[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Proposed Rules]
[Pages 12155-12181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5414]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF98


Endangered and Threatened Wildlife and Plants; Proposed 
Determination of Critical Habitat for the Alameda Whipsnake 
(Masticophis lateralis euryxanthus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat pursuant to the Endangered Species Act of 
1973, as amended (Act), for the Alameda whipsnake (Masticophis 
lateralis euryxanthus). A total of approximately 164,663 hectares 
(406,708 acres) of land fall within the boundaries of the proposed 
critical habitat designation. Proposed critical habitat is located in 
Contra Costa, Alameda, San Joaquin, and Santa Clara counties, 
California. If this proposal is made final, section 7 of the Act, which 
prohibits destruction or adverse modification of critical habitat by 
any activity funded, authorized, or carried out by any Federal agency, 
would apply to the designated critical habitat for the Alameda 
whipsnake. Section 4 of the Act requires us to consider economic and 
other impacts of specifying any particular area as critical habitat.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation and our approaches for handling habitat conservation plans 
(HCPs). We may revise this proposal to incorporate or address new 
information received during the comment period.

DATES: Comments from all interested parties must be received by May 8, 
2000. Public hearing requests must be received by April 24, 2000.

[[Page 12156]]


ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods.
    1. You may submit written comments and information to the Field 
Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825; 
or
    2. You may hand-deliver written comments to our Sacramento Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, 
Suite W-2605, Sacramento, California 95825; or
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. Please submit comments in ASCII file 
format and avoid the use of special characters and encryption. Please 
include ``Attn: RIN 1018-AF98'' and your name and return address in 
your e-mail message. If you do not receive a confirmation from the 
system that we have received your e-mail message, contact us directly 
by calling our Sacramento Fish and Wildlife Office at telephone 916/
414-6600.

FOR FURTHER INFORMATION CONTACT: Jason Davis or Heather Bell, at the 
above address (telephone 916/414-6600).

SUPPLEMENTARY INFORMATION:

Background

    The Alameda whipsnake is a member of the genus Masticophis. The 
Alameda whipsnake is a slender, fast-moving, diurnal snake with a broad 
head, large eyes, and slender neck. Alameda whipsnakes range from 91 to 
122 centimeters (3 to 4 feet) in length. The dorsal surface is sooty 
black in color with a distinct yellow-orange stripe down each side. The 
anterior portion of the ventral surface is orange-rufous colored, the 
midsection is cream colored, and the posterior and tail are pinkish. 
The adult Alameda whipsnake virtually lacks black spotting on the 
ventral surface of the head and neck. Juveniles may show very sparse or 
weak black spots. Another common name for the Alameda whipsnake is the 
``Alameda striped racer'' (Riemer 1954, Jennings 1983, Stebbins 1985).
    The Alameda whipsnake is one of two subspecies of the California 
whipsnake (Masticophis lateralis). The chaparral whipsnake (Masticophis 
lateralis lateralis) is distributed from northern California, west of 
the Sierran crest and desert, to central Baja California. The Alameda 
whipsnake is restricted to a small portion of this range, primarily the 
inner Coast Range in western and central Contra Costa and Alameda 
Counties.
    The distribution in California, of both subspecies, coincides 
closely with chaparral (Jennings 1983, Stebbins 1985). Recent telemetry 
data indicate that, although home ranges of Alameda whipsnakes are 
centered on shrub communities, whipsnakes frequently venture into 
adjacent habitats, including grassland, oak savanna, and occasionally 
oak-bay woodland. Most telemetry locations are within 50 meters (m) 
(170 feet (ft)) of scrub habitat, but distances of greater than 150 m 
(500 ft) occur (Swaim 1994). Initial data indicate that adjacent 
habitats may play a crucial role in certain life history and 
physiological needs of the Alameda whipsnake, but the full extent has 
yet to be determined. Telemetry data indicate that whipsnakes remain in 
grasslands for periods ranging from a few hours to several weeks at a 
time. Grassland habitats are used by male whipsnakes most extensively 
during the mating season in spring. Female whipsnakes use grassland 
areas most extensively after mating, possibly in their search for 
suitable egg-laying sites (Swaim 1994).
    Rock outcrops are an important feature of Alameda whipsnake habitat 
because they provide retreat opportunities for whipsnakes and promote 
lizard populations. Lizards, especially the western fence lizard 
(Sceloporus occidentalis), appear to be the most important prey item of 
whipsnakes (Stebbins 1985; Swaim 1994; Harry Green, Museum of 
Vertebrate Zoology, U.C. Berkeley, pers. comm. 1998), although other 
prey items are taken, including skinks, frogs, snakes, and birds 
(Stebbins 1985, Swaim 1994). Most radio telemetry locations for 
whipsnakes were within the distribution of major rock outcroppings and 
talus (Swaim 1994).
    Alameda whipsnakes have been found in association with a variety of 
shrub communities including diablan sage scrub, coyote bush scrub, and 
chamise chaparral (Swaim 1994), also classified as coastal scrub, mixed 
chaparral, and chamise-redshank chaparral (Mayer and Laudenslayer 
1988). However, the type of vegetation may have less to do with 
preference by the whipsnake than the extent of the canopy, slope 
exposure, the availability of retreats such as rock outcrops and rodent 
burrows, and prey species composition and abundance (Swaim 1994; K. 
Swaim, Swaim Biological Consulting, pers. comm. 1999). Alameda 
whipsnakes have been sighted or found dead a significant distance from 
the nearest shrub community (K. Swaim, pers. comm. 1999). The reasons 
for such movements are unknown.
    Initial studies indicated that Alameda whipsnakes occurred where 
the canopy was open (less than 75 percent of the total area within the 
scrub or chaparral community was covered by shrub crown) or partially 
open (between 75 and 90 percent of the total area was covered with 
shrub crown), and only seldom did whipsnakes occur in closed canopy 
(greater than 90 percent of the area was covered by shrub crown). 
However, trapping efforts may have been biased due to the difficulty of 
setting traps in dense scrub (Swaim 1994; K. Swaim, pers. comm. 1999).
    Core areas (areas of concentrated use) of the Alameda whipsnake 
most commonly occur on east, south, southeast, and southwest facing 
slopes (Swaim 1994). However, recent information indicates that 
whipsnakes do make use of north facing slopes in more open stands of 
scrub habitat (K. Swaim, pers. comm. 1999).
    Adult snakes appear to have a bimodal seasonal activity pattern 
with peaks during the spring mating season and a smaller peak during 
late summer and early fall. Although short above-ground movements may 
occur during the winter, Alameda whipsnakes generally retreat in 
November into a hibernaculum (shelter used during the snake's dormancy 
period) and emerge in March. Courtship and mating occur from late-March 
through mid-June. During this time, males move around throughout their 
home ranges, while females appear to remain at or near their 
hibernaculum, where mating occurs. Suspected egg-laying sites for two 
females were located in grassland with scattered shrub habitat. Male 
home ranges of 1.9 to 8.7 hectares (ha) (4.7 to 21.5 acres (ac)) (mean 
of 5.5 ha or 13.6 ac) were recorded, and showed a high degree of 
spatial overlap. Several individual snakes monitored for nearly an 
entire activity season appeared to maintain a stable home range. 
Movements of these individuals were multi-directional, and individual 
snakes returned to specific areas and retreat sites after long 
intervals of non-use. Snakes had one or more core areas within their 
home range, while large areas of the home range received little use 
(Swaim 1994).

Previous Federal Action

    The September 18, 1985, Notice of Review (50 FR 37958) included the 
Alameda whipsnake as a category 2 candidate species for possible future 
listing as endangered or threatened. Category 2 candidates were those 
taxa for which listing as threatened or endangered might be warranted, 
but for which adequate data on biological

[[Page 12157]]

vulnerability and threats were not available to support issuance of 
listing proposals. The January 6, 1989, Notice of Review (54 FR 554) 
solicited information on its status as a category 2 candidate species. 
The Alameda whipsnake was moved to category 1 in the November 21, 1991, 
Notice of Review (56 FR 58804) on the basis of significant increases in 
habitat loss and threats occurring throughout its range. Category 1 
candidates were defined as taxa for which we had on file substantial 
information on biological vulnerability and threats to support 
preparation of listing proposals. On February 4, 1994, we published a 
proposed rule in the Federal Register (59 FR 5377) to list the Alameda 
whipsnake as an endangered species. On December 5, 1997, we published a 
final rule listing the Alameda whipsnake as threatened (62 FR 64306).
    On March 4, 1999, the Southwest Center for Biological Diversity, 
the Center for Biological Diversity, and Christians Caring for Creation 
filed a lawsuit in the Northern District of California against the U.S. 
Fish and Wildlife Service and Bruce Babbitt, Secretary of the 
Department of the Interior (Secretary), for failure to designate 
critical habitat for seven species: the Alameda whipsnake (Masticophis 
lateralis euryxanthus), the Zayante band-winged grasshopper 
(Trimerotropis infantilis), the Morro shoulderband snail 
(Helminthoglypta walkeriana), the Arroyo southwestern toad (Bufo 
microscaphus californicus), the San Bernardino kangaroo rat (Dipodomys 
merriami parvus), the spectacled eider (Somateria fischeri), and the 
Steller's eider (Polysticta stelleri) (Southwest Center for Biological 
Diversity v. U.S. Fish and Wildlife, CIV 99-1003 MMC).
    On November 5, 1999, William Alsup, U.S. District Judge, dismissed 
the plaintiffs' lawsuit pursuant to a settlement agreement entered into 
by the parties. Publication of this proposed rule is consistent with 
that settlement agreement.
    Absent the settlement agreement, the processing of this proposed 
rule does not conform with our current Listing Priority Guidance for 
fiscal year 2000 published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. We are processing this proposed rule 
in compliance with the above-mentioned settlement agreement.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management consideration 
or protection and; (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
exclusion outweigh the benefits of including the areas within critical 
habitat, provided the exclusion will not result in extinction of the 
species (section 4(b)(2) of the Act).
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for conservation of 
that species. Designation of critical habitat alerts the public as well 
as land-managing agencies to the importance of these areas.
    Critical habitat also identifies areas that may require special 
management considerations or protection, and may provide protection to 
areas where significant threats to the species have been identified. 
Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 7 also requires conferences on Federal actions that are 
likely to result in the adverse modification or destruction of proposed 
critical habitat. Aside from the protection that may be provided under 
section 7, the Act does not provide other forms of protection to lands 
designated as critical habitat.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with us to ensure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat. ``Jeopardize the continued 
existence'' (of a species) is defined as an appreciable reduction in 
the likelihood of survival and recovery of a listed species.
    ``Destruction or adverse modification'' (of critical habitat) is 
defined as a direct or indirect alteration that appreciably diminishes 
the value of critical habitat for the survival and recovery of the 
listed species for which critical habitat was designated. Thus, the 
definitions of ``jeopardy'' to the species and ``adverse modification'' 
of critical habitat are nearly identical (50 CFR 402.02). When multiple 
units of critical habitat are designated, each unit may serve as the 
basis of a jeopardy analysis if protection of different facets of the 
species' life cycle or its distribution are essential to the species as 
a whole for both its survival and recovery.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create or mandate a 
management plan, establish numerical population goals, prescribe 
specific management actions (inside or outside of critical habitat), or 
directly affect areas not designated as critical habitat. Specific 
management recommendations for critical habitat are most appropriately 
addressed in recovery plans and management plans, and through section 7 
consultation.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species and that may require special 
management considerations or protection. Areas that do not currently 
contain the habitat components necessary for the primary biological 
needs of a species but are likely to develop them in the future may be 
essential to the conservation of the species and may be designated as 
critical habitat.
    We did not propose to designate critical habitat for the Alameda 
whipsnake within the proposed or final listing rulemaking because, at 
the time of listing, we knew of no Federal lands within the five 
whipsnake populations. We also believed that the possibility of Federal 
agency involvement on private and public, non-Federal lands was

[[Page 12158]]

remote. Based on information available at the time of listing, we 
believed that only 20 percent of known whipsnake habitat occurred on 
private lands, and anticipated that urban development on private lands 
would occur only along the periphery of whipsnake populations. In 
addition, we believed that the need for active fire management programs 
at this urban-wildland interface would preclude those private lands 
from being considered habitat essential to the conservation of the 
species. We found that critical habitat designation was not prudent due 
to lack of any significant benefit beyond that conferred by listing.
    Since the Alameda whipsnake was listed, we have found that there 
are a greater number of Federal actions that could trigger the need for 
an interagency consultation than was believed at the time the Alameda 
whipsnake was listed. We are now aware of federally owned lands that 
occur within the range of the Alameda whipsnake, including several 
Bureau of Land Management parcels in the Mount Diablo-Black Hills 
population area. In addition, an Alameda whipsnake was recently 
captured on land owned by the U.S. Department of Energy at their Site 
300 facility, a Federal site previously unknown to be inhabited by 
Alameda whipsnakes. We are also aware of a number of activities with a 
Federal nexus on private lands within whipsnake populations, including 
activities associated with the issuance of Clean Water Act section 404 
permits and Federal Emergency Management Agency fire protection 
projects.
    We now believe that private lands play a more important role in 
whipsnake conservation than was originally believed. An increasing 
amount of private land has been found to be occupied by the Alameda 
whipsnake, comprising more than 20 percent of land within the five 
whipsnake populations. Large amounts of occupied, high-value Alameda 
whipsnake habitat occur on private lands that are evenly distributed 
throughout all five whipsnake population areas. We now believe that 
areas that are essential to the conservation of the species include 
private lands.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features that are essential to conservation of 
the species and that may require special management considerations or 
protection. Such requirements include, but are not limited to--space 
for individual and population growth, and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing of offspring, germination, or seed dispersal; and habitats that 
are protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    The areas we are proposing to designate as critical habitat provide 
some or all of those habitat components essential for the primary 
biological needs of the Alameda whipsnake, also called primary 
constituent elements.
    The primary constituent elements for the Alameda whipsnake are 
those habitat components that are essential for the primary biological 
needs of foraging, sheltering, breeding, maturation, and dispersal. The 
primary constituent elements are found, or could develop, in areas that 
support or have the potential to support scrub communities, including 
mixed chaparral, chamise-redshank chaparral, coastal scrub, and annual 
grassland and oak woodlands that lie adjacent to scrub habitats. In 
addition, the primary constituent elements for the Alameda whipsnake 
may be found in grasslands and various oak woodlands that are linked to 
scrub habitats by substantial rock outcrops or riparian corridors. 
Other habitat features that provide a source of cover for the whipsnake 
during dispersal or are near scrub habitats and contain habitat 
features (e.g., rock outcrops) that support adequate prey populations 
may also contain primary constituent elements for the Alameda 
whipsnake. Within these communities, Alameda whipsnakes require plant 
canopy covers that supply a suitable range of temperatures for the 
species' normal behavioral and physiological requirements (including 
but not limited to foraging, breeding, and maturation). Openings in the 
plant canopy or scrub/grassland edge provide sunning and foraging 
areas. Corridors of plant cover and retreats (including rock outcrops) 
sufficient to provide for dispersal between areas of habitat, and plant 
community patches of sufficient size to prevent the deleterious effects 
of isolation (such as inbreeding or the loss of a subpopulation due to 
a catastrophic event) are also essential. Within these plant 
communities, specific habitat features needed by whipsnakes include, 
but are not limited to, small mammal burrows, rock outcrops, talus, and 
other forms of cover to provide temperature regulation, shelter from 
predators, egg laying sites, and winter hibernaculum. Many of these 
same elements are important in maintaining prey species. Adequate 
insect populations are necessary to sustain prey populations.

Criteria Used To Identify Critical Habitat

    We considered several qualitative criteria in the selection and 
proposal of specific areas or units for Alameda whipsnake critical 
habitat. Such criteria focused on designating units (1) throughout the 
geographic and elevation range of the species; (2) within various 
occupied plant communities, such as diablan sage scrub, coyote bush 
scrub, and chamise chaparral; (3) in areas of large, contiguous blocks 
of occupied habitat; and (4) in areas that link contiguous blocks of 
occupied habitat (i.e., linkage areas).

Methods

    In developing critical habitat for the Alameda whipsnake, we used 
data on known Alameda whipsnake locations to initially identify 
important areas. Through the use of 1998 and 1999 1:12,000 aerial 
photos and 1994 digital orthophotos, we examined the extent of suitable 
habitat that was in the vicinity of known whipsnake locations. Critical 
habitat includes both suitable habitat and areas that link suitable 
habitat, as these links facilitate movement of individuals between 
habitat areas and are important for dispersal and gene flow (Beier and 
Noss 1998). We have determined seven separate units of critical 
habitat, five of which represent primary breeding, feeding, and 
sheltering areas, while the other two represent corridors (See attached 
figures). The range of these critical habitat units extends in the 
south from Wauhab Ridge, Del Valle area to Cedar Mountain Ridge, in 
Santa Clara County; north to the northernmost extent of suitable 
habitat in Contra Costa County; west to the westernmost extent of the 
inner Coastal Range; and in the east, to the easternmost extent of 
suitable habitat. We could not depend solely on federally owned lands 
for critical habitat designation as they are limited in geographic 
location, size, and habitat quality. In addition to federally owned 
lands, we propose to designate critical habitat on non-Federal public 
lands and privately owned lands, including California Department of 
Parks and Recreation lands, regional and local park lands, and water 
district lands.

[[Page 12159]]

    Areas proposed for designation as critical habitat meet the 
definition of critical habitat under section 3 of the Act in that they 
are within the geographical areas occupied by the species, are 
essential to conservation of the species, and are in need of special 
management considerations or protection.
    In selecting areas of proposed critical habitat, we attempted to 
avoid developed areas such as towns, intensive agricultural areas such 
as vineyards, and other lands unlikely to contribute to Alameda 
whipsnake conservation. Given the short period of time in which we were 
required to complete this proposed rule, we were unable to map critical 
habitat in sufficient detail to exclude all such areas. However, within 
the delineated proposed critical habitat boundaries, only lands 
containing or lands likely to develop those habitat components 
essential for the primary biological needs of the Alameda whipsnake are 
considered critical habitat. Existing features and structures within 
the critical habitat boundary, such as buildings, roads, canals, 
railroads, large water bodies, and other features not currently 
containing or likely to develop these habitat components, are not 
considered critical habitat. Two areas, the north and south corridor 
(unit 6 connecting units 1 and 2; and unit 7 connecting units 3 and 5), 
contain some urban development. These two corridors are extremely 
narrow, and, therefore, maintaining as much area within these corridors 
as possible to ensure the long-term connectivity between whipsnake 
populations is important. As stated above, urban structures that occur 
within these two units are not considered critical habitat for the 
Alameda whipsnake. These two units may not provide sufficient habitat 
necessary to allow for breeding, and offer limited opportunities of 
foraging and sheltering. However, these areas should be considered 
critical habitat as they provide for the vital function of dispersal.
    We considered the existing status of lands in designating areas as 
critical habitat. Section 10(a) of the Act authorizes us to issue 
permits for the taking of listed species incidental to otherwise lawful 
activities. Incidental take permit applications must be supported by a 
habitat conservation plan (HCP) that identifies conservation measures 
that the permittee agrees to implement for the species to minimize and 
mitigate the impacts of the requested incidental take. Currently, no 
approved HCPs cover the Alameda whipsnake or its habitat. However, we 
expect critical habitat may be used as a tool to help identify areas 
within the range of the Alameda whipsnake that are most critical for 
the conservation of the species. We will encourage development of HCPs 
for such areas on non-Federal lands because we consider HCPs to be one 
of the most important methods through which non-Federal landowners can 
resolve endangered species conflicts. We provide technical assistance 
and work closely with applicants throughout development of HCPs to help 
identify special management considerations for the Alameda whipsnake. 
We intend for HCPs to provide a package of protection and management 
measures sufficient to address the conservation needs of the species.
    We are currently drafting a recovery plan for the Alameda 
whipsnake. Recovery actions proposed within this draft recovery plan 
will include a more thorough analysis of recovery needs of the Alameda 
whipsnake. Therefore, we may amend critical habitat at a later date 
based on information gained through the recovery planning process.
    In summary, the proposed critical habitat areas described below 
constitute our best assessment of areas needed for the species' 
conservation.

Proposed Critical Habitat Designation

    The approximate area of proposed critical habitat by county and 
land ownership is shown in Table 1. Proposed critical habitat includes 
Alameda whipsnake habitat throughout the species' range in the United 
States (i.e., Contra Costa, Alameda, San Joaquin, and Santa Clara 
Counties, California). Lands proposed are under private, State, and 
Federal ownership, with Federal lands including lands managed by the 
Bureau of Land Management and the U.S.Department of Energy. Lands 
proposed as critical habitat have been divided into seven Critical 
Habitat Units. In determining areas that are essential for the survival 
and recovery of the species, we used the best scientific information 
available. This information included habitat suitability and site-
specific species information. To date, only initial research has been 
done to identify and define specific habitat needs of Alameda 
whipsnakes, and no comprehensive surveys have been conducted to 
quantify their distribution or abundance. Only limited and preliminary 
habitat assessment and whipsnake presence work has begun on the 
Department of Energy's Lawrence Livermore National Laboratory Site 300, 
East Bay Regional Park District's Tilden Park, San Francisco Water 
District's San Antonio Reservoir, Contra Costa Water District's Los 
Vaqueros Reservoir, East Bay Municipal Utility District's San Leandro 
Watershed and Siesta Valley, Pleasanton Ridge Conservation Bank, and 
Signature Properties' Bailey Ranch. Some small parcels have also been 
surveyed; however, these surveys were in conjunction with development 
and, in most cases, that habitat has been destroyed.
    We emphasized areas containing most of the verified Alameda 
whipsnake occurrences, especially recently identified locations. To 
maintain genetic and demographic interchange that will help maintain 
the viability of a regional metapopulation, we included corridor areas 
that allow movement between areas supporting Alameda whipsnakes. These 
corridors or connecting areas, while supporting some habitat suitable 
for foraging, shelter, breeding, and maturation, were primarily 
included to facilitate dispersal.

                                                     Table 1
    [Approximate area encompassing proposed critical habitat in hectares (ha) (acres (ac)) by county and land
    ownership. Area estimates reflect critical habitat unit boundaries, not the primary constituent elements
                                                    within.]
----------------------------------------------------------------------------------------------------------------
                                                                 Local/State
                   County                      Federal land*         land         Private land        Total
----------------------------------------------------------------------------------------------------------------
Alameda.....................................          202 ha        26,440 ha        56,166 ha        82,808 ha
                                                     (500 ac)      (65,492 ac)     (139,124 ac)     (205,116 ac)
Contra Costa................................           32 ha        31,970 ha        35,276 ha        67,278 ha
                                                      (80 ac)      (79,189 ac)      (87,378 ac)     (166,647 ac)
San Joaquin.................................          495 ha           525 ha         4,945 ha         5,965 ha
                                                   (1,225 ac)       (1,300 ac)      (12,250 ac)      (14,775 ac)

[[Page 12160]]

 
Santa Clara.................................              NA         4,037 ha         4,106 ha         8,143 ha
                                                                   (10,000 ac)      (10,170 ac)      (20,170 ac)
                                             -------------------------------------------------------------------
    Total...................................          729 ha        62,972 ha       100,493 ha       164,194 ha
                                                   (1,805 ac)     (155,981 ac)     (248,922 ac)     (406,708 ac) 
----------------------------------------------------------------------------------------------------------------
* Includes the Bureau of Land Management and Department of Energy land.

    A brief description of each critical habitat unit and our reasons 
for proposing those areas as critical habitat for the Alameda whipsnake 
are given below:

Unit 1: Tilden-Briones Unit

    Unit 1 encompasses approximately 16,113 ha (39, 815 ac) within the 
Tilden-Briones unit and is the most northwestern unit of the five 
Alameda whipsnake metapopulations and represents primary breeding, 
feeding, and sheltering habitat for the whipsnake. Most of this unit 
occurs in Contra Costa County, except for the southwestern tip which 
occurs in Alameda County. This unit is bordered to the north by State 
Highway 4 and the cities of Pinole, Hercules, and Martinez; to the 
south by State Highway 24 and the City of Orinda Village; to the west 
by Interstate 80 and the cities of Berkeley, El Cerrito, and Richmond; 
and to the east by Interstate 680 and the City of Pleasant Hill. A 
substantial amount of public land exists within this unit, including 
East Bay Regional Park District's Tilden, Wildcat, and Briones Regional 
Parks and East Bay Municipal Utilities District watershed lands.

Unit 2: Oakland-Las Trampas Unit

    Unit 2 encompasses approximately 21,922 ha (54,170 ac) within the 
Oakland-Las Trampas unit and occurs south of the Tilden-Briones unit 
and north of the Hayward-Pleasanton Ridge unit and represents primary 
breeding, feeding, and sheltering habitat for the Alameda whipsnake. 
This unit is split evenly between Alameda and Contra Costa Counties. 
This unit is surrounded to the north by State Highway 24 and the cities 
of Orinda, Moraga, and Lafayette; to the south by Interstate Highway 
580 and the City of Castro Valley; to the West by State Highway 13 and 
Interstate Highway 580 and the cities of Oakland and San Leandro; and 
to the east by Interstate Highway 680 and the cities of Danville, San 
Ramon, and Dublin. The Oakland-Las Trampas unit also contains 
substantial amounts of public land including East Bay Regional Park 
District's Redwood and Anthony Chabot Regional Parks, Las Trampas 
Regional Wilderness, and additional East Bay Municipal Utilities 
District watershed lands.

Unit 3: Hayward-Pleasanton Ridge Unit

    Unit 3 encompasses approximately 12,955 ha (32,011 ac) within the 
Hayward-Pleasanton Ridge unit and occurs south of the Oakland-Las 
Trampas unit and northwest of the Sunol-Cedar Mountain unit and 
represents primary breeding, feeding, and sheltering habitat for the 
Alameda whipsnake. This unit occurs solely in Alameda County. This unit 
is surrounded by Interstate Highway 580 to the north; Niles Canyon Road 
(State Highway 84) to the south; the cities of Hayward and Union City 
to the west and Interstate Highway 680 and the City of Pleasanton to 
the east. This unit is bisected by Palomares Canyon Road, which runs 
from Interstate Highway 580 to Niles Canyon Road. Greater than 30 
percent of this unit occurs within public ownership including Garin, 
Dry Creek, and Pleasanton Ridge Regional Parks and other East Bay 
Regional Park District holdings. The privately owned Pleasanton Ridge 
Conservation Bank also occurs in the northeastern section of this unit.

Unit 4: Mount Diablo-Black Hills Unit

    Unit 4 encompasses approximately 40,386 ha (99,794 ac) within the 
Mount Diablo-Black Hills unit and completely encompasses Mount Diablo 
State Park and surrounding lands and represents primary Alameda 
whipsnake breeding, feeding, and sheltering habitat. A majority of this 
unit occurs in Contra Costa County, however the southern tip of this 
unit dips into Alameda County. This unit is surrounded by State Highway 
4 and the cities of Clayton, Pittsburg and Antioch to the north; open 
grassland within Tassajara Valley just below the Alameda/Contra Costa 
County line to the south; the cities of Concord, Walnut Creek, and 
Danville to the west; and, to the east, by large expanses of grassland 
occurring west of State Highway 4, near the cities of Oakley and 
Brentwood. This unit contains large expanses of public lands including 
two small Bureau of Land Management parcels; Mount Diablo State Park; 
Contra Costa Water District's Los Vaqueros Reservoir watershed; and 
Contra Loma, Black Diamond Mines, Morgan Territory, and Round Valley 
Regional Parks, and other East Bay Regional Park District holdings. 
Other public lands include lands owned by the Save Mount Diablo 
Foundation and the City of Walnut Creek. Two large, privately owned 
gravel quarries occur within this unit.

Unit 5: Sunol-Cedar Mountain Unit

    Unit 5 encompasses approximately 69,335 ha (171,328 ac) within the 
Sunol-Cedar Mountain unit and is the largest and the southernmost of 
the seven critical habitat units and represents primary breeding, 
feeding, and sheltering habitat for the Alameda whipsnake. A majority 
of this unit occurs in Alameda County, however it does overlap with 
western San Joaquin and northern Santa Clara Counties. The northern 
boundary of this unit runs parallel to State Highway 84 and Corral 
Hollow Road, south of the cities of Pleasanton and Livermore and Tesla 
Road. The southern boundary lies below Calaveras Reservoir and captures 
all of Wauhab and Cedar Ridges in Santa Clara County and stretches to 
the east, north of the Alameda-San Joaquin-Santa Clara-Stanislaus 
County intersection. The western boundary lies east of Interstate 
Highway 680 and the greater San Jose urban areas. The eastern boundary 
lies within San Joaquin County a few miles east of the Alameda County 
line. This unit includes East Bay Regional Park District's Sunol, 
Mission Peak, Ohlone, Camp Ohlone, and Del Valle complex, and San 
Francisco Water District's Del Valle (San Antonio Reservoir) watershed. 
In addition, the Department of Energy's Site 300 and California 
Department of Parks and Recreation's Carnegie Recreation Area occur 
within the unit.

[[Page 12161]]

Unit 6: Caldecott Tunnel Unit

    Unit 6 encompasses approximately 2,203 ha (5,445 ac) within the 
Caldecott Tunnel unit and occurs between units 1 and 2 where State 
Highway 24 tunnels under the Berkeley Hills for approximately 1.2 
kilometers (4,000 feet) and represents a connector between units 1 and 
2. This unit occurs solely in Contra Costa County. All suitable Alameda 
whipsnake habitat that occurs in this unit is privately owned.

Unit 7: Niles Canyon/Sunol Unit

    Unit 7 encompasses approximately 1,677 ha (4,145 ac) within the 
Niles Canyon/Sunol unit and occurs between units 3 and 5 and lies south 
of State Highway 84 (Niles Canyon Road); north and west of Interstate 
680; and east of the City of Fremont and represents a connector between 
units 3 and 5. This unit occurs solely in Alameda County. This unit 
includes East Bay Regional Park District's Vargus Plateau and San 
Francisco Water District watershed lands. Impediments to whipsnake 
movement between units 3 and 7 include Alameda Creek, a 0.3-0.6-meter 
(12-24-inch) high concrete barrier that lies south of Niles Canyon Road 
and north of Alameda Creek, railroad tracks that run along both sides 
of Alameda Creek, and heavy vehicular traffic along Niles Canyon Road.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies 
to confer with us on any action that is likely to jeopardize the 
continued existence of a proposed species or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. If a 
species is listed or critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to jeopardize the continued existence of 
such a species or to destroy or adversely modify its critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, we would ensure that 
the permitted actions do not destroy or adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid destruction or adverse modification of critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conferencing with us on actions for which formal 
consultation has been completed if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
a biological opinion that is prepared according to 50 CFR 402.14, as if 
critical habitat were designated. We may adopt the formal conference 
report as the biological opinion when the critical habitat is 
designated, if no significant new information or changes in the action 
alter the content of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the Alameda whipsnake 
or its critical habitat will require section 7 consultation. Activities 
on private or State lands requiring a permit from a Federal agency, 
such as a permit from the U.S. Army Corps of Engineers (Army Corps) 
under section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., Federal Highway Administration, Federal 
Aviation Administration, or Federal Emergency Management Agency) will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal lands that are not federally funded or permitted 
do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat those activities 
involving a Federal action that may destroy or adversely modify such 
habitat or that may be affected by such designation. Activities that 
may destroy or adversely modify critical habitat include those that 
alter the primary constituent elements to the extent that the value of 
critical habitat for both the survival and recovery of the Alameda 
whipsnake is appreciably diminished. We note that such activities may 
also jeopardize the continued existence of the species. Such activities 
may include, but are not limited to:
    (1) Removing, thinning, or destroying vegetation, whether by 
burning or mechanical, chemical, or other means (e.g., fuels 
management, bulldozing, herbicide application, grazing, etc.) that have 
not been approved by the Service, exclusive of routine clearing of fuel 
breaks around urban boundaries that were constructed before the listing 
of the whipsnake on December 5, 1997;
    (2) Water transfers, diversion, or impoundment, groundwater 
pumping, irrigation, or other activity that causes barriers or 
deterrents to dispersal, inundates habitat, or significantly converts 
habitat (e.g., conversion to urban development, vineyards, 
landscaping);
    (3) Recreational activities that significantly deter the use of 
suitable

[[Page 12162]]

habitat areas by Alameda whipsnakes or alter habitat through associated 
maintenance activities (e.g., off-road vehicle parks, golf courses, and 
hiking, mountain biking, and horseback riding trails);
    (4) Sale, exchange, or lease of Federal land containing suitable 
habitat that is likely to result in the habitat being destroyed or 
appreciably degraded; and
    (5) Construction activities that destroy or appreciably degrade 
suitable habitat (e.g., urban development, building of recreational 
facilities such as off-road vehicle parks and golf courses, road 
building, drilling, mining, quarrying, and associated reclamation 
activities).
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is 
occupied by the species concerned. In those cases, critical habitat 
provides little additional protection to a species, and the 
ramifications of its designation are few or none. However, if occupied 
habitat becomes unoccupied in the future, there is a potential benefit 
to critical habitat in such areas.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Sacramento Fish and Wildlife Office (see 
ADDRESSES section).
    Designation of critical habitat could affect Federal agency 
activities including, but not limited to:
    (1) Sale, exchange, or lease of lands owned by the Bureau of Land 
Management or the Department of Energy;
    (2) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (3) Regulation of water flows, water delivery, damming, diversion, 
and channelization by the Bureau of Reclamation and the Army Corps of 
Engineers;
    (4) Regulation of grazing, recreation, or mining by the Bureau of 
Land Management;
    (5) Funding and implementation of disaster relief projects by the 
Federal Emergency Management Agency, including vegetation clearing to 
reduce the risk of a catastrophic wildfire event;
    (6) Funding and regulation of new road construction by the Federal 
Highways Administration;
    (7) Funding of low-interest loans to facilitate the construction of 
low income housing by the Department of Housing and Urban Development;
    (8) Clearing of vegetation by the Department of Energy;
    (9) Promulgation of air and water quality standards under the Clean 
Air Act and the Clean Water Act and the cleanup of toxic waste and 
superfund sites under the Resource Conservation and Recovery Act (RCRA) 
and the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) by the U.S. Environmental Protection Agency; and
    (10) Issuance of Endangered Species Act section 10(a)(1)(B) permits 
by the Fish and Wildlife Service for Habitat Conservation Plans.

Relationship to Incidental Take Permits Issued Under Section 10

    As stated earlier, there are no approved HCPs within the proposed 
critical habitat designation. However, future HCPs are probable.
    In the event that future HCPs covering the Alameda whipsnake are 
developed within the proposed critical habitat, we will work with 
applicants to ensure the HCPs provide for protection and management of 
habitat areas essential for the conservation of the Alameda whipsnake, 
while directing development and habitat modification to nonessential 
areas of lower habitat value. The HCP development process provides an 
opportunity for more intensive data collection and analysis regarding 
the use of particular habitat areas by the Alameda whipsnake. The 
process also enables us to conduct detailed evaluations of the 
importance of such lands to the long-term survival of the species in 
the context of constructing a biologically configured system of 
interlinked habitat blocks. We fully expect that HCPs undertaken by 
local jurisdictions (e.g., counties, cities) and other parties will 
identify, protect, and provide appropriate management for those 
specific lands within the boundaries of the plans that are essential 
for the long-term conservation of the species. We believe that our 
analyses of these proposed HCPs and proposed permits under section 7 
will show that covered activities carried out in accordance with the 
provisions of the HCPs and permits will not result in destruction or 
adverse modification of critical habitat.
    We will provide technical assistance and work closely with 
applicants throughout the development of HCPs to identify appropriate 
conservation management and lands essential for the long-term 
conservation of the Alameda whipsnake. Preliminary HCPs exist for 
listed and non-listed species within the range of the Alameda whipsnake 
in areas proposed herein as critical habitat. By definition, these 
HCPs, coupled with appropriate adaptive management, should provide for 
the conservation of the species. We are soliciting comments on whether 
future approval of HCPs, and issuance of section 10(a)(1)(B) permits 
for the Alameda whipsnake, should trigger revision of designated 
critical habitat to exclude lands within the HCP area and, if so, by 
what mechanism (see Public Comments Solicited section).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species. Although we 
could not identify any incremental effects of this proposed critical 
habitat designation above those impacts of listing, we will conduct an 
economic analysis to further evaluate this finding. We will conduct the 
economic analysis for this proposal prior to a final determination. 
When the draft economic analysis is completed, we will announce its 
availability with a notice in the Federal Register, and we will reopen 
the comment period for 30 days at that time to accept comments on the 
economic analysis or further comment on the proposed rule.

[[Page 12163]]

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat for the Alameda whipsnake as provided by section 
4 of the Act, including whether the benefits of designation will 
outweigh any threats to the species due to designation;
    (2) Specific information on the amount and distribution of Alameda 
whipsnakes and their habitat, and what habitat is essential to the 
conservation of the species and why;
    (3) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families; and
    (5) Economic and other values associated with designating critical 
habitat for the Alameda whipsnake such as those derived from non-
consumptive uses  e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs).
    Additionally, we are seeking comments on critical habitat 
designation relative to future HCPs, similar to our request in the 
coastal California gnatcatcher proposed rule (65 FR 5945). Future 
conservation planning efforts are possible within the range of the 
Alameda whipsnake in areas we are proposing as critical habitat. In 
these areas, we propose to designate critical habitat for areas that we 
believe are essential to the conservation of the species and need 
special management or protection. We invite comments on the 
appropriateness of this approach and other approaches for critical 
habitat within the boundaries of future approved HCPs upon issuance of 
section 10(a)(1)(B) permits for the Alameda whipsnake:
    (1) Retain critical habitat designation within the HCP boundaries 
and use the section 7 consultation process on the issuance of the 
incidental take permit to ensure that any take we authorize will not 
destroy or adversely modify critical habitat;
    (2) Revise the critical habitat designation upon approval of the 
HCP and issuance of the section 10(a)(1)(B) permit to retain only 
preserve areas, on the premise that they encompass areas essential for 
the conservation of the species within the HCP area and require special 
management and protection in the future. Assuming that we conclude, at 
the time an HCP is approved and the associated incidental take permit 
is issued, that the plan protects those areas essential to the 
conservation of the Alameda whipsnake, we would revise the critical 
habitat designation to exclude areas outside the reserves, preserves, 
or other conservation lands established under the plan. Consistent with 
our listing program priorities, we would publish a proposed rule in the 
Federal Register to revise the critical habitat boundaries;
    (3) As in (2) above, retain only preserve lands within the critical 
habitat designation, on the premise that they encompass areas essential 
for conservation of the species within the HCP area and require special 
management and protection in the future. However, under this approach, 
the exclusion of areas outside the preserve lands from critical habitat 
would occur automatically upon issuance of the incidental take permit. 
The public would be notified and have the opportunity to comment on the 
boundaries of the preserve lands and the revision of designated 
critical habitat during the public review and comment process for HCP 
approval and permitting;
    (4) Remove designated critical habitat entirely from within the 
boundaries of an HCP when the plan is approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no further special management or protection 
is required. Consistent with our listing program priorities, we would 
publish a proposed rule in the Federal Register to revise the critical 
habitat boundaries; or
    (5) Remove designated critical habitat entirely from within the 
boundaries of HCPs when the plans are approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no additional special management or 
protection is required. This exclusion from critical habitat would 
occur automatically upon issuance of the incidental take permit. The 
public would be notified and have the opportunity to comment on the 
revision of designated critical habitat during the public notification 
process for HCP approval and permitting.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comment. However, we 
will not consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. All 
comments, including written and e-mail, must be received in our 
Sacramento Fish and Wildlife Office by May 8, 2000.
    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Should a public hearing be requested, then we will 
announce the date, time, and place for the hearing in the Federal 
Register and local newspapers at least 15 days prior to the hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice

[[Page 12164]]

contain technical language or jargon that interferes with the clarity? 
(3) Does the format of the notice (grouping and order of sections, use 
of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the notice in the ``Supplementary Information'' section 
of the preamble helpful in understanding the notice? What else could we 
do to make the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
E[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB), under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. The Alameda 
whipsnake was listed as an endangered species in 1997. No formal 
section 7 consultations with other Federal agencies have been 
conducted. In addition, no HCPs for areas in which the Alameda 
whipsnake occurs have been done.
    The areas proposed for critical habitat are currently occupied by 
the Alameda whipsnake. Under the Endangered Species Act, critical 
habitat may not be destroyed or adversely modified by a Federal agency 
action; the Act does not impose any restrictions on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency (see Table 2 below). Section 7 requires 
Federal agencies to ensure that they do not jeopardize the continued 
existence of the species. Based upon our experience with the species 
and its needs, we conclude that any Federal action or authorized action 
that could potentially cause an adverse modification of the proposed 
critical habitat would currently be considered as ``jeopardy'' under 
the Act. Accordingly, the designation of currently occupied areas as 
critical habitat does not have any incremental impacts on what actions 
may or may not be conducted by Federal agencies or non-Federal persons 
that receive Federal authorization or funding. Non-Federal persons that 
do not have a Federal ``sponsorship'' of their actions are not 
restricted by the designation of critical habitat (however, they 
continue to be bound by the provisions of the Act concerning ``take'' 
of the species).
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the Alameda whipsnake since the listing in 1997. The prohibition 
against adverse modification of critical habitat is not expected to 
impose any additional restrictions to those that currently exist 
because all proposed critical habitat is occupied. Because of the 
potential for impacts on other Federal agencies activities, we will 
continue to review this proposed action for any inconsistencies with 
other Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and as 
discussed above we do not anticipate that the adverse modification 
prohibition (from critical habitat designation) will have any 
incremental effects.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

                 Table 2.--Impacts of Alameda Whipsnake Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                          Additional activities
                                    Activities potentially affected by species listing   potentially affected by
    Categories of  activities                            only \1\                            critical habitat
                                                                                             designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially    Activities such as removing, thinning, or destroying   None.
 Affected \3\.                     Alameda whipsnake habitat (as defined in the primary
                                   constituent elements discussion), whether by burning
                                   or mechanical, chemical, or other means (e.g., fuels
                                   management, bulldozing, herbicide application,
                                   grazing, etc.); water transfers, diversion, or
                                   impoundment, groundwater pumping, irrigation, or
                                   other activity that causes barriers or deterrents to
                                   dispersal, inundates habitat, or significantly
                                   converts habitat (e.g., conversion to urban
                                   development, vineyards, landscaping); recreational
                                   activities that significantly deter the use of
                                   suitable habitat areas by Alameda whipsnakes or
                                   alter habitat through associated maintenance
                                   activities (e.g., off-road vehicle parks, golf
                                   courses, and hiking, mountain biking, and horseback
                                   riding trails); sale, exchange, or lease of Federal
                                   land that contains suitable habitat that is likely
                                   to result in the habitat being destroyed or
                                   appreciably degraded; and construction activities
                                   that destroy or appreciably degrade suitable habitat
                                   (e.g., urban development, building of recreational
                                   facilities such as off-road vehicle parks and golf
                                   courses, road building, drilling, mining, quarrying
                                   and associated reclamation activities) that the
                                   Federal Government carries out.

[[Page 12165]]

 
Private and other non-Federal     Activities such as removing, thinning, or destroying   None.
 Activities Potentially Affected   Alameda whipsnake habitat (as defined in the primary
 \4\.                              constituent elements discussion), whether by burning
                                   or mechanical, chemical, or other means (e.g., fuels
                                   management, bulldozing, herbicide application,
                                   grazing, etc.); water transfers, diversion, or
                                   impoundment, groundwater pumping, irrigation, or
                                   other activity that causes barriers or deterrents to
                                   dispersal, inundates habitat, or significantly
                                   converts habitat (e.g., conversion to urban
                                   development, vineyards, landscaping, etc.);
                                   recreational activities that significantly deter the
                                   use of suitable habitat areas by Alameda whipsnakes
                                   or alter habitat through associated maintenance
                                   activities (e.g., off-road vehicle parks, golf
                                   courses, and hiking, mountain biking, and horseback
                                   riding trails); and construction activities that
                                   destroy or appreciably degrade suitable habitat
                                   (e.g., urban development, building of recreational
                                   facilities such as off-road vehicle parks and golf
                                   courses, road building, drilling, mining, quarrying
                                   and associated reclamation activities) that require
                                   a Federal action (permit, authorization, or funding).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the Alameda whipsnake as a threatened
  species (December 5, 1997; 62 FR 64306) under the Endangered Species Act.
\2\ This column represents the activities potentially affected by the critical habitat designation in addition
  to those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.

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

    In the economic analysis (under section 4 of the Act), we will 
determine whether designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence. As indicated on Table 1 (see Proposed Critical Habitat 
Designation section), we designated property owned by Federal, State, 
and local governments, and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Sale, exchange, or lease of lands owned by the Bureau of Land 
Management or the Department of Energy;
    (2) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (3) Regulation of water flows, water delivery, damming, diversion, 
and channelization by the Bureau of Reclamation and the Army Corps of 
Engineers;
    (4) Regulation of grazing, recreation, or mining by the Bureau of 
Land Management;
    (5) Funding and implementation of disaster relief projects by the 
Federal Emergency Management Agency, including vegetation clearing to 
reduce the risk of a catastrophic wildfire event;
    (6) Funding and regulation of new road construction by the Federal 
Highways Administration;
    (7) Funding of low-interest loans to facilitate the construction of 
low-income housing by the Department of Housing and Urban Development;
    (8) Clearing of vegetation by the Department of Energy;
    (9) Promulgation of air and water quality standards under the Clean 
Air Act and the Clean Water Act and the cleanup of toxic waste and 
superfund sites under the Resource Conservation and Recovery Act (RCRA) 
and the Comprehensive Environmental Response, Compensation, and 
Liability Act by the U.S. Environmental Protection Agency; and
    (10) Issuance of Endangered Species Act section 10(a)(1)(B) permits 
by the Fish and Wildlife Service.
    Many of these activities sponsored by Federal agencies within the 
proposed critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects beyond those 
resulting from listing the species.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat. However, as discussed above, 
these actions are currently subject to equivalent restrictions through 
the listing protections of the species, and no further restrictions are 
anticipated to result from critical habitat designation.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a

[[Page 12166]]

``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of the Alameda whipsnake. Due to current public knowledge of the 
species' protection, the prohibition against take of the species both 
within and outside of the designated areas, and the fact that critical 
habitat provides no incremental restrictions, we do not anticipate that 
property values will be affected by the critical habitat designation.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, the Service requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in California, as well as during the listing process. 
We will continue to coordinate any future designation of critical 
habitat for the Alameda whipsnake with the appropriate State agencies. 
The designation of critical habitat the Alameda whipsnake imposes no 
additional restrictions to those currently in place and, therefore, has 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While making this definition and identification does not alter where 
and what federally sponsored activities may occur, doing so may assist 
these local governments in long-range planning (rather than waiting for 
case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Act, and plan public meetings on the proposed 
designation during the comment period. The rule uses standard property 
descriptions and identifies the primary constituent elements within the 
designated areas to assist the public in understanding the habitat 
needs of the Alameda whipsnake.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and the Department of the Interior's 
requirement at 512 DM 2 we understand that recognized Federal Tribes 
must be related to on a Government-to-Government basis. The 1997 
Secretarial Order on Native Americans and the Endangered Species Act 
clearly states that Tribal lands should not be designated unless 
absolutely necessary for the conservation of the species. According to 
the Secretarial Order, ``Critical habitat shall not be designated in an 
area that may impact Tribal trust resources unless it is determined 
essential to conserve a listed species. In designating critical 
habitat, the Services shall evaluate and document the extent to which 
the conservation needs of a listed species can be achieved by limiting 
the designation to other lands.'' The proposed designation of critical 
habitat for the Alameda whipsnake does not contain any Tribal lands or 
lands that we have identified as impacting Tribal trust resources.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Sacramento Fish and Wildlife Office 
(see ADDRESSES section).

Authors

    The primary authors of this notice are Jason Davis and Heather 
Bell, Sacramento Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend 50 CFR 
part 17 as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In 17.11(h) revise the entry for ``Whipsnake, Alameda'' under 
``REPTILES'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reptiles
                   *                  *                  *                  *                  *                  *                  *
Whipsnake, Alameda (=striped       Masticophis           U.S.A. (CA)........  Entire.............  T                       628     17.95(c)           NA
 racer).                            lateralis
                                    euryxanthus.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 12167]]

    3. Amend 17.95(c) by adding critical habitat for the Alameda 
whipsnake (Masticophis lateralis euryxanthus) in the same alphabetical 
order as this species occurs in 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (c) Reptiles.
* * * * *
ALAMEDA WHIPSNAKE (Masticophis lateralis euryxanthus)

    1. Critical habitat units are depicted for Alameda, Contra Costa, 
San Joaquin and Santa Clara Counties, California, on the maps below.
    2. Within these areas, the primary constituent elements are those 
habitat components that are essential for the primary biological needs 
of foraging, sheltering, breeding, maturation, and dispersal. The 
primary constituent elements are found, or could develop, in areas that 
support or have the potential to support scrub communities including 
mixed chaparral, chamise-redshank chaparral, and coastal scrub; and 
annual grassland and various oak woodlands that lie adjacent to scrub 
habitats. In addition, the primary constituent elements for the Alameda 
whipsnake may be found in grasslands and various oak woodlands that are 
linked to scrub habitats by substantial rock outcrops or riparian 
corridors. Other habitat features that provide a source of cover for 
the whipsnake during dispersal or lie in reasonable proximity to scrub 
habitats and contain habitat features (e.g., rock outcrops) that 
support adequate prey populations may also contain primary constituent 
elements for the Alameda whipsnake.

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BILLING CODE 4310-55-C
    Map Unit 1: Alameda and Contra Costa counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T.2 N., 
R.4 W., S\1/2\

[[Page 12169]]

sec. 13, SE\1/4\ sec. 23, N\1/2\ SE\1/4\ sec. 24, sec. 25, N\1/2\ SE\1/
4\ sec. 26, E\1/2\ sec. 27, E\1/2\ sec. 34 secs. 35-36; T.2 N., R.3 W., 
S\1/2\ sec. 15, S\1/2\ sec. 16, SW\1/4\ sec. 18, secs. 19-22, S\1/2\ 
NW\1/4\ sec. 23, SW\1/4\ sec. 24, secs. 25-36; T.2 N., R.2 W., S\1/2\ 
sec. 30, sec. 31, SW\1/4\ sec 32; T.1 N., R.4 W., secs. 1-2, S\1/2\ 
sec. 3, sec. 4, SE\1/4\ sec. 5, N\1/2\ SE\1/4\ sec. 8, secs. 9-15, N\1/
2\ sec. 16, N\1/2\ SE\1/4\ sec. 21, secs. 22-26, NE\1/4\ sec. 27, N\1/
2\ SE\1/4\ sec. 36; T.1 N., R.3 W., secs. 1-24, N\1/2\ sec. 25, N\1/2\ 
sec. 26, N\1/2\ sec. 27, S\1/2\ NW\1/4\ sec. 28, secs. 29-32; T.1. N., 
R.2 W., secs. 5-7, S\1/2\ NW\1/4\ sec. 8, W\1/2\ sec. 17, secs. 18-19, 
W\1/2\ sec. 29, sec. 30; T.1 S., R.3 W., N\1/2\ sec. 5, N\1/2\ sec. 6.

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BILLING CODE 4310-55-C
    Map Unit 2: Alameda and Contra Costa Counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 1 N., 
R. 3 W.,

[[Page 12171]]

SE\1/4\ sec. 35, S\1/2\ NW\1/4\ sec. 36; T. 1. N., R. 2 W., SW\1/4\ 
sec. 31, S\1/2\ sec. 33, SW\1/4\ sec. 34; T. 1 S., R. 3 W., sec. 1, 
E\1/2\ sec. 2, NE\1/4\ sec. 12, SW\1/2\ sec. 13, S\1/2\ sec. 14, S\1/2\ 
sec. 15, secs. 22-27, SE\1/4\ sec. 28, NE\1/4\ sec. 34, N\1/2\ SE\1/4\ 
sec. 35, sec. 36; T. 1 S., R. 2 W., S\1/2\ sec. 2, secs. 3-6, N\1/2\ 
SE\1/4\ sec. 7, secs. 8-11, SW\1/4\ sec. 12, S\1/2\ NW sec. 13, secs. 
14-17, SE\1/4\ sec. 18, S\1/2\ NE\1/4\ sec. 19, secs, 20-36; T.1 S., R. 
1 W., SW\1/4\ sec. 19, SW\1/4\ sec. 29, S\1/2\ NW\1/4\ sec. 30, secs. 
31-32; T. 2 S., R. 3 W., N\1/2\ SE\1/4\ sec. 1, NE\1/4\ sec. 12, S\1/2\ 
sec. 13, N\1/2\ sec. 24; T. 2 S., R. 2 .W., secs. 1-18, E\1/2\ sec. 19, 
secs. 20-30, N\1/2\ SE \1/4\ sec. 31, sec. 32, N\1/2\ sec. 33, N\1/2\ 
sec. 34, N\1/2\ SW\1/4\ sec. 35, sec. 36; T. 2 S., R. 1 W., W\1/4\ sec. 
4, secs. 5-6, S\1/2\ sec. 16, secs. 17-21, S\1/2\ NW\1/4\ sec. 22, W\1/
2\ sec. 26, secs. 27-34, W\1/2\ sec. 35; T. 3 S., R. 1 W., NW\1/4\ sec. 
2, secs. 3-4, N\1/2\ SE\1/4\ sec. 5, N\1/2\ sec. 6; T. 3 S., R. 2 W., 
N\1/2\ sec. 1.

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    Map Unit 3: Alameda County, California. From 1992 Orthophoto quads, 
Mount Diablo Base Meridian, California: T. 3 S., R. 2 W., sec. 1, sec.

[[Page 12173]]

12, E\1/2\ sec. 13, SW\1/4\ sec. 24, sec. 25, NE\1/4\ sec. 26, secs. 
35-36; T. 3 S., R. 1 W., SW\1/4\ sec. 2, S\1/2\ sec. 3, S\1/2\ sec. 4, 
S\1/2\ NW\1/4\ sec. 5, S\1/2\ NE\1/4\ sec. 6, secs. 7-11, SW\1/4\ sec. 
12, secs. 13-36; T. 3 S., R. 1 E., W\1/2\ sec. 19, S\1/2\ NW\1/4\ sec. 
30, sec. 31, S\1/2\ sec. 32; T. 4 S., R. 2 W., NE\1/4\ sec. 1; T. 4 S., 
R. 1 W., secs. 1-6, NE\1/4\ sec. 7, secs. 8-12, NE\1/4\ sec. 14, N\1/2\ 
SW\1/4\ sec. 15, sec. 16, N\1/2\ SE\1/4\ sec. 17, NE\1/4\ sec. 21; T. 4 
S., R. 1 E., W\1/2\ sec. 4, secs. 5-8, W\1/2\ sec. 9, NW\1/4\ sec. 16.

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    Map Unit 4: Alameda and Contra Costa Counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 2 N., 
R. 1 W.,

[[Page 12175]]

SE\1/4\ sec. 36; T. 2 N., R. 1 E., S\1/2\ NW\1/4\ sec. 27, S\1/2\ NE\1/
4\ sec. 28, S\1/2\ sec. 29, SE\1/4\ sec. 30, S\1/2\ NE\1/4\ sec. 31, 
secs. 32-34, S\1/2\ sec. 35; T. 1 N., R 2 W., S\1/2\ sec. 25, SE\1/4\ 
sec. 26, N\1/2\ sec. 36; T. 1 N., R. 1 W., sec. 1, SE\1/4\ sec. 2, 
SE\1/4\ sec. 8, S\1/2\ sec. 9, sec. 12, N\1/2\ SE\1/4\ sec.13, W\1/2\ 
sec. 14, S\1/2\ NE\1/4\ sec. 15, sec. 17, N\1/2\ SE\1/4\ sec. 20, secs. 
21-28, E\1/2\ SW\1/4\ sec. 29, S\1/2\ sec. 30, sec. 31, secs. 32-36; T. 
1 N., R. 1. E., W\1/2\ sec. 1, secs. 2-11, sec. 12, secs. 13-36; T. 1 
N., R. 2 E., SW\1/4\ sec. 7, W\1/2\ sec. 18, sec. 19, S\1/2\ sec. 20, 
SW\1/4\ sec. 21, secs. 28-33, S\1/2\ sec. 34; T.1 S., R. 1 W., secs. 1-
5, N\1/2\ SE\1/4\ sec. 6, sec. 8, N\1/2\ SW\1/4\ sec. 9, secs. 10-15, 
NW\1/4\ sec. 16, NE\1/4\ sec. 17, N\1/2\ SE\1/4\ sec. 23, sec. 24, N\1/
2\ sec. 25; T. 1 S., R. 1 E., secs. 1-29, N\1/2\sec. 30, NE\1/4\ sec. 
32, sec. 33-36; T. 1 S., R. 2 E., SW\1/4\ sec. 2, secs. 3-10, S\1/2\ 
NW\1/4\ sec. 11, W\1/2\ sec. 13, secs. 14-36; T. 2 S., R. 1 E., secs. 
1-3, N\1/2\ sec. 10, N\1/2\ sec. 11, sec. 12; T. 2 S., R. 2 E., NW\1/4\ 
sec. 1, secs. 2-10, W\1/2\ sec. 11, N\1/2\ sec. 15, sec. 16-17, E\1/2\ 
sec. 18.

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    Map Unit 5: Alameda, Contra Costa, San Joaquin, and Santa Clara 
Counties, California. From 1992 Orthophoto quads, Mount Diablo Base 
Meridian,

[[Page 12177]]

California: T.3 N., R.1 E., SE\1/4\ sec. 21, S\1/2\ sec. 22, S\1/2\ 
NW\1/4\ sec. 23, SW\1/4\ sec. 24, S\1/2\ NW\1/4\ sec. 25, secs. 26-27, 
E\1/2\ sec. 28, SE\1/4\ sec. 29, NE\1/4\ sec. 32, secs. 33-36; T.3 S., 
R. 2 E., SW\1/4\ sec. 19, SE\1/4\ sec. 21, S\1/2\ NE\1/4\ sec. 22, S\1/
2\ NW\1/4\ sec. 23, SE\1/4\ sec. 24, secs. 25-36; T.3 S., R.3 E., S\1/
2\ sec. 24, secs. 25-26, S\1/2\ NE\1/4\ sec. 27, S\1/2\ NW\1/4\ sec. 
28, S\1/2\ NE\1/4\ sec. 29, S\1/2\ NW\1/4\ sec. 30, secs. 31-36; T.3 
S., R.4 E., S\1/2\ sec. 19, S\1/2\ sec. 20, S\1/2\ sec. 21, SW\1/4\ 
sec. 27, secs. 28-33, S\1/2\ NW\1/4\ sec. 34; T.4 S., R.1 W., E\1/2\ 
sec. 25, E\1/2\ sec. 36; T.4 S, R.1 E., secs. 1-4, E\1/2\ sec. 9, secs. 
10-15, E\1/2\ sec. 16, SE\1/4\ sec. 19, S\1/2\ sec. 20, S\1/2\ NE\1/4\ 
sec. 21, secs. 22-36; T.4 S., R.2 E., secs. 1-36; T.4 S., R.3 E., secs. 
1-36; T.4 S., R.4 E., W\1/2\ sec. 2, secs. 3-10, W\1/2\ sec. 11, W\1/2\ 
sec. 11, W\1/2\ sec. 14, secs. 15-22,W\1/2\ sec. 23, W\1/2\ sec. 26, 
secs. 27-34, W\1/2\ sec. 35; T.5 S., R.1 E., secs. 1-29, N\1/2\ SE\1/4\ 
sec. 30, N\1/2\ sec. 33, N\1/2\ SE\1/4\ sec. 34, secs. 35-36; T.5 S., 
R.2 E., secs. 1-35, N\1/2\ SW\1/4\ sec. 36; T.5 S., R.3 E., secs. 1-24, 
N\1/2\ sec. 26, N\1/2\ SW\1/4\ sec. 27, secs. 28-30, N\1/2\ sec. 31, 
N\1/2\ sec. 32; T.5. S., R.4 E., W\1/2\ sec. 2, secs. 3-9, N\1/2\ SW\1/
4\ sec. 10, N\1/2\ SW\1/4\ sec. 16, secs. 17-18, N\1/2\ sec. 19; T.6 
S., R.1 E., sec. 1, N\1/2\ sec. 2; T.6 S., R.2 E., N\1/2\ sec. 3, N\1/
2\ sec. 4, N\1/2\ sec. 5, N\1/2\ sec.6.

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    Map Unit 6: Contra Costa County, California. From 1992 Orthophoto 
quads, Mount Diablo Base Meridian, California: T.1 N., R.4 W., SE\1/4\ 
sec. 36;

[[Page 12179]]

T.1 N., R.3 W., SW\1/4\ sec. 31, S\1/2\ sec. 33; T.1 S., R.4 W., S\1/2\ 
NE \1/4\ sec. 1, NE\1/4\ sec. 12; T.1 S., R.3 W., W\1/2\ sec. 3, secs. 
4-6, N\1/2\ SE\1/4\ sec. 7, secs. 8-10, secs. 14-15, N\1/2\ SE\1/4\ 
sec. 16, N\1/2\ sec. 17, NE\1/4\ sec. 18.

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    Map Unit 7: Alameda County, California. From 1992 Orthophoto quads, 
Mount Diablo Base Meridian, California: T.4 S., R.1 W., SE\1/4\ sec. 
10,

[[Page 12181]]

S\1/2\ sec. 11, S\1/2\ sec. 12, secs. 13-14, E\1/2\ sec. 15, NE\1/4\ 
sec. 23, NW\1/4\ sec. 24; T.4 S., R.1 E., S\1/2\ sec. 7, S\1/2\ sec. 8, 
sec. 9, secs. 16-18, NE\1/4\ sec. 19, NE\1/4\ sec. 20, sec. 21, W\1/2\ 
sec. 27, N\1/2\ sec. 28.

    Dated: February 29, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-5414 Filed 3-7-00; 8:45 am]
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