Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 California Tiger Salamander

Wednesday,
December 14, 2005
Part III
Department of the
Interior
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
the Sonoma County Distinct Population
Segment of the California Tiger
Salamander; Final Rule
VerDate Aug<31>2005 16:42 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\14DER3.SGM 14DER3
74138 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations
DEPARTMENT OF THE INTERIOR significant amounts of available critical habitat, and we face a growing
conservation resources. The Service’s number of lawsuits challenging critical
Fish and Wildlife Service present system for designating critical habitat determinations once they are
habitat has evolved since its original made. These lawsuits have subjected the
50 CFR Part 17 statutory prescription into a process that Service to an ever-increasing series of
RIN 1018–AU23 provides little real conservation benefit, court orders and court-approved
is driven by litigation and the courts settlement agreements, compliance with
Endangered and Threatened Wildlife rather than biology, limits our ability to which now consumes nearly the entire
and Plants; Designation of Critical fully evaluate the science involved, listing program budget. This leaves the
Habitat for the Sonoma County Distinct consumes enormous agency resources, Service with little ability to prioritize its
Population Segment of the California and imposes huge social and economic activities to direct scarce listing
Tiger Salamander costs. The Service believes that resources to the listing program actions
additional agency discretion would with the most biologically urgent
AGENCY: Fish and Wildlife Service, allow our focus to return to those species conservation needs.
Interior. actions that provide the greatest benefit The consequence of the critical
ACTION: Final decision in rulemaking to the species most in need of habitat litigation activity is that limited
process. protection. listing funds are used to defend active
lawsuits, to respond to Notices of Intent
SUMMARY: We, the U.S. Fish and Role of Critical Habitat in Actual (NOIs) to sue relative to critical habitat,
Wildlife Service (Service), designate and Practice of Administering and and to comply with the growing number
exclude approximately 17,418 acres (ac) Implementing the Act of adverse court orders. As a result,
(7,049 hectares (ha)) of critical habitat While attention to and protection of listing petition responses, the Service’s
for the Sonoma County distinct habitat is paramount to successful own proposals to list critically
population segment of the California conservation actions, we have imperiled species and final listing
tiger salamander (Ambystoma consistently found that, in most determinations on existing proposals are
californiense) pursuant to the circumstances, the designation of all significantly delayed.
Endangered Species Act of 1973, as critical habitat is of little additional The accelerated schedules of court
amended (Act). We are excluding all value for most listed species, yet it ordered designations have left the
critical habitat based on interim consumes large amounts of conservation Service with almost no ability to
conservation strategies and measures resources. Sidle (1987) stated, ‘‘Because provide for adequate public
being implemented by those local the Act can protect species with and participation or to ensure a defect-free
governing agencies with land use without critical habitat designation, rulemaking process before making
authority over the area and also as a critical habitat designation may be decisions on listing and critical habitat
result of economic exclusions redundant to the other consultation proposals due to the risks associated
authorized under section 4(b)(2) of the requirements of section 7.’’ Currently, with noncompliance with judicially-
Act. Therefore, no critical habitat is only 466 species or 36.7 percent of the imposed deadlines. This in turn fosters
being designated for the Sonoma County 1,269 listed species in the United States a second round of litigation in which
distinct population segment of the under the jurisdiction of the Service those who fear adverse impacts from
California tiger salamander in Sonoma have designated critical habitat. critical habitat designations challenge
County, California. We address the habitat needs of all those designations. The cycle of
DATES: This final decision becomes 1,269 listed species through litigation appears endless, is very
effective on January 13, 2006. conservation mechanisms such as expensive, and in the final analysis
listing, section 7 consultations, the provides relatively little additional
ADDRESSES: Comments and materials
Section 4 recovery planning process, the protection to listed species.
received, as well as supporting The costs resulting from the
Section 9 protective prohibitions of
documentation used in the preparation designation include legal costs, the cost
unauthorized take, Section 6 funding to
of this rulemaking, will be available for of preparation and publication of the
the States, and the Section 10 incidental
public inspection, by appointment, designation, the analysis of the
take permit process. The Service
during normal business hours, at the economic effects and the cost of
believes that it is these measures that
Sacramento Fish and Wildlife Office requesting and responding to public
may make the difference for the
(SFWO), 2800 Cottage Way, W–2605, comment, and in some cases the costs
conservation of many species.
Sacramento, CA 95825. The final rule We note, however, that two courts of compliance with the National
and economic analysis will be available found our definition of adverse Environmental Policy Act (NEPA). None
via the Internet at http://www.fws.gov/ modification to be invalid (March 15, of these costs result in any benefit to the
sacramento/. 2001, decision of the United States species that is not already afforded by
FOR FURTHER INFORMATION CONTACT: Court Appeals for the Fifth Circuit, the protections of the Act enumerated
Field Supervisor, Sacramento Fish and Sierra Club v. U.S. Fish and Wildlife earlier, and they directly reduce the
Wildlife Office, at the above address, Service et al., F.3d 434 and the August funds available for direct and tangible
(telephone (916) 414–6600; facsimile 6, 2004, Ninth Circuit judicial opinion, conservation actions.
(916) 414–6712). Gifford Pinchot Task Force v. United
SUPPLEMENTARY INFORMATION:
Background
States Fish and Wildlife Service). On
December 9, 2004, the Director issued It is our intent to discuss only those
Designation of Critical Habitat Provides topics directly relevant to the
Little Additional Protection to Species guidance to be used in making section
7 adverse modification determinations. designation of critical habitat in this
In 30 years of implementing the Act, rule. For more information on the
the Service has found that the Procedural and Resource Difficulties in Sonoma County distinct population
designation of statutory critical habitat Designating Critical Habitat segment of the California tiger
provides little additional protection to We have been inundated with salamander, refer to the final listing rule
most listed species, while consuming lawsuits for our failure to designate and proposed critical habitat rule
Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74139
published in the Federal Register on C–04 4324 FMS)). On February 3, 2005, new information regarding critical
March 19, 2003 (68 FR 13498), and the District Court required the Service to habitat for the Sonoma County distinct
August 2, 2005 (70 FR 44301), submit for publication in the Federal population segment of the California
respectively. Register, a final determination on the tiger salamander. Comments received
As previously mentioned in the proposed critical habitat designation on were grouped into general issues
proposed critical habitat rule published or before December 1, 2005. On August specifically relating to the proposed
in the Federal Register on August 2, 2, 2005, we noticed in the Federal critical habitat rulemaking for the
2005 (70 FR 44301), we have been Register a proposed critical habitat Sonoma County distinct population
cooperatively working with Federal, designation (70 FR 44301). On August segment of the California tiger
State, County, and local officials as well 19, 2005, a court order was filed on the salamander, are addressed in the
as representatives from local business above complaint, which upheld the following summary, and incorporated
and environmental groups over the last section 4(d) rule exempting grazing from into the final rule as appropriate.
18 months to develop a conservation Section 9 prohibitions, but vacated the
strategy for the California tiger Comments From the State
downlisting of the Santa Barbara and
salamander in Sonoma County. The Sonoma populations and reinstated Section 4(i) of the Act states, ‘‘the
development of the Santa Rosa Plain their endangered distinct population Secretary shall submit to the State
Conservation Strategy (Conservation segment status. On October 25, 2005, we agency a written justification for her
Strategy) along with implementation noticed in the Federal Register the failure to adopt regulation consistent
measures has been moving forward and availability of a draft economic analysis with the agency’s comments or
the County of Sonoma along with the on the proposed designation (70 FR petition.’’ We did not receive any
cities of Santa Rosa, Rohnert Park, 61591). In a November 17, 2005 Federal comments from State agencies regarding
Cotati and Windsor have all passed Register notice (70 FR 69717), we the proposal to designate critical habitat
resolutions supporting the development requested comments on a refinement of for the Sonoma County distinct
and agree to work toward those areas considered to contain the population segment of the California
implementation of the Conservation essential features necessary for the tiger salamander.
Strategy for the protection of the conservation of the Sonoma County Peer Review
Sonoma County distinct population distinct population segment of the
segment of the California tiger California tiger salamander, and In accordance with our policy
salamander as well as several other identified the adjusted economic published on July 1, 1994 (59 FR
Federally listed plant species occurring impacts. This final decision associated 34270), we solicited expert opinions
on the Santa Rosa Plain. with the rulemaking process is in from six knowledgeable individuals
On June 29, 2005, the Service and the accordance with the settlement with scientific expertise that included
California Department of Fish and Game agreement and court order. For more familiarity with the species, the
(CDFG) issued interim guidelines which information on previous Federal actions geographic region in which the species
contain project specific conservation concerning the California tiger occurs, and conservation biology
measures for projects affecting the salamander, refer to the proposed rule to principles. We received a response from
California tiger salamander on the Santa designate critical habitat in Sonoma three of the peer reviewers. These
Rosa Plain. These interim guidelines are County published in the Federal reviewers provided specific information
in place and the measures identified in Register on August 2, 2005 (70 FR regarding species location and habitat as
them are currently being implemented 44301), as well as the listing notice well as information on the areas that
by those individuals impacting habitat published in the Federal Register on could be excluded based on soil
features considered essential for the March 19, 2003 (68 FR 13498). information, locations of wetlands,
conservation of the Sonoma County potential breeding habitat, elevation
distinct population segment of the Summary of Comments and information, and habitat fragmentation.
California tiger salamander. These Recommendations This information was used to assist us
conservation measures have been We requested written comments from in determining the final critical habitat
reviewed by the team developing the the public on the proposed designation boundaries. Any changes as a result of
Conservation Strategy as well as peer of critical habitat for California tiger peer review information are reflected
reviewed by biologists knowledgeable of salamander in the proposed rule and incorporated in this final
amphibian conservation or ecological published on August 2, 2005 (70 FR rulemaking as appropriate. Specific peer
conservation in general and are 44301). We also contacted appropriate review comments are addressed in the
consistent with long-term conservation Federal, State, and local agencies; following summary below.
of the California tiger salamander and scientific organizations; and other
other listed plants on the Santa Rosa interested parties and invited them to Peer Review Comments
Plain. As the Conservation Strategy is comment on the proposed rule. In Comment: The critical habitat area
finalized, the Service and the CDFG addition, we held two public hearings should be reduced to approximately
intend to continue to implement and or on September 8, 2005, in Santa Rosa, 18,000–20,000+ acres of extant occupied
revise these interim guidelines to best California. habitat and comprised of a 1.3 mile (mi)
conserve the California tiger salamander We had three open comment periods, (2 kilometer (km)) buffer around known
and other Federally-listed plant species totaling 91 days, between August 2, breeding locations.
on the Santa Rosa Plain. 2005 and November 28, 2005. During Our Response: As outlined in our
those periods, we received comments notice published in the Federal Register
Previous Federal Actions directly addressing the proposed critical on November 17, 2005 (70 FR 69717),
On October 13, 2004, a complaint was habitat designation: three from peer we refined the proposed designation to
filed in the U.S. District Court for the reviewers, six from local government, just those areas surrounding known
Northern District of California (Center and 55 from organizations or breeding locations, and by applying
for Biological Diversity and individuals. We reviewed all comments parameters for dispersal and upland
Environmental Defense Council v. U.S. received from the peer reviewers and habitat similar to those we used in
Fish and Wildlife Service et al. (Case No. the public for substantive issues and critical habitat designation for the Santa
Barbara and Central populations of the extend south to Rainsville Road, north be designed including specific areas
California tiger salamander. We began of Petaluma. which should be included and excluded
mapping habitat by buffering breeding Our Response: As part of our from the final designation.
locations by a distance of 0.70 mi (1.1 deliberation over which areas to Our Response: We used the best
km) to capture dispersal and upland designate, we used currently known scientific information available in
habitat use by the species. Some California tiger salamander breeding determining the extent of the critical
research has found that 99 percent of locations within Sonoma County. We habitat boundaries and revised our
interpond dispersal would be captured believe that basing our designation on proposed rule based on comments
using this 0.7 mi (1.1 km) radius around breeding locations would ensure the received and peer review. We mapped
a breeding pond (Trenham et al. 2001; conservation of the species by providing only those areas which contained the
Trenham and Shaffer 2005). areas which contain the essential essential features necessary to conserve
Salamanders have been documented features of aquatic, upland, and the Sonoma County distinct population
dispersing even farther than 0.7 mi (1.1 dispersal habitats. We lacked adequate segment of the California tiger
km) (Sweet 1998) however, and the documentation of essential features, salamander. When determining critical
Conservation Strategy chose a radius of particularly breeding habitat, that might habitat boundaries, we made every
1.3 mi (2.1 km) to ensure that incidental be associated with this observation to effort to avoid including within the
take coverage would be inclusive of all include it in a critical habitat boundaries of the map contained within
areas likely to be occupied by designation. We recognize that this final rule developed areas such as
salamanders and to establish a broad designation of critical habitat may not buildings, paved areas, and other
area in which conservation for include all of the habitat areas that may structures that lack the primary
salamander would be implemented. eventually be determined to be constituent elements for the California
Ultimately however, as discussed necessary for the recovery of the tiger salamander. The scale of the maps
below, we excluded all areas species. For these reasons, critical prepared under the parameters for
designation as critical habitat (see habitat designations do not signal that publication within the Code of Federal
Application of Exclusions Under habitat outside the designation is Regulations may not reflect the
Section 4(b)(2) of the Act). unimportant or may not be required for exclusion of such developed areas. Any
Comment: Existing urban centers recovery. Areas that support such structures and the land under them
within the historic range of California populations, but are outside the critical inadvertently left inside critical habitat
tiger salamander should be removed habitat designation, will continue to be boundaries shown on the maps of this
from the designation. Retaining these subject to the regulatory protections final rule have been excluded by text in
urban centers will bias the economic afforded by the section 7(a)(2) jeopardy the rule and are not designated as
evaluation of critical habitat. standard as determined on the basis of critical habitat. These developed and
Our Response: In our final nonessential habitat areas would not
the best available information at the
designation, we mapped only those contain the primary constituent
time of the action.
areas which contained the essential elements and as such would not be
features necessary to conserve the Other Comments considered critical habitat. We excluded
Sonoma County distinct population Issue 1: Habitat and Species Specific all the area which would otherwise have
segment of the California tiger Information been designated as final critical habitat
salamander. We removed all developed based on implementation of local
and nonessential areas to the best of our Comment: A few comments stated government management strategies and
ability, however due to mapping they were in favor of including the economic cost (see Exclusions Under
precision we were unable to remove all Petaluma area as critical habitat because Section 4(b)(2) of the Act section).
such development. The scale of the they have observed salamanders in this Comment: One commenter stated that
maps prepared under the parameters for area and suitable habitat exists. critical habitat unit is too limited and
publication within the Code of Federal Our Response: We have been unable that California tiger salamanders have
Regulations may not reflect the to confirm the claims of these been observed south to Muir Woods,
exclusion of such developed areas. Any comments. Breeding or individual Marin County.
such structures and the land under them observations of the species in the Our Response: We used the best
left inside the critical habitat boundaries Petaluma area have yet to be verified by scientific data available for the
shown on the maps of this final rule recognized experts. Since the emergency designation of critical habitat and
have been excluded by text in the rule listing in July, 2002, we have received alternative considered for the Sonoma
and are not designated as critical numerous claims from the public that County distinct population segment of
habitat. These developed and they have seen salamanders at various the California tiger salamander, as per
nonessential habitat areas although locations within the potential range of section 3(5)(A)(i) of the Act and
within the boundary of the final the species. Upon further investigation regulations at 50 CFR 424.12. We used
designation would not contain the by recognized experts in those the California Natural Diversity
primary constituent elements and as instances, the arboreal salamander Database (CNDDB), survey records, and
such would not be considered critical (Aneides lugubris) is frequently other information to determine the
habitat. We excluded all the final mistaken for the California tiger historical and potential range of the
critical habitat based on implementation salamander and no confirmed breeding species at the time of listing in March
of local government management areas for the California tiger salamander 2003. There are no confirmed records of
strategies and economic cost (see have been confirmed outside those the Sonoma County distinct population
Exclusions Under Section 4(b)(2) of the identified during this rulemaking segment of the California tiger
Act section). process. salamander found in Marin County.
Comment: There is anecdotal Comment: Several commenters stated
evidence of one adult California tiger Issue 2: Unit Designations that the extension of California tiger
salamander near Rainsville Road in the Comment: Several comments salamander critical habitat into the
1990s from an amateur herpetologist included specific recommendations on Petaluma area is not justified based on
and the critical habitat boundary should how the critical habitat unit(s) should the current known locations of the
species and distribution of California City of Santa Rosa’s urban grown FR 44301), and we accepted comments
tiger salamander habitats. Several boundary as critical habitat because of from all interested parties for a 60-day
commenters also stated that the their concerns of high economic comment period, until October 3, 2005.
Petaluma area is nearly completely impacts. On October 25, 2005, we reopened the
developed and lacks the primary Our Response: Section 4 of the comment period for 21 days until
constituent elements, the designation Endangered Species Act of 1973, as November 14, 2005, and made available
would cause significant economic amended, and our implementing the draft economic analysis (70 FR
impacts; and that the lands within the regulations, state that critical habitat 61591). On November 17, 2005, we
Petaluma city limit should be excluded shall be designated for species listed reopened the comment period for 12
from critical habitat. under the Act. We have excluded all days until November 28, 2005 (70 FR
Our Response: We used the best areas which otherwise would have been 69717), and requested comments on a
scientific information available in designated as critical habitat, including refinement of those areas considered to
determining the extent of the critical areas within the City of Santa Rosa contain the essential features necessary
habitat boundaries and revised our urban growth boundary (UGB), after for the conservation of the Sonoma
proposed rule based on comments taking into consideration the economic County distinct population segment of
received and peer review. The area impact and conservation measures being the California tiger salamander. The
which otherwise would have received a implemented by local governmental Conservation Strategy was released for
designation as critical habitat is based agencies (see Exclusions Under Section public comment on August 17, 2005.
on known breeding locations for the 4(b)(2) of the Act section). The document was posted on the
species. As a result, the area south of Comment: One commenter expressed websites of the City of Santa Rosa and
Pepper Road in Cotati was not concern about the burden on the Sacramento Fish and Wildlife Office
considered essential to the conservation agricultural practices such as plowing of the U.S. Fish and Wildlife Service.
of the species. In addition, as a result of fields, planting new vines, and the The Service issued a press release and
analyzing the benefits of designating removal of existing vines. local media reported the event. A public
critical habitat versus benefits of not Our Response: Designation of critical meeting to accept comments and
designating critical habitat we excluded habitat in areas occupied by the species provide information was held in Santa
all the final critical habitat based on does not necessarily result in a Rosa on September 12, 2005. The public
implementation of local government regulatory burden above that already in comment period closed on the
management conservation strategies and place due to the presence of the listed Conservation Strategy on September 17,
economic costs (see Exclusions Under species. The Service works with private 2005.
Section 4(b)(2) of the Act section). landowners to identify activities and
Although the area considered essential modifications to activities that will not Issue 5: Designation Process
in the final determination does not result in take, to develop measures to Comment: One commenter stated that
include the Petaluma area, this does not minimize the potential for take, and to the proposed rule’s boilerplate position
mean that the area does not contain provide authorizations for take through statement that critical habitat provides
appropriate habitat for the California Sections 7 and 10 of the Act. One no additional benefit to listed species
tiger salamander or that the area may be intention of critical habitat is to inform violates the Act’s requirement that the
needed for recovery of the species. We people of areas that contain the features Service base its determinations solely
continue to encourage all local that are essential for the conservation of on the best available science.
governmental municipalities to work the species. We encourage landowners Our Response: The Service’s
closely with State and Federal resource to work in partnership with us to statements regarding the general
agencies to conserve and protect develop plans that allow their land protections provided by critical habitat
endangered and sensitive species and management and development practices does not change the method in which
their habitats. to proceed in a manner consistent with we make our final critical habitat
Comment: One commenter the conservation of listed species. The determinations. We used the best
recommends excluding the areas north California tiger salamander is already a scientific data available in determining
of Santa Rosa Creek; within the 100 year Federally-listed species, and as such, the extent of the area which would be
flood plain; east of Highway 101 from projects that may result in take of the designated as critical habitat absent
Rohnert Park Expressway north; and species are already required to consult exclusions and in identifying areas
south of Pepper Road to Lichau Creek. with the Service under Section 7 or which contain the features essential to
Our Response: We have revised the Section 10 of the Act. However, we the conservation of the species.
areas considered as critical habitat excluded all areas which otherwise Comment: One commenter stated that
based on scientific information, peer would have been designated as critical the proposed rule implies that if the
review, and comments received. As a habitat based on implementation of Service does not receive justification for
result, we have removed many areas local government management strategies inclusion of an area during the public
from the proposed rule that did not and economic cost (see Exclusions comment period, then that area will be
contain the essential features. Also our Under Section 4(b)(2) of the Act dropped from the final critical habitat
final determination has excluded all the section). designation. The commenter also stated
remaining area which otherwise would that the Service needs to make its
have been designated as critical habitat Issue 4: Notification and Comment decision on the basis of the best
based on implementation of local Period Comments available scientific information and
government management strategies and Comment: One commenter stated that where the information is not completely
economic cost (see Exclusions Under the comment period was too short and clear or incomplete, the benefit of the
Section 4(b)(2) of the Act section). the information about the Conservation doubt should go toward actions which
Strategy was not available until just would benefit conservation of the
Issue 3: Social and Economic Costs/ recently. species.
Regulatory Burden Our Response: The proposed critical Our Response: It was not our intent to
Comment: Several commenters habitat designation was published in the suggest that areas would be removed
requested excluding the lands in the Federal Register on August 2, 2005 (70 from the designation if information was
not received to justify their inclusion. presence of the listed species. However, County of Sonoma, the City of Santa
We based the final critical habitat on the we excluded all the area which would Rosa, the City of Cotati, the Town of
best scientific information available as otherwise be designated as critical Windsor, the City of Rohnert Park, the
well as incorporated appropriate peer habitat based on implementation of California Department of Fish and
review information. We believe that the local government management strategies Game, and the Service have signed a
final area identified as critical habitat and economic cost (see Application of planning agreement and the local
prior to exclusion under section 4(b)(2) Exclusions Under Section 4(b)(2) of the jurisdictions adopted individual
represents the best scientific Act section). resolutions that agree to implement an
information as to what areas contain the interim conservation strategy while the
Issue 8: Conservation Strategy
essential features necessary for Conservation Strategy is fully adopted
conservation of the Sonoma County Comment: One commenter stated that and implemented. We have outlined
distinct population segment of the identifying the Conservation Strategy as those reasons why we believe the
California tiger salamander considering an alternative to designating critical current Conservation Strategy would
the economic and other relevant habitat is not appropriate or lawful provide a benefit above that of
impacts. under the Endangered Species Act. designating critical habitat (see
Comment: One commenter stated that Our Response: We did not propose
Exclusion Under Section 4(b)(2) of the
the Service needs to narrow the scope the Conservation Strategy to be an
alternative to designating critical Act section). However, the Conservation
of the proposed critical habitat and not Strategy is still under development and
include the entire geographical area that habitat. However, Section 4(b)(2) of the
Act states that ‘‘The Secretary may subject to final approval. Should the
can be occupied by the threatened or current Conservation Strategy not be
endangered species. exclude any area from critical habitat if
[s]he determines that the benefits of implemented or changed to such an
Our Response: The final boundaries of
that area which would be designated as such exclusion outweigh the benefits of extent as it no longer provides for the
critical habitat prior to exclusion under specifying such area as part of the conservation of the Sonoma County
section 4(b)(2) for the Sonoma County critical habitat, unless [s]he determines, distinct population segment of the
distinct population segment of the based on the best scientific data California tiger salamander, we would
California tiger salamander has been available, that the failure to designate revisit our current determination on
greatly reduced from the proposed such area as critical habitat will result designating critical habitat for the
designation. Based on the best scientific in the extinction of the species species and repropose critical habitat.
data available, we removed those areas concerned.’’ We excluded all the area Comment: One commenter stated that
from the proposed designation which which would otherwise have been the Service needs to protect the areas
did not contain the essential habitat designated as critical habitat based on where the California tiger salamander
features, were already developed, or implementation of local government reside rather than relocate them as is
were outside the current range of the management strategies and economic identified in the Conservation Strategy.
species. The final area which would be cost (see Application of Exclusions
Our Response: The designation of
designated as critical habitat absent Under Section 4(b)(2) of the Act
section). critical habitat does not prescribe
exclusion under section 4(b)(2) is based
Comment: Several commenters management actions but does define
on the aquatic, upland and dispersal
expressed support of the Conservation areas which contain the essential
habitat surrounding known breeding
Strategy, but had reservations because it features described as primary
locations.
was not finalized and that it needs constituent elements. We agree that
Issue 6: Cooperative Efforts improvement in order to conserve the protection of areas where California
Comment: One commenter expressed Sonoma County distinct population tiger salamanders are endemic should
their support of the cooperative/ segment of the California tiger be the priority of the strategy, and this
partnership approach being used by the salamander and four Federally-listed is demonstrated by the conservation
Conservation Strategy members. They plants. areas identified in the Conservation
stated that designating critical habitat Our Response: In development of the Strategy. The Conservation Strategy
would provide disincentives to private Conservation Strategy, the Federal, identifies areas that support potential
landowners by requiring farmers and State, County and local government habitat but is not currently occupied by
ranchers obtaining funds from the U.S. agencies, as well as representatives from the California tiger salamander and
Department of Agriculture through the the building industry and recommends translocation of the species
Farm Bill to complete the consultation environmental organizations, received to be an option only under certain
process, which hinders the completion similar comments regarding issues with circumstances. These areas may be
of conservation activities on these lands. the Conservation Strategy. The suitable for translocation of individuals
Our Response: We support all Conservation Strategy has been to aid in the recovery of the species.
cooperative/partnership efforts to independently peer reviewed and Some projects authorized under Section
conserve federally listed threatened and comments received from peer reviewers 7 or 10 of the ESA may have
endangered species. Federal agencies have been incorporated into the current unavoidable impacts to the species.
already consult with us on activities version of the plan. The Conservation These unavoidable impacts may be
(i.e., permitting or funding of projects) Strategy focuses on establishing large, minimized by salvaging individuals and
in areas currently occupied by the contiguous preserves and a coordinated relocating them to suitable habitat on a
species or if the species may be affected region-wide restoration and case by case basis. Preliminary data has
by the action to ensure that their actions management strategy, species research, demonstrated that this management
do not jeopardize the continued endowment funding, administration of technique may be successful. The
existence of the species. Therefore, we preserve management, and Conservation Strategy has been peer
believe that the designation of critical implementation that will contribute to reviewed by recognized experts and the
habitat would not likely result in the recovery of the California tiger comments regarding translocation have
significant additional regulatory burden salamander and four Federal and State been incorporated into the current
above that already in place due to the listed plants in Sonoma County. The version of the plan.
Issue 9: Economic Analysis responsibilities under section 4(b)(2) Comment: Several commenters state
Comment: One commenter states that then, the Service need only to consider that the DEA underestimates the impact
the Draft Economic Analysis (DEA) fails whether the economic impacts (both of critical habitat on transportation
to evaluate benefits associated with positive and negative) or any other projects in Sonoma County.
impact are significant enough to merit Our Response: Planned transportation
conserving the California tiger
exclusion of any particular area without projects are captured in the DEA using
salamander. Further, this commenter
causing the species to go extinct. the California Department of
states that the DEA should review the
Comment: One commenter states that Transportation’s California
benefits of conserving open space and
the DEA overestimates costs associated Transportation Investment System
riparian areas.
with conserving California tiger (CTIS) tool that includes information for
Our Response: In the context of a
salamander, because it includes interstates, principal arterials, and rural
critical habitat designation, the primary
economic impacts attributable to listing minor arterials. The CTIS tool
purpose of the rulemaking (i.e., the
under the Act. The commenter further incorporates information about projects
direct benefit) is to designate areas in
states that the DEA confuses the overseen by the State Transportation
need of special management that
economic costs by including costs of Improvement Program, the State
contain the features essential to the
conservation efforts to protect the Highway Operations and Protection
conservation of listed species. While a
species (not its critical habitat) with Program, the Interregional
listed species may be the primary
conservation of the proposed critical Transportation Strategic Plan, the
beneficiary of designated critical California Aviation System Plan, and
habitat, the designation of critical habitat. For this reason, the commenter
questions why the DEA includes pre- various regional transportation planning
habitat may also result in two distinct organizations. Version 1.3.2 of this tool
categories of benefits to society: (1) Use, designation costs, as these costs are
associated with listing of the species. is used in the DEA as the updated
and (2) non-use benefits. Use benefits Version 2.0 had not been released at the
are the social benefits that accrue from Our Response: This analysis identifies
those economic activities believed to time the report was prepared.
the physical use of a resource. Visiting Accordingly, the DEA is prepared using
critical habitat to see endangered most likely threaten the California tiger
salamander and its habitat and, where the most current publicly available
species in their natural habitat would be information on planned transportation
a primary example. Non-use benefits, in possible, quantifies the economic
impact to avoid, mitigate, or compensate projects. Public comments received
contrast, represent welfare gains from were inadequate to update impact
just knowing that a particular listed for such threats within the boundaries
calculations.
species’ natural habitat is being of the critical habitat. In instances
Based on the public comments
specially managed for the conservation where critical habitat is being proposed received, the Service’s contractor for
of that species. Both use and non-use after a species is listed, some future completing the economic analysis
benefits may occur unaccompanied by impacts may be unavoidable, regardless contacted the Sonoma County
any market transactions. of the final designation and exclusions Transportation Authority (Authority) to
A primary reason for conducting this under 4(b)(2). However, due to the request more detailed information on
analysis is to provide information difficulty in making a credible the nature, location and scope of
regarding the economic impacts distinction between listing and critical additional planned projects. The
associated with a proposed critical habitat effects within critical habitat Authority was unable to provide the
habitat designation. Section 4(b)(2) of boundaries, this analysis considers all needed information in time to revise the
the Act requires the Secretary to future conservation-related impacts to impact analysis within the court-
designate critical habitat based on the be coextensive with the designation. directed timeframe. However, since no
best scientific data available after taking Comment: Several commenters state critical habitat is being designated, the
into consideration the economic impact, that the DEA should incorporate the impacts asserted by the commenter will
and any other relevant impact, of recent ruling in the Ninth Circuit Court not be incurred.
specifying any particular area as critical of Appeals, Gifford Pinchot Task Force Comment: Several commenters state
habitat. Economic impacts can be both v. U.S. Fish and Wildlife Service. that mitigation prices used in the DEA
positive and negative and by definition, Our Response: The DEA are too low. The comments further cite
are observable through market acknowledges that the Ninth Circuit a wide range of current market prices for
transactions. judicial opinion, Gifford Pinchot Task mitigation in Sonoma County.
Where data are available, this analysis Force v. United States Fish and Wildlife Our Response: The DEA calculates
attempts to recognize and measure the Service, invalidated the Service’s mitigation prices as the cost of land
net economic impact of the proposed regulation defining destruction or assembly in the various California tiger
designation. For example, the DEA adverse modification of critical habitat. salamander mitigation zones plus the
investigates whether conserved open The Service is currently reviewing the cost of required improvements to land
space at designated mitigation sites decision to determine what affect it (and to make the site suitable for California
results in increased property values. to a limited extent Center for Biological tiger salamander occupation. This
The DEA did not find any evidence that Diversity v. Bureau of Land approach is consistent with the welfare-
housing price was influenced by Management (Case No. C–03–2509–SI, theoretic underpinnings of the impact
proximity to the nearest conservation N.D. Cal.)) may have on the outcome of model, in particular its focus on
area. The authors hypothesize that this consultations pursuant to section 7 of efficiency effects. One social cost of
may be attributable to the large amount the Act. As a result of this ruling, the using land for mitigation is the value of
of open space in Sonoma County. While DEA assumes that efforts to mitigate the foregone alternative uses of the land.
section 4(b)(2) of the Act gives the impacts to the habitat must occur within These values are approximately equal to
Secretary discretion to exclude certain the boundaries of critical habitat. the purchase price of the land. Another
areas from the final designation, she is Consistent with this requirement, zonal social cost of mitigation is the value of
authorized to do so only if an exclusion mitigation sites assumed in the DEA are the resources used to modify the land to
does not result in the extinction of the those identified in the Santa Rosa Plain make it suitable for California tiger
species. In terms of carrying out its Conservation Strategy. salamander occupation.
Mitigation prices may rise above the Summary of Changes From Proposed of the species and (II) that may require
supply price of mitigation, for example Rule special management considerations or
when the supply of mitigation is In the proposed critical habitat rule protection; and (ii) specific areas
constrained by permitting delays or for the Sonoma County distinct outside the geographical area occupied
other factors. However, prices above population segment of the California by a species at the time it is listed, upon
supply cost are a transfer between tiger salamander, we identified the a determination that such areas are
agents and net out of an efficiency historical and potential range of the essential for the conservation of the
impact. species in Sonoma County, utilizing all
species. ‘‘Conservation’’ means the use
Comment: Two commenters state that of all methods and procedures that are
known breeding and adult locality data
the DEA should not use mitigation necessary to bring an endangered or a
and GIS resources available to the
formulas described in the Conservation threatened species to the point at which
Strategy since it is not a legally binding Service. Based on comments received
listing under the Act is no longer
document. Further, the commenters from the public and from peer review,
necessary.
state that the DEA should not assume and a refinement of our parameters for Critical habitat receives protection
that critical habitat has no impacts dispersal and upland habitat use by the under section 7 of the Act through the
outside of a 1.3-mile buffer around species, we revised the final designation prohibition against destruction or
breeding habitat. of critical habitat for the Sonoma adverse modification of critical habitat
Our Response: The cities of Santa County distinct population segment of with regard to actions carried out,
Rosa, Rohnert Park, and Cotati, the town the California tiger salamander, as funded, or authorized by a Federal
of Windsor, Sonoma County, the local follows: agency. Section 7 requires consultation
development community, (1) As outlined in our notice on Federal actions that are likely to
environmental organizations, the published in the Federal Register on result in the destruction or adverse
Service, and other federal and state November 17, 2005 (70 FR 69717), we modification of critical habitat. The
agencies have undertaken a process to refined the proposed designation by designation of critical habitat does not
support California tiger salamander applying parameters for dispersal and affect land ownership or establish a
conservation at a regional level. This upland habitat similar to those we used refuge, wilderness, reserve, preserve, or
effort has involved extensive scientific in critical habitat designation for the other conservation area. Such
research and analysis of the biological Santa Barbara and Central populations designation does not allow government
and ecological issues relating to of the California tiger salamander. We or public access to private lands.
California tiger salamander and of its began mapping habitat by buffering To be included in a critical habitat
specific circumstances in the region. known salamander breeding locations designation, the habitat within the area
During the week of November 7, 2005, by a distance of 0.70 mi (1.1 km) to occupied by the species must first have
all of the local jurisdictions formally capture dispersal and upland habitat features that are essential to the
approved execution of a planning use by the species. We adjusted the 0.70 conservation of the species. Critical
agreement that commits them to work mi (1.1 km) area around breeding sites habitat designations identify, to the
with the Service and other parties to depending on habitat availability, extent known using the best scientific
finalize and implement the dispersal barriers, and development and data available, habitat areas that provide
Conservation Strategy. Indeed, one removed areas which did not contain essential life cycle needs of the species
economic cost of critical habitat may be the essential features. See Methodology (i.e., areas on which are found the
to disrupt and impose additional costs and Criteria Sections below for more primary constituent elements, as
on this collaborative effort. information. defined at 50 CFR 424.12(b)).
Comment: Two commenters state that (2) We revised the proposed critical Habitat occupied at the time of listing
the DEA underestimates or ignores habitat unit based on comments and may be included in critical habitat only
potential impacts to agriculture. In biological information and peer review if the essential features thereon may
particular, commenters are concerned received during the public comment require special management or
that the DEA does not quantify impacts periods. protection. Thus, we do not include
to the wine grape industry and does not (3) Collectively, we excluded or areas where existing management is
quantify increases in production costs removed the entire designation. Some sufficient to conserve the species (as
or decreases in agricultural land values areas in the proposed rule were discussed below, such areas may also be
resulting from critical habitat. removed because they did not contain excluded from critical habitat pursuant
Our Response: The DEA quantifies the the primary constituent elements. Other to section 4(b)(2)). Accordingly, when
reduction in agricultural land values areas were excluded based on the best available scientific data do not
resulting from foregone or constrained conservation measures being demonstrate that the conservation needs
land development opportunities. A implemented by the local government of the species so require, we will not
review of available biological opinions agencies, or because of designate critical habitat in areas
did not reveal any evidence of disproportionately high economic costs, outside the geographical area occupied
limitations on crop production practices as authorized under section 4(b)(2) of by the species at the time of listing. An
resulting from listing of the California the Act (see ‘‘Application of Exclusions area currently occupied by the species
tiger salamander. Under Section 4(b)(2) of the Act’’ but was not known to be occupied at the
The DEA acknowledges that critical section below). time of listing will likely be essential to
habitat may increase the costs and the conservation of the species and,
reduce the economic optimality of Critical Habitat
therefore, included in the critical habitat
vineyard development within critical Critical habitat is defined in section 3 designation.
habitat. However, given the relative of the Act as—(i) the specific areas The Service’s Policy on Information
abundance of substitute vineyard sites within the geographical area occupied Standards Under the Endangered
within Sonoma County relative to the by a species, at the time it is listed in Species Act, published in the Federal
forecasted increase in vineyard acreage, accordance with the Act, on which are Register on July 1, 1994 (59 FR 34271),
it is speculative at present to assign found those physical or biological and Section 515 of the Treasury and
costs to this potential impact. features (I) essential to the conservation General Government Appropriations
Act for Fiscal Year 2001 (Pub. L. 106– planning efforts if new information critical habitat designation for the
554; H.R. 5658) and the associated available to these planning efforts calls species.
Information Quality Guidelines issued for a different outcome. The areas determined to contain the
by the Service, provide criteria, features essential for the conservation of
Methods the California tiger salamander are
establish procedures, and provide
guidance to ensure that decisions made As required by section 4(b)(1)(A) of designed to provide sufficient aquatic
by the Service represent the best the Act, we use the best scientific data habitat for breeding and upland habitat
scientific and commercial data available in determining areas that as refugia for adults to maintain and
available. They require Service contain the features that are essential to sustain populations of California tiger
biologists to the extent consistent with the conservation of the Sonoma County salamanders throughout their range, and
the Act and with the use of the best distinct population segment of the provide those habitat components
scientific and commercial data California tiger salamander. In necessary for the species. Conserving
available, to use primary and original determining the areas to designate California tiger salamanders over the
sources of information as the basis for critical habitat for the California tiger long term requires a three-pronged
recommendations to designate critical salamander, we used the best scientific approach: (1) Protecting the hydrology
habitat. When determining which areas data available. We have reviewed the and water quality of breeding pools and
are critical habitat, a primary source of overall approach to the conservation of ponds; (2) retaining or providing for
information is generally the listing the Sonoma County distinct population connectivity between breeding locations
package for the species. Additional segment of the California tiger for genetic exchange and recolonization;
information sources include the salamander undertaken by local, State, and (3) protecting sufficient upland
recovery plan for the species, articles in and Federal agencies operating within habitat around each breeding location to
peer-reviewed journals, conservation the species’ range since its listing in allow for enough adult survival to
plans developed by States and counties, 2003 (68 FR 13498). maintain a breeding population over the
scientific status surveys and studies, We have also reviewed available long term. In our determination of the
biological assessments, or other information that pertains to the habitat amount of critical habitat to designate,
unpublished materials and expert requirements of this species. The we focused on identifying those areas
opinion or personal knowledge. All material included data in reports which contained the features which
information is used in accordance with submitted during section 7 would provide the breeding and upland
the provisions of Section 515 of the habitat to maintain and sustain existing
consultations and by biologists holding
Treasury and General Government populations of salamanders in
section 10(a)(1)(A) recovery permits;
Appropriations Act for Fiscal Year 2001 documented breeding sites (vernal pool
research published in peer-reviewed
(Pub. L. 106–554; H.R. 5658) and the complexes) identified within Sonoma
articles and presented in academic
associated Information Quality County. Due to the complex life history
theses and agency reports; and regional
Guidelines issued by the Service. and dispersal capabilities of California
Geographic Information System (GIS)
Section 4 of the Act requires that we tiger salamanders, and the dynamic
coverages.
designate critical habitat on the basis of nature of the environments in which
the best scientific data available. Habitat Primary Constituent Elements they are found, the primary constituent
is often dynamic, and species may move elements described below should be
In accordance with section 3(5)(A)(i)
from one area to another over time. found throughout the unit that is being
Furthermore, we recognize that of the Act and regulations at 50 CFR identified as critical habitat. Critical
designation of critical habitat may not 424.12, in determining which areas to habitat for the Sonoma County distinct
include all of the habitat areas that may propose as critical habitat, we are population segment of the California
eventually be determined to be required to base critical habitat tiger salamander will provide for
necessary for the conservation of the determinations on the best scientific breeding and nonbreeding habitat and
species. For these reasons, critical data available and to consider those for dispersal between these habitats, as
habitat designations do not signal that physical and biological features well as allowing for an increase in the
habitat outside the designation is (primary constituent elements (PCEs)) size of the Sonoma County distinct
unimportant or may not be required for that are essential to the conservation of population segment of the California
recovery. the species, and that may require special tiger salamander.
Areas that support populations, but management considerations and
are outside the critical habitat protection. These include, but are not Space for Individual and Population
designation, will continue to be subject limited to: Space for individual and Growth and Normal Behavior
to conservation actions implemented population growth and for normal California tiger salamanders require a
under section 7(a)(1) of the Act and to behavior; food, water, air, light, combination of aquatic habitat and
the regulatory protections afforded by minerals, or other nutritional or upland habitat in order to successfully
the section 7(a)(2) jeopardy standard, as physiological requirements; cover or maintain normal population growth and
determined on the basis of the best shelter; sites for breeding, reproduction, behavior. Aquatic habitat is essential for
available information at the time of the and rearing (or development) of California tiger salamander breeding
action. Federally funded or permitted offspring; and habitats that are protected and for providing space, food, and cover
projects affecting listed species outside from disturbance or are representative of necessary to sustain early life history
their designated critical habitat areas the historic geographical and ecological stages of California tiger salamanders.
may still result in jeopardy findings in distribution of a species. Breeding habitat consists of fresh water
some cases. Similarly, critical habitat The specific primary constituent bodies, including natural and man-made
designations made on the basis of the elements required for the California ponds, vernal pools, or other ephemeral
best available information at the time of tiger salamander are derived from the or permanent wetland features which
designation will not control the biological needs of the California tiger allow California tiger salamanders to
direction and substance of future salamander as described below and in complete their aquatic portion of their
recovery plans, habitat conservation the Background section of this lifecycle. To be considered essential,
plans, or other species conservation designation and previous listing or aquatic habitats must have the potential
to hold water for a minimum of 12 their lifecycle. As a result California metapopulation structure (Hanski and
weeks in the winter or spring in a year tiger salamanders require areas which Gilpin 1991). A metapopulation is a set
of average rainfall. This is the amount support a prey base of both aquatic (e.g., of local populations or breeding sites
of time needed for juveniles to complete zooplankton, aquatic larvae, aquatic within an area, where typically
metamorphosis and become capable of invertebrates, tadpoles, etc.) and migration from one local population or
surviving in upland habitats. During terrestrial (e.g., terrestrial invertebrates, breeding site to other areas containing
periods of drought or less-than average insects, frogs, worms, etc.) species. The suitable habitat is possible, but not
rainfall, these breeding sites may not aquatic and upland habitat features routine. Movement between areas
hold water long enough for individuals would support the necessary prey base containing suitable habitat (i.e.
to complete metamorphosis, but these in all aspects of the California tiger dispersal) is restricted due to
sites would still be considered because salamander lifecycle. inhospitable conditions around and
they constitute breeding habitat in years between areas of suitable habitat.
Reproduction
of average rainfall. Without its essential Because many of the areas of suitable
aquatic habitat features, the California Lifetime reproductive success for habitat may be small and support small
tiger salamander would not survive, California and other tiger salamanders is numbers of salamanders, local
because breeding could not occur. low. Trenham et al. (2000) found the extinction of these small units may be
average female bred 1.4 times and common.
Upland Habitat produced 8.5 young that survived to A metapopulation’s persistence
Associated upland habitat containing metamorphosis per reproductive effort. depends on the combined dynamics of
underground refugia is essential for the This resulted in roughly 11 these local extinctions and the
survival of adult California tiger metamorphic offspring over the lifetime subsequent recolonization of these areas
salamanders and juveniles that have of a female. In part, this low through dispersal (Hanski and Gilpin
recently undergone metamorphosis. reproductive success is due to the 1991; Hanski 1994). The essential
Adult and juvenile California tiger extended time it takes for California dispersal habitat feature generally
salamanders are terrestrial, and they tiger salamanders to reach sexual consists of upland areas adjacent to
enter aquatic habitats only for short maturity: Most do not breed until 4 or essential aquatic habitat that are not
periods of time to breed. For the 5 years of age. While individuals may isolated from breeding ponds by barriers
majority of their life cycle, California survive for more than 10 years, many that California tiger salamanders cannot
tiger salamanders depend for survival breed only once. Combined with low cross. Essential dispersal habitat
on upland habitats containing survivorship of metamorphosed features provide connectivity among
underground or covered refugia where individuals (in some populations, less California tiger salamander breeding
they are protected from desiccation. than 5 percent of marked juveniles ponds. While California tiger
Juveniles have been found in soil cracks survive to become breeding adults salamanders can bypass many obstacles,
and rodent burrows and adults almost (Trenham et al. 2000)), reproductive and do not require a particular type of
exclusively in rodent burrows. These output in most years is not sufficient to habitat for dispersal, the habitat
underground refugia provide protection maintain populations. This trend connecting essential aquatic habitat
from the hot, dry weather in the suggests that the species requires features must be free of barriers (e.g. a
nonbreeding season (Shaffer and occasional ‘‘boom’’ breeding events to physical or biological feature that
Trenham 2005). California tiger prevent extirpation (temporary or prevents salamanders from dispersing
salamanders also find food in small permanent loss of the species from a beyond the feature). Examples of
mammal burrows and rely on the particular habitat) or extinction barriers are areas of steep topography
burrows for protection from predators. (Trenham et al. 2000). With such low devoid of soil or vegetation and State
The upland areas also regulate the recruitment, isolated populations are Highway 101. Agricultural lands such as
hydrological functioning and protect susceptible to unusual, randomly row crops, orchards, vineyards, and
water quality of the aquatic habitat occurring natural events as well as from pastures do not constitute barriers to the
(Hanes and Stromberg 1998). As human-caused factors that reduce dispersal of California tiger
described in previous rules (69 FR breeding success and individual salamanders. Therefore, a critical
68572; 70 FR 49380), California tiger survival. Factors that repeatedly lower element for successful conservation is
salamanders have been found up to 1.3 breeding success in isolated pools can the maintenance of sets of
mi (2 km) from occupied occurrences quickly extirpate a population. interconnected sites that are within the
(Sweet, 1998). The only known study California tiger salamanders would ‘‘rescue’’ distance of other ponds
we are aware of that specifically require an interconnected network of (Trenham et al. 2001).
investigated movement of California ponds and upland areas so that they can
tiger salamanders between breeding disperse from one pond to nearby ponds Primary Constituent Elements for the
ponds projected that 0.70 mi (1.1 km) in order to augment or recolonize Sonoma County Distinct Population
would encompass 99 percent of locally extirpated ponds and uplands. Segment of the County California Tiger
interpond dispersal (Trenham et al. Salamander
Dispersal Habitat Based on our current knowledge of
2001; Trenham and Shaffer 2005). As
we did for the Santa Barbara and Central Protecting the ability of California the life history, biology, and ecology of
populations, we used the 0.70 mi (1.1 tiger salamanders to move freely across the species and the requirements of the
km) away from breeding location to the landscape in search of breeding habitat to sustain the essential life
identify those upland habitat features ponds is essential in maintaining gene history functions of the species, we have
essential for the Sonoma County distinct flow and for recolonization of sites that determined that the Sonoma County
population segment of the California are temporarily extirpated and is distinct population segment of the
tiger salamander. essential in preserving the California California tiger salamander’s primary
tiger salamander’s population structure. constituent elements (PCEs) are:
Food The life history and ecology of the (1) Standing bodies of fresh water,
California tiger salamanders use both California tiger salamander make it including natural and manmade ponds,
aquatic and terrestrial habitat during likely that this species has a vernal pools, and other ephemeral or
permanent water bodies that typically conducted California tiger salamander landscapes. As described in previous
become inundated during winter rains surveys throughout the range of the rules (69 FR 68572; 70 FR 49380),
and hold water for a sufficient length of species. The range boundaries were California tiger salamander have been
time (i.e., 12 weeks) necessary for the developed based on the principles of found up to 1.3 mi (2 km) from
species to complete the aquatic portion conservation science, genetics of the occupied occurrences (Sweet 1998). The
of its life cycle; species, topography, geology, soils, only known study we are aware of that
(2) Barrier-free uplands adjacent to vernal pool type distribution, historic specifically investigated movement of
breeding ponds (within 0.7 mi (1.1 km)) distribution, and survey information California tiger salamanders between
that contain small mammal burrows. (CNDDB 2005). In the proposed breeding ponds projected that 0.70 mi
Small mammals are essential in creating designation, we purposefully included a (1.1 km) would encompass 99 percent of
the underground habitat that adult broad area that after further review interpond dispersal (Trenham et al.
California tiger salamanders depend included some areas which were 2001; Trenham and Shaffer 2005). As
upon for food, shelter, and protection developed and or did not contain the
from the elements and predation; and we did for the Santa Barbara and Central
essential features or lacked the
(3) Accessible upland areas between populations, we used a 0.70 mi (1.1 km)
documented occurrence information.
breeding locations (PCE 1) and areas In order to map only those areas dispersal distance (radius) as a guide for
with small mammal burrows (PCE 2) containing the essential features, we the amount of upland habitat around
that allow for dispersal among such refined the proposed designation to just known occupied extant occurrences to
sites. those areas surrounding known be mapped as critical habitat for the
breeding locations in Sonoma County. purposes of preserving the Sonoma
Criteria Used To Identify Critical County distinct population segment of
Habitat In addition, we applied parameters for
upland dispersal and habitat use similar the California tiger salamander within
In determining the areas we would to those used in the critical habitat small mammal burrows (PCE 2).
consider as critical habitat, we first designations for the Central and Santa However, we recognize that (as with
looked at those breeding locations Barbara populations of California tiger movements in search of suitable
identified as being occupied at the time salamander. Our refined designation underground refugia) upland habitat
of listing and which contain the habitat and associated economic impacts were features influence California tiger
features (primary constituent elements, published in the Federal Register on salamander movements within a
PCEs) essential for the conservation of November 17, 2005 (70 FR 69717). particular landscape. As a result, we
the species. We then looked at those In the development of the final made adjustments to the upland areas to
additional areas found to be occupied designation, we revised the critical include additional areas containing the
subsequent to listing which also habitat boundaries to better identify PCEs. In other cases, the critical habitat
contained those essential habitat those areas containing the essential
features determined to provide for the was reduced so as not to include non-
features for conservation of species. We habitat areas (those not exhibiting the
conservation of the Sonoma County focused on areas within the range where
distinct population segment of the PCEs) from the designation. Some
we had credible records of breeding
California tiger salamander. agricultural and other lands were
(reports filed by biologists holding
In our determination of critical habitat included if they were within the 0.7 mi
section 10(a)(1)(A) recovery permits)
for the Sonoma County distinct (1.1 km) distance and the essential
indicating California tiger salamander
population segment of the California presence (CNDDB 2005). Our feature for upland refugia or
tiger salamander, we selected areas that conservation strategy for the Sonoma connectivity between occurrences and
possess the physical and biological population focuses on those breeding were not considered a barrier to
features that are essential to the locations that provide sufficient aquatic movement.
conservation of the species and that may and upland habitats to ensure high When determining critical habitat
require special management enough adult survival to maintain and boundaries, we made every effort to
considerations or protection. After sustain extant occurrences of California avoid the designation of developed
identifying the PCEs that are essential to tiger salamander within the range of the areas such as buildings, paved areas,
the conservation of the California tiger Sonoma County distinct population and other structures that lack PCEs for
salamander, we used the PCEs in segment. the California tiger salamander. Any
combination with occurrence data; We then identified the amount of such structures inadvertently left inside
confirmed breeding information, upland habitat surrounding these critical habitat boundaries are not
geographic distribution; GIS data layers breeding occurrences where adult considered part of the critical habitat
for habitat mapping; vegetation, California tiger salamanders live during unit. This also applies to the land on
topography, watersheds, and current the majority of their life cycle. To which such structures sit directly.
land uses; scientific information on the determine a general guideline for the Therefore, Federal actions limited to
biology and ecology of the California amount of upland habitat necessary to these areas would not trigger section 7
tiger salamander; and accepted support an occurrence of adult consultations, unless activities within
conservation principles for threatened California tiger salamander, we these areas affect the species and/or
or endangered species. reviewed the primary literature primary constituent elements in
In our proposed designation and in regarding California tiger salamander
adjacent critical habitat.
our refinement of that proposal, we upland habitat use, including Trenham
identified areas that contain those (2000), Trenham et al. (2000 and 2001), A brief discussion of the area that
features which are essential to the and Trenham and Shaffer (2005). would have been designated as critical
conservation of the California tiger The best scientific peer-reviewed data habitat had it not been excluded is
salamander within the occupied range indicate that California tiger salamander provided in the unit descriptions below.
of the Sonoma County distinct do not remain primarily in burrows Additional detailed documentation
population segment of the California close to aquatic habitats and breeding concerning the essential nature of this
tiger salamander, as was reported and ponds, but instead move some distance area is contained in our supporting
mapped by biologists who had out into the surrounding upland record for this rulemaking.
Special Management Considerations or critical habitat designation (70 FR The area which would be designated
Protections 44301, August 2, 2005). as critical habitat absent exclusions
under section 4(b)(2), described below,
When designating critical habitat, we Critical Habitat Designation constitute our best assessment of the
assess whether the areas determined to areas: (1) Within the geographical area
be occupied at the time of listing and In the development of the critical
habitat for the Sonoma County distinct occupied by the species at the time of
contain the PCEs may require special listing; (2) that contain the PCEs; and (3)
management considerations or population segment of the California
tiger salamander, we determined which that may require special management.
protections. Threats which may warrant Although all of the areas are within the
special management within the area lands have features essential to the
conservation of the species by defining geographical area known to be occupied
being identified as critical habitat for by the species at the time of listing, we
the California tiger salamander include the physical and biological features
are not designating all of the areas
activities such as: Habitat destruction essential to the species’ conservation
known to be occupied by the Sonoma
and fragmentation (e.g. urban and and delineating the specific areas
County distinct population segment of
agricultural development); containing them. We then evaluated
the California tiger salamander. We
sedimentation, introduction of those lands determined to have essential
provide separate discussions on: (1) The
nonnative predators such as bullfrogs features to ascertain if any specific areas
reasons why these areas contain features
and fish and non-native salamanders; are appropriate for exemption or essential for the conservation of the
activities that could disturb aquatic exclusion from critical habitat pursuant Sonoma County distinct population
breeding habitats and water quality, to either sections 3(5)(A), 4(a)(3), or segment of the California tiger
such as heavy equipment operation, 4(b)(2) of the Act. On the basis of our salamander and (2) special management
ground disturbance, maintenance evaluation, we have determined that the considerations for these areas. All of the
projects (e.g. pipelines, roads, benefits of excluding lands under areas containing features determined to
powerlines), off-road travel or appropriate management for the be essential for the conservation of the
recreation; activities that would reduce Sonoma County distinct population Sonoma County distinct population
small mammal populations to the point segment of the California tiger segment of the California tiger
that there is insufficient underground salamander outweighs the benefits of salamander were known to be occupied
refugia used by salamanders for their inclusion. We also evaluated the at the time of listing.
foraging, protection from predators, and economic costs of the designation and The tables below show the lands
shelter from the elements; activities that identified those areas which had being excluded from critical habitat
create barriers impassable for disproportionately high cost and pursuant to section 4(b)(2) of the Act
salamanders or increase mortality in evaluated whether those high cost areas (Table 1), a summary of the areas
upland habitat between extant also warranted exclusion. We have containing the features that are essential
occurrences in breeding habitat; and, subsequently excluded the entire lands to the Sonoma County distinct
activities that disrupt vernal pool from the Sonoma County distinct population segment of the California
complexes’ ability to support California population segment of the California tiger salamander (Table 2) and the
tiger salamander breeding function. A tiger salamander critical habitat approximate area that would be
detailed discussion of threats to the pursuant to section 4(b)(2) of the Act designated as critical habitat absent
Sonoma County distinct population (refer to Exclusions under Section exclusion under section 4(b)(2) for the
segment of the California tiger 4(b)(2) of the Act section below) based Sonoma County distinct population
salamander and its habitat can be found on both the ongoing management being segment of the California tiger
in the final listing rule (68 FR 13498, implemented by local governing salamander by land ownership (Table
March 19, 2003) and the proposed agencies and high economic costs. 3).
TABLE 1.—APPROXIMATE AREA ACRES (AC)/HECTARES (HA) EXCLUDED FROM CRITICAL HABITAT FOR THE SONOMA
COUNTY DISTINCT POPULATION SEGMENT OF THE CALIFORNIA TIGER SALAMANDER PURSUANT TO SECTION 4(b)(2)
OF THE ACT
California
Excluded area total
ac ha
Unit 1 ........................................................................................................................................................................... 17,418 7,049
TABLE 2.—AREAS DETERMINED TO CONTAIN FEATURES ESSENTIAL TO CONSERVATION OF THE SONOMA COUNTY DIS-
TINCT POPULATION SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER AND THE AREA EXCLUDED FROM THE FINAL
CRITICAL HABITAT DESIGNATION [AC (HA)]
Definitional area Excluded area Total
Unit
ac ha ac ha ac ha
1a ................................................................................................. 1,313 531 1,313 531 0 0

1b ................................................................................................. 12,887 5,215 12,887 5,215 0 0
1c ................................................................................................. 2,442 988 2,442 988 0 0
1d ................................................................................................. 776 314 776 314 0 0
Total ...................................................................................... 17,418 7,049 17,418 7,049 0 0
TABLE 3.—CRITICAL HABITAT UNITS DESIGNATED BUT EXCLUDED FOR THE SONOMA COUNTY DISTINCT POPULATION
SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER
Federal State Local Other Total
Unit
ac ha ac ha ac ha ac ha ac ha
1a ..................................................................... ............ ............ 8 3 ............ ............ 1,305 528 1,313 531

1b ..................................................................... ............ ............ 260 105 ............ ............ 12,627 5,110 12,887 5,215
1c ...................................................................... ............ ............ ............ ............ ............ ............ 2,442 988 2,442 988
1d ..................................................................... ............ ............ ............ ............ ............ ............ 776 314 776 314
Total .......................................................... ............ ............ 268 108 ............ ............ 17,150 6,941 17,418 7,049
Figure 1 below represents the area habitat for the species based on descriptions of the unit, and reasons
which would otherwise be designated as economic impacts and the conservation why it meets the definition of critical
critical habitat for the Sonoma County benefits of implementation of interim habitat for the Sonoma County distinct
distinct population segment of the and long-term conservation measures population segment for the California
California tiger salamander absent for the California tiger salamander being tiger salamander, below.
exclusions under section 4(b)(2). We adopted and implemented by local BILLING CODE 4310–55–U
have excluded the entire final critical governing agencies. We present brief
BILLING CODE 4310–55–C

ER14DE05.000</GPH>
Santa Rosa Plain Unit Subunit 1b: (12,887 ac (5,215 ha)) for this subunit includes those activities
The Santa Rosa Plain unit consists of This subunit is located south of outlined above. This subunit has been
17,418 ac (7,049 ha) in four subunits Guerneville Road to Sierra Road in the excluded from the final designation due
distributed in the Santa Rosa Plain central portion of the designation. Land to both the conservation measures being
south of Mark West Spring Creek and ownership within the subunit includes implemented by local governing
north of Pepper Road. The area is approximately 260 ac (105 ha) of CDFG agencies as well as having
located mostly west of the developed land. Land within the remainder of this disproportionately high economic costs
portions of Santa Rosa, Rohnert Park subunit is privately owned. The subunit (see ‘‘Exclusion Under Section 4(b)(2)
and Cotati. Each one of the subunits is determined to be critical habitat section’’ below).
represents a breeding center for the because it contains features essential to Subunit 1d: (776 ac (314 ha))
species. All four of these areas were the conservation of the California tiger
This subunit is located in the
considered occupied at the time of salamander, it is occupied by the
southern portion of the designation near
listing and contain the features species, it represents the largest
Old Redwood Highway south of Cotati.
considered essential for the contiguous area, it is in the center of the
Land within the area is privately owned.
conservation of the species. The special distribution of the Sonoma County
The subunit is determined to be critical
management required for this unit distinct population segment of the
habitat because it contains features
includes management of introduction of California tiger salamander, contains the
essential to the conservation of the
nonnative predators and other species to most known occurrences of breeding,
California tiger salamander, it is
ponds; management of off-road vehicle and it is one of four breeding centers for
occupied by the species, it represents
use; management of construction, the species. This subunit contains the
the southeastern most distribution of
installation and maintenance of roads, essential habitat features of ponded
California tiger salamander in Sonoma
pipelines, powerlines, and areas which stay inundated for the
County, and it is one of four breeding
telecommunication lines; small minimum amount of time for the
centers for the species. This subunit
mammal populations management; species to complete its aquatic lifecycle
contains the essential habitat features of
management of activities that create (PCE 1) and provides a prey base as well
ponded areas which stay inundated for
barriers impassable for salamanders; as space for growth and development;
the minimum amount of time for the
and management of activities that and upland areas which contain
species to complete its aquatic lifecycle
disrupt vernal pool complexes’ ability to underground mammal burrows and
(PCE 1) and provides a prey base as well
support California tiger salamanders. similar refugia for food and shelter (PCE
as space for growth and development;
2), and accessible upland habitats for
Subunit 1a; (1,313 ac (531 ha)) and upland areas which contain
dispersal (PCE 3). Special management
This subunit is located in the underground mammal burrows and
for this subunit includes those activities
northern portion of the designation near similar refugia for food and shelter (PCE
outlined above. This subunit has been
Fulton and Piner Roads. Land 2), and accessible upland habitats for
excluded from the final designation due
ownership within the subunit includes dispersal (PCE 3). Special management
to both the conservation measures being
approximately 8 ac (3 ha) of CDFG land for this unit includes those activities
implemented by local governing
within the Alton Lane Preserve. Land outlined above. This subunit has been
agencies as well as having
within the remainder of this subunit is excluded from the final designation due
disproportionately high economic costs
privately owned. The subunit is to both the conservation measures being
(see ‘‘Exclusion Under Section 4(b)(2)
determined to be critical habitat because implemented by local governing
section’’ below).
it contains features essential to the agencies as well as having
conservation of the California tiger Subunit 1c: (2,442 ac (988 ha)) disproportionately high economic costs
salamander, it is occupied by the This subunit is located in the (see ‘‘Exclusion Under Section 4(b)(2)’’
species, it represents the northernmost southern portion of the designation near section below).
distribution of California tiger Stoney Point Road near Roblar Road and Effects of Critical Habitat Designation
salamander in Sonoma County, and it is north of Pepper Road. Land within the
one of four breeding centers for the area is privately owned. The subunit is Section 7 Consultation
species. This subunit contains the determined to be critical habitat because Section 7 of the Act requires Federal
essential habitat features of ponded it contains features essential to the agencies, including the Service, to
areas which stay inundated for the conservation of the California tiger ensure that actions they fund, authorize,
minimum amount of time for the salamander, it is occupied by the or carry out are not likely to destroy or
species to complete its aquatic lifecycle species, it represents the southernmost adversely modify critical habitat. Such
(PCE 1) and provides a prey base as well distribution of the Sonoma County alterations include, but are not limited
as space for growth and development; distinct population segment of the to: Alterations adversely modifying any
and upland areas which contain California tiger salamander, and it is one of those physical or biological features
underground mammal burrows and of four breeding centers for the species. that were the basis for determining the
similar refugia for food and shelter (PCE This subunit contains the essential habitat to be critical. We are currently
2), and accessible upland habitats for habitat features of ponded areas which reviewing the regulatory definition of
dispersal (PCE 3). Special management stay inundated for the minimum adverse modification in relation to the
for this subunit includes those activities amount of time for the species to conservation of the species.
outlined above. This subunit has been complete its aquatic lifecycle (PCE 1) Section 7(a) of the Act requires
excluded from the final designation due and provides a prey base as well as Federal agencies, including the Service,
to both the conservation measures being space for growth and development; and to evaluate their actions with respect to
implemented by local governing upland areas which contain any species that is proposed or listed as
agencies as well as having underground mammal burrows and endangered or threatened and with
disproportionately high economic costs similar refugia for food and shelter (PCE respect to its critical habitat, if any is
(see ‘‘Exclusion Under Section 4(b)(2) 2), and accessible upland habitats for proposed or designated. Regulations
section’’ below). dispersal (PCE 3). Special management implementing this interagency
cooperation provision of the Act are reasonable and prudent alternative are (3) Road construction and
codified at 50 CFR Part 402. similarly variable. maintenance funded or authorized by
Section 7(a)(4) of the Act requires Regulations at 50 CFR 402.16 require the Federal Highway Administration;
Federal agencies to confer with us on Federal agencies to reinitiate (4) Conservation measures by private
any action that is likely to jeopardize consultation on previously reviewed landowners funded by the Natural
the continued existence of a proposed actions in instances where critical Resources Conservation Service;
species or result in destruction or habitat is subsequently designated and (5) Airport construction regulated by
adverse modification of proposed the Federal Aviation Administration;
the Federal agency has retained
critical habitat. Conference reports may (6) Construction of communication
discretionary involvement or control
include reasonable and prudent facilities licensed by the Federal
over the action or such discretionary Communications Commission; and
alternatives or reasonable and prudent involvement or control is authorized by
measures to assist the agency in (7) Other activities funded by the U.S.
law. Consequently, some Federal Environmental Protection Agency,
eliminating conflicts that may be caused agencies may request reinitiation of
by the proposed action. We may issue Department of Energy, Federal
consultation or conference with us on Emergency Management Agency, or
a formal conference report if requested actions for which formal consultation
by a Federal agency. Formal conference other Federal agency.
has been completed, if those actions Special management that may be
reports on proposed critical habitat
may affect designated critical habitat or needed for the Sonoma County distinct
contain an opinion that is prepared
adversely modify or destroy critical population segment of the California
according to 50 CFR 402.14, as if critical
habitat. tiger salamander and its habitat is
habitat were designated. We may adopt
the formal conference report as the Federal activities that may affect the briefly summarized below:
biological opinion when the critical Sonoma County distinct population (1) Manage hydrologic functioning of
habitat is designated, if no substantial segment of the California tiger vernal pools and ponds. Restore and
new information or changes in the salamander or any critical habitat would maintain natural hydrologic regimes to
action alter the content of the opinion require section 7 consultation. Activities prevent hydrologic changes to aquatic
(see 50 CFR 402.10(d)). Until such time on private or State lands requiring a habitats to maintain their suitability as
as a proposed designation is finalized, permit from a Federal agency, such as California tiger salamander breeding
any reasonable and prudent alternatives a permit from the U.S. Army Corps of habitat and restore such habitats in
or reasonable and prudent measures Engineers under section 404 of the areas where they have become altered or
included in a conference report are Clean Water Act, a section 10(a)(1)(B) destroyed.
advisory. permit from the Service, or some other (2) Manage water quality. Manage
If a species is listed or critical habitat Federal action, including funding (e.g., actions that significantly and
is designated, section 7(a)(2) requires Federal Highway Administration or detrimentally alter the water chemistry
Federal agencies to ensure that activities Federal Emergency Management Agency in the aquatic salamander habitat.
they authorize, fund, or carry out are not funding), will also continue to be Possible actions requiring such
likely to jeopardize the continued subject to the section 7 consultation management would include intentional
existence of such a species or to destroy process. Federal actions not affecting or unintentional release of chemical or
or adversely modify its critical habitat. listed species or critical habitat and biological pollutants into the surface
If a Federal action may affect a listed actions on non-Federal and private water or connected groundwater at a
species or its critical habitat, the lands that are not federally funded, point source or by dispersed release
responsible Federal agency (action authorized, or permitted do not require (non-point).
agency) must enter into consultation section 7 consultation. (3) Upland Habitat Management.
with us. Through this consultation, the Section 4(b)(8) of the Act requires us Actions that significantly and
action agency ensures that their actions to briefly evaluate and describe in any detrimentally alter the characteristics of
do not destroy or adversely modify proposed or final regulation that the upland habitat surrounding aquatic
critical habitat. designates critical habitat those areas may need special management.
When we issue a biological opinion activities involving a Federal action that Possible actions which may require
concluding that a project is likely to may adversely modify such habitat, or special management include vegetation
result in the destruction or adverse that may be affected by such manipulation, road construction and
modification of critical habitat, we also designation. Activities that may destroy maintenance, gravel mining, and urban
provide reasonable and prudent or adversely modify critical habitat may and suburban development and
alternatives to the project, if any are also jeopardize the continued existence infrastructure. We note that such
identifiable. ‘‘Reasonable and prudent of the Sonoma County distinct alteration and or destruction of the
alternatives’’ are defined at 50 CFR surrounding upland areas which results
population segment of the California
402.02 as alternative actions identified in alteration of the hydrologic
tiger salamander. Federal activities that,
during consultation that can be functioning of the aquatic habitat may
when carried out, would adversely
implemented in a manner consistent destroy or adversely modify the aquatic
affect any critical habitat for the Sonoma
with the intended purpose of the action, habitat associated with the upland
County distinct population segment of
that are consistent with the scope of the areas. As a result, these activities could
the California tiger salamander include,
Federal agency’s legal authority and eliminate or reduce the habitat
but are not limited to:
jurisdiction, that are economically and necessary for the reproduction,
technologically feasible, and that the (1) Actions that would regulate sheltering or growth of the Sonoma
Director believes would avoid activities affecting waters of the United County distinct population segment of
destruction or adverse modification of States by the Army Corps of Engineers the California tiger salamander.
critical habitat. Reasonable and prudent under section 404 of the Clean Water (4) Manage nonnative aquatic species.
alternatives can vary from slight project Act; Manage the introduction, spreading, or
modifications to extensive redesign or (2) Actions by any Federal agency that augmenting of detrimental nonnative
relocation of the project. Costs change water flow regimes, or that dam, aquatic species into salamander aquatic
associated with implementing a divert, or channel water; habitat. Possible actions requiring such
management would include fish In our critical habitat designations, we activities require consultation pursuant
stocking for sport, aesthetics, biological use the provision outlined in section to section 7 of the Act to ensure that
control, or other purposes; and release 4(b)(2) of the Act to evaluate those they are not likely to destroy or
of live bait fish and nonnative tiger specific areas that contain the features adversely modify critical habitat. There
salamanders. essential to the conservation of the are two limitations to this regulatory
(5) Manage On- and Off-Road Use. species to determine which areas to effect. First, it only applies where there
Protect aquatic and upland areas from propose and subsequently finalize (i.e. is a Federal nexus—if there is no
off-road vehicle use. Manage trails, road designate) as critical habitat. On the Federal nexus, designation itself does
maintenance, and off-road vehicle basis of our evaluation, we have not restrict actions that destroy or
access to prevent habitat degradation in determined that the benefits of adversely modify critical habitat.
order to maintain, protect, and restore excluding certain lands from the Second, it only limits destruction or
California tiger salamander habitat. designation of critical habitat for the adverse modification. By its nature, the
(6) Manage small mammal control Sonoma County distinct population prohibition on adverse modification is
activities. Activities that would reduce segment of the California tiger designed to ensure those areas that
small mammal populations to the point salamander outweigh the benefits of contain the physical and biological
that there is insufficient underground their inclusion, and have subsequently features essential to the conservation of
refugia used by the Sonoma County excluded all lands within Sonoma the species or unoccupied areas that are
distinct population segment of the County from this designation pursuant essential to the conservation of the
California tiger salamander for foraging, to section 4(b)(2) of the Act as discussed species are not eroded. Critical habitat
protection from predators, and shelter below. designation alone, however, does not
from the elements may ultimately be Areas excluded pursuant to section require specific steps toward recovery.
detrimental to salamanders. 4(b)(2) may include those covered by Once consultation under section 7 of
the following types of plans/programs if the Act is triggered, the process may
(7) Manage creation of dispersal
the plans/programs provide assurances conclude informally when the Service
barriers. Activities that create barriers
that the conservation measures they concurs in writing that the proposed
impassable for salamanders, increase
outline will be implemented and Federal action is not likely to adversely
mortality in upland habitat between
effective: (1) Legally operative Habitat affect the listed species or its critical
extant occurrences, or disrupt dispersal
Conservation Plans (HCPs) that cover habitat. However, if the Service
behavior may be detrimental to the
the species; (2) draft HCPs that cover the determines through informal
salamander and may require special
species and have undergone public consultation that adverse impacts may
management. Activities that may require review and comment (i.e., pending occur, then formal consultation would
such management include highway and HCPs); (3) Tribal conservation plans/ be initiated. Formal consultation
other urban infrastructure, building programs that cover the species; (4) concludes with a biological opinion
development, and intensively managed State conservation plans/programs that issued by the Service on whether the
agricultural development (annual cover the species; (5) National Wildlife proposed Federal action is likely to
crops). Refuges with Comprehensive jeopardize the continued existence of a
We consider the entire area which Conservation Plans (CCPs) or other listed species or result in destruction or
would be designated as critical habitat, applicable programs that provide adverse modification of critical habitat,
absent exclusion under section 4(b)(2), assurances that the conservation with separate analyses being made
to be occupied by the species at the time measures for the species will be under both the jeopardy and the adverse
of listing based on information provided implemented and effective, and; (6) modification standards. For critical
from 10(a)(1)(A) reports and occurrence Partnerships, conservation plans/ habitat, a biological opinion that
data (CNDDB 2005). We consider the easements, or other type of formalized concludes in a determination of no
entire area which would be designated relationship/agreement on private lands. destruction or adverse modification may
as critical habitat, absent exclusion The relationship of critical habitat to contain discretionary conservation
under section 4(b)(2), to contain the these types of areas is discussed in recommendations to minimize adverse
features essential to the conservation of detail in the following paragraphs. effects to primary constituent elements,
the Sonoma County distinct population After consideration under section but it would not contain any mandatory
segment of the California tiger 4(b)(2), the entire area of habitat has reasonable and prudent measures or
salamander. been excluded from critical habitat for terms and conditions. Mandatory
Exclusion Under Section 4(b)(2) of the the Sonoma County distinct population reasonable and prudent alternatives to
Act segment of the California tiger the proposed Federal action would only
salamander as a result of both be issued when the biological opinion
Section 4(b)(2) of the Act states that conservation measures being results in a jeopardy or adverse
critical habitat shall be designated, and implemented and developed by local modification conclusion.
revised, on the basis of the best governing agencies and We also note that for 30 years prior to
available scientific data after taking into disproportionately high economic costs. the Ninth Circuit Court’s decision in
consideration the economic impact, A detailed analysis of our exclusion of Gifford Pinchot, the Service equated the
national security impact, and any other these lands under section 4(b)(2) of the jeopardy standard with the standard for
relevant impact of specifying any Act is provided in the paragraphs that destruction or adverse modification of
particular area as critical habitat. An follow. critical habitat. The Court ruled that the
area may be excluded from critical Service could no longer equate the two
habitat if it is determined that the General Principles of Section 7 standards and that adverse modification
benefits of exclusion outweigh the Consultations Used in the 4(b)(2) evaluations require consideration of
benefits of specifying a particular area Balancing Process impacts on the recovery of species.
as critical habitat, unless the failure to The most direct, and potentially Thus, under the Gifford Pinchot
designate such area as critical habitat largest regulatory benefit to the species decision, critical habitat designations
will result in the extinction of the of critical habitat is that federally may provide greater benefits to the
species. authorized, funded, or carried out recovery of a species. However, we
believe the conservation achieved constituting essential California tiger available scientific data after taking into
through implementing larger scale salamander habitat. Consequently, we consideration the economic impact,
management plans is typically greater believe that the informational benefits national security impact, and any other
than would be achieved through are already provided even though these relevant impact of specifying any
multiple site-by-site, project-by-project, areas are not designated as critical particular area as critical habitat. An
section 7 consultations involving habitat. Additionally, the purpose of area may be excluded from critical
consideration of critical habitat. informing State agencies and local habitat if it is determined that the
Management plans commit resources to governments about areas which would benefits of exclusion outweigh the
implement long-term management and benefit from protection and benefits of specifying a particular area
protection to particular habitat for at enhancement of habitat for the as critical habitat, unless the failure to
least one, and possibly other, listed or California tiger salamander normally designate such area as critical habitat
sensitive species. Section 7 served by the designation of critical will result in the extinction of the
consultations only commit Federal habitat is already well established species.
agencies to prevent adverse among State and local governments, and The Secretary exercises her discretion
modification to designated critical Federal agencies for those areas which under section 4(b)(2) to exclude all
habitat caused by the particular project we are excluding in this rule on the essential areas from a final critical
and they are not committed to provide basis of other implemented conservation habitat designation for the following
conservation or long-term benefits to measures and the on-going development reasons: (1) The adverse impacts
areas not affected by the proposed and implementation of the Conservation associated with the likely economic
project. Thus, any management plan Strategy. costs of the proposed final designation
which considers enhancement or As discussed in the ‘‘Summary of outweigh the likely conservation
recovery as the management standard Changes from the Proposed Rule’’ benefits provided by a final designation,
will always provide as much or more section above, we have determined that and (2) it is highly probable that the
benefit than a consultation for critical all habitat in Sonoma County for the Santa Rosa Plain Conservation Strategy
habitat designation conducted under the California tiger salamander (Unit 1) will will be implemented, and this strategy
standards required by the Ninth Circuit not be designated as critical habitat as would provide conservation benefits
in the Gifford Pinchot decision. a result of this rulemaking process. We that are superior to a final critical
The information provided in this have reached this determination habitat designation. A final designation
section applies to all the discussions because we believe the benefits of may also work at cross purposes to the
below that discuss the benefits of excluding this unit from as critical Conservation Strategy by discouraging
inclusion and exclusion of critical habitat outweigh the benefits of the involvement of local jurisdictions
habitat in that it provides the framework designating the unit as critical habitat. and private landowners without
for the consultation process. After the Sonoma County distinct providing any counterbalancing,
population segment of the California proactive conservation benefit.
Educational Benefits of Critical Habitat tiger salamander was listed as an The following discussion describes
A benefit of including lands in critical endangered species (68 FR 13498), we the analysis of the relative costs and
habitat is that the designation of critical as well as other resource and regulatory benefits of a critical habitat designation.
habitat serves to educate landowners, agencies (U.S. Army Corps of Engineers, Section 4(b)(2) of the Act allows the
State and local governments, and the CDFG, U.S. Environmental Protection Secretary to exclude areas from critical
public regarding the potential Agency) were contacted by local habitat for economic reasons or other
conservation value of an area. This governmental officials from Sonoma relevant impacts if she determines that
helps focus and promote conservation County and the Cities of Windsor, Santa the benefits of such exclusion exceed
efforts by other parties by clearly Rosa, Rohnert Park, and Cotati to the benefits of designating the area as
delineating areas of high conservation strategize on how best to conserve State critical habitat, unless the exclusion
value for the Sonoma County distinct and Federally listed species on the will result in the extinction of the
population segment of the California Santa Rosa Plain. The Conservation species concerned. This is a
tiger salamander. In general the Strategy is intended to direct discretionary authority Congress has
educational benefit of a critical habitat conservation efforts for the Sonoma provided to the Secretary with respect
designation always exists, although in County distinct population segment of to critical habitat. Although economic
some cases it may be redundant with the California tiger salamander and and other impacts may not be
other educational effects. For example, several other Federally listed plant considered when listing a species,
habitat conservation plans (or in the species. Although a recovery plan has Congress has expressly required their
case here, the Conservation Strategy) not yet been prepared, recovery consideration when designating critical
have significant public input and may activities for the Sonoma County habitat.
largely duplicate or exceed the distinct population segment of the
educational benefit of a critical habitat Relationship of Critical Habitat to
California tiger salamander would likely
designation. This benefit is closely Economic Impacts—Exclusions Under
parallel those conservation measures
related to a second, more indirect Section 4(b)(2) of the Act
identified in the Conservation Strategy.
benefit; in that designation of critical We believe that the best way to achieve In conducting economic analyses, we
habitat would inform State agencies and the objectives outlined in the are guided by the 10th Circuit Court of
local governments about areas that Conservation Strategy will be to use the Appeal’s ruling in the New Mexico
could or should be conserved under authorities under section 4(b)(2) to Cattle Growers Association case (248
State laws or local ordinances. exclude these lands. F.3d at 1285), which directed us to
However, we believe that there would consider all impacts, ‘‘regardless of
be little additional informational benefit Application of Exclusions Under whether those impacts are attributable
gained from the designation of critical Section 4(b)(2) of the Act co-extensively to other causes.’’ As
habitat for the exclusions we are making Section 4(b)(2) of the Act states that explained in the analysis, due to
in this rule because these areas were critical habitat shall be designated, and possible overlapping regulatory schemes
included in the proposed rule as revised, on the basis of the best and other reasons, there are also some
elements of the analysis that may We provided notice of availability of the 20 years following a designation of
overstate some costs. a DEA on October 25, 2005 (70 FR critical habitat.
Conversely, the Ninth Circuit has 61591) and requested comment on the A copy of the final economic analysis
recently ruled (‘‘Gifford Pinchot’’, 378 potential exclusion of high cost areas. with supporting documents are
F.3d at 1071) that the Service’s We published a subsequent notice on included in our administrative record
regulations defining ‘‘adverse November 17, 2005 (70 FR 69717) in and may be obtained by contacting U.S.
modification’’ of critical habitat are which we disclosed revised economic Fish and Wildlife Service, Branch of
invalid because they define adverse impacts based on a refinement of the Endangered Species (see ADDRESSES
modification as affecting both survival proposed designation on which we section).
and recovery of a species. The Court solicited public comment. The DEA We have considered, but are
directed us to consider that estimated the foreseeable economic excluding from critical habitat for the
determinations of adverse modification impacts of the proposed critical habitat Sonoma County distinct population
should be focused on impacts to designation on government agencies and segment of the California tiger
recovery. While we have not yet private businesses and individuals. The salamander all essential habitat in the
proposed a new definition for public economic analysis identified potential four highest cost census tracts which
review and comment, compliance with cumulatively account for approximately
costs over a 20-year period as a result
the Court’s direction may result in 94% of the economic impacts of the
of the proposed critical habitat
additional costs associated with the designation (Table 4).
designation, including those costs
designation of critical habitat coextensive with listing. The analysis
(depending upon the outcome of the TABLE 4.—EXCLUDED CENSUS TRACTS
measured lost economic efficiency
rulemaking). In light of the uncertainty AND COSTS
associated with residential and
concerning the regulatory definition of commercial development, and public
adverse modification, our current Adjusted welfare
projects and activities, such as Census tract impact in final EA ($)
methodological approach to conducting economic impacts on transportation
economic analyses of our critical habitat projects, the energy industry, and 06097153300 ............ 125,612,192
designations is to consider all Federal lands. However, no Federal 06097153200 ............ 30,148,184
conservation-related costs. This lands are within the proposed critical (including transpor-
approach would include costs related to tation costs)
habitat boundary. The economic 06097151201 ............ 18,746,038
sections 4, 7, 9, and 10 of the Act, and
analysis considered the potential 06097153005 ............ 9,863,633
should encompass costs that would be
economic effects of actions relating to
considered and evaluated in light of the
the conservation of the Sonoma County (1) Benefits of Inclusion of the 4
Gifford Pinchot ruling.
distinct population segment of the Excluded Census Tracts
In addition, we have received several
California tiger salamander, including
credible comments on the economic The principal benefit of designating
costs associated with sections 4, 7, and
analysis contending that it critical habitat is that Federal activities
10 of the Act, and including those
underestimates, perhaps significantly, that may affect such habitat are subject
the costs associated with this critical attributable to designating critical
to consultation pursuant to section 7 of
habitat designation. Both of these factors habitat. It further considered the
the Act. Such consultation requires
are a balancing consideration against the economic effects of protective measures
every Federal agency to ensure that any
possibility that some of the costs shown taken as a result of other Federal, State,
action it authorizes, funds, or carries out
in the economic analysis might be and local laws that aid habitat
is not likely to result in the destruction
attributable to other factors, or are conservation for the California tiger or adverse modification of critical
overly high, and so would not salamander in essential habitat areas. habitat. The most direct, and potentially
necessarily be avoided by excluding the The economic analysis considered both largest, regulatory benefit of critical
area for which the costs are predicted economic efficiency and distributional habitat is that federally authorized,
from this critical habitat designation. effects. In the case of habitat funded, or carried out activities require
We recognize that we have excluded conservation, efficiency effects generally consultation pursuant to section 7 of the
all of the proposed critical habitat. reflect the ‘‘opportunity costs’’ Act to ensure that these activities are
Congress expressly contemplated that associated with the commitment of not likely to destroy or adversely modify
exclusions under this section might resources to comply with habitat critical habitat.
result in such situations when it enacted protection measures (e.g., lost economic There are two limitations to this
the exclusion authority. House Report opportunities associated with regulatory effect. First, it only applies
95–1625, stated on page 17: ‘‘Factors of restrictions on land use). This analysis where there is a Federal nexus—if there
recognized or potential importance to also addressed how potential economic is no Federal nexus, designation itself
human activities in an area will be impacts are likely to be distributed, does not restrict actions that destroy or
considered by the Secretary in deciding including an assessment of any local or adversely modify critical habitat.
whether or not all or part of that area regional impacts of habitat conservation Second, it only limits destruction or
should be included in the critical and the potential effects of conservation adverse modification. It does not
habitat. In some situations, no critical activities on small entities and the encourage proactive or ‘‘interventionist’’
habitat would be specified. In such energy industry. This information can conservation efforts. By its nature, the
situations, the Act would still be in be used by decision makers to assess prohibition on adverse modification is
force and prevent any taking or other whether the effects of the designation designed to ensure those areas that
prohibited act * * *’’ (emphasis might unduly burden a particular group contain the physical and biological
supplied). We accordingly believe that or economic sector. Finally, the analysis features essential to the conservation of
these exclusions, and the basis upon looked retrospectively at costs that have the species or unoccupied areas that are
which they are made, are fully within been incurred since the date the species essential to the conservation of the
the parameters for the use of section was listed as an endangered species and species are maintained. Critical habitat
4(b)(2) set out by Congress. considers those costs that may occur in designation alone, however, does not
require specific steps toward recovery, the Service, and any non-Federal action analysis that designation of critical
especially on non-federal lands. that may take a California tiger habitat could result in approximately
Once consultation under section 7 of salamander will require a Section 10 $184 million in costs in these four
the Act is triggered, the process may permit if the action is not already census tracts, the majority of which are
conclude informally when the Service covered under a section 7 consultation. directly related to residential
concurs in writing that the proposed In general, regulatory benefits of a development impacts. We believe that
Federal action is not likely to adversely critical habitat designation would be the potential decrease in residential
affect the listed species or its critical highest on Federal lands where most housing development that could be
habitat. However, if the Service actions would be subject to section 7 caused by this designation of critical
determines through informal review. There are no Federal lands in habitat for the Sonoma County distinct
consultation that adverse impacts are the Santa Rosa Plain. However, section population segment of the California
likely to occur, then formal consultation 7 consultation likely will have a tiger salamander would minimize
would be initiated. Formal consultation regulatory effect on many proposed impacts to and potentially provide some
concludes with a biological opinion actions that directly affect California additional protection to the species, the
issued by the Service on whether the tiger salamander breeding habitat due to vernal pool complexes and ponds where
proposed Federal action is likely to a Federal nexus with the Clean Water they reside, and the physical and
jeopardize the continued existence of a Act and consultation with the Army biological features essential to the
listed species or result in destruction or Corps of Engineers. As described above, species’ conservation (i.e., the primary
adverse modification of critical habitat, these consultations are likely to result in constituent elements). Thus, this
with separate analyses being made determinations of ‘‘no jeopardy’’ to the decrease in residential housing
under both the jeopardy and the adverse species and ‘‘no destruction or adverse development would directly translate
modification standards. For critical modification’’ of critical habitat under into a potential benefit to the species
habitat, a biological opinion that the Gifford Pinchot standard. Upland that would result from this designation.
concludes in a determination of no areas or private lands where California However, these benefits are likely to
destruction or adverse modification may tiger salamander have not been be quite limited in relation to what the
contain discretionary conservation surveyed or observed will be subject to California tiger salamander requires for
recommendations to minimize adverse less and sometimes no regulation under successful conservation on the Santa
effects to primary constituent elements, the Act. This outcome depends on Rosa Plain. This consultation benefit
but it would not contain any mandatory whether local jurisdictions require would not apply to all critical habitat
reasonable and prudent measures or California tiger salamander surveys on lands because of a lack of a Federal
terms and conditions. Mandatory private lands and, if so, whether nexus for large portions of unsurveyed
reasonable and prudent alternatives to California tiger salamanders are actually private uplands that are not
the proposed Federal action would only found on the property. If California tiger immediately adjacent to breeding
be issued when the biological opinion salamander are found on these upland ponds. It would also be applied in a
results in a jeopardy or adverse areas, and the proposed action may take piecemeal, project-by-project fashion.
modification conclusion. California tiger salamander, then a Application of section 7 on these private
We also note that the decision of the section 10 permit is required and lands would depend on an
Ninth Circuit in Gifford Pinchot Task consultation on critical habitat will also unpredictable combination of several
Force v. USFWS must be considered in occur. In contrast, if California tiger factors, including the presence of a
weighing the effects of designation of salamander are not found or the section 7 Federal nexus, the likelihood
critical habitat. In that case, the court landowner declines to survey for or certainty of California tiger
held the Service’s regulatory definition California tiger salamander, then the salamander occupancy on the project
of ‘‘destruction or adverse modification’’ proposed action may occur without a site, the willingness of the landowner to
was contrary to the Act because it section 7 or section 10 permit and there survey for California tiger salamander if
required an analysis of the effect of the is no consultation under the Act. Under occupancy is unknown, the legal ability
proposed Federal action on the survival this process, it is likely that a significant and political desire of local jurisdictions
of the species in addition to an analysis amount of potential upland aestivation to require surveys and/or some form of
of the effect on recovery of the species. habitat will not be regulated under the consultation with the Service, and the
To the extent compliance with Gifford Act because of a lack of a Federal nexus ability to require compensatory
Pinchot would lead to more and the low likelihood that portions of mitigation if impacts to California tiger
determinations that Federal actions these areas are currently occupied by salamander are anticipated.
destroy or adversely modify critical the species. It is in cases such as this Therefore, it is reasonable to conclude
habitat than had previously been the where a critical habitat designation that only a portion of the area that
case, designation of critical habitat provides little positive regulatory otherwise would be designated as
would provide greater regulatory benefit. critical habitat will likely be regulated
protections to the species’ habitat. Designation of critical habitat for the or conserved. Some areas of potential
Significant portions of the lower Sonoma County distinct population critical habitat would be conserved
Santa Rosa Plain within or adjacent to segment of the California tiger through the direct regulation of Federal
the urban growth boundary are salamander would confer some limited actions and associated private activities
documented to be occupied by additional regulatory benefits beyond (e.g., a Clean Water Act permit
California tiger salamander. Other the status quo because the Service concerning a proposed development
portions are not surveyed and may or would apply the Gifford Pinchot that would fill wetlands). On the other
may not be occupied. Also, there are recovery standard to section 7 hand, large portions of critical habitat
large upland areas near breeding ponds consultations on proposed Federal on private lands will not be regulated
where California tiger salamander activities. This standard would ensure under section 7 or section 10 of the Act
aestivate underground. Any Federal that the Service looks beyond the where direct take is not likely to occur
activity adversely affecting California jeopardy standard when assessing a or is undeterminable, and no other
tiger salamander in these occupied areas project’s impact on a species’ critical Federal nexus exists. We are unable to
will require section 7 consultations with habitat. We determined in the economic calculate at this time the relative
amounts of land in these two respective and Federal agencies by providing for the Sonoma County distinct
categories. At best, a critical habitat information about habitat that contains population segment of the California
designation, in conjunction with section features considered essential to the tiger salamander and would bring
9 take prohibitions, is most likely to conservation of the Sonoma County funding for these efforts. We therefore
protect known occupied breeding sites distinct population segment of the find that the benefits of excluding the
or occupied upland areas. A critical California tiger salamander, and in four census tracts from this designation
habitat designation is least likely to facilitating conservation efforts through of critical habitat outweigh the benefits
protect unoccupied habitat and heightened public awareness of the of including them in the designation.
unsurveyed private lands with no plight of the listed species. Recovery
Federal nexus and, as we discuss below, plans would contain explicit objectives Relationship of Critical Habitat to
may serve to discourage California tiger for ongoing public education, outreach, Current and Proposed Conservation
salamander conservation on these areas. and collaboration at local, State, and Efforts—Application of Section 4(b)(2)
Another potential benefit is that the Federal levels, and between the private We have considered, but are
designation of critical habitat can serve and public sectors to guide recovery of excluding, lands within the refined
to educate the public regarding the the Sonoma County distinct population designation that fall within the
potential conservation value of an area segment of the California tiger boundaries of the draft Conservation
and thereby focus and contribute to salamander. Strategy. We believe the benefits of
conservation efforts by clearly
(3) Benefits of Exclusion Outweigh the excluding lands within this draft
delineating areas of high conservation
Benefits of Inclusion Conservation Strategy outweigh the
value for certain species. Such a benefit
We believe that the benefits from benefits of including them. The
could be substantial in geographic areas
excluding these four census tracts from following represents our rationale for
where the presence of the California
the designation of critical habitat— excluding these areas. Taken together
tiger salamander was a relatively new or
avoiding the potential economic and with the four census tracts excluded
unknown phenomenon, and there was a
human costs, both in dollars and jobs, above for economic reasons, the result is
need to educate the local community to
the species’ presence and conservation predicted in the economic analysis— that we are not designating any critical
needs. However, such a situation does exceed the educational and regulatory habitat for the Sonoma County distinct
not exist anywhere in the Santa Rosa benefits which could result from population segment of the California
Plain. Due in large part to the extensive including those lands in this tiger salamander at this time on the
media attention applied to the high- designation of critical habitat. basis of both economics and the
profile conflicts that accompanied the We have evaluated and considered proactive conservation benefits
listing of the species and the critical the potential economic costs on the conferred by the locally developed
habitat proposal, there is widespread residential development industry and conservation strategy.
knowledge of the species’ local status public sector transportation projects Since the listing of the Sonoma
and conservation needs. Therefore, it is relative to the potential benefit for the County distinct population segment of
unlikely that a final critical habitat Sonoma County distinct population the California tiger salamander, Federal,
designation would provide any segment of the California tiger State, and local officials have struggled
significant new or additional salamander and its primary constituent with how best to manage the unique
educational benefit beyond the status elements derived from the designation conservation challenge posed by this
quo. of critical habitat. We believe that species. The salamander occurs almost
In sum, a final critical habitat avoiding the potential economic impact exclusively on undeveloped, privately
designation would confer some of up to approximately $184 million on owned lands within an approved urban
additional, but limited, regulatory the development industry and public growth boundary (UGB) or within areas
benefits on portions of the critical sector projects significantly outweighs adjacent to the UGB. Prior to the listing,
habitat above and beyond those already the potential conservation and significant local planning efforts had
provided through the listing of the protective benefits for the species and been completed, and much of the
species. Most of these limited additional the primary constituent elements that remaining salamander habitat within or
benefits would be a consequence of would be derived from the designation adjacent to the UGB had been
section 7 consultation on critical habitat of these four census tracts as critical designated for various types of
to the Gifford Pinchot standard. habitat. development.
Additionally, we believe that the
(2) Benefits of Exclusion of the Four recovery planning process provides Pursuant to section 4(b)(2), we
Census Tracts equivalent educational value to the analyzed whether the benefits of
The economic analysis conducted for public, State and local governments, designating these lands as critical
the refined proposal estimates that the scientific organizations, and Federal habitat were outweighed by the benefits
costs associated with designating these agencies in providing information about of excluding these lands from a final
four census tracts would be habitat that contains those features designation. In the following section, we
approximately $184 million. By considered essential to the conservation evaluate a ‘‘without critical habitat’’
excluding these census tracts, some of of the Sonoma County distinct scenario and compare it to a ‘‘with
these costs will be avoided. population segment of the California critical habitat’’ scenario. The difference
Additionally, important public sector tiger salamander, and in facilitating between the two scenarios measured the
transportation projects will avoid the conservation efforts through heightened net negative or positive impacts
costs associated with critical habitat public awareness of the plight of the attributable to the designation of critical
designation. listed species. Recovery plans would habitat. We paid particular attention to
We believe that the required future contain explicit objectives for ongoing the following issues:
recovery planning process would public education, outreach, and • The degree to which a critical
provide at least equivalent educational collaboration at local, State, and Federal habitat designation would confer
value to the public, State and local levels, and between the private and regulatory conservation benefits on
governments, scientific organizations, public sectors to guide recovery efforts these species (e.g. high, medium, low);
• Whether the designation would most cases to encourage and carry out the California tiger salamander and
educate members of the public such that active management measures to prevent other listed species on the Santa Rosa
conservation efforts would be enhanced; extinctions and promote recovery (Bean Plain.
• Whether a critical habitat 2002). Consideration of this concern is This group developed the
designation would have a positive, especially important in areas where Conservation Strategy, a comprehensive
neutral, or negative impact on local recovery efforts require access and plan to provide for California tiger
support for salamander conservation, landowner permission for survey and salamander conservation while also
including the finalization and restoration efforts. Simply preventing identifying a predictable process
implementation of the Conservation ‘‘harmful activities’’ will not slow the whereby certain public and private
Strategy; extinction of listed species or promote development projects can proceed. The
• To what extent a critical habitat their recovery. Proactive, voluntary Conservation Strategy was published in
designation is likely to encourage or conservation efforts are necessary to draft form and provided to the public
discourage future cooperative efforts prevent the extinction and promote the for review and comment earlier in 2005.
with local landowners and officials; recovery of these species (Wilcove and The Conservation Strategy also received
and, Lee 2004, Shogren et al. 1999). It is extensive peer review from
• The degree to which the widely acknowledged that conservation knowledgeable scientists. For the sake
Conservation Strategy provides a better of the Sonoma County distinct of brevity, the Conservation Strategy
conservation alternative to critical population segment of the California document (August 3, 2005) is
habitat and the likelihood it will be tiger salamander will require proactive incorporated herein by reference, while
implemented. restoration efforts. the main objectives of the Conservation
If a critical habitat designation results Strategy are described below:
in a quantifiable reduction in the (1) Benefits of Inclusion of the Excluded
(1) Provide for the long-term survival
likelihood that existing or future Areas
and recovery of the California tiger
voluntary, cooperative conservation The benefits of inclusion of the salamander and listed plant species by
activities will be carried out on non- excluded areas as critical habitat were establishing and supporting a system of
federal lands, and at the same time fails described in the preceding section. preserves, mitigation banks, and
to confer a counter-balancing positive restoration areas.
regulatory or educational benefit to the (2) Benefits of Exclusion of the Excluded
Areas—Other Relevant Impacts (2) Ensure that projects impacting
conservation of the species, then the extant California tiger salamander
benefits of excluding such areas from The salamander occurs almost subpopulations are minimized and
critical habitat outweigh the benefits of exclusively on undeveloped, privately mitigated to the maximum extent
including them. owned lands within an approved urban possible.
The designation of critical habitat on growth boundary in Sonoma County. (3) Identify and maximize the
non-federal lands can have both Prior to the listing, significant local potential for restoration of degraded
negative and positive impacts on the planning efforts had been completed, habitat areas, and add these to the
conservation of listed species (Bean and much of the remaining salamander preserve system.
2002). There is a growing body of habitat within the growth boundary had (4) Fund monitoring efforts to make
documentation that some regulatory been designated for various types of sure that California tiger salamander
actions by the Federal government, development. Because of the conservation areas are adaptively
while well-intentioned and required by salamander’s occurrence on private managed to account for changing
law, can under certain circumstances lands mostly designated for conditions and new information.
have unintended negative consequences development, the primary challenge (5) Fund monitoring efforts to make
for the conservation of species on non- facing Federal, State, and local officials sure that the provisions of the
federal lands (Bean 2002; Brook et al. is how best to reconcile the goals and Conservation Strategy are properly
2003; James 2002; Koch 2002; Wilcove requirements of the Federal Endangered implemented and that its terms are
et al. 1996). Some landowners fear a Species Act with the economic and enforced.
decline in value of their properties social needs of the local communities in (6) Provide for a cost effective,
because of their belief that the Act may Sonoma County. predictable, and streamlined process for
restrict future land-use options where Approximately two years ago, a group private and public development projects
threatened or endangered species are of Federal, State, and local officials and under the Act, and;
found. Consequently, endangered stakeholders initiated an effort to (7) Ensure that the Conservation
species are perceived by many address this challenge. Local biologists Strategy for California tiger salamander
landowners as a financial liability, with the Service, the U.S. Army Corps is compatible with local urban planning
which sometimes results in anti- of Engineers, the U.S. Environmental efforts and, likewise, ensure that
conservation incentives to these Protection Agency, and the California changes to local planning efforts are
landowners (Brook et al. 2003, Main et Department of Fish and Game joined compatible with ongoing California tiger
al. 1999). with local representatives of the cities of salamander conservation.
According to some researchers, the Santa Rosa, Cotati, Rohnert Park, Final completion and implementation
designation of critical habitat on private Sonoma County, the North Coast of the Conservation Strategy will require
lands significantly reduces the Regional Water Quality Control Board, several more steps to comply with State
likelihood that many landowners will and the environmental and and local government approval
support and carry out conservation development communities. All parties processes. We have some concern that
actions (Bean 2002; Brook et al. 2003; recognized that a court-ordered Federal the strategy is not yet completed and
Main et al. 1999). The magnitude of this designation of critical habitat would under implementation, but these
negative outcome is greatly amplified in likely further polarize local concerns are alleviated by the passage of
conservation situations, such as on conservation efforts, and that a regional resolutions by the local jurisdictions
privately-owned lands, where it is scientific effort with broad local support (November 9, 2005) and subsequent
insufficient simply to prohibit harmful of private landowners had the highest approval of a planning agreement
activities. Instead, it is necessary in likelihood of achieving conservation of committing them to complete and
implement the strategy within the next impacts on the finalization and effectiveness of California tiger
18–24 months as these approval implementation of the Santa Rosa Plain salamander recovery. Under the best of
processes are completed. In addition, Conservation Strategy. Avoiding these circumstances, a critical habitat
these jurisdictions have agreed to negative impacts is a benefit of designation would only provide
implement interim conservation excluding these lands from the final piecemeal, project-by-project
measures until the Conservation critical habitat designation. conservation benefits to California tiger
Strategy is implemented to ensure that salamander by prohibiting adverse
(3) Benefits of Exclusion Outweigh the
current or initiated actions proceed modification of designated critical
Benefits of Inclusion for Proposed
consistent with the biological objectives habitat. It would not provide a proactive
Critical Habitat
of the Conservation Strategy. These or distinct population segment-wide
interim measures subject actions As discussed in the overview to this recovery benefit to the species
affecting California tiger salamander and section, we analyzed whether the achievable under larger-scale
its habitat to Service and CDFG review, benefits of designating these lands as conservation plans, which benefit from
and they provide mitigation for critical habitat were outweighed by the economies of scale through
unavoidable impacts to California tiger benefits of excluding these lands from a participation of multiple landowners
salamander. These measures are final designation. We evaluated a and project proponents in partnership
described in greater detail later in this ‘‘without critical habitat’’ scenario and with one or more local jurisdictions in
section. compared it to a ‘‘with critical habitat’’ a relatively large geographic area. Such
Implementation of the Conservation scenario. The difference between the larger-scale plans are more effective at
Strategy offers the best possible two scenarios measured the net negative protecting and managing strategically
opportunity to reconcile the goals of the or positive impacts attributable to the situated habitat areas of a size that can
Federal Endangered Species Act with designation of critical habitat. achieve long-term conservation for the
the economic and social planning goals In general, we believe the
species than a project-by-project
of the local communities. We are conservation achieved through
approach. The most important benefits
encouraged by the passage of the implementing habitat conservation
provided by the Conservation Strategy,
resolutions and the approval of the plans (HCPs), approved conservation
in comparison to a designation of
planning agreement by all of the agreements, or other applied habitat
critical habitat, can be summarized as
affected local jurisdictions and believe management strategies such as the
follows:
that final implementation of the Conservation Strategy is typically
greater than would be achieved through (1) The Conservation Strategy
Conservation Strategy is very likely. We reconciles local growth plans (e.g., an
are also encouraged by the tremendous multiple site-by-site, project-by-project,
section 7 consultations involving approved urban growth boundary) with
show of good faith by all of the agencies the conservation goals of the Federal
and local entities that have participated consideration of critical habitat.
Management plans commit resources to Endangered Species Act. A critical
in this process as part of the
implement long-term management and habitat designation has not been
Conservation Strategy team, and the
protection to particular habitat for at reconciled with local plans, and
generous commitment of their time and
least one and possibly other listed or according to multiple public comments
effort over the last two years. This large
sensitive species. Section 7 by knowledgeable officials is likely to
investment of personnel resources by
consultations only commit Federal not be supported by local landowners
these many entities reflects a serious
agencies to prevent adverse and government officials. Therefore, the
commitment and implies a high
modification to critical habitat caused Conservation Strategy has a higher
likelihood that the strategy will be
by the particular project, and they are likelihood of successfully providing for
finalized and implemented.
Further, it is likely that a designation not committed to provide conservation the conservation of California tiger
of critical habitat in the face of this or long-term benefits to areas not salamander because it has been
planning effort would have a chilling affected by the proposed, site-specific embraced by the local community
effect on the participation of at least project. Thus, any HCP or conservation through their elected officials.
some of these local entities and strategy which establishes long-term (2) A tremendous amount of local
stakeholders. Several comments enhancement or recovery as the planning resources and public
received from various jurisdictions management standard, and that ensures participation has already been expended
expected that a critical habitat implementation of compensatory in completing the most recent round of
designation would encourage mitigation where appropriate, will urban growth planning in Sonoma
participants to leave the cooperative always provide as much or more benefit County. A decision such as a Federal
process that has been established and than a consultation for critical habitat critical habitat designation could
may cause the breakdown of the designation conducted under the dramatically affect these boundaries and
Conservation Strategy. Likewise, it is standards required by the Ninth Circuit should, wherever possible and
probable that local landowners affected in the Gifford Pinchot decision. appropriate, be flexible to accommodate
by a final critical habitat designation Therefore, we assign relatively little locally developed and approved
process would revert to the more weight to the benefits of designating this planning processes. This flexibility
traditional ‘‘permit-by-permit’’ approval area as critical habitat when compared makes economic, social, and
process, which would make planning to the approach embodied by the conservation sense.
for long-term California tiger Conservation Strategy. This strategy (3) The Conservation Strategy has
salamander conservation much more provides the highest likelihood of created an atmosphere of partnership by
difficult on a landscape scale, as conserving habitat for California tiger bringing together a broad coalition of
described earlier. salamander and listed plants in Sonoma government officials, local developers,
In summary, we conclude that the County. The need to maintain and environmentalists, and landowners. A
designation of critical habitat for the expand recent gains in cooperative critical habitat designation will likely
Sonoma County distinct population conservation efforts in Sonoma County polarize many of these stakeholders and
segment of the California tiger for the California tiger salamander and decrease the likelihood that meaningful
salamander would have negative listed plants is crucial to the long-term cooperative conservation will be
achieved for the California tiger process, as discussed in the economic when such exclusion will result in the
salamander. analysis, provide assurance that the extinction of the species concerned.
(4) The Conservation Strategy species will not go extinct. In addition, Following the publication of the
provides a ‘‘proactive’’ conservation the species is protected from take under proposed critical habitat designation,
strategy that actively encourages section 9 of the Act. The exclusion we conducted an economic analysis to
California tiger salamander conservation leaves these protections unchanged estimate the potential economic effect of
for all types of California tiger from those that would exist if the the designation. The draft analysis was
salamander lands, including excluded areas were designated as made available for public review on
unoccupied or unsurveyed lands and critical habitat. October 25, 2005 (70 FR 61591), and we
agricultural lands. Critical habitat In fact, we believe the exclusion of accepted comments on the draft
provides ‘‘prohibitive’’ protections in these areas from a critical habitat economic analysis until November 14,
portions of the species’’ range, but it designation will actually improve both 2005. We reopened the comment period
does not encourage proactive activities. its short term and long term on November 17, 2005 to allow all
Therefore, the Conservation Strategy has conservation opportunities and will interested parties an opportunity to
a higher likelihood of achieving reduce its likelihood of extinction. comment simultaneously on the
conservation of California tiger Implementation of the ‘‘interim proposed rule and a refinement of the
salamander on private lands, and it has measures’’ and the Conservation original which we were considering (70
a higher likelihood of helping re- Strategy will provide an opportunity for FR 69717). We accepted comments until
establish California tiger salamander on maintaining and increasing salamanders November 28, 2005.
unoccupied lands. in certain portions of the Santa Rosa The primary purpose of the economic
(5) The Conservation Strategy has a Plain, while a critical habitat analysis is to estimate the potential
higher likelihood of achieving broader designation will likely not prevent the economic impacts associated with the
landscape-level conservation for the continued slow demise of the designation of critical habitat for the
California tiger salamander and listed population as unmanaged fragmentation Sonoma County distinct population
plants. The critical habitat designation, occurs due to piecemeal development. segment of the California tiger
in contrast, would likely result in
(5) Reconsideration of This Decision salamander. This information is
piecemeal conservation efforts that
Necessarily, in balancing the benefits intended to assist the Secretary in
would be influenced by the order in
of inclusion against the benefits of making decisions about whether the
which permit requests are submitted to
exclusion, we must make forecast about benefits of excluding particular areas
Federal and other agencies.
future occurrences. Our forecasts are from the designation outweigh the
(6) The Conservation Strategy will
based on the best information currently benefits of including those areas in the
identify funding mechanisms to provide
available. We recognize that our designation. This economic analysis
for California tiger salamander
information is imperfect, and therefore considers the economic efficiency
mitigation and conservation. Critical
our forecasts may be imperfect. To the effects that may result from the
habitat has no funding mechanisms for
extent that our analysis is not borne out, designation, including habitat
California tiger salamander mitigation
we will consider further rulemaking in protections that may be co-extensive
costs and proactive conservation
the future. For example, if the with the listing of the species. It also
activities.
(7) The Conservation Strategy Conservation Strategy is not finalized or addresses distribution of impacts,
provides ongoing educational benefits implemented in a reasonable amount of including an assessment of the potential
that surpass any of those that would be time, or the interim measures prove to effects on small entities, the energy
provided by a final critical habitat be less effective at conserving the industry, transportation projects, and
designation. California tiger salamander than Federal lands. This information can be
For the reasons described above, we expected, our current analysis will used by the Secretary to assess whether
have determined that the benefits of likely prove to have significantly the effects of the designation might
designating critical habitat for the understated the benefits of inclusion. unduly burden a particular group or
Sonoma County distinct population Therefore, if we subsequently economic sector.
segment of the California tiger determine, based on new information, This analysis focuses on the direct
salamander are relatively small, while that the benefits of including a and indirect costs of the rule. However,
the benefits of not designating proposed particular area are not outweighed by economic impacts to land use activities
critical habitat and proceeding with the the benefits of excluding it, we will can exist in the absence of critical
Conservation Strategy are more promptly publish a proposed rule to habitat. These impacts may result from,
significant. revise the critical habitat to add that for example, local zoning laws, State
area, and after public comment, add that and natural resource laws, and
(4) Exclusion Will Not Result in enforceable management plans and best
area to the designation, if appropriate.
Extinction of the Species management practices applied by other
We believe that exclusion of these Economic Analysis State and Federal agencies. Economic
lands will not result in the extinction of Section 4(b)(2) of the Act requires us impacts that result from these types of
the Sonoma County distinct population to designate critical habitat on the basis protections are not included in the
segment of the California tiger of the best scientific information analysis as they are considered to be
salamander. Many of these areas are available and to consider the economic part of the regulatory and policy
considered occupied habitat. Actions and other relevant impacts of baseline.
which might adversely affect the species designating a particular area as critical We received comments on the draft
are expected to have a Federal nexus, habitat. We may exclude areas from economic analysis of the proposed
and would thus undergo a section 7 critical habitat upon a determination designation. Following the close of the
consultation with the Service. The that the benefits of such exclusions comment period, we considered those
jeopardy standard of section 7, and outweigh the benefits of specifying such comments and prepared responses to
routine implementation of habitat areas as critical habitat. We cannot comments (see Responses to Comments
preservation through the section 7 exclude such areas from critical habitat section above).
The November 17, 2005, notice (70 FR publish a notice of rulemaking for any especially with critical habitat
69717) reopening the comment period proposed or final rule, it must prepare designations of limited extent, we may
provides a detailed economics section and make available for public comment aggregate across all industries and
that shows an economic impact on land a regulatory flexibility analysis that consider whether the total number of
development of $195,863,729. The describes the effect of the rule on small small entities affected is substantial. In
revised impact on transportation entities (i.e., small businesses, small estimating the number of small entities
projects is $426,000. The total revised organizations, and small government potentially affected, we also consider
cost of designation is thus $196,289,729, jurisdictions). However, no regulatory whether their activities have any
or $17,316,226 annualized over 20 flexibility analysis is required if the Federal involvement.
years. In the event that portions of head of an agency certifies the rule will Designation of critical habitat only
critical habitat with the urban growth not have a significant economic impact affects activities conducted, funded, or
boundaries are excluded, the cost drops on a substantial number of small permitted by Federal agencies. Some
to $128,008,620. entities. The SBREFA amended the RFA kinds of activities are unlikely to have
We are not designating any critical to require Federal agencies to provide a any Federal involvement and so will not
habitat for the Sonoma County distinct statement of factual basis for certifying be affected by critical habitat
population segment of the California that the rule will not have a significant designation. In areas where the species
tiger salamander. We are excluding all economic impact on a substantial is present, Federal agencies already are
areas under 4(b)(2) (see Exclusions number of small entities. The SBREFA required to consult with us under
section) so there are no costs associated also amended the RFA to require a section 7 of the Act on activities they
with this rulemaking process. certification statement. fund, permit, or implement that may
A copy of the economic analysis with Small entities include small affect the California tiger salamander.
supporting documents are included in organizations, such as independent Federal agencies also must consult with
our administrative record and may be nonprofit organizations; small us if their activities may affect critical
obtained by contacting U.S. Fish and governmental jurisdictions, including habitat. Designation of critical habitat,
Wildlife Service, Branch of Endangered school boards and city and town therefore, could result in an additional
Species (see ADDRESSES section) or for governments that serve fewer than economic impact on small entities due
downloading from the Internet at 50,000 residents; as well as small to the requirement to reinitiate
http://www.fws.gov/sacramento. businesses. Small businesses include consultation for ongoing Federal
manufacturing and mining concerns activities.
Required Determinations with fewer than 500 employees, Had we designated critical habitat, it
Regulatory Planning and Review wholesale trade entities with fewer than would not have been expected to result
100 employees, retail and service in significant small business impacts
In accordance with Executive Order businesses with less than $5 million in since revenue losses would have been
12866, this document is a significant annual sales, general and heavy less than one percent of total small
rule in that it may raise novel legal and construction businesses with less than business revenues in affected areas.
policy issues, but will not have an $27.5 million in annual business, Large businesses greatly dominate
annual effect on the economy of $100 special trade contractors doing less than greenfield development, and it was
million or more or affect the economy $11.5 million in annual business, and estimated that no more than a single
in a material way. Due to the tight agricultural businesses with annual small business would be affected
timeline for publication in the Federal sales less than $750,000. To determine annually as a consequence of
Register, the Office of Management and if potential economic impacts to these designation.
Budget (OMB) has not formally small entities are significant, we In general, two different mechanisms
reviewed this rule. As explained above, consider the types of activities that in section 7 consultations could lead to
we prepared an economic analysis of might trigger regulatory impacts under additional regulatory requirements for
this action. We used this analysis to this rule, as well as the types of project the single small business, on average,
meet the requirement of section 4(b)(2) modifications that may result. In that may be required to consult with us
of the Act to determine the economic general, the term ‘‘significant economic each year regarding their project’s
consequences of designating specific impact’’ is meant to apply to a typical impact on California tiger salamander
areas as critical habitat. We also used it small business firm’s business and its habitat. First, if we conclude, in
to help determine whether to exclude operations. a biological opinion, that a proposed
any area from critical habitat, as To determine if the rule could action is likely to jeopardize the
provided for under section 4(b)(2), if we significantly affect a substantial number continued existence of a species or
determine that the benefits of such of small entities, we consider the adversely modify its critical habitat, we
exclusion outweigh the benefits of number of small entities affected within can offer ‘‘reasonable and prudent
specifying such area as part of the particular types of economic activities alternatives.’’ Reasonable and prudent
critical habitat, unless we determine, (e.g., housing development, grazing, oil alternatives are alternative actions that
based on the best scientific and and gas production, timber harvesting). can be implemented in a manner
commercial data available, that the We apply the ‘‘substantial number’’ test consistent with the scope of the Federal
failure to designate such area as critical individually to each industry to agency’s legal authority and
habitat will result in the extinction of determine if certification is appropriate. jurisdiction, that are economically and
the species. However, the SBREFA does not technologically feasible, and that would
explicitly define ‘‘substantial number’’ avoid jeopardizing the continued
Regulatory Flexibility Act (5 U.S.C. 601 or ‘‘significant economic impact.’’ existence of listed species or result in
et seq.) Consequently, to assess whether a adverse modification of critical habitat.
Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is A Federal agency and an applicant may
(RFA) (as amended by the Small affected by this designation, this elect to implement a reasonable and
Business Regulatory Enforcement analysis considers the relative number prudent alternative associated with a
Fairness Act (SBREFA) of 1996), of small entities likely to be impacted in biological opinion that has found
whenever an agency is required to an area. In some circumstances, jeopardy or adverse modification of
critical habitat. An agency or applicant (5) Activities funded by the EPA, U.S. ‘‘Federal private sector mandates.’’
could alternatively choose to seek an Department of Energy, or any other These terms are defined in 2 U.S.C.
exemption from the requirements of the Federal agency. 658(5)–(7). ‘‘Federal intergovernmental
Act or proceed without implementing It is likely that a developer or other mandate’’ includes a regulation that
the reasonable and prudent alternative. project proponent could modify a ‘‘would impose an enforceable duty
However, unless an exemption were project or take measures to protect upon State, local, or tribal governments’’
obtained, the Federal agency or California tiger salamander. The kinds with two exceptions. It excludes ‘‘a
applicant would be at risk of violating of actions that may be included if future condition of federal assistance.’’ It also
section 7(a)(2) of the Act if it chose to reasonable and prudent alternatives excludes ‘‘a duty arising from
proceed without implementing the become necessary include conservation participation in a voluntary Federal
reasonable and prudent alternatives. set-asides, management of competing program,’’ unless the regulation ‘‘relates
Second, if we find that a proposed nonnative species, restoration of to a then-existing Federal program
action is not likely to jeopardize the degraded habitat, and regular under which $500,000,000 or more is
continued existence of a listed animal or monitoring. These are based on our provided annually to State, local, and
plant species, we may identify understanding of the needs of the tribal governments under entitlement
reasonable and prudent measures species and the threats it faces, as authority,’’ if the provision would
designed to minimize the amount or described in the final listing rule and ‘‘increase the stringency of conditions of
extent of take and require the Federal proposed critical habitat designation. assistance’’ or ‘‘place caps upon, or
agency or applicant to implement such These measures are not likely to result otherwise decrease, the Federal
measures through non-discretionary in a significant economic impact to Government’s responsibility to provide
terms and conditions. We may also project proponents. funding’’ and the State, local, or Tribal
identify discretionary conservation In summary, we have considered governments ‘‘lack authority’’ to adjust
recommendations designed to minimize whether this action would result in a accordingly. (At the time of enactment,
or avoid the adverse effects of a significant economic effect on a these entitlement programs were:
proposed action on listed species or substantial number of small entities. We Medicaid; AFDC work programs; Child
have determined that it would not affect Nutrition; Food Stamps; Social Services
critical habitat, help implement
a substantial number of small entities Block Grants; Vocational Rehabilitation
recovery plans, or to develop
because we are excluding areas which State Grants; Foster Care, Adoption
information that could contribute to the
otherwise would be designated. A Assistance, and Independent Living;
recovery of the species.
regulatory flexibility analysis is not Family Support Welfare Services; and
Based on our experience with required. Child Support Enforcement.) ‘‘Federal
consultations pursuant to section 7 of private sector mandate’’ includes a
the Act for all listed species, virtually Small Business Regulatory Enforcement regulation that ‘‘would impose an
all projects—including those that, in Fairness Act (5 U.S.C 801 et seq.) enforceable duty upon the private
their initial proposed form, would result Under SBREFA, this action is not a sector, except (i) a condition of Federal
in jeopardy or adverse modification major rule. We are excluding all areas assistance; or (ii) a duty arising from
determinations in section 7 from critical habitat, so there are no participation in a voluntary Federal
consultations—can be implemented economic impacts attributable to a program.’’
successfully with, at most, the adoption critical habitat designation. The designation of critical habitat
of reasonable and prudent alternatives. does not impose a legally binding duty
These measures, by definition, must be Executive Order 13211 on non-Federal government entities or
economically feasible and within the On May 18, 2001, the President issued private parties. Under the Act, the only
scope of authority of the Federal agency Executive Order (E.O.) 13211 on regulatory effect is that Federal agencies
involved in the consultation. We can regulations that significantly affect must ensure that their actions do not
only describe the general kinds of energy supply, distribution, and use. destroy or adversely modify critical
actions that may be identified in future E.O. 13211 requires agencies to prepare habitat under section 7. While non-
reasonable and prudent alternatives. Statements of Energy Effects when Federal entities who receive Federal
These are based on our understanding of undertaking certain actions. This final funding, assistance, permits or
the needs of the species and the threats rule does not designate critical habitat otherwise require approval or
it faces, as described in the final listing for the California tiger salamander and authorization from a Federal agency for
rule and this notice of rulemaking. The is not expected to significantly affect an action may be indirectly impacted by
types of Federal actions or authorized energy supplies, distribution, or use. the designation of critical habitat, the
activities that we have identified as Therefore, this action is not a significant legally binding duty to avoid
potential concerns are: energy action, and no Statement of destruction or adverse modification of
(1) Regulation of activities affecting Energy Effects is required. critical habitat rests squarely on the
waters of the United States by the Corps Federal agency. Furthermore, to the
Unfunded Mandates Reform Act (2 extent that non-Federal entities are
of Engineers under section 404 of the U.S.C. 1501 et seq.)
Clean Water Act; indirectly impacted because they
In accordance with the Unfunded receive Federal assistance or participate
(2) Regulation of water flows,
Mandates Reform Act (2 U.S.C. 1501 et in a voluntary Federal aid program, the
damming, diversion, and channelization
seq.), we make the following findings: Unfunded Mandates Reform Act would
implemented or licensed by Federal (a) This action will not produce a not apply; nor would critical habitat
agencies; Federal mandate. In general, a Federal shift the costs of the large entitlement
(3) Road construction and mandate is a provision in legislation, programs listed above on to State
maintenance, right-of-way designation, statute, or regulation that would impose governments.
and regulation of agricultural activities; an enforceable duty upon State, local, (b) We do not believe that this action
(4) Hazard mitigation and post- Tribal governments, or the private sector will significantly or uniquely affect
disaster repairs funded by the FEMA; and includes both ‘‘Federal small governments because it will not
and intergovernmental mandates’’ and produce a Federal mandate of $100
million or greater in any year, that is, it Endangered Species Act of 1973, as Code of Federal Regulations, as set forth
is not a ‘‘significant regulatory action’’ amended. We published a notice below:
under the Unfunded Mandates Reform outlining our reasons for this
Act. The designation of critical habitat determination in the Federal Register PART 17—[AMENDED]
imposes no obligations on State or local on October 25, 1983 (48 FR 49244). This
governments. As such, a Small assertion was upheld in the courts of the ■ 1. The authority citation for part 17
Government Agency Plan is not Ninth Circuit (Douglas County v. continues to read as follows:
required. Babbitt, 48 F.3d 1495 (9th Cir. Ore. Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1995), cert. denied 116 S. Ct. 698 (1996). 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
Federalism 625, 100 Stat. 3500; unless otherwise
In accordance with Executive Order Government-to-Government
13132, the action does not have Relationship With Tribes ■ 2. In § 17.95, amend paragraph (d) by
significant Federalism effects. The rule In accordance with the President’s adding an entry for California tiger
does not designate any critical habitat, memorandum of April 29, 1994, salamander (Ambystoma californiense)
and a Federalism assessment is not ‘‘Government-to-Government Relations in Sonoma County following the entries
required. with Native American Tribal for ‘‘California tiger salamander in Santa
Governments’’ (59 FR 22951), Executive Barbara County’’ and ‘‘Central
Civil Justice Reform
Order 13175, and the Department of Population of California tiger
In accordance with Executive Order Interior’s Manual at 512 DM 2, we salamander’’ read as follows:
12988, the Office of the Solicitor has readily acknowledge our responsibility
determined that the action does not to communicate meaningfully with § 17.95 Critical habitat—fish and wildlife.
unduly burden the judicial system and recognized Federal Tribes on a * * * * *
meets the requirements of sections 3(a) government-to-government basis. We (d) Amphibians.
and 3(b)(2) of the Order. We are not are not designating any critical habitat
designating any critical habitat with this * * * * *
in this rule, and no Tribal lands are
action. involved. California Tiger Salamander
Paperwork Reduction Act of 1995 (44 (Ambystoma californiense)
References Cited
U.S.C. 3501 et seq.) * * * * *
A complete list of all references cited
This rule does not contain any new in this rulemaking is available upon California Tiger Salamander in Sonoma
collections of information that require request from the Field Supervisor, County
approval by OMB under the Paperwork Sacramento Fish and Wildlife Office
Reduction Act. This rule will not (see ADDRESSES section). Pursuant to section 4(b)(2) of the Act,
impose recordkeeping or reporting we have excluded all areas determined
requirements on State or local Author(s) to meet the definition of critical habitat
governments, individuals, businesses, or The primary author of this package is under section 4(b)(2) of the Act for
organizations. An agency may not the staff of the Sacramento Fish and California tiger salamander in Sonoma
conduct or sponsor, and a person is not Wildlife Office. County. Therefore, no specific areas are
required to respond to, a collection of designated as critical habitat for this
List of Subjects in 50 CFR Part 17
information unless it displays a species.
currently valid OMB control number. Endangered and threatened species, * * * * *
Exports, Imports, Reporting and
National Environmental Policy Act recordkeeping requirements, Dated: December 1, 2005.
It is our position that, outside the Transportation. Craig Manson,
Tenth Circuit, we do not need to Assistant Secretary for Fish and Wildlife and
Regulation Promulgation Parks.
prepare environmental analyses as
defined by the NEPA in connection with ■ Accordingly, we amend Part 17, [FR Doc. 05–23701 Filed 12–13–05; 8:45 am]
designating critical habitat under the subchapter B of chapter I, title 50 of the BILLING CODE 4310–55–P

Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 California Tiger Salamander

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Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 California Tiger Salamander

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Wednesday,

December 14, 2005

Unit 1 ........................................................................................................................................................................... 17,418 7,049

1a ................................................................................................. 1,313 531 1,313 531 0 0

Total ...................................................................................... 17,418 7,049 17,418 7,049 0 0

1a ..................................................................... ............ ............ 8 3 ............ ............ 1,305 528 1,313 531

BILLING CODE 4310–55–C

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