
the northern or southern DPS would be significant in that they differ
markedly in their genetic characteristics, which satisfies the criteria
for significance under our DPS Policy.
Distinct Population Segment Conclusion
Our DPS Policy directs us to evaluate whether populations of a
species are separate from each other to the degree that they qualify as
discrete segments and whether those segments are significant to the
remainder of the species to which they belong. Based on an analysis of
the best available scientific and commercial data, we conclude that the
northern and southern populations (clades) of the western spadefoot are
discrete from each other due to their marked genetic and physical
separation. Furthermore, we conclude that the two discrete population
segments are significant, based on evidence that a loss of either
population segment would result in a significant gap in the range of
the taxon and on evidence that the discrete population segments differ
markedly from each other in their genetic characteristics. Therefore,
we conclude that the two populations (northern and southern) of western
spadefoot are both discrete and significant under our DPS Policy and,
therefore, qualify as DPSs, which are uniquely listable entities under
the Act.
Based on our DPS Policy, if a population segment of a vertebrate
species is both discrete and significant relative to the taxon as a
whole (i.e., it is a distinct population segment), its evaluation for
endangered or threatened status will be based on the Act's definition
of those terms and a review of the factors enumerated in section 4(a)
of the Act. Having found that the two populations (clades) of the
western spadefoot meet the definition of being DPSs, we then evaluate
the status of the two populations of western spadefoot to determine
whether either one meets the definition of an endangered or threatened
species under the Act. The extent of the areas occupied by the two DPSs
are within the historical range of the western spadefoot (Figure 1).
BILLING CODE 4333-15-P
[[Page 84258]]
[GRAPHIC] [TIFF OMITTED] TP05DE23.031
BILLING CODE 4333-15-C
Description of Western Spadefoot Distinct Population Segments
Below is a general description of the occupied extent of the
northern DPS and southern DPS of the western spadefoot.
Northern DPS of the Western Spadefoot: The range of the northern
DPS of the western spadefoot is entirely in California and includes the
area of the Sacramento and San Joaquin Valleys from Shasta to Kern
Counties including the lower elevation foothill areas of the Sierra
Nevada Mountains and low-elevation and valley areas in the northern
Coast Range from Tehama County south to Santa Clara County. In the
southwest portion of the northern DPS's range, the occupied area
extends from southern Santa Cruz County to southern Santa Barbara
County of the Coast Range and is contiguous with the Central Valley
portion of the DPS's range.
Southern DPS of the Western Spadefoot: The range of the southern
DPS of the western spadefoot includes areas in southern California and
northwestern Baja California, Mexico. In the United States, this
includes valleys and low-lying areas of portions of the Coast Range
from extreme southeastern Santa Barbara County south to Ventura, Los
Angeles, San Bernardino, Orange, Riverside, and San Diego Counties. In
Baja California, Mexico, this includes areas in the municipalities
(municipio) of Tijuana and Playas de Rosarito, and portions of the
municipalities of Tecate and Ensenada.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an
[[Page 84259]]
endangered species or a threatened species, issuing protective
regulations for threatened species, and designating critical habitat
for endangered and threatened species. In 2019, jointly with the
National Marine Fisheries Service, the Service issued a final rule that
revised the regulations in 50 CFR parts 424 regarding how we add,
remove, and reclassify endangered and threatened species and the
criteria for designating listed species' critical habitat (84 FR 45020;
August 27, 2019). On the same day, the Service also issued final
regulations that, for species listed as threatened species after
September 26, 2019, eliminated the Service's general protective
regulations automatically applying to threatened species the
prohibitions that section 9 of the Act applies to endangered species
(84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the viability of the northern and southern DPSs of the
western spadefoot, we used the three conservation biology principles of
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp.
306-310). Briefly, resiliency is the ability of a species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy is the ability of a species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation is the ability of a species to adapt over
time to both near-term and long-term changes in its physical and
biological environment (for example, climate conditions, pathogens). In
general, a species' viability will increase with increases in
resiliency, redundancy, and representation (Smith et al. 2018, p. 306).
Using these principles, we identified the western spadefoot's
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the two DPSs' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated each DPS's life-history needs. The
next stage involved an assessment of the historical and current
condition of each DPS's demographics and habitat characteristics,
including an explanation of how each DPS arrived at its current
condition. The final stage of the SSA involved making predictions about
each DPS's responses to positive and negative environmental and
anthropogenic influences. Throughout all of these stages, we used the
best available information to characterize viability as the ability of
each DPS to sustain populations in the wild over time which we then
used to inform our regulatory decision.
[[Page 84260]]
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the two DPSs. To assess the current and future condition of
each DPS, we evaluate the effects of all the relevant factors that may
be influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
The following is a summary of the key results and conclusions from
the SSA report for the western spadefoot. Our review of information in
the SSA report reflects the acknowledgement of the separation between
the northern and southern clades of the western spadefoot and provides
information regarding each clade's (DPS's) current and future condition
individually. The full SSA report can be found at Docket FWS-R8-ES-
2023-0095 on https://www.regulations.gov and from the Sacramento Fish
and Wildlife Office, see FOR FURTHER INFORMATION CONTACT.
Summary of Biological Status and Threats
In the discussion below, we provide information on the species
needs at the individual, population, and species level, the threats
that are influencing the western spadefoot, and each DPS's current and
future condition at the individual, population, and DPS level as a
result of the threats, to assess the overall viability and the risks to
viability for both the northern and southern DPSs of the western
spadefoot.
To evaluate the individual and cumulative threats that influence
the current and future condition and viability of the two DPSs in each
of their respective analysis regions, we evaluated the habitat factors
of (1) habitat quantity and distribution, (2) habitat quality, and (3)
rainfall, and the demographic factor of abundance for each DPS.
In determining potential future threats facing the northern and
southern DPSs of the western spadefoot, we evaluated the existing
threats and their magnitude or impact on each DPS. We then further
evaluated the expected response of each DPS to those threats that we
considered are driving the overall status of the two DPSs based on
expected changes to the habitat and demographic factors identified
above.
Species Needs for the Western Spadefoot
Below we discuss a summary of the information on the western
spadefoot's individual, population, and species needs. For additional
information on the species' needs see the SSA report (Service 2023,
Chapter 7, pp. 12-22).
Individual Needs
The western spadefoot requires seasonal rains, aquatic breeding
pools, appropriate terrestrial habitat, and food resources to fulfill
its life history. The aquatic breeding pools and terrestrial habitat
must be within dispersal distance of each other. The aquatic habitat
includes water features such as vernal pools, ponds, ditches or other
ponded surface waters with the appropriate temperature and hydroperiod
for breeding and rearing young. The water features used by the species
typically support inundation during the late fall to early spring
depending on when precipitation events occur and hold water for a
minimum of 3 consecutive weeks. The appropriate water temperature for
allowing development of eggs and tadpoles is between 9 and 30 [deg]C
(between 48 and 86 [deg]F). In addition, the western spadefoot requires
the presence of upland habitat adjacent and accessible to the water
features it uses for breeding and rearing. The dispersal distance
required between upland refugia and aquatic habitat ranges and may be
up to approximately 600 m (1,968 ft) with a mean dispersal distance of
40 m (131 ft) to 137 m (450 ft). The upland component is mostly
associated with grassland or grassland/scrub vegetation on gently
sloped landscapes with the appropriate soil makeup to allow for the
species to create burrows and refugia during its active and inactive
periods to avoid desiccation and provide cover. Other habitat or
biological factors considered most significant for the western
spadefoot include small invertebrate prey, and seasonal precipitation
to fill aquatic habitat (November-May) (Service 2023, pp. 12-17).
Population Needs
At the population level, we used the best available information to
assess the resources and circumstances that most influence the
resiliency of western spadefoot populations. The population needs that
we evaluate for this species are abundance, reproduction, and
dispersal.
Because information on the exact make-up of populations for the
western spadefoot is lacking, we looked to the western spadefoot's
association with vernal pool habitat and the characteristics of vernal
pools across the species' range as a proxy for determining population
information. As a result, we divided the range of the two DPSs of
western spadefoot into several regions based on the habitat
characteristics of vernal pools. These regions are based partly on the
recovery units in the Recovery Plan for Vernal Pool Ecosystems of
California and Southern Oregon (Service 2005, pp. I-9--I-12), which
were developed using the California Department of Fish and Wildlife's
California Vernal Pool Assessment Preliminary Report (Keeler-Wolf et
al. 1998, pp. 12-15). The vernal pool regions are separated largely on
the basis of endemic species, with soils and geomorphology as secondary
elements, but with some overlap of these features among vernal pool
regions. The regions in the southern DPS's range were further refined
by species experts to best capture the different habitat types where
the western spadefoot is found across southern California and Mexico
(Fisher pers. comm. 2020, entire). Although these regions do not
encompass all western spadefoot occurrences, they capture the majority
of the vernal pool habitat that is considered ideal for western
spadefoot. In total, we identified 10 regions for the northern DPS of
the western spadefoot and 10 regions for the southern DPS of the
western spadefoot (six in the United States and four in Mexico) (see
Service 2023, figure 8, p. 37).
Population Abundance: Population abundance estimates do not exist
for the western spadefoot throughout its range. This is partly because
consistent rangewide population surveying has not been completed.
Additionally, life history characteristics and dry-season dormancy
makes it difficult to survey for the species except when breeding ponds
are available (which may not be every year) and the species is active
and above ground or by surveying for egg masses in aquatic habitat.
State Natural Heritage occurrence data are available for the species in
California along with limited survey information for Baja California,
Mexico (McPeak 2000, p. 15; Grismer 2002, pp. 84-85; iNaturalist 2020,
unpaginated; Amphibian and Reptile Atlas 2023, entire; CNDDB 2023,
entire); however, the occurrence information does not uniformly provide
numbers of individuals or absence data. Even when the information is
provided, it is variable in content and may be too broad and lacking
site specifics, be opportunistic (i.e., roadside records), and not
revisited.
[[Page 84261]]
Reproduction and Recruitment: Although reproduction and recruitment
estimates are not available for the western spadefoot rangewide, we
were able to obtain recent estimates on the effective number of
breeders in a subset of the breeding pools throughout most but not all
of the western spadefoot's range (Neal 2019, pp. 95-165). The effective
number of breeders is not a count of individuals; rather, it is the
number of individuals that are contributing to the population size in a
single cohort. Therefore, the effective number of breeders is a
measurement of the relative reproduction and recruitment effort of the
population and gives insight into habitat and resource conditions (Wang
et al. 2011, p. 918) within the areas surveyed, at least in the near
term. We used information from the above mentioned study (i.e., Neal
2019, entire) and extrapolated it to develop rangewide estimates for
both the northern and southern DPSs of the western spadefoot. This
extrapolated information indirectly informed the potential demographic
condition for the two DPSs. In order to do this, we averaged occurrence
information across each region, which most likely overestimated
abundance for the two DPSs. This overestimation was considered in our
proposed listing determination for the two DPSs. See the SSA report for
additional information (Service 2023, pp. 19, 20, 34-38).
For the northern DPS of the western spadefoot, the results of
survey information identified the average effective number of breeders
measured in multiple breeding pools to be near 5 individuals (5.25,
ranging from 2.3 to 18.3) and for the southern DPS of the western
spadefoot, the average effective number of breeders was 4 individuals
(ranging from 1.4 to 20.7) (Neal 2019, p. 113). The required number of
effective breeders for either DPS to reach population stability is
unknown and information on the effective number of breeders for other
species is lacking; however, we were able to compare the western
spadefoot information with the black toad, another pond-breeding
amphibian. The lowest estimation for effective number of breeders for
the black toad ranged from 7 to 30 individuals (Wang 2009, pp. 3852-
3853). Very small effective population sizes (<50 individuals) have
been observed in other amphibians (Funk et al. 1999, pp. 1633, 1637;
Rowe and Beebee 2004, pp. 292-296; Wang 2009, p. 3848; Wang et al.
2011, p. 914; Wang 2012, pp. 1033-1034; Richmond et al. 2013, p. 815).
It is unknown if the small effective number of breeders that were
measured for the western spadefoot are due to: (1) small population
size due to population reductions; (2) recent extreme drought years
throughout the western spadefoot's range; or (3) that the species has
always had a low number of effective breeders per population. Our
rangewide estimates for both the northern DPS and southern DPS of the
western spadefoot are similarly low and consistent with the information
provided in the initial study (i.e., Neal 2019, entire).
Dispersal: Populations of western spadefoot need opportunities for
dispersal and interbreeding among multiple well connected breeding
pools (Halstead et al. 2021, pp. 1377-1393). Dispersal between breeding
pools creates metapopulations that allow for gene flow, which is vital
for preventing inbreeding (Neal et al. 2020, pp. 613-627), and allows
for recolonization of areas (Halstead et al. 2021, p. 1378).
Western spadefoots must disperse from their underground burrows to
aquatic breeding habitat during the breeding season in order to
reproduce. Seasonal precipitation is the environmental cue that
initiates emergence and breeding dispersal to aquatic habitat (Dimmitt
and Ruibal 1980, p. 26). The dispersal distance for the species is
variable and heavily dependent on the amount and timing of
precipitation in a given year (Baumberger et al. 2020, pp. 1, 7-8). The
maximum dispersal distance recorded for the western spadefoot is 605
meters (m) (1,985 feet (ft)) (Baumberger 2020, pers. comm.) with mean
dispersal distances being 69 m (226 ft) to 137 m (450 ft) (Baumberger
et al. 2020, p. 7; Service 2023 p. 19). After the breeding season,
adults and juveniles must be able to return to their terrestrial
habitat and occupy or create underground burrows for shelter during the
hot, dry inactive period (approximately May-October).
Species Needs
At the species level, we consider the needs of the northern DPS and
southern DPS of the western spadefoot in terms of redundancy and
representation. In the SSA report and this proposed rule, we evaluated
the redundancy of the northern and southern DPSs of the western
spadefoot by considering the number and distribution of sites occupied
by each DPS within each region in relation to the scale of catastrophic
events that are likely to occur. Having multiple populations that are
interconnected and able to withstand stochastic events and are
distributed in multiple areas throughout each of the regions in our
analysis, would allow for each DPS to withstand catastrophic events and
therefore have sufficient redundancy at the species level.
Regarding representation, we consider the breadth of physical,
ecological, and environmental diversity for the two DPSs based on their
distribution within each geographic region. In general, these regions
have broad distribution and the makeup of habitat within and between
these regions encompass large physical, environmental, and climatic
variability. These differences in conditions may influence temporal
behaviors and may indicate genetic variability between geographic
regions, which may help the two DPSs adapt to future environmental
variability. Providing for each DPS of the western spadefoot with areas
that represent the variation in climatic conditions and the unique
biotic and abiotic features across each of the DPS's specific range
would provide for representation for each DPS at the species level.
Threats Influencing the Current and Future Condition of the Western
Spadefoot
Below is a summary discussion of threats and our evaluation of the
response to those threats as described and analyzed in the SSA report
for the western spadefoot. The specific threats associated with each
DPS are identified in the status discussion for each DPS below. For
additional information on the threats, see the SSA report (Service
2023, Chapters 8-10, pp. 22-82).
Our assessment of current and future threats impacting the northern
and southern DPSs of the western spadefoot identified habitat loss,
habitat condition (fragmentation, degradation, or alteration),
nonnative predators, disease, wildfire, chemical contaminants, noise
disruptions, the effects from climate change, and their cumulative
impacts. We also considered existing conservation efforts and how they
may be ameliorating the current threats. The threats we identified as
having the most impact and potentially driving the status of the two
DPSs include: the effects to habitat (loss, degradation, alteration, or
fragmentation) (Factor A) from urbanization or land conversion and the
effects of climate change related to drought and increasing
temperatures (Factor E). For a discussion of the threats of nonnative
predators, disease, wildfire, chemical contaminants, and noise
disturbance, please see the SSA report (Service 2023, pp. 22-32).
In our assessment of the future threats impacting the two DPSs, we
projected the main driving threats identified above out 30-40 years to
approximately
[[Page 84262]]
mid-century (to 2060). We based this timeframe on information regarding
the effects of climate change and expected human population growth.
This timeframe represents estimates of mid-century climate projections
and human population and development projections for California (The
California Economic Forecast 2017, p. 2; Bedsworth et al. 2018, p. 23).
This timeframe also represents multiple generations (5 to 6) for the
species as well multiple potential periods of severe drought conditions
as based on recent past climate change trends. The current and future
threats and their impact to the western spadefoot are summarized below.
Habitat Loss
Both the northern DPS and southern DPS of the western spadefoot
suffered dramatic habitat reductions in the mid to late 1900s when
urban and agricultural development and water storage and delivery
construction were rapidly destroying natural habitats in the Sacramento
Valley, Central Valley, and southern California (Jennings and Hayes
1994, p. 96; Thomson et al. 2016, p. 134). This loss of habitat has
been attributed as the predominant factor in the change from past
abundance to the current fragmented distribution of the species (Morey
2005, p. 515). Although large-scale rapid loss of habitat has curtailed
due to both a decrease in habitat conversion and implemented
conservation efforts, we expect a low but persistent level of habitat
loss from development and land conversion to continue to varying
degrees within the range of the two DPSs in the future, especially near
large, urbanized areas throughout the two DPSs' ranges.
Habitat Fragmentation, Degradation, or Alteration
The latent effects of habitat loss described above have led to much
of the remaining occupied western spadefoot habitat becoming fragmented
or isolated. Encroachment on and bifurcation of western spadefoot
habitat from urbanization, agriculture, roads, canals, and other human
associated features and infrastructure have reduced the extent of
upland habitat, restricted dispersal opportunities, altered hydrology
of aquatic habitat, and increased anthropogenic effects (i.e.,
increased pollution, debris, human or pet access). Such impacts have
limited the size of existing habitat and most likely reduced western
spadefoot population abundance and distribution within the occupied
areas. Small remnant areas may contain aquatic habitat with a shortened
inundation period or provide less upland habitat, thereby reducing the
needs of the western spadefoot (Shedd 2016, p. 20).
In addition, the plant community within the grassland landscapes in
California has dramatically changed since European settlement of the
area (Burcham 1956, pp. 81-85). These changes resulted from numerous
factors including the reduction of wetlands, changes to native
herbivore abundance and distribution, reduction of wildfire, and
changes in vegetation from mostly perennial grasslands to annual
nonnative species (Barry et al. 2006, pp. 7-9). Nonnative annual
vegetation or overabundance of vegetation can degrade vernal pool
habitat by intrusion into the ponded areas, increasing vegetative
matter, or causing shortening of the hydroperiod of the pools (Clark et
al. 1998, pp. 251-252; Marty 2005, pp. 1626-1632). Over time, such
degradation and alteration may cause vernal pool and other wetland
habitats to be less productive or be lost as breeding habitat for the
western spadefoot due to changes in environmental conditions, reduction
in upland areas, or lack of management options to maintain and conserve
such areas (Marty 2005, p. 1626; Service 2005, pp. I-16-I-28, II-232-
II-234; Vollmar et al. 2017, pp. 2-13).
The Effects of Climate Change
The effects of climate change impact numerous environmental
conditions both directly and indirectly and include temperature,
precipitation, wildfire frequency and intensity, sea-level rise, and
drought conditions. In determining the effects of climate change on the
western spadefoot, we looked at the impact of the effects of climate
change as they relate to drought conditions and increased temperatures
because these factors most likely impact the species' aquatic habitat
that is required for breeding and rearing purposes.
Drought Conditions: Western spadefoots are dependent on the timing
and amount of seasonal precipitation (precipitation patterns) as well
as other environmental conditions for supplying both feeding and
breeding resources for the species to meet its life-history
requirements. Precipitation provides not only moisture for ponded
habitat and prey but also cues western spadefoot to emerge from their
underground burrows. In addition, the aquatic habitat must be a
particular temperature and stay ponded during specific timeframes and
length of time for western spadefoot reproduction to be successful
(Service 2023, pp. 29-30).
California's annual and seasonal precipitation patterns are
extremely variable, and dry conditions are common (California
Department of Water Resources 2021, entire). As discussed above and in
the SSA report, western spadefoots are adapted to dry conditions by
both behavioral and physiological characteristics (see Species and
Habitat Information above and Chapter 5 in the SSA report (Service
2023, pp. 9-10). The U.S. Drought Monitor (a partnership of several
Federal agencies and programs) gathers national precipitation
information and categorizes normal and dry years (drought conditions)
into six categories of increasing dryness and severity that includes:
normal or wet conditions (None), abnormally dry (level D0), moderate
drought (level D1), severe drought (level D2), extreme drought (level
D3), and exceptional drought (level D4) (U.S. Drought Monitor 2023,
entire). Within the last 15 years, portions of California within the
western spadefoot's range have experienced extreme drought conditions
(D3 conditions) in 2007-2009, 2012-2014, and again in 2020 and 2022
(Williams et al. 2015, pp. 6823-6824; NOAA 2021a and 2021b, entire;
California Department of Water Resources 2022, pp. 2-4) and exceptional
drought conditions (D4 conditions) in 2014-2016 and 2021 (NOAA 2021a
and 2021b, entire). Drought decreases the quality and quantity of
aquatic breeding pools available for western spadefoots. Without
aquatic breeding pools available, dispersal and reproductive
opportunities are limited and may ultimately reduce the abundance of a
population if those conditions continue over extended periods. Such
drought conditions are expected to continue into the future
(Diffenbaugh et al. 2015, pp. 3931-3936; Bedsworth et al. 2018, pp. 24-
27). These recent extreme drought events (such as the 2012-2014
drought) may be a contributing factor to the currently estimated low
effective number of breeders in western spadefoot populations (Williams
et al. 2015, pp. 6819, 6826; Neal 2019, p. 32). Although it is
uncertain whether the species' effective breeding population sizes will
remain low or rebound from currently low levels, the lack of
precipitation and the effects from severe droughts are a major driving
threat and contribute to the current and future overall condition of
the northern and southern DPSs of the western spadefoot.
Increased Temperature: In California, as a result of climate
change, the annual average temperatures have increased by about 0.8
degrees Celsius ([deg]C) (1.5 degrees Fahrenheit ([deg]F)) since 1895,
[[Page 84263]]
with minimum temperatures rising nearly twice as fast as the maximum
temperatures and the intensity, frequency, and duration of summer
extreme heating events (heat waves) increasing since 1950 (Kadir et al.
2013, pp. 38, 48).
As stated in the SSA report, the aquatic habitat for western
spadefoots must be within a particular temperature range and maintain
inundation for egg development, tadpole growth, and metamorphosis to be
successful (Storer 1925, p. 158; Burgess 1950, p. 49-51; Brown 1967, p.
746; Feaver 1971, p. 53; Morey 1998, p. 86; Service 2023, p. 13).
Higher ambient temperatures can influence water temperatures and dry
aquatic habitat sooner, thereby shortening the appropriate breeding
season for the western spadefoot.
The future effects of climate change will likely continue to cause
increased temperatures throughout the range of both western spadefoot
DPSs (Bedsworth et al. 2018, p. 22). In California, statewide models
project warming of an additional 2-4 [deg]C (3.6-7.2 [deg]F)
(Representative Concentration Pathway (RCP) 4.5, medium-emissions
scenario) to 4-7 [deg]C (7.2-12.6 [deg]F) (RCP 8.5, high-emissions
scenario) by the end of the century depending on future greenhouse gas
emissions (Pierce et al. 2018, pp. iv, 17-18). These mean annual
changes in temperature will likely have impacts and be felt most
strongly as extreme temperature events, which are predicted to increase
(Pierce et al. 2018, pp. 18-19). The future impacts from increased
temperatures would result in a continued negative impact on aquatic
habitat, which may reduce opportunities for or result in a reduction in
breeding success (by increasing water temperatures or reducing
inundation periods) for the northern and southern DPSs of the western
spadefoot.
Conservation Efforts and Regulatory Mechanisms
Several vernal pool species (vernal pool crustaceans and plants)
that occur within the range of both the northern and southern DPSs of
the western spadefoot are listed as endangered or threatened species
under the Act (Service 1998, p. 3; Service 2005, Table I-1, pp. I-4-I-
7). The western spadefoot is included as a covered species in the 2005
Recovery Plan for Vernal Pool Species (Service 2005, pp. II-220-II-
235). In the northern DPS of the western spadefoot's range, the
endangered Santa Barbara DPS (Service 2000, entire) and the threatened
Central DPS (Service 2004, entire) of the California tiger salamander
(Ambystoma californiense), and the threatened California red-legged
frog (Rana draytonii) (Service 1996, entire) are found. The California
red-legged frog also occurs in portions of the range of the southern
DPS of the western spadefoot in southern California and Baja
California, Mexico (Peralta-Garcia et al. 2016, pp. 168-170; Thomson et
al. 2016, pp. 103-104). The California Department of Fish and Wildlife
(CDFW), on its Special Animals List, considers the western spadefoot as
a priority ``Species of Special Concern'' with a global and State
ranking as a vulnerable species (G3 and S3--at moderate risk of
extinction due to a restricted range, relatively few populations (often
80 or fewer), recent and widespread declines, or other factors)
(Thomson et al. 2016, p. 103; CDFW 2019, entire).
As a result of these regulatory or recovery actions, a number of
conservation efforts have been carried out directly and indirectly for
the purpose of conserving and recovering listed vernal pool and
amphibian species including the western spadefoot. Some of those
conservation actions have included land acquisition and restoration for
the purpose of protecting vernal pool and ponded habitat that is
beneficial for the western spadefoot. A study of extant vernal pool
habitat preserved within regions of the northern DPS of the western
spadefoot found 270,329 ac (109,398 ha) out of 764,862 ac (309,529 ha)
of extant vernal pool habitat (35 percent) protected in the northern
DPS's range (Vollmar et al. 2017, pp. 1-14). In the southern DPS's
range in California, approximately 157,554 ac (63,760 ha) of known
western spadefoot habitat has been preserved out of approximately
306,782 ac (124,151 ha) (approximately 51 percent) (Service 2023, table
6). This conservation has been achieved in large part as a result of
the land acquisition, protection, and restoration activities associated
with Service-permitted Habitat Conservation Plans (HCPs) and State
natural community conservation plans (NCCPs) (CDFW 2015, entire). The
HCPs and NCCPs within the range of the two DPSs provide mechanisms to
balance wildlife conservation with development or other activities that
may negatively impact sensitive species. Currently, 15 HCPs and 15
NCCPs (some are combined HCP/NCCPs) include western spadefoot as a
covered species (5 HCPs are within the range of the northern DPS, and
10 HCPs are within the range of the southern DPS in California)
(Service 2023, pp. 101-108, Appendix A). When looking at all the
conservation efforts for the western spadefoot the number of
populations occurring on managed preserves and considered conserved is
17 populations for the northern DPS and 102 populations for the
southern DPS. Approximately 17 percent of the habitat available to the
northern DPS is conserved, compared to approximately 50 percent for the
southern DPS of the western spadefoot (Service 2023, p. 62).
Conservation activities that have been included in HCPs for the western
spadefoot include habitat protection, light pollution minimization,
erosion control of vernal pool habitat, work windows that avoid the
reproductive season when western spadefoot are dispersing, exclusion
fencing, entrapment avoidance, and monitoring. Several large-scale HCPs
have been implemented and are currently protecting large areas of
habitat for the western spadefoot. Two examples of large-scale HCPs in
the range of the southern DPS of the western spadefoot include the 2004
Western Riverside County Multi-Species HCP (MSHCP) (Dudek and
Associates 2003, entire) and the 1998 South County HCP in San Diego
County (San Diego County 1998, entire). These two HCPs cover areas in
the western portion of the southern DPS's range and help minimize the
effects of urbanization, development, and other human activities as
well as assist in maintaining populations of the southern DPS by
establishing connected ecosystem preserves, controlling unauthorized
access, monitoring habitat conditions, and maintaining and improving
aquatic and upland habitat. Together, the two HCPs have established
over 425,000 ac (171,992 ha) of preserve lands in the western portion
of the southern DPS's range. Although not all of the preserve land is
used by the southern DPS, the preserve land they do occupy within the
two HCP areas is well connected and provides both aquatic and upland
habitat of high quality.
For the northern DPS of the western spadefoot several large-scale
HCPs have also been implemented including the San Joaquin County Multi-
Species Habitat Conservation and Open Space Plan (San Joaquin Co. Plan)
(San Joaquin County 2000, entire), the South Sacramento Habitat
Conservation Plan (County of Sacramento et al. 2018, entire), and the
Yolo HCP/NCCP (Yolo Habitat Conservancy 2018, entire). These plans
cover areas in Central and Sacramento Valley portions of the northern
DPS's range (San Joaquin, Sacramento, and Yolo Counties) and help
minimize the effects of urbanization, development, and other human
activities as well as assist in
[[Page 84264]]
maintaining populations of the northern DPS by establishing connected
ecosystem preserves were possible, monitor habitat conditions, and
maintain and improve aquatic and upland habitat for the northern DPS of
the western spadefoot. The San Joaquin Co. Plan is the longest standing
plan and has assisted in conserving approximately 20,196 ac (8,173 ha)
of habitat including areas of vernal pools, seasonal wetlands, vernal
pool grasslands, and foothill grasslands that are used by the northern
DPS of the western spadefoot. The South Sacramento Habitat Conservation
Plan and Yolo HCP/NCCP are recently approved and implemented plans and
the level of conservation is not to the extent of the San Joaquin Co.
Plan, although some conservation within the two plan areas has been
implemented and previously established preserves (outside of the
planning efforts) within the plan areas do protect and conserve habitat
used by the northern DPS of the western spadefoot, especially in areas
occupied by other listed species such as the vernal pool fairy shrimp
(Branchinecta lynchi), vernal pool tadpole shrimp (Lepidurus packardi),
and California tiger salamander.
In addition to HCPs, several Department of Defense (DOD) facilities
are within the range of both the northern and southern DPSs of the
western spadefoot, and these installations have developed integrated
natural resources management plans (INRMPs) that help guide management
of natural resources in a manner consistent with sustainability of
natural resources. Conservation measures within the INRMPs are included
specifically for western spadefoot or for vernal pool habitat that
western spadefoots use. The DOD facilities associated with western
spadefoot in the northern DPS's range include the U.S. Army facilities
of Fort Hunter Liggett in Monterey County (DOD 2022b, entire), and Camp
Roberts in Monterey and San Luis Obispo County (DOD 2022a, entire) and
Vandenberg Space Force Base in Santa Barbara County (DOD 2015, entire;
DOD 2021, entire). The measures being implemented by these facilities
are assisting to protect and conserve habitat and are assisting in
providing localized connectivity of habitat and redundancy of habitat
in areas under DOD jurisdiction.
The DOD facilities in the southern DPS of the western spadefoot's
range include areas in San Diego County associated with Marine Corp
Base Camp Pendleton in the Coastal Military Land Region. The Base
occupies approximately 125,000 ac (50,586 ha) in northwestern San Diego
County. Surveys conducted in 2013 detected the southern DPS at 70
locations across the Base. Conservation measures being implemented to
conserve the southern DPS of the western spadefoot include: management
and control of nonnative species; erosion control; education and
training; habitat restoration, creation, and enhancement; off-road
vehicle restrictions in sensitive areas; survey and monitoring; use
adaptive management based on the best available science; and avoidance
and minimization measures (MCB Camp Pendleton INRMP, DOD 2018, pp. N-
69-N-70). The measures being implemented by these facilities are
assisting to protect and conserve habitat and are assisting in
providing localized connectivity of habitat and redundancy of habitat
in areas under DOD jurisdiction.
However, conservation of habitat alone by HCPs and INRMPs or
through other regulatory mechanisms would not reduce the impacts
associated with increased temperatures or drought associated with the
effects of climate change on the northern DPS and southern DPS of the
western spadefoot.
Current Conditions
We describe the current condition of the two DPSs of the western
spadefoot by characterizing their status in terms of resiliency,
redundancy, and representation by analyzing the impact of both threats
and conservation efforts on each DPS's individual and population needs.
Our analysis of the current condition of the two DPSs is limited to the
available records of observations for the species, the habitat quantity
and quality in the areas they occur, the availability of dispersal
between populations, the magnitude and distribution of threats across
the landscape acting on each DPS, and the number of effective breeders
estimated for areas for which data were available.
In our analysis of the recorded observations of the species, we
reviewed those more recent records from 1980 to present to eliminate
older records. In our analysis, we grouped occurrences within each of
our defined geographic regions for each DPS. Regions with greater
percentage of occupancy were considered to be able to better withstand
any negative environmental or demographic stochastic events. Recent
research has determined that habitat within a 2,000-m (6,562-ft) buffer
of a spadefoot occurrence in the northern clade, and 1,000-m (3,281-ft)
buffer in the southern clade, is the best predictor of habitat use for
the two DPSs (Rose et al. 2020, p. 1; Rose et al. 2022, p. 9). To
assess habitat quality, we reviewed the amount of grassland or shrub/
scrub habitat within these predicted use areas. Because the species is
dependent on seasonal precipitation patterns to fill and pond aquatic
habitat for breeding and rearing, we evaluated the number of average
precipitation seasons over a lifespan of an individual (approximately 6
years). By looking at this timeframe, we would be able to assess if an
individual would have the opportunity to reliably breed and reproduce
during its lifetime. However, as discussed above, the species is
adaptable and is able to use nontraditional habitat such as roadside
ditches, waterfilled depressions, and ponded intermittent stream
habitat as well as their preferred vernal pool habitat. Finally, we
looked at information regarding the number of effective breeders at
various locations where that information was available for the two DPSs
to assist in determining abundance (see Reproduction and Recruitment
above and Service 2023, pp. 19-20, section 7.2.3 Abundance). In areas
that did not have information on the effective number of breeders, we
looked to areas that were adjacent or had similar habitat and
environmental conditions and qualitatively made our assessment for that
region. Due to the limited information on occurrence records in Mexico,
we looked to the species' occurrence information and relative degree of
threats for the areas where they occur. Although the number of
effective breeders required to support populations of the species at
any given location is unknown, we considered those regions with higher
numbers to be in better condition than those with lower numbers. To
determine the overall current condition of the species in a region, we
assessed the number and distribution of records of the species, habitat
quantity/distribution, habitat quality, precipitation, and abundance
together in our analysis.
Western Spadefoot Northern DPS--Current Condition
As discussed above, we divided the northern DPS of the western
spadefoot into 10 regions. We evaluated the condition of each region
individually and then determined the overall current condition of the
northern DPS of the western spadefoot by combining our results for each
region. Below we provide a summary of the current condition of the
northern DPS of the western spadefoot.
Current Resiliency. As discussed in the SSA report (Service 2023,
pp. 39-46), because we have limited information on long-term population
trends for the DPS, we evaluated the
[[Page 84265]]
northern DPS of the western spadefoot's resiliency as a function
several factors including habitat quantity and distribution, habitat
quality, precipitation and whether it provides for sufficient aquatic
habitat over time, and estimated abundance based on the effective
number of breeders, as discussed above.
In reviewing the habitat conditions for the northern DPS of the
western spadefoot, we found that, in the 10 regions we identified in
our analysis, the majority (8 of 10) had large amounts of habitat that
was well distributed throughout each region. The habitat quality for
the regions varied geographically, with the regions associated with
urbanized or fragmented habitat areas on the valley floor in low
condition, and the regions located away from urbanized areas within
higher elevation foothills of the Sierra Nevada Mountains or Coast
Range having moderate or high quality habitat conditions. The rainfall
or precipitation factor that we used in our analysis to account for the
availability of aquatic habitat varied from high to moderate depending
on the region's geographic distribution from north to south
respectively, with those regions in the north having higher rainfall
conditions. The demographic factor of abundance estimated by the
effective number of breeders was found to be equally low for all
regions and resulted in an overall current resiliency for the 10
regions to be either in low-moderate or low condition with 6 in low and
4 in low-moderate condition (Service 2023, pp. 32-48, table 3).
However, as discussed above, the estimates for effective number of
breeders is based on limited information and is considered very low
when compared to other species and may either be a result of that
incomplete information or that the species exhibits this life history
trait and is able to maintain populations on the landscape despite low
abundances. Based on the DPS's habitat factors being relatively high,
all regions having recent occurrence records with evidence of breeding
and recruitment, and the DPS being able to at least maintain
populations throughout its historical range despite the latent impacts
of habitat loss and current threats facing the DPS, we have determined
that overall the populations of the northern DPS of the western
spadefoot currently have sufficient resiliency to withstand population-
level stochastic disturbances.
Current Redundancy. The northern DPS of the western spadefoot,
despite habitat loss and fragmentation, is well distributed with
approximately 160 local populations occupying areas throughout its
historical range and in the regions that we identified for our
analysis. Many of the areas occupied are also part of large-scale
(county-wide) habitat conservation efforts or located on military
installations (Camp Roberts, Fort Hunter Liggett, and Vandenberg Space
Force Base), which have management plans in place to protect the DPS
and its habitat. Other conserved and protected areas where the species
occurs are located throughout the range of the DPS. As a result, the
DPS currently has a sufficient number and distribution of populations
to be able to spread the risk among multiple populations to minimize
the potential loss of the DPS from catastrophic events. Therefore, we
consider the northern DPS of the western spadefoot to currently have
sufficient redundancy.
Current Representation. The northern DPS of the western spadefoot
is distributed within the 10 regions identified in our analysis. As
discussed above, we identified our analysis regions partly on the
vernal pool regions identified by the California Department of Fish and
Wildlife's California Vernal Pool Assessment Preliminary Report
(Keeler-Wolf et al. 1998, pp. 12-15). These regions define vernal pool
habitat largely on the basis of ecological characteristics, endemic
species, soils, and geomorphology, and species occupying these habitats
are uniquely adapted to the characteristics of the habitat where they
occur. Because the DPS still maintains its distribution within all
regions identified, we would expect the DPS to have sufficient
ecological diversity and be able to adapt to the various environmental
conditions it currently faces in the regions it occurs. Therefore, we
consider the northern DPS of the western spadefoot to currently have
sufficient representation.
Western Spadefoot Southern DPS--Current Condition
The current distribution of the southern DPS of the western
spadefoot in California and Mexico is similar to its historically
occupied range except for the areas associated with the heavily
urbanized areas of the Los Angeles basin, San Diego County, Taiquana,
Mexico, and other heavily developed areas along the California and Baja
California coast (Service 2023, pp. 7-8). Recent occurrence information
in Baja California, Mexico, has identified additional occurrence
records throughout the historically occupied range of the species in
Mexico (Amphibian and Reptile Atlas of Peninsular California 2023,
entire). Based on this information, we consider that the DPS to have
numerous well distributed populations consisting of recent (2018-2023)
records (Amphibian and Reptile Atlas 2023, entire; CNDDB 2023, entire).
Current Resiliency. As discussed above, we have limited information
on long-term population trends and abundance information for the
species. As a result, we evaluated the southern DPS of the western
spadefoot's current resiliency as a function of habitat quantity/
distribution, habitat quality, precipitation, and demographic factors.
In reviewing the habitat for the southern DPS of the western
spadefoot, we found that 9 of 10 regions have sufficient quantity of
habitat that is well distributed throughout each region. As a result we
categorized the habitat quantity and distribution to be high. The
remaining region (Baja Central) is categorized as having low habitat
quantity and distribution because of the limited information on the
known populations in the regions and the makeup of their habitat.
However, one population in Baja California is surrounded by habitat
that is comprised of more than 80 percent grassland or scrub/shrub
habitat (high category). As discussed above, recent information has
identified additional occurrence records in the region and these
records, based on our evaluation of aerial imagery, occur mostly in
areas of suitable habitat type and are located away from development
(Amphibian and Reptile Atlas 2023, entire).
The habitat quality in 7 of 10 regions is high with 3 in the low
category. The 3 regions in low occur in Baja California, Mexico (Baja
Northwest, Baja Central, and Baja South) because the percentage of
grassland or scrub/shrub habitat within a recommended distance from
some of the occurrence locations is below the threshold for this
species--80 percent. However, although specific habitat information is
not available, a review of the aerial imagery associated with the
recent Baja California records identifies large portions of open
grassland or shrub/scrub habitat type, but the exact type is uncertain.
The rainfall or precipitation factor attributing to the likelihood of
ponded habitat being available in each region was considered moderate
based on precipitation patterns being relatively uniform across the 10
geographic regions.
The demographic factor of abundance estimated by the effective
number of breeders was considered low for all regions except the Baja
Central and Baja South Regions in Mexico, which we identified as
unknown. The
[[Page 84266]]
demographic factor of abundance estimated by the effective number of
breeders was found to be equally low for all regions and resulted in an
overall current resiliency for 7 of 10 regions to be low-moderate and 1
region in low condition (Service 2023, pp. 50-56, table 4). However, as
discussed above, the estimates for effective number of breeders is
based on limited information and is considered very low when compared
to other species and may either be a result of that incomplete
information or that the species exhibits this life history trait and is
able to maintain populations on the landscape despite low abundances.
Based on the DPS's habitat factors being relatively high, all regions
having recent occurrence records with evidence of breeding and
recruitment, the reduction of threats due to conservation efforts (see
redundancy below), and the DPS being able to at least maintain
populations throughout its historical range despite the latent impacts
of habitat loss and current threats facing the DPS, we have determined
that overall, the populations of the southern DPS of the western
spadefoot currently have sufficient resiliency to withstand population-
level stochastic disturbances.
Current Redundancy. The southern DPS of the western spadefoot,
despite habitat loss and fragmentation, is well distributed with more
than 300 local populations currently extant and occupying all areas
throughout its historical range. Many of the areas occupied are also
part of large-scale (county wide) habitat conservation efforts (10 HCPs
that identify the southern DPS as a covered species) that have
conserved approximately 51 percent of available habitat for the DPS
(Vollmar et al. 2017, pp. 1-14) or located on military installations
(Marine Corps Base Camp Pendleton), which have management plans in
place to protect the DPS and its habitat. Other conserved and protected
areas where the DPS occurs are located throughout the range of the DPS.
As a result, the DPS currently has a sufficient number and distribution
of populations to be able to spread the risk among multiple populations
to minimize the potential loss of the DPS from catastrophic events.
Therefore, we consider the southern DPS of the western spadefoot to
currently have sufficient redundancy.
Current Representation. The southern DPS of the western spadefoot
is distributed within the 10 regions identified in our analysis. As
discussed above, we identified our analysis regions partly on the
vernal pool regions identified by the California Department of Fish and
Wildlife's California Vernal Pool Assessment Preliminary Report
(Keeler-Wolf et al. 1998, pp. 12-15) as well as species expert
information. Because the DPS still maintains its distribution within
all the regions identified, we would expect the DPS to have sufficient
ecological diversity and be able to adapt to the various environmental
conditions it currently faces based on the variable ecological regions
in which it occurs and its adaptability of aquatic habitat it uses for
breeding. Therefore, we consider the southern DPS of the western
spadefoot to currently have sufficient representation.
The latent effects and current impacts from urbanization have
resulted in a reduction and fragmentation of the southern DPS's
habitat, thereby reducing connectivity between occupied areas and
isolating populations. Recent severe multi-year drought conditions have
impacted aquatic habitat across the DPS's range, limited breeding
opportunities, and most likely contributed to the limited number of
breeders being currently estimated for the DPS. However, our review of
the DPS's current condition has found that the currently extant
populations frequently occur in clusters of high-quality grassland and
scrubland habitat that is within close proximity. Having numerous well
distributed populations in high-quality aquatic and upland habitat will
assist in reducing the impacts of drought. This gives the DPS the
opportunity for dispersal and provides demographic connectivity. In
addition, extensive habitat management in place through HCPs and INRMPs
has been implemented, which assists in offsetting the effects of past
habitat loss by protecting both the aquatic and upland estivation
habitat as well as connectivity between such features. Because the DPS
has more than 300 currently extant populations that are well
distributed on the landscape and occur in high quality aquatic and
upland habitat and many of these areas having substantial in-place and
ongoing conservation and management to assist in protecting,
conserving, and maintaining habitat availability, distribution, and
quality for the DPS, we consider that the southern DPS of the western
spadefoot to currently have sufficient resiliency, redundancy, and
representation.
Future Conditions
Below we provide information on the future condition of the
northern DPS and the southern DPS of the western spadefoot.
Western Spadefoot Northern DPS--Future Condition
As discussed in the SSA report, to assist in our analysis of the
northern DPS of the western spadefoot's future condition, we developed
three plausible future scenarios based on differing emission
projections and threat levels (RCP 4.5, RCP 8.5 with a continued threat
level, and RCP 8.5 with increased threat levels) looking out
approximately 30-40 years (Service 2023, chapter 10, pp. 57-82). This
range represents estimates of mid-century climate projections and human
population growth and development projections for California (The
California Economic Forecast 2017, p. 2; Bedsworth et al. 2018, p. 23;
California Department of Finance 2023, entire). Emission projections
and their effects on climatic conditions are projected to at least the
year 2100 (approximately 75 years). However, the timeframe we can
reasonably predict the western spadefoot's response to these changing
climate conditions is shorter due to the lifespan of the species and
uncertainties associated with localized climate conditions. As a
result, our foreseeable future is considered to extend to approximately
the year 2060. This timeframe considers both environmental (the effects
of climate impacts) and human use impacts (effects from habitat loss,
fragmentation, degradation, and alteration) as we can reasonably
predict the two DPS's response to these threats into the future.
Scenario 1 includes an emission threshold of RCP 8.5 with increasing
threats associated with development and drought. Scenario 2 includes a
continuation of existing threats at their current magnitude under an
RCP 8.5 emission threshold. This would result in decreases in habitat
quality and increase of the effects of climate change. Scenario 3
includes threats following an RCP 4.5 emission threshold that would
also cause a decrease in habitat quality and increase of the effects of
climate change but at lower levels (Service 2023, pp. 61, table 5).
As stated above, the current populations of the northern DPS of the
western spadefoot still occur throughout their historical range
although the habitat has been fragmented and some populations are
isolated and are most likely small with limited effective population
sizes. In the future, drought conditions are expected to become more
frequent and be of higher intensity and duration. The future condition
that is consistent across all three scenarios is increasing effects of
climate change (drought, increased temperatures), with
[[Page 84267]]
impacts only varying by degree. These impacts would most likely affect
the DPS's aquatic habitat and its ability breed and reproduce and
result in additional reductions in population size. Although the
western spadefoot is adapted to variable environmental conditions such
as drought, extended drought periods may become more frequent and may
increase the timeframe between successful breeding events, which in
some cases may be beyond the life expectancy of adults. This would lead
to a reduction in population size and may extirpate smaller populations
or those occupying degraded or fragmented habitat. Human population
growth and the effects of urbanization are expected to continue in the
future and would further fragment and degrade habitat, reduce
population connectivity, and result in additional population declines
across the approximately 160 current local populations. Potential
extirpations of populations of the northern DPS of the western
spadefoot from regions would result in fewer populations to maintain
redundancy and thereby compromise the DPS's ability to withstand even
localized catastrophic events. The loss of populations may also result
in a decline of genetic diversity or occupancy in the variable
ecological settings where it currently occurs thereby reducing the
representation of the northern DPS of the western spadefoot.
Western Spadefoot Southern DPS--Future Condition
Our method for analyzing the future condition of the southern DPS
of the western spadefoot is the same as for the northern DPS. As stated
above, the current populations of the southern DPS of the western
spadefoot have been fragmented and are isolated and are most likely
small with a limited number of expected breeders. Increasing effects of
climate change in the future (drought, increased temperatures) are
projected across all three future scenarios, affecting the DPS's
aquatic habitat and its ability to breed and reproduce, resulting in
additional reductions in population size. More frequent, extended
drought periods may be beyond the life expectancy of adults. This would
lead to reductions in population sizes and may extirpate smaller
populations or those occupying degraded or fragmented habitat. In the
future, we would expect the impacts from largescale habitat loss due to
urbanization or other land use conversion to be diminished due to
conservation efforts associated with HCPs and INRMPs. However, we
expect the effects of climate change associated with drought to
increase. Reductions in resiliency and/or extirpation of populations of
the southern DPS of the western spadefoot would result in fewer
populations to maintain redundancy, compromising the DPS's ability to
withstand catastrophic events. The loss of populations may also result
in a decline of genetic diversity or occupancy in the variable
ecological settings where it currently occurs, reducing representation
of the southern DPS of the western spadefoot into the future.
Determination of Western Spadefoot Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) Overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) The inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Determination of Status for the Northern DPS and Southern DPS of the
Western Spadefoot
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the northern DPS and southern DPS of the western spadefoot and its
habitat. Below we summarize our assessment of the current and future
status of each DPS of the western spadefoot under the Act.
Northern DPS of the Western Spadefoot: Status Throughout All of Its
Range
In our analysis of the northern DPS's current status, we identified
threats acting on the DPS to varying degrees, including impacts from
development and urbanization (factor A), agricultural land conversion
(factor A), chemical contaminants (factor E), nonnative predators
(factor C), wildfire (factor A), noise disturbance (factor E), and the
effects associated with climate change (most notably drought) (factor
E). Of these threats, we identified habitat loss and degradation from
urbanization (factor A) and the effects of climate change (factor E)
mostly associated with severe drought as the major influences driving
the current condition of the northern DPS of the western spadefoot.
Currently, the latent effects and current impacts from urbanization
and other land conversion have resulted in a reduction, fragmentation,
and degradation of the northern DPS's habitat (both upland and
aquatic), thereby reducing connectivity between occupied areas and
isolating populations. Aquatic habitat used for breeding, reproduction,
and rearing has been impacted by severe multi-year drought conditions
across the DPS's range and has limited breeding opportunities, and most
likely contributed to the limited number of breeders estimated for the
DPS. After evaluating threats to the northern DPS of the western
spadefoot and assessing the cumulative effect of the threats under the
Act's section 4(a)(1) factors, we have determined that overall
viability of the DPS has declined from historical levels.
However, we find that currently the DPS: (1) maintains populations
with sufficient resiliency to be able to withstand the environmental or
demographic stochastic events currently impacting the DPS; (2)
maintains sufficient redundancy to withstand the catastrophic impacts
it is facing such as the effects of climate change associated with
drought; and (3) maintains sufficient representation based on the
breadth of its populations occurring in the variable and unique
habitats where it is currently known to occur, thereby maintaining the
breadth of environmental diversity within or between populations.
The current viability of the DPS is based on (1) number and
distribution of populations currently extant; (2) the amount,
distribution, and quality of habitat currently available and used by
populations of the DPS; (3) the current ability of the DPS to maintain
its populations despite the existing threats; (4) and the amount of
management, protections, and conservation currently afforded to the DPS
through existing HCPs and INRMPs on military lands that have identified
the western spadefoot or its habitat for conservation.
Although we have concluded that impacts resulting from present-day
threats are currently negatively affecting the northern DPS of the
western spadefoot, the DPS still has a sufficient
[[Page 84268]]
degree of resiliency, redundancy, and representation. As such, after
assessing the best available information, we conclude that the northern
DPS of the western spadefoot is not currently in danger of extinction.
The main driving threats of increased frequency, magnitude, and
duration of drought and latent and cumulative impacts of habitat loss
(i.e., fragmentation, isolation, degradation) are expected to
negatively affect the DPS into the future. Effects of climate change
(drought, increased temperatures) are projected to increase across all
three future scenarios in the next 30-40 years, affecting the DPS's
aquatic habitat and its ability breed and reproduce, resulting in
additional reductions in population size. More frequent, extended
drought periods may be beyond the life expectancy of adults. This would
lead to reductions in population sizes and may extirpate smaller
populations or those occupying degraded or fragmented habitat. In the
future, human population growth and the effects of urbanization are
expected to continue and would further fragment and degrade habitat,
reduce population connectivity, and result in additional population
declines across the range of the DPS. Reductions in resiliency and
extirpation of populations of the northern DPS of the western spadefoot
would result in fewer populations to maintain redundancy, compromising
the DPS's ability to withstand catastrophic events. The loss of
individuals and populations may also result in a decline of genetic
diversity or occupancy in the variable ecological settings where it
currently occurs, reducing representation of the northern DPS of the
western spadefoot into the future.
After evaluating threats to the northern DPS of the western
spadefoot and assessing the cumulative effect of the threats under the
Act's section 4(a)(1) factors, as well as considering the conservation
efforts currently in place, we find that populations of the northern
DPS of the western spadefoot will continue to decline over the next 30-
40 years such that the northern DPS is likely to become in danger of
extinction throughout all of its range within the foreseeable future
due to increased frequency, intensity, and duration of drought
conditions and impacts from continued human development, urbanization,
and land use conversion. Thus, after assessing the best information
available, we determine that the northern DPS of the western spadefoot
is not currently in danger of extinction but is likely to become in
danger of extinction within the foreseeable future throughout all of
its range.
Northern DPS of the Western Spadefoot: Status Throughout a Significant
Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Services determine that a
species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the DPS is endangered
in a significant portion of its range--that is, whether there is any
portion of the DPS's range for which both (1) the portion is
significant; and (2) the DPS is in danger of extinction in that
portion. Depending on the case, it might be more efficient for us to
address the ``significance'' question or the ``status'' question first.
We can choose to address either question first. Regardless of which
question we address first, if we reach a negative answer with respect
to the first question that we address, we do not need to evaluate the
other question for that portion of the DPS's range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the DPS's range where the DPS is
in danger of extinction now (i.e., endangered). In undertaking this
analysis for the northern DPS of the western spadefoot, we choose to
address the status question first--we consider information pertaining
to the geographic distribution of both the DPS and the threats that the
DPS faces to identify any portions of the range where the DPS may be
endangered.
We evaluated the range of the northern DPS of the western spadefoot
to determine if the DPS is in danger of extinction now in any portion
of its range. The range of a DPS can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the DPS's range that may meet the definition of an
endangered species. For the northern DPS of the western spadefoot, we
considered whether the threats or their effects on the DPS are greater
in any biologically meaningful portion of the DPS's range than in other
portions such that the DPS is in danger of extinction now in that
portion.
We examined the following threats: habitat loss, degradation,
fragmentation, and isolation; nonnative species impacts (predation and
competition); and the effect associated with climate change (increased
temperature and severe drought), including cumulative effects. The
impacts of these threats have affected and continue to impact the
northern DPS of the western spadefoot across it range. Past habitat
loss due to wetland and upland losses from urbanization and land
conversion for agricultural purposes has occurred uniformly throughout
the range of the DPS. The remaining areas where the habitat remains and
the DPS occurs are limited to isolated and disjunct fragments of a once
interconnected and expansive ecosystem. Current impacts from
urbanization and agricultural land conversion are still occurring but
have decreased in extent and magnitude from the conversions that
occurred through at least the mid-twentieth century. However, the
latent effects from historical losses such as population isolation,
habitat fragmentation, and loss of representation and redundancy
continue to affect the DPS across its range. This situation is
reflected by the DPS's current distribution and occupancy in remnant
grassland areas in the Sacramento and San Joaquin Valleys and within
low-elevation foothill areas of the Sierra Nevada Mountains and Central
Coast Range.
In our analysis of the current resiliency of the 10 regions for the
northern DPS of the western spadefoot, the Solano-Colusa Region had the
lowest resiliency score and was the only region to also have a low
habitat quantity/distribution score. In a review of the other 9
regions, 8 of 9 regions had high habitat quantity/distribution scores
with 1 region having a moderate habitat quantity/distribution score. We
determined regions with high or moderate habitat quantity/distribution
scores to be able to currently provide sufficient opportunities for the
DPS to meet its life history needs and therefore withstand stochastic
and catastrophic events. As a result, we further reviewed the DPS's
occurrence and habitat conditions in the Solano-Colusa Region to
determine if the region may have a different status than the rest of
the regions.
The number of western spadefoot records in the Solano-Colusa Region
is limited to 10 records (CNDDB 2023, entire) and mostly occur within
natural
[[Page 84269]]
grassland or low elevation foothills between the Coast Range and
Sacramento Valley in northern Yolo and southern Colusa County west of
Interstate 5 and the town of Dunnigan, California. The habitat
surrounding most of the records is made up of agricultural croplands,
but other records do occur surrounding the area in natural grassland
habitat. The records are relatively recent (1990 to 2019) and are
associated with ephemeral creeks, artificially ponded livestock ponds,
and natural intermittently ponded habitat in the rolling grassland and
oak woodland habitat (CNDDB 2023, entire). The California tiger
salamander also co-occurs with the northern DPS in this concentrated
area and records have been found in a similar timeframe (1990 to 2017)
(CNDDB 2023, entire). California tiger salamanders have similar life
history and habitat requirements as the northern DPS of the western
spadefoot. The California tiger salamander is a covered species within
the Yolo HCP/NCCP which has identified the area for conservation by
protecting 2,000 ac (809 ha) of upland habitat and approximately 36 ac
(15 ha) of aquatic habitat in the area. Additional conservation
measures include the requirement of some State and local projects
occurring in any identified conservation areas would require a
biological impact assessment before implementation, mitigation of
impacts from activities, restoration and management of habitat, and
implementation of a survey and monitoring program (Yolo Habitat
Conservancy 2018, pp. ES-21, ES-22, and 3-18, 3-19). Although the
habitat requirements of the California tiger salamander and the
northern DPS are not exact and threats acting on them may impact each
entity differently, preservation and management of both aquatic and
upland habitat will benefit the northern DPS of the western spadefoot
in the Solano-Colusa Region.
In our analysis of the current condition of populations and
resiliency in the SSA report, we looked to the number of populations
and their distribution and the percentage of grassland habitat
surrounding each population (Service 2023, pp. 34-38). Given the low
number of records, their distribution in mostly two populations, and
the area mostly surrounded by agricultural lands, we identified the
habitat factors for the region to be low. However, after considering
the information above regarding occupancy over time and the
conservation measures in place for both aquatic and upland habitat
being used by the northern DPS, we have determined that the northern
DPS in the Solano-Colusa Region has sufficient resiliency, redundancy,
and representation to currently maintain populations in the wild.
Although within the Solano-Colusa Region, the biological condition
of the DPS differs from its condition elsewhere in its range, the best
scientific and commercial information available do not indicate that
the threats, or the species' responses to the threats, are such that
the northern DPS of the western spadefoot is currently in danger of
extinction in the identified portion. Based on the discussion outlined
above, we find that the Solano-Colusa portion of the northern DPS is
not in danger of extinction now.
Therefore, no portion of the northern DPS of the western
spadefoot's range provides a basis for determining that the DPS is in
danger of extinction in a significant portion of its range, and we
determine that the DPS is likely to become in danger of extinction
within the foreseeable future throughout all of its range. This
determination does not conflict with the courts' holdings in Desert
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011,
1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell,
248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this
conclusion, we did not apply the aspects of the Final Policy, including
the definition of ``significant'' that those court decisions held to be
invalid.
Northern DPS of the Western Spadefoot: Determination of Status
Our review of the best scientific and commercial information
available indicates that the northern DPS of the western spadefoot
meets the definition of a threatened species. Therefore, we propose to
list the northern DPS of the western spadefoot as a threatened species
in accordance with sections 3(20) and 4(a)(1) of the Act.
Southern DPS of the Western Spadefoot: Status Throughout All of Its
Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the southern DPS of the western spadefoot and its habitat. Below we
summarize our assessment of the current and future status of the
southern DPS of the western spadefoot under the Act.
As stated above, some populations of the southern DPS of the
western spadefoot have been fragmented and are isolated and are most
likely small with a limited number of effective breeders. However, our
analysis of the current condition of the southern DPS of the western
spadefoot, as assessed in the SSA report, shows that populations of the
DPS are well distributed with multiple populations across all the
ecological settings within the DPS's range. While threats are currently
acting on the DPS at the individual level and many of those threats are
expected to continue into the future, the main driving threats of
habitat loss and the effects of climate change are not currently
impacting the DPS as a whole across its range to the level to cause the
DPS to not be able to sustain populations in the wild in the near term.
The quality and distribution of occupied habitat for the southern DPS
of the western spadefoot is considered high and we have determined that
it will be able to support populations and withstand habitat loss
impacts due to large areas being protected through HCPs and INRMPs and
environmental impacts, including impacts from drought at least in the
near term. This is reflected by the DPS's current distribution and
occupancy across more than 300 local populations despite previous long
term and severe drought conditions. As a result, we do not find that
the southern DPS of the western spadefoot is currently in danger of
extinction throughout all of its range.
In the future, we would expect the latent impacts of habitat loss
to continue and the effects of climate change associated with drought
to increase. Effects of climate change in the future (drought,
increased temperatures) are projected to increase across all three
future scenarios in the next 30-40 years, affecting the DPS's aquatic
habitat and its ability breed and reproduce, resulting in additional
reductions in population size. More frequent, extended drought periods
may be beyond the life expectancy of adults. This would lead to
reductions in population sizes and may extirpate smaller populations or
those occupying degraded or fragmented habitat. In the future, we would
expect the impacts from largescale habitat loss due to urbanization or
other land use conversion to be diminished due to conservation efforts
associated with HCPs and INRMPs. However, we expect the effects of
climate change associated with drought to increase. Reductions in
resiliency and/or extirpation of populations of the southern DPS of the
western spadefoot would result in fewer populations to maintain
redundancy, compromising the DPS's ability to withstand catastrophic
events. The loss of populations may also result in a decline of genetic
diversity or
[[Page 84270]]
occupancy in the variable ecological settings where it currently
occurs, reducing representation of the southern DPS of the western
spadefoot into the future.
After evaluating threats to the southern DPS of the western
spadefoot and assessing the cumulative effect of the threats under the
Act's section 4(a)(1) factors, as well as considering the conservation
efforts currently in place, we find that populations of the southern
DPS of the western spadefoot will continue to decline over the next 30-
40 years such that the southern DPS is likely to become in danger of
extinction throughout all of its range within the foreseeable future
due to increased frequency, intensity, and duration of drought
conditions and impacts from the past effects of development,
urbanization, and land use conversion. Thus, after assessing the best
information available, we determine that the southern DPS of the
western spadefoot is not currently in danger of extinction but is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.
Southern DPS of the Western Spadefoot: Status Throughout a Significant
Portion of Its Range
Having determined that the southern DPS of the western spadefoot is
not currently in danger of extinction but likely to become so in the
foreseeable future throughout all of its range, we now consider whether
any significant portion of the southern DPSs range may be in danger of
extinction--that is, whether there is any portion of the DPS's range
for which it is true that both (1) the portion is significant; and (2)
the DPS is in danger of extinction now in that portion. Depending on
the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the DPS's range.
In undertaking this analysis for the southern DPS of the western
spadefoot, we choose to address the status question first--we consider
information pertaining to the geographic distribution of both the DPS
and the threats that the DPS faces to identify any portions of the
range where the DPS may be endangered.
We evaluated the range of the southern DPS of the western spadefoot
to determine if the DPS is in danger of extinction now in any portion
of its range. The range of a DPS can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the DPS's range that may meet the definition of an
endangered species. For the southern DPS of the western spadefoot, we
considered whether the threats or their effects on the DPS are greater
in any biologically meaningful portion of the DPS's range than in other
portions such that the DPS is in danger of extinction now in that
portion.
For the southern DPS of the western spadefoot, we examined the
following threats: habitat loss, degradation, fragmentation, and
isolation; nonnative species impacts (predation and competition); and
the effect associated with climate change (increased temperature and
severe drought), including cumulative effects. The impacts of these
threats have and continue to impact the southern DPS of the western
spadefoot across its range. Past habitat loss due to wetland and upland
losses from urbanization and land conversion for agricultural purposes
has occurred uniformly throughout the range of the DPS. The remaining
areas where habitat remains and the DPS occurs are smaller in size and
distribution, but still well distributed and often in clusters within
dispersal distance of the DPS.
In our analysis, we identified 7 regions having low-moderate and 1
region having low, and 2 regions within unknown overall resiliency. The
two regions with unknown resiliency (Baja Central and Baja South) as
well as the region with low resiliency (Baja Northwest) occur in Baja
California, Mexico. Information on the exact population distribution
and habitat for these areas is mostly lacking and our assessment of the
southern DPS in these areas is mostly limited to occurrence information
and a review of the areas they are found. Recent survey information has
identified numerous occurrence records that are well distributed
throughout the DPS's range in Baja California and the limited review of
habitat conditions associated with these records shows that the
majority of records are in areas associated with grassland or shrub/
scrub habitat. Based on the best available information, we find that
the habitat quantity and distribution within the Baja Northwest Region
is high. Considering this and the recent occurrence records bolstering
our knowledge of the distribution and occupancy of the DPS in these 3
regions, we do not consider the biological condition of the DPS to
differ from its condition elsewhere in its range. As a result, the best
scientific and commercial information available do not indicate that
the threats, or the DPS's response to the threats, are such that the
southern DPS of the western spadefoot is currently in danger of
extinction in the identified portions. Based on the discussion outlined
above, we find that the DPS is not in danger of extinction now in the 3
identified regions.
Despite historical and current threats to the southern DPS of the
western spadefoot, the southern DPS continues to maintain its
distribution and extent throughout its range in the various ecological
settings known for the DPS. In addition, many of these areas currently
have substantial in-place and ongoing conservation and management to
assist in protecting, conserving, and maintaining habitat availability,
distribution, and quality for the southern DPS.
As a result, we found no biologically meaningful portion of the
southern DPS of the western spadefoot's range where threats are
impacting individuals differently from how they are affecting the DPS
elsewhere in its range, or where the biological condition of the DPS
differs from its current condition elsewhere in its range such that the
status of the DPS in that portion differs from any other portion of the
DPS's range.
Therefore, we find that the species is not in danger of extinction
now in any significant portion of its range. This does not conflict
with the courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not apply the
aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
Southern DPS of the Western Spadefoot: Determination of Status
Our review of the best scientific and commercial information
available indicates that the southern DPS of the western spadefoot
meets the definition of a threatened species. Therefore, we propose to
list the southern DPS of the western spadefoot as a threatened species
in accordance with sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of
[[Page 84271]]
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing results in
public awareness, and conservation by Federal, State, Tribal, and local
agencies, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process consists of preparing draft and final
recovery plans, beginning with the development of a recovery outline.
However, because the western spadefoot has already been included in the
Recovery Plan for Vernal Pool Ecosystems of California and Southern
Oregon (Service 2005, entire), providing an outline and planning and
drafting a plan is not necessary. The recovery plan uses an ecosystem
approach on protecting and conserving vernal pool ecosystems and
identifies goals, objectives, strategies, and criteria for conserving
vernal pool species and their habitat and prioritizes certain tasks or
measures in core areas and areas outside of those areas. The specific
criteria for western spadefoot to be considered conserved is when 80
percent of the occurrences of the species are protected and 85 percent
of the habitat within 11 of 15 vernal pool regions where it occurs is
also protected. In reviewing the criteria for western spadefoot
conservation in the recovery plan (Service 2005, pp. III-87--III-112),
we have determined that these criteria have not been met to date. The
final recovery plan is available on our website (http://www.fws.gov/endangered), or from our Sacramento Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
As stated above, the western spadefoot has already been included in
the Recovery Plan for Vernal Pool Ecosystems of California and Southern
Oregon (Service 2005, entire) and conservation measures have been
identified for the species and its habitat. As a result, funding for
conservation actions will continue to be available for both the
northern DPS and southern DPS of the western spadefoot from a variety
of sources, including Federal budgets, State programs, and cost-share
grants for non-Federal landowners, the academic community, and
nongovernmental organizations. In addition, pursuant to section 6 of
the Act, the State of California would be eligible for Federal funds to
implement survey and monitoring actions for the western spadefoot and
implement conservation actions identified in the State's Wildlife
Action Plan funded through State Wildlife Grants for the western
spadefoot as the species is considered a species of greatest
conservation need by the State. Information on our grant programs that
are available to aid species recovery can be found at: https://www.fws.gov/grants. We invite you to submit any new information on the
northern DPS or southern DPS of the western spadefoot whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which 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 critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of actions that may be subject to the conference and
consultation procedures under section 7 processes are land management
or other landscape-altering activities on Federal lands administered by
the Bureau of Land Management, Department of Defense, U.S. Fish and
Wildlife Service, U.S. Forest Service, and National Park Service as
well as 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, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Federal
agencies should coordinate with the local Service Field Office (see FOR
FURTHER INFORMATION
[[Page 84272]]
CONTACT) with any specific questions on section 7 consultation and
conference requirements.
It is the policy of the Services, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify to the extent known
at the time a species is listed, specific activities that will not be
considered likely to result in violation of section 9 of the Act. To
the extent possible, activities that will be considered likely to
result in violation will also be identified in as specific a manner as
possible. The intent of this policy is to increase public awareness of
the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing. Although most of
the prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of
any regulation under section 4(d) pertaining to any threatened species
of fish or wildlife, or threatened species of plant, respectively.
Section 4(d) of the Act directs the Secretary to promulgate protective
regulations that are necessary and advisable for the conservation of
threatened species. As a result, we interpret our policy to mean that,
when we list a species as a threatened species, to the extent possible,
we identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the Sacramento
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act for the Northern
DPS and Southern DPS of the Western Spadefoot
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the northern DPS and southern DPS of the western
spadefoot by encouraging management of the habitat for the DPSs in ways
that would facilitate their conservation. The provisions of this
proposed rule are one of many tools that we would use to promote the
conservation of the northern DPS and southern DPS of the western
spadefoot. This proposed 4(d) rule would apply only if and when we make
final the listing of the northern DPS and southern DPS of the western
spadefoot as threatened DPSs.
As mentioned previously in Available Conservation Measures, 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, even
before the listing of any species or the designation of its critical
habitat is finalized, section 7(a)(4) of the Act requires Federal
agencies to confer with the Service on any agency action which 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 critical habitat proposed to be designated for such
species.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, as with an endangered species,
if a Federal agency determines that an action is ``not likely to
adversely affect'' a threatened species, it will require the Service's
written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (50 CFR
402.14(a)).
Provisions of the Proposed 4(d) Rule for the Northern DPS and Southern
DPS of the Western Spadefoot
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
northern DPS and southern DPS of the western spadefoot's conservation
needs. As discussed previously in Summary of Biological Status and
Threats, we have concluded that the two DPSs are likely to become in
danger of extinction within the foreseeable future primarily due to
impacts to habitat and the effects of climate change. Section 4(d)
requires the Secretary to issue such regulations as she deems necessary
and advisable to provide for the conservation of each threatened
species and authorizes the Secretary to include among those protective
regulations any of the prohibitions that section 9(a)(1) of the Act
prescribes for endangered species. We find that, if finalized, the
protections, prohibitions, and
[[Page 84273]]
exceptions in this proposed rule as a whole satisfy the requirement in
section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the northern DPS and
southern DPS of the western spadefoot.
The protective regulations we are proposing for the northern DPS
and southern DPS of the western spadefoot incorporate prohibitions from
section 9(a)(1) of the Act to address the threats to the two DPSs.
Section 9(a)(1) prohibits the following activities for endangered
wildlife: importing or exporting; take; possession and other acts with
unlawfully taken specimens; delivering, receiving, carrying,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce. This protective regulation includes all
these prohibitions because the northern DPS and southern DPS of the
western spadefoot are at risk of extinction in the foreseeable future
and putting these prohibitions in place will help to prevent further
declines, preserve the two DPS's remaining populations, slow their rate
of decline, and decrease the cumulative negative effects from other
ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the northern DPS and southern DPS of the western
spadefoot by prohibiting the following activities, unless they fall
within specific exceptions or are otherwise authorized or permitted:
importing or exporting; take; possession and other acts with unlawfully
taken specimens; delivering, receiving, carrying, transporting, or
shipping in interstate or foreign commerce in the course of commercial
activity; or selling or offering for sale in interstate or foreign
commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the DPS's remaining populations, slow their
rate of decline, and decrease cumulative effects from other ongoing or
future threats. Therefore, we propose to prohibit take of the northern
DPS and southern DPS of the western spadefoot, except for take
resulting from those actions and activities specifically excepted by
the 4(d) rule.
Exceptions to the prohibition on take would include all the general
exceptions to the prohibition on take of endangered wildlife as set
forth in 50 CFR 17.21 and additional exceptions, as described below.
The proposed 4(d) rule would also provide for the conservation of
the northern DPS and southern DPS of the western spadefoot by allowing
exceptions that incentivize conservation actions or that, while they
may have some minimal level of take of the two DPSs, are not expected
to rise to the level that would have a negative impact (i.e., would
have only de minimis impacts) on either of the DPS's conservation. The
proposed exceptions to these prohibitions include (1) activities
associated with routine livestock ranching on private lands that
provide and maintain breeding and upland habitats and maintain stock
ponds; (2) implementation of livestock grazing as a tool in the course
of vegetation management and to benefit the northern DPS or southern
DPS of the western spadefoot in vernal pool landscapes; (3) landowner
actions to maintain the minimum clearance of vegetation (defensible
space) requirement of 100 feet (30 meters) from any occupied dwelling,
occupied structure, or to the property line, whichever is nearer, to
provide reasonable fire safety and to reduce wildfire risks to breeding
and upland habitats of the western spadefoot and consistent with the
State of California fire codes or local fire codes/ordinances; and (4)
wildfire management actions (e.g., prescribed burns, hazardous fuel
reduction activities, and maintenance of fuel breaks) to maintain,
protect, or enhance habitat occupied by the northern DPS or southern
DPS of the western spadefoot. These exceptions as discussed below are
expected to have negligible or beneficial impacts to the northern DPS
and southern DPS of the western spadefoot and its habitat.
Routine livestock ranching activities, such as those conducted in
California's lower elevation foothill regions within the range of the
northern DPS or southern DPS of the western spadefoot provide a
substantial conservation benefit to the two DPSs. The conservation
benefits provided by routine ranching activities include the
establishment and maintenance of stock ponds that are often aquatic
habitat for breeding and rearing of western spadefoot larvae and
juveniles. The grazing of uplands by these ranching operations
maintains grass and shrubland habitat from becoming overgrown and
assists in adult western spadefoot's establishment of burrows, provides
access to better foraging opportunities, and allows for better movement
and dispersal. Grazing operations not following standard best
management practices for rangeland grazing practices to avoid
overgrazing would not be part of this exception. By providing this
exception, we are assisting in maintaining these ranching activities
(and their benefits to the northern and southern DPSs of the western
spadefoot) and avoiding potential conversion of these lands to
incompatible uses such as urban development or agriculture.
Implementing livestock grazing as a management tool to reduce
nonnative annual vegetation in areas associated with vernal pools
assists in maintaining the aquatic habitat and provides breeding and
rearing opportunities to the northern DPS and southern DPS of the
western spadefoot. Nonnative annual vegetation or overabundance of
vegetation can degrade vernal pool habitat by intrusion into the ponded
areas or cause shortening of the hydroperiod of the pools. Small
remnant vernal pool areas used by the two DPSs are usually degraded or
altered and may have a shortened inundation period or provide limited
upland habitat, thereby not providing for the needs of the two DPSs.
Removal and maintenance of excessive vegetation may assist these
smaller vernal pool areas to continue to be productive and be used as
breeding habitat for the two DPSs.
In certain areas the use of fire and wildfire management such as
prescribed burns, fuel reduction activities, and maintenance of fuel
breaks (does not include use of heavy equipment such as bulldozers,
backhoes, or tractors) may assist in protecting and maintaining habitat
for the northern DPS or southern DPS of the western spadefoot. Similar
to livestock grazing, prescribed fire actions and fuel reduction
activities (vegetation removal), conducted outside the species' active
period, remove excessive vegetation and allow for maintenance of ponded
habitat and better access for the two DPSs to upland areas.
Establishing and maintaining required minimum vegetation clearance
from dwellings or structures to reduce wildland fire risks to human
life and property may assist in protecting and maintaining habitat for
the northern DPS and southern DPS of the western spadefoot. This
process includes activities necessary to maintain the minimum clearance
(defensible space) requirement from any occupied dwelling, occupied
structure, or to the property line, whichever is nearer, to provide
reasonable fire safety and to
[[Page 84274]]
reduce wildfire risks consistent with the State of California fire
codes or local fire codes/ordinances.
We find that the actions discussed above, taken by management
entities in the range of the northern DPS and southern DPS of the
western spadefoot for the purpose of reducing the risk or severity of
habitat degradation and designed to maintain or restore open habitat
for the species, will further the goal of reducing the likelihood of
the two DPSs from becoming endangered species and will also continue to
contribute to their conservation and long-term viability. We therefore
establish that the prohibitions under section 4(d) of the Act for the
protection of these two DPSs do not apply to such actions.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species including permits issued
for scientific purposes, to enhance propagation or survival, for
economic hardship, for zoological exhibition, for educational purposes,
for incidental taking, or for special purposes consistent with the
purposes of the Act (50 CFR 17.32). The statute also contains certain
exemptions from the prohibitions, which are found in sections 9 and 10
of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would, without additional
authorization, be able to conduct activities that are designed to
conserve the northern DPS or southern DPS of the western spadefoot and
that may result in otherwise prohibited take.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the
northern DPS or southern DPS of the western spadefoot. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between us and other Federal
agencies, where appropriate. We ask the public, particularly State
agencies and other interested stakeholders that may be affected by the
proposed 4(d) rule, to provide comments and suggestions regarding
additional guidance and methods that we could provide or use,
respectively, to streamline the implementation of this proposed 4(d)
rule (see Information Requested, above).
III. Critical Habitat for the Northern DPS and Southern DPS of the
Western Spadefoot
Background
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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency 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 designated 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 also 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. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must 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
[[Page 84275]]
extent known using the best scientific data available, those physical
or biological features that are essential to the conservation of the
species (such as space, food, cover, and protected habitat).
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.
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 from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; 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) the prohibitions found in the proposed 4(d) rule.
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 the 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 those planning efforts calls for a
different outcome.
Critical Habitat Determinability
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:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the northern DPS and southern DPS of the western spadefoot and
habitat characteristics where the two DPSs are located. A careful
assessment of the economic impacts that may occur due to a critical
habitat designation is still ongoing, and we are in the process of
working with our Federal partners, Tribes, and State and other partners
in acquiring the complex information needed to perform that assessment.
Therefore, due to the current lack of data sufficient to perform
required analyses, we conclude that the designation of critical habitat
for the northern DPS and southern DPS of the western spadefoot is not
determinable at this time. The Act allows the Service an additional
year to publish a critical habitat designation that is not determinable
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
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 ADDRESSES. 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
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), E.O. 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 federally recognized Tribes on a
government-to-government
[[Page 84276]]
basis. In accordance with Secretaries' 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 contacted all federally recognized Tribes in the range of
the western spadefoot during the initiation of our SSA development
process and had coordination meetings with several Tribes on the timing
and opportunities for input into our listing process. We will continue
to work with Tribal entities during the development of a final listing
rule and for the designation of critical habitat for the northern DPS
and southern DPS of the western spadefoot.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Carlsbad, Sacramento, and Ventura Fish and Wildlife Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
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. 17.11, amend paragraph (h) by adding an entry for
``Spadefoot, Western [Northern DPS]'' and ``Spadefoot, Western
[Southern DPS]'' to the List of Endangered and Threatened Wildlife in
alphabetical order under AMPHIBIANS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Amphibians
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Spadefoot, Western [Northern Spea hammondii.... U.S.A. (northern T............ [Federal Register
DPS]. CA). citation when
published as a final
rule]; 50 CFR
17.43(i); \4d\
Spadefoot, Western [Southern Spea hammondii.... U.S.A. (southern T............ [Federal Register
DPS]. CA), Mexico (Baja citation when
California). published as a final
rule]; 50 CFR
17.43(i); \4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.43 by adding paragraph (i) to read as follows:
Sec. 17.43 Special rules--amphibians.
* * * * *
(i) Western spadefoot (Spea hammondii), northern distinct
population segment (DPS) and Western spadefoot (Spea hammondii),
southern DPS.
(1) Location. The northern DPS and southern DPS of the western
spadefoot are shown on the map that follows:
Figure 1 to Paragraph (i)(1)
BILLING CODE 4333-15-P
[[Page 84277]]
[GRAPHIC] [TIFF OMITTED] TP05DE23.032
BILLING CODE 4333-15-C
(2) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the northern DPS of the western
spadefoot and southern DPS of the western spadefoot. Except as provided
under paragraph (i)(3) of this section and Sec. Sec. 17.4 and 17.5, it
is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to these
DPSs:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(3) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Activities associated with routine livestock ranching on
private lands that provide and maintain breeding and upland habitats
and maintain stock ponds.
(B) Implementation of livestock grazing as a tool in the course of
vegetation management and to benefit the northern DPS and southern DPS
of the western spadefoot in vernal pool landscapes.
(C) Landowner actions to maintain the minimum clearance of
vegetation (defensible space) requirement of 100 feet (30 meters) from
any occupied dwelling, occupied structure, or to the property line,
whichever is nearer, to provide reasonable fire safety and to
[[Page 84278]]
reduce wildfire risks to breeding and upland habitats of the northern
DPS and southern DPS of the western spadefoot and consistent with the
State of California fire codes or local fire codes/ordinances.
(D) Fire management actions (e.g., prescribed burns, hazardous fuel
reduction activities, and maintenance of fuel breaks) to maintain,
protect, or enhance habitat occupied by the northern DPS and southern
DPS of the western spadefoot.
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-26579 Filed 12-4-23; 8:45 am]
BILLING CODE 4333-15-P