Federal Register, Volume 65 Issue 192 (Tuesday, October 3, 2000)

[Federal Register Volume 65, Number 192 (Tuesday, October 3, 2000)]
[Rules and Regulations]
[Pages 58933-58962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24763]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF98

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act), for the Alameda whipsnake (Masticophis lateralis euryxanthus). A
total of approximately 164,150 hectares (406,598 acres) of land fall
within the boundaries of designated critical habitat. Critical habitat
for the Alameda whipsnake is located in Contra Costa, Alameda, San
Joaquin, and Santa Clara counties, California. Section 7 of the Act
requires Federal agencies to ensure that actions they authorize, fund,
or carry out are not likely to destroy or adversely modify designated
critical habitat. As required by section 4 of the Act, we considered
economic and other relevant impacts prior to making a final decision on
the size and configuration of critical habitat.

EFFECTIVE DATE: This final rule is effective November 2, 2000.

ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife
Office, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825.
The complete file for this rule is available for public inspection, by
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jason Davis or Heather Bell, at the
above address (telephone 916/414-6600, facsimile 916/414-6713).

SUPPLEMENTARY INFORMATION:

Background

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 forward portion of the bottom surface is orange-rufous
colored, the midsection is cream colored, and the rear portion and tail
are pinkish. The adult Alameda whipsnake virtually lacks black spotting
on the bottom 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 can be an important feature of Alameda whipsnake
habitat because they provide retreat opportunities for whipsnakes and
support 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,

[[Page 58934]]

snakes, and birds (Stebbins 1985, Swaim 1994). Most radio telemetry
locations for whipsnakes were within the distribution of major rock
outcroppings and talus (a sloping mass of rock debris at the base of a
cliff) (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 (two times of the year)
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 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 under a settlement agreement entered into by
the parties. On March 8, 2000, (65 FR 12155) we proposed the
designation of 7 areas within Alameda, Contra Costa, San Joaquin, and
Santa Clara Counties as critical habitat for the Alameda whipsnake.

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 under 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
these 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

[[Page 58935]]

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. 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 an adverse modification 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.
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 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 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 not previously known to be inhabited by Alameda
whipsnakes. We are also aware of a number of activities with a Federal
connection on private lands within the range of the whipsnake,
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 we 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. High-value Alameda whipsnake habitat occurs on
private lands that are evenly distributed throughout all five whipsnake
population areas. We now believe that private lands are essential to
the conservation of the species.

Relationship to Recovery

The ultimate purpose of listing a species as threatened or
endangered under the Act is to recover the species to the point at
which it no longer needs the protections provided to the listed
species. The Act mandates the conservation of listed species through
different mechanisms. Section 4(f) of the Act authorizes the Service to
develop recovery plans for listed species. A recovery plan includes (i)
a description of such site-specific management actions as may be
necessary to achieve the plan's goal for the conservation and survival
of the species, (ii) objective, measurable criteria which, when met,
would result in a determination that the species be removed from the
list, and (iii) estimates of the time required and cost to carry out
those measures needed to achieve the plan's goal.
We are currently drafting a recovery plan for the Alameda
whipsnake. 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.

Primary Constituent Elements

Under section 3(5)(A)(i) of the Act and regulations at 50 CFR
424.12, 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 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 in areas that 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 river 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).

[[Page 58936]]

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. These 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 geographical areas occupied by the species; and (4) in areas that
link contiguous blocks of geographical areas occupied by the species
(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 aerial photos
(1:12,000 scale) 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 or corridors 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 in the 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.
Areas designated 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, contain the physical and
biological features that are essential to conservation of the species,
and are in need of special management considerations or protection.
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 species
site-specific 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. Limited and preliminary habitat assessment
and whipsnake presence work has been conducted on the Department of
Energy's Lawrence Livermore National Laboratory Site 300, East Bay
Regional Park District's Tilden Park, San Francisco Public Utilities
Commission'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.
In identifying areas of 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 rule and the lack of fine-scale mapping data, we were
unable to map critical habitat in sufficient detail to exclude all such
areas. 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, will not contain one or more of the
primary constituent elements. Federal actions limited to these areas,
therefore, would not trigger a section 7 consultation, unless they
affect the species and/or primary constituent elements in adjacent
critical habitat. Two areas, the north and south corridors (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. These two units may not provide sufficient habitat necessary
to allow for breeding, and offer limited opportunities for foraging and
sheltering. However, these areas provide for the vital function of
dispersal among other critical habitat units.
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. Development of HCPs for such areas on
non-Federal lands should not be precluded, as 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

[[Page 58937]]

Alameda whipsnake. We intend for HCPs to provide a package of
protection and management measures sufficient to address the
conservation needs of the species.

Critical Habitat Designation

The approximate area of critical habitat by county and land
ownership is shown in Table 1. 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 designated as critical habitat 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 designated as critical habitat have been divided into
seven critical habitat units.

Table 1. Approximate Area Encompassing Designated Critical Habitat in Hectares (ha) (Acres (ac)) by County and
Land Ownership
----------------------------------------------------------------------------------------------------------------
County Federal land \*\ Local/State land Private land Total
----------------------------------------------------------------------------------------------------------------
Alameda....................... 310 ha 26,440 ha 56,045 ha 82,795 ha
(767 ac) (65,492 ac) (138,824 ac) (205,083 ac)
Contra Costa.................. 32 ha 31,970 ha 35,245 ha 67,247 ha
(80 ac) (79,189 ac) (87,301 ac) (166,570 ac)
San Joaquin................... 606 ha 525 ha 4,834 ha 5,965 ha
(1,500 ac) (1,300 ac) (11,975 ac) (14,775 ac)
Santa Clara................... NA 4,037 ha 4,106 ha 8,143 ha
(10,000 ac) (10,170 ac) (20,170 ac)
Total..................... 948 ha 62,972 ha 100,230 ha 164,150 ha
(2,347 ac) (155,981 ac) (248,270 ac) (406,598 ac)
----------------------------------------------------------------------------------------------------------------
\*\ Includes the Bureau of Land Management and Department of Energy land.

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

Unit 1 Tilden-Briones Unit

Unit 1 encompasses approximately 16,074 ha (39,815 ac) within the
Tilden-Briones unit and is the most northwestern unit of the five
Alameda whipsnake metapopulations, and provides primary breeding,
feeding, and sheltering habitat for the whipsnake. This entire unit
occurs in Contra Costa 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 21,869 ha (54,170 ac) south of the
Tilden-Briones unit and north of the Hayward-Pleasanton Ridge unit, and
provides 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 12,923 ha (32,011 ac) south of the
Oakland-Las Trampas unit and northwest of the Sunol-Cedar Mountain
unit, and provides primary breeding, feeding, and sheltering habitat
for the Alameda whipsnake. This unit occurs solely in Alameda County
and 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 is in 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 40,257 ha (99,717 ac) and
completely encompasses Mount Diablo State Park and surrounding lands.
The Mount Diablo-Black Hills Unit provides primary Alameda whipsnake
breeding, feeding, and sheltering habitat. A majority of this unit is
in Contra Costa County; however, the southern tip of this unit is in
Alameda County. This unit is surrounded by State Highway 4 and the
cities of Clayton, Pittsburgh 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 City of Walnut Creek. Two large, privately
owned gravel quarries occur within this unit.

Unit 5 Sunol-Cedar Mountain Unit

Unit 5 encompasses approximately 69,168 ha (171,328 ac) and is the
largest and the southernmost of the seven critical habitat units. It
provides primary breeding, feeding, and

[[Page 58938]]

sheltering habitat for the Alameda whipsnake. A majority of this unit
is in Alameda County; however, it does also extend into 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 State Water Project's
Del Valle 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.

Unit 6 Caldecott Tunnel Unit

Unit 6 encompasses approximately 2,185 ha (5,412 ac) and occurs
between units 1 and 2 where State Highway 24 tunnels under the Berkeley
Hills for approximately 1.2 kilometers (4,000 feet). It provides a
connector between units 1 and 2. This unit is in Alameda and Contra
Costa Counties. This unit encompasses lands owned by East Bay Municipal
Utilities District, East Bay Regional Park District, Lawrence Berkeley
Laboratory, the Cities of Berkeley and Oakland, and some private
holdings.

Unit 7 Niles Canyon/Sunol Unit

Unit 7 encompasses approximately 1,673 ha (4,145 ac) 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. It provides a connector between units 3 and 5. This unit is
solely in Alameda County. This unit includes East Bay Regional Park
District's Vargas Plateau and San Francisco Public Utilities 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, 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. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402. 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, Federal agencies
ensure that their 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 with us on
actions for which formal consultation has been completed if those
actions may affect designated critical habitat.
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 regulated
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. Where they
appreciably reduce the value of critical habitat, 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, overgrazing, 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

[[Page 58939]]

converts habitat (e.g., conversion to urban development, vineyards,
landscaping);
(3) 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);
(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 in the
geographical areas 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. However, if an area
now occupied by the species were to become unoccupied in the future,
critical habitat designation may provide additional protection than is
available through a jeopardy analysis.
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 where they appreciably reduce the value of critical habitat.
Some of these activities include, but are 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;
(6) Funding and regulation of new road construction by the Federal
Highways Administration;
(7) Clearing of vegetation by the Department of Energy;
(8) 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

Relationship to Incidental Take Permits Issued Under Section 10

There are no approved HCPs within the designated critical habitat
area. However, future HCPs are probable.
We anticipate that future HCPs will include the Alameda whipsnake
as a covered species and provide for its long-term conservation. We
expect that HCPs undertaken by local jurisdictions (e.g., counties and
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. Section 10(a)(1)(B) of the Act states that HCPs must meet
issuance criteria, including minimizing and mitigating any take of the
listed species covered by the permit to the maximum extent practicable,
and that the taking must not appreciably reduce the likelihood of the
survival and recovery of the species in the wild. We fully expect that
our future analysis of HCPs and Section 10(a)(1)(B) permits under
section 7 will show that covered activities carried out in accordance
with the provisions of the HCPs and Section 10(a)(1)(B) permits will
not result in the destruction or adverse modification of critical
habitat designated for the Alameda whipsnake.
In the event that future HCPs covering the Alameda whipsnake are
developed within the boundaries of designated critical habitat, we will
work with applicants to ensure that the HCPs provide for protection and
management of habitat areas essential for the conservation of the
Alameda whipsnake by either directing development and habitat
modification to nonessential areas or appropriately modifying
activities within essential habitat areas so that such activities will
not adversely modify the primary constituent elements. 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 will provide technical assistance and work closely with
applicants throughout the development of future HCPs to identify lands
essential for the long-term conservation of the Alameda whipsnake and
appropriate management for those lands. The take minimization and
mitigation measures provided under these HCPs are expected to protect
the essential habitat lands designated as critical habitat in this
rule.

Summary of Comments and Recommendations

In the March 8, 2000, proposed rule, all interested parties were
requested to submit comments and suggestions relative to the proposed
designation of critical habitat for the Alameda whipsnake, including
our economic analysis and the relationship of the designation to future
HCP's (65 FR 12155). On May 15, 2000, we published a notice in the
Federal Register (65 FR 30951) to reopen the comment period and
announce a public hearing on the proposed determination. We published a
notice of availability and request for comments on the draft economic
analysis on June 23, 2000 (65 FR 39117), and subsequently, extended the
comment periods for the proposed designation of critical habitat and
the draft economic analysis to July 24, 2000. Comments received from
March 8 through July 24, 2000, were entered into the administrative
record.
All appropriate State and Federal agencies, county governments,
scientific organizations, and other interested

[[Page 58940]]

parties were contacted and invited to comment. Legal notices inviting
public comment were published in the Oakland Tribune. In addition, the
following news releases were issued: (1) a March 8, 2000, news release
announcing the proposed designation of critical habitat and soliciting
public review and comment; (2) a May 15, 2000, news release announcing
public hearings; and (3) a June 23, 2000, news release announcing the
availability of the draft economic analysis to the public for review
and comment and the extension of the comment period.
We held one public hearing on the proposed rule at San Ramon,
Contra Costa County, California, on June 1, 2000. A notice of the
hearing and its location was published in the Federal Register on May
15, 2000 (65 FR 30951). A total of 45 people provided verbal comments
at the public hearing. Transcripts of this hearings are available for
inspection at the Sacramento Fish and Wildlife Office (see ADDRESSES
section).
We received a total of 45 oral and 551 written comments during the
comment period. Of those oral comments, 14 supported critical habitat
designation, 23 were opposed to designation, and 7 provided additional
information but did not support or oppose the proposal. Of the written
comments, 456 supported designation, 72 were opposed to it, and 23
provided additional information only, or were nonsubstantive or not
relevant to the proposed designation. In total, oral and written
comments were received from 5 Federal agencies, 5 State agencies, 11
local governments, and 532 private organizations, companies, or
individuals.
All comments received were reviewed for substantive issues and new
data regarding critical habitat and the Alameda whipsnake. Comments of
a similar nature are grouped into 6 issues relating specifically to
critical habitat. These are addressed in the following summary.

Issue 1: Biological and Physical Concerns

(1a) Comment: One commenter stated that not enough information is
known about the total habitat requirements of the species to define
critical habitat. One additional commenter stated that Unit 5 was far
too large and not based on the best available scientific evidence.
Several commenters questioned the scientific basis for designating
specific areas as critical habitat and recommended excluding areas that
did not provide all of the primary constituent elements for whipsnake
habitat and areas that reported negative Alameda whipsnake survey
results.
Response: Section 4(b)(2) of the Act states ``The Secretary shall
designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available.''
Our recommendation is based on the available body of information on the
biology and status of this subspecies, as well as the effects of land-
use practices on its continued existence. We also utilized information
on related species, including the chaparral whipsnake, if information
on the Alameda whipsnake was lacking. No new information on the life
history of the whipsnake was provided during the public comment
periods. We agree that much remains to be learned about this species,
and should credible, new information become available that contradicts
the basis for this designation, we shall reevaluate our analysis and,
if appropriate, propose to modify this critical habitat designation. We
have considered the best scientific information available at this time,
as required by the Act.
In selecting areas to be included in the designation, we identified
the historic range of the whipsnake, as well as important components
related to survival and recovery, including areas that provide
sufficient breeding, feeding, and sheltering, as well as providing
adequate movement corridors to maintain genetic connectivity and
adequate space for population fluctuations. Because of the nature of
the whipsnake (fast, secretive, mobile, burrow dwelling, with periods
of hibernation) negative whipsnake survey results may not provide
sufficient evidence that the site is not used by Alameda whipsnakes
during some point in their life cycle. In addition, whipsnake surveys
do not characterize whether the site provides one or all of the primary
constituent elements needed by the whipsnake for survival and recovery.
Because the primary constituent elements are linked to various stages
of the whipsnake's life history (breeding, dispersal) or to certain
physiological requirements (temperature regulation for foraging), and
the whipsnake would not necessarily be engaged in all these activities
concurrently, not all elements need be present for the site to be
considered for designation.
(1b) Comment: A few commenters stated that the Service neglected to
include species information and habitat data that was developed by the
Alameda-Contra Costa Biodiversity Working Group.
Service Response: The Service reviewed the information prepared by
the Alameda-Contra Costa Biodiversity Working Group. The working group
used the Alameda whipsnake as an umbrella species for chaparral and
coastal scrub habitats. The working group did not define any other
habitats, including grasslands, woodlands, or riparian areas, as
potential whipsnake habitat. These habitat types were mapped using
false-color infrared color aerial photographs and subsequently mapped
on 7.5-minute orthophotographs. As explained under the ``Methods''
section above, the Service used a similar approach for mapping critical
habitat for the Alameda whipsnake. However, in addition to chaparral
and coastal scrub habitats, the Service defined whipsnake habitat to
include grassland, oak woodland, and riparian habitats that lie
adjacent to and provide corridors between areas of scrub and chaparral
habitat. Native grassland, oak woodland, and riparian habitats that lie
adjacent to chaparral and scrub habitats provide important feeding,
breeding, and sheltering sites. In addition, these habitat types
facilitate movement of whipsnakes between scrub and chaparral habitat
areas to ensure adequate dispersal and gene flow between
subpopulations.
(1c) Comment: Many local fire prevention agencies commented that
ongoing fuel reduction and modification that occurred before the
Alameda whipsnake was formally listed on December 5, 1997, should be
exempt from this rulemaking, including the Lafayette Reservoir
watershed. In addition, these agencies requested that fire prevention
techniques such as prescribed burning and ongoing vegetative clearing
should be permitted when there is a threat to human health and
property. Mount Diablo State Park specifically requested that the
designation of critical habitat not preclude the use of prescribed fire
to improve the biological health of the vegetative community and reduce
the risk of a catastrophic wildfire.
Service Response: As stated in the ``Section 7 Consultation''
section above, routine clearing of fuel breaks around urban boundaries
that were constructed before the listing of the whipsnake on December
5, 1997, including the Layette Reservoir Watershed, would not be
affected by this designation. In addition, the designation of critical
habitat for the Alameda whipsnake will have no effect on activities
that occur on private property unless the activity is federally funded
or requires a Federal permit. For projects that receive Federal (i.e.
Federal Emergency Management Agency

[[Page 58941]]

(FEMA)) funding, the Service is actively working with the Federal
agency and the local representative to ensure that untimely delays in
project implementation do not occur. The Service agrees that Mount
Diablo State Park's concerns regarding their prescribed burn program
are significant. The designation of critical habitat will not require
any additional restrictions for carrying out prescribed burn projects
above and beyond the restrictions currently in effect due to the
listing of the Alameda whipsnake as a threatened species. Furthermore,
the Service will assist Mount Diablo State Park staff with the
development of a Habitat Conservation Plan, or any other measures
required so the Park can continue vegetation enhancement measures such
as prescribed burn projects.
(1d) Comment: Several commenters stated that the maps supplied with
the proposed rule designating critical habitat did not exclude existing
infrastructure including housing developments, reservoirs, and other
manmade features that are not suitable habitat for the Alameda
whipsnake.
Service Response: As stated in the `Methods' section above, given
the short period of time in which we were required to complete this
rule, and the lack of fine-scale mapping data, we were unable to map
critical habitat in sufficient detail to exclude all such areas.
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, will not contain one or more of the primary
constituent elements.
(1e) Comment: Several commenters stated that activities such as
recreational biking, hiking, horseback riding, and off-road highway
vehicle use were unfairly placed in the same category of impacts with
more significant threats to the species including urban development and
golf course construction and use.
Service Response: In the proposed rule and here in the final rule,
we list activities that could adversely modify critical habitat without
placing specific emphasis on the relative contribution of any one
activity. The use of existing trails for recreational hiking, biking,
and horseback riding do not pose the same level of threats to the
species as the construction and use of new trails that modify critical
habitat for the whipsnake. The specific threats that result from the
construction and use of new trails are likely unique to each critical
habitat unit and are best addressed in recovery plans, management
plans, and section 7 consultations.
(1f) Comment: Many commenters were concerned about how designation
of critical habitat would affect grazing and recreation activities
including biking, hiking, and horseback riding.
Service Response: Designation of critical habitat does not
prescribe specific management actions, but does identify areas that are
in need of special management considerations. In regards to grazing,
the Service does not foresee any change in the ability of private
landowners to graze their property. In addition, we anticipate that
many activities, including grazing and recreational trail use,
presently occurring on critical habitat areas can be managed so as to
be compatible with the whipsnake's needs.
(1g) Comment: One commenter asked whether existing utility features
and the maintenance of these features are covered under the definition
of critical habitat for the Alameda whipsnake.
Service Response: Yes, however, the designation of critical habitat
will not require any additional restrictions for carrying out
maintenance projects above and beyond the restrictions currently in
effect due to the listing of the Alameda whipsnake as a threatened
species. Furthermore, the Service will assist utility companies with
the development of a Habitat Conservation Plan or any other measures
required so that maintenance projects can continue.
(1h) Comment: One commenter was concerned that, given the extensive
amount of land designated as critical habitat, the Service might not
require surveys for whipsnake presence, eliminating a source for
locality information.
Service Response: The Service does not foresee a decrease in the
number of future Alameda whipsnake surveys. Future Alameda whipsnake
surveys may be conducted to determine the relative abundance of Alameda
whipsnakes at specific sites and to determine appropriate minimization
measures. In addition, the draft recovery plan will identify the need
to conduct surveys in association with a variety of recovery tasks.
(1i) Comment: A few commenters stated that the Service incorrectly
proposed critical habitat in the eastern section of unit 5 because
there are no verified Alameda whipsnake records in the area. Additional
commenters stated there are no known Alameda whipsnake occurrences
throughout unit 5. Also, one commenter stated the Service should not
designate critical habitat in the western section of unit 5 because of
the lack of information regarding the zones of intergradation between
federally-listed Alameda whipsnake and the non-listed chaparral
whipsnake.
Service Response: A live-trapping survey for the Alameda whipsnake
was conducted within the eastern section of unit 5 on the Department of
Energy's Lawrence Livermore Lab's Site 300 in 1998. During that survey,
14 individual California whipsnakes were captured, one of which had
more taxonomic characteristics of the Alameda whipsnake than the
chaparral whipsnake. The Service also has records of pure Alameda
whipsnake occurrences that occur throughout unit 5, including two
occurrences that lie just north of Calavaras Reservoir, within 10 miles
of the western boundary of unit 5.
(1j) Comment: One of the peer review commenters stated that zone of
intergradation between the Alameda whipsnake and the chaparral
whipsnake occurs in the Del Puerto Canyon and San Antonio Valley areas
of San Joaquin, Santa Clara, and Stanislaus Counties. He suggested that
critical habitat be extended south and southeast of Unit 5 to
encompasses additional areas within western San Joaquin and Stanislaus
Counties and northern Santa Clara County to capture this zone of
intergradation.
Service Response: The Service will investigate these areas of
intergradation to determine their extent and their relationship to the
Alameda whipsnake population that occurs in Unit 5. Based on this
investigation, we will decide whether critical habitat in unit 5 should
be extended further south and southeast to include the Del Puerto
Canyon and San Antonia Valley areas.
(1k) Comment: One commenter claimed that the proposed rule is
internally inconsistent as it states that critical habitat was proposed
on land that is occupied by the Alameda whipsnake, while it appears
that unoccupied habitat has been proposed for designation.
Service Response: A range-wide survey has not been conducted for
this species. As described in `Methods' above, we used data on known
Alameda whipsnake locations to initially identify important areas. We
have also made the reasonable assumption that areas adjacent to these
locations are also within the geographical area occupied by the species
based on the suitability of the habitat. In addition, knowledge of the
species biology and the need for genetic connectivity to assure species
persistence directs the inclusion of movement corridors where possible.

[[Page 58942]]

The Service, therefore, maintains that all seven critical habitat units
are geographical areas occupied by the Alameda whipsnake.

Issue 2: General Selection of Designated Critical Habitat Areas

(2a) Comment: Several commenters stated that private lands should
be excluded from critical habitat designation. These commenters stated
that the publication of maps with threatened or endangered species
locations overlaid upon private land could subject private property
owners to increased exposure to litigation, liability, trespass, or
other activities that could interfere with privacy, and with the lawful
beneficial uses of the property.
Service Response: Section 4(b)(2) of the Act states ``The Secretary
shall designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available
and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical
habitat.'' The Act does not require nor suggest that private lands
should be excluded from designation, unless we find that the economic
or other relevant impacts outweigh the benefit of critical habitat
designation.
(2b) Comment: Several commenters recommended excluding from
designation as critical habitat areas where there were plans being
formulated to construct urban improvements within or in proximity to
the areas proposed as critical habitat.
Service Response: We did not exclude any areas because of
speculative or proposed developments. We are available to work with
project proponents to develop project alternatives that will avoid and
minimize adverse effects to whipsnakes, and not result in destruction
or adverse modification of critical habitat.
(2c) Comment: One commenter stated that, given the fact that 60
percent of the known range of the Alameda whipsnake occurs in public
ownership, the loss of the 40 percent that is held in private ownership
would not lead to the demise of the snake. Therefore, private lands
should not be included as critical habitat.
Service Response: The range of the Alameda whipsnake has been
fragmented by urban development and associated roadway construction.
What remains are five distinct populations that continue to suffer
significant habitat loss due to urban encroachment and related
activities. Public and private lands are randomly distributed
throughout the current range of the species. The loss of all remaining
private lands that provide suitable habitat for the whipsnake would
further fragment the five whipsnake populations and result in
significant losses of breeding, feeding, and sheltering habitats, as
well as the connectivity corridors. The Service believes that both
public and private lands are essential to the survival and recovery of
the species. The critical habitat designation, therefore, includes both
private and public lands.

Issue 3: Comments on Selection of Specific Sites

(3a) Comment: Several commenters expressed concern with the lack of
connectivity between individual units, especially between units 2 and
3.
Service Response: The Service agrees that there is currently
limited potential for movement between these two units. However,
through recovery efforts, the Service proposes to research ways to
promote connectivity and to determine the level of connectivity needed
to prevent genetic bottlenecking. The Alameda whipsnake populations
that occupy units 2 and 3 are the most threatened with extinction due
to their small sizes and the continued encroachment of urban
development that is further fragmenting these populations and directly
removing suitable whipsnake habitat. The Service agrees with the
commenters that all future opportunities for reconnecting these two
populations with each other and with other whipsnake populations should
be explored to ensure recovery of the species. For example, there may
be opportunities for reestablishing connectivity between units 2 and 3
associated with any alterations of Interstate 580.
(3b) Comment: A few commenters wanted clarification as to whether
their properties were included in the proposed critical habitat
designation.
Service Response: Service staff discussed with the landowners their
properties' relationship to the critical habitat designation.
(3c) Comment: One commenter was concerned that the designation of
critical habitat would prevent the extraction and processing of
aggregate materials at four separate facilities that occur within the
critical habitat boundaries.
Service Response: The designation of critical habitat has no effect
on non-Federal actions taken on private land, even if the private land
is within the mapped boundary of designated critical habitat. The
listing of the Alameda whipsnake as threatened, however, does provide
the whipsnake the protection afforded by the Act on both public and
private lands. Critical habitat has possible effects on activities by
private landowners only if the activity involves Federal funding, a
Federal permit, or other Federal action. If such a Federal nexus
exists, we will work with the landowner and the appropriate Federal
agency to develop a project that can be completed without jeopardizing
the species or destroying or adversely modifying critical habitat. In
this case, reclamation activities upon facilities closure may require
Federal funding, a Federal permit, or other Federal action.
(3d) Several commenters pointed out errors in locations or
descriptions in the proposed rule.
Service Response: Corrections have been made in the final rule to
reflect these comments, where appropriate.

Issue 4: Legal and Procedural Comments

(4a) Comment: Several commenters stated that the proposed critical
habitat designation is based on insufficient data and the Service
should withdraw its proposal given the limited amount of time it had to
adequately map whipsnake critical habitat.
Service Response: As explained in 1(a) above, Section 4(b)(2) of
the Act states ``The Secretary shall designate critical habitat, and
make revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available . . .''. At this time, the Service has
used the best available data to formulate the designation.
(4b) Comment: Several commenters stated the designation of critical
habitat constitutes a major Federal action significantly affecting the
quality of the human environment. An Environmental Impact Statement
(EIS) should be prepared.
Service Response: We have determined that Environmental Assessments
(EAs) and EISs, as defined under the authority of the National
Environmental Policy Act of 1969 (NEPA), need not be prepared 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 in October 1983 (48 FR 49244).
(4c) Comment: Several commenters stated the maps and descriptions
provided were vague and violate the Act.
Service Response: This final rule contains the required legal
descriptions of areas designated as critical habitat. If additional
clarification is necessary, contact the Sacramento Fish and Wildlife
Office (see ADDRESSES section). As described under the ``Critical
Habitat

[[Page 58943]]

Designation'' section above, we identified specific areas referenced by
specific legal description, roads, waterways, and other landmarks,
which are found on standard topographic maps.
(4d) Comment: The critical habitat proposal represents virtually
all suitable or potentially suitable habitat within the species'
historic range. The Act prohibits such broad designation.
Service Response: Section 3(5)(C) of the Act states that, except in
those circumstances determined by the Secretary, critical habitat shall
not include the entire geographical areas which can be occupied by an
endangered or threatened species. The Alameda whipsnake population has
been fragmented into five distinct populations from urban development
and associated highway construction. The loss of any one of these five
populations could lead to the extinction of the entire species.
Therefore, we have determined that the areas designated are essential
to conserve this species.
(4e) Comment: Several commenters asked whether projects that have
obtained a biological opinion pursuant to section 7 of the Act would be
required to reinitiate consultation to address the designation of
critical habitat.
Service Response: For all projects that have completed section 7
consultation where that consultation did not address potential
destruction or adverse modification of critical habitat for the Alameda
whipsnake, and have not been constructed, section 7 consultation must
be reinitiated. We expect that projects that do not jeopardize the
continued existence of the Alameda whipsnake are not likely to destroy
or adversely modify its critical habitat.
(4f) Comment: Several commenters have asked what specifically
constitutes a federal nexus on private land.
Service response: A Federal nexus is invoked when a Federal agency
is funding, permitting, or in some way authorizing a project. For the
purposes of this rulemaking, a Federal nexus that was invoked prior to
the rulemaking for a project that has been constructed or completed,
would not require a section 7 consultation under the Act. If the
project has not to date received Federal funding, a Federal permit, or
Federal authorization, but will require such in the future, and the
project might destroy or adversely modify critical habitat, the action
would require a section 7 consultation. In addition, projects that have
been federally funded, permitted, or authorized, but have not been
fully constructed would require a section 7 consultation if the project
may destroy or adversely modify critical habitat.
(4g) Comment: Several commenters asked whether it is prudent to
designate private land as critical habitat when there is no Federal
nexus.
Service Response: As stated under the ``Critical Habitat'' section
above, 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-management agencies to the importance of these areas.
(4h) Comment: One commenter stated that the Service lacks the
authority under the Commerce Clause of the Constitution to designate
critical habitat on State and private land for a species that has no
commercial utility.
Service Response: The Service maintains that it does have the
authority to designate critical habitat for the Alameda whipsnake on
private and State lands pursuant to the Act. Several court cases have
confirmed this authority (e.g., Nat. Ass'n of Home Builders of the U.S.
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
(4i) Comment: Several commenters stated that critical habitat
should not be designated until a recovery plan is completed.
Service Response: Although having a recovery plan in place is
extremely helpful in identifying areas as critical habitat, the Act
does not require a recovery plan to be prepared prior to such
designation of critical habitat. Section 4(a)(3) of the Act
specifically requires that critical habitat be designated at the time a
species is listed, or within 1 year if not determinable at listing.
Once a recovery plan is finalized, we may revise the critical habitat
described in this final rule, if appropriate, to reflect the goals and
recovery strategies of the recovery plan.

Issue 5: The incorporation of Habitat Conservation Plans (HCPs) Into
the Critical Habitat Designation

Comment: In response to the Service's request that the public
comment on critical habitat designation relative to future HCP's, 2
commenters support the approach that critical habitat be removed
entirely from within the boundaries of HCP's automatically upon the
issuance of the incidental take permit. One commenter stated that
critical habitat should be retained within the boundaries of approved
HCP's.
Service Response: The Service has considered several different
approaches regarding the issuance of HCP's within the critical habitat
boundary. Although there are no authorized or completed HCP's that
occur within the boundary of Alameda whipsnake critical habitat
designation, future HCPs are probable. If, consistent with available
funding and program priorities, we elect to revise this designation to
reflect future HCPs, our Solicitors have advised that modifying the
designation will require a subsequent rulemaking.

Issue 6: Economic Issues

(6a) Comment: Many commenters expressed concern that the draft
economic analysis failed to quantify the effects of proposed critical
habitat designation.
Service Response: Given the circumstances surrounding the
preparation of the draft economic analysis, we were only able to
identify the types of impacts likely to occur regarding proposed
critical habitat designation. Impacts we identified that could result
from critical habitat designation include new section 7 consultations,
re-initiation of consultations, and perhaps some prolongment of ongoing
consultations to address critical habitat concerns, as required under
section 7 of the Act. In some of these cases, it is possible that we
might suggest reasonable and prudent alternatives to the proposed
activity that triggered the consultation, which would also be an
impact. Also associated with consultations is the length of time
required to carry out consultations, which may result in opportunity
costs associated with project delays.
In the case of proposed critical habitat for the Alameda whipsnake,
however, we have only designated habitat that is within the
geographical areas occupied by the whipsnake. As a result, few of these
impacts are likely to occur because Federal agencies are already
required to consult with us on activities taking place on these lands
that have the potential to may adversely affect the whipsnake. We
believe that the only impacts to landowners whose property lies within
critical habitat boundaries are due to reinitiation of completed
consultations for projects not yet completed, and the designations
temporary affect on real estate values. While the Act requires agencies
to consult with us on activities that adversely modify critical
habitat, we do not believe that within proposed critical habitat for
the Alameda whipsnake there are likely to be any actions of concern
that adversely modify critical habitat without also jeopardizing the
whipsnake.

[[Page 58944]]

We also recognize that, in some instances, the designation of
critical habitat could affect real estate market value, because
participants may incorrectly perceive that land within critical habitat
designation to be subject to additional constraints. However, we
believe that this affect will be temporary.
(6b) Comment: Some commenters were concerned that, while we
discussed impacts that are more appropriately attributable to the
listing of the Alameda whipsnake than to the proposed designation of
critical habitat, we did not provide quantified estimates associated
with the listing (62 FR 64306).
Service Response: We are prohibited from considering economic
impacts when determining whether or not a species should be added to
the list of Federally protected species. As a result, we have not
estimated these impacts in the past, nor were we able to do so for the
draft economic analysis on proposed critical habitat.
(6c) Comment: Several commenters voiced concern that they were not
directly contacted for their opinions on the economic impacts of
critical habitat designation.
Service Response: It was not feasible to contact every potential
stakeholder in order for us to develop a draft economic analysis. We
believe that we were able to understand the issues of concern to the
local community based on public comments submitted on the proposed
rule, on transcripts from public hearings, and from detailed
discussions with Service representatives. To clarify issues, we did
contact representatives from other Federal, State, and local government
agencies, as well as some landowners.
In regard to consultations, the Act and its implementing
regulations only requires Federal agencies to consult with us on
activities that they fund, authorize, or carry out that may affect a
listed species or adversely modify critical habitat. As a result, only
Federal agency representatives are in a position to characterize
whether or not any additional or re-initiated consultations might occur
as a result of critical habitat designation. The Act prohibits anyone,
including private landowners, from take of a listed species without
Service authorization; however, the impacts associated with this
requirement are attributable to the listing of the species.
Based on what we have learned and because critical habitat was
designated only in areas occupied by the whipsnake, we believe that the
only impacts to landowners whose property lies within critical habitat
boundaries are due to reinitiation of completed consultations for
projects not yet completed, and the designations temporary affect on
real estate values.
(6d) Comment: Several commenters voiced concern that, while their
property was within proposed critical habitat boundaries, they have
never found any whipsnakes on their property, and that in many cases
their property did not contain the physical elements described in the
proposed rule that are required by the whipsnake.
Service Response: We recognize that not all parcels within proposed
critical habitat designation will contain the primary constituent
elements needed by the whipsnake. Given the short period of time in
which we were required to complete this proposed rule, and the lack of
fine scale mapping data, we were unable to map critical habitat in
sufficient detail to exclude all such areas. Within the proposed
critical habitat boundaries, only areas that contain or are likely to
develop those habitat components essential for the primary biological
needs of the Alameda whipsnake may be subject to section 7 consultation
should a Federal nexus exist in those areas. Activities that do not
involve a Federal nexus would not require section 7 consultation, even
if primary constituent elements are present.
(6e) Comment: Some commenters felt that the economic analysis is
flawed because it is based on the premise that the Service has proposed
designating only occupied habitat as critical habitat.
Service Response: The determination of whether or not proposed
critical habitat is occupied by the whipsnake lies beyond the scope of
an economic analysis. See also our response to issue 1(k), above.
(6f) Comment: Critical habitat designation is so broad that some
landowners will be forced to survey for whipsnake presence under
Federal and State environmental laws when undertaking a project, even
though some sites within designated critical habitat do not contain
whipsnakes or the primary constituent elements needed by whipsnakes to
occupy an area. In effect, the Service has shifted the economic burden
of determining what lands are occupied by the Alameda whipsnake within
the designated units to landowners within these units, irrespective of
whether the lands in question have ever been occupied by the snake.
Service Response: We have determined that the geographical areas
that have been identified as critical habitat are occupied by the
Alameda whipsnake. We have attempted to exclude developed lands from
proposed critical habitat designation when possible. 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 the Alameda whipsnake
conservation. While we have been unable to avoid all such areas,
actions limited to these areas will not require consultations.
(6g) Comment: Many landowners expressed concern about how critical
habitat designation may affect their particular properties and what
they would and would not be allowed to do in the future because of the
designation. Some of these landowners expressed concerns that they
would need to seek incidental take authorization from the Service for
every type of action taken on their property.
Service Response: While the Service is sensitive to the concerns of
individuals concerning their property rights, we believe that the
designation of critical habitat, for the Alameda whipsnake does not
impose any additional conditions on property owners within those areas
designated as critical habitat, beyond those imposed due to the Alameda
whipsnake being a Federally protected species. All landowners are
responsible to ensure that their actions do not result in the
unauthorized take of a listed species, and all Federal agencies are
responsible to ensure that the actions they fund, permit, or carry out
do not result in jeopardizing the continued existence of a listed
species, regardless of where the activity takes place. We will work
with any covered landowners to identify actions that would or would not
likely result in take of Alameda whipsnakes, to identify measures to
conserve the whipsnake, and, where appropriate, to develop HCPs and
associated permits under section 10 of the Act to authorize incidental
take of the Alameda whipsnake.
(6h) Comment: The draft economic analysis failed to adequately
estimate the potential economic impacts to agricultural lands and how
these effects would ripple through the local economy.
Service Response: In conducting our economic analysis, we
acknowledged that we had received incomplete information from the
agricultural industry and awaited their comments. We received several
comments that suggested that we failed to adequately consider effects
to the agricultural community of designating critical habitat. We have
read through these comments but have concluded that the

[[Page 58945]]

commenters have failed to adequately explain the rationale for why they
believe critical habitat designation impacts their industry.
In designated critical habitat, landowners, if subject to a Federal
nexus, will have to consult with us, through the representative Federal
action agency, concerning any actions that may adversely affect the
Alameda whipsnake or adversely modify its critical habitat. However,
because we have only designated geographical areas that are occupied by
the snake, landowners and associated action agencies would still be
required to consult with us on such activities regardless of critical
habitat designation.
As a result, contrary to one commenter's suggestion, we chose not
to consider agriculture multiplier effects in performing our economic
analysis because our primary interest is in determining whether or not
critical habitat designation could affect landowner activities. Because
of how critical habitat was defined and the current restrictions on
jeopardizing an endangered or threatened species, we have determined
that we are not adding any additional burden to the industry and as a
result we do not find it necessary to fully explore the importance of
the agriculture industry, to the local economy in the economic analysis
concerning proposed critical habitat for the Alameda whipsnake.
(6i) Comment: The draft economic analysis failed to adequately
estimate the potential economic impacts to landowners regarding fire
management practices.
Service Response: The economic analysis does address fire/fuel
management concerns that were voiced by some of the stakeholders. It
raises the concern that these programs are subject to a clear Federal
nexus because the practice relies in part on funding from the Federal
Emergency Management Agency (FEMA). However, because we have only
designated geographical areas by the species as critical habitat for
the whipsnake, this activity is subject to no further scrutiny by us
than it normally would be because the whipsnake is a federally
protected species and is protected both from any actions resulting in
an unlawful take and from Federal actions that could result in
jeopardizing the species.
(6j) Comment: Some landowners expressed concern that, because their
property was located within critical habitat boundaries, they would be
subject to additional constraints under the California Environmental
Quality Act (CEQA).
Service Response: To the extent that the CEQA places additional
constraints on property owners within designated critical habitat such
constraints would be a direct effect of CEQA and not a direct result of
the designation of critical habitat for the Alameda whipsnake.
(6k) Comment: Some commenters agreed with the statement in the
economic analysis that the designation of critical habitat could have
some effect on property values.
Service Response: We acknowledged in our economic analysis that the
designation of critical habitat could have some effect on property
values. Most of this effect, we believe, is short-term and occurs as a
result of the market's uncertainty as to what critical habitat
designation requires.
(6l) Comment: A commenter questioned whether habitat designation
would provide the following benefits: (1) Preservation of a resource;
(2) existence value; (3) enhancement of scenic beauty; and (4) bequest
value.
Service Response: In some instances the designation of critical
habitat may result in additional benefits associated with the
preservation of the species and its associated habitat. Economists have
traditionally recognized that such benefits can be broken down into the
above categories. However, in the particular case of the designation of
critical habitat for the Alameda whipsnake, these additional benefits
are unlikely to occur because the designation of critical habitat does
not provide any additional protection to the species beyond that
provided by the listing of the whipsnake as a Federally protected
species.
(6m) Comment: The San Francisco Public Utilities Commission
believes that designation of critical habitat will lead to additional
costs as they will need to determine presence/absence on new project
areas.
Service Response: The Service does not anticipate any additional
requirements beyond those required upon listing the Alameda whipsnake
as threatened.

Summary of Changes From the Proposed Rule

Based on comments we received on the proposed rule, we made minor
modifications to the critical habitat boundary to more adequately
reflect the existence of urban development occurring along the
periphery of the critical habitat boundary. Specifically, we made minor
changes to the southern boundary of unit 4 to exclude two existing
ranchettes that occur in the northern section of Tassajara Valley. In
addition, we made minor adjustments to the critical habitat boundary in
the northwestern section of unit 6 to exclude existing facilities that
are owned by Lawrence Berkeley National Laboratory.

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.
The economic effects already caused by the listing of the Alameda
whipsnake as threatened is the baseline upon which we analyze the
economic effects of critical habitat. The critical habitat economic
analysis examined the incremental economic and conservation effects of
designating a particular area. The economic effects of a designation
were evaluated by measuring changes in national, regional, or local
indicators in the area considered for designation. We prepared an
analysis of the economic effects of the proposed Alameda whipsnake
critical habitat designation in draft form and made the draft available
for public review (June 23, 2000; 65 FR 39117). We concluded in the
final analysis, which included review and incorporation of public
comments, that no economic impacts are expected from critical habitat
designation above and beyond that already imposed by listing the
Alameda whipsnake. Potential economic effects of critical habitat
designation are limited to impacts on activities funded, authorized, or
carried out by a Federal agency. These activities would be subject to
section 7 consultation if they may affect critical habitat. However,
activities that may affect an area considered for critical habitat
usually affect listed species, and would thus already be subject to
section 7 consultation. Also, changes or minimizing measures that might
increase the cost of the project would be imposed only as a result of
critical habitat if the project would adversely modify or destroy that
critical habitat. In most cases, a project that would adversely modify
or destroy critical habitat would also likely jeopardize the continued
existence of the species. In such a case, reasonable and prudent
alternatives to avoid jeopardizing the

[[Page 58946]]

species should also avoid adverse modification of critical habitat. The
areas designated as critical habitat are considered occupied by the
Alameda whipsnake. Since the habitat is in geographical areas occupied
by the species, Federal agencies are already required to consult with
us due to the listing of the species. Thus, regulatory burdens or
additional cost due to the critical habitat designation for the
whipsnake are not likely to exceed those already resulting from the
species' listing.
A copy of the economic analysis is included in our administrative
record and may be obtained by contacting the Sacramento Fish and
Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

Under 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 areas designated as 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 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 designated critical habitat is occupied. Because of the
potential for impacts on other Federal agencies activities, we will
continue to review this 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 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 potentially affected by
Categories of activities Species Listing Only \1\ critical habitat
designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potential Affected Activities such as removing, thinning, or None
\3\. destroying 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 58947]]

Private and other non-Federal Activities Activities such as removing, thinning, or None.
Potentially Affected \4\. destroying 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, 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
determined that designation of critical habitat will not 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 Critical Habitat 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 FEMA;
(6) Funding and regulation of road construction by the Federal
Highways Administration;
(7) Clearing of vegetation by the Department of Energy; and
(8) 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.
Many of these activities sponsored by Federal agencies within
designated 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 determined that designation of
critical habitat will not 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.

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

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

Takings

Under 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

[[Page 58948]]

designated areas, and the fact that critical habitat provides no
incremental restrictions, we do not anticipate that long-term property
values will be affected by the critical habitat designation.

Federalism

Under 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 for 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

Under 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
have made every effort to ensure that this final determination contains
no drafting errors, provides clear standards, simplifies procedures,
reduces burden, and is clearly written so that litigation risk is
minimized.

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 under 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

Under 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 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 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.
For the reasons given in the preamble, we 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 Sec. 17.11(h) revise the entry for ``Whipsnake, Alameda''
under ``REPTILES'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 58949]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historic range endangered or Status When listed Critical 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.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Amend Sec. 17.95(c) by adding critical habitat for the Alameda
whipsnake (Masticophis lateralis euryxanthus) in the same alphabetical
order as this species occurs in Sec. 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 in areas that
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.
3. Critical habitat does not include existing features and
structures, such as buildings, roads, railroads, large water bodies,
and similar features and structures not containing one or more of
the primary constituent elements.

BILLING CODE 4310-55-P

[[Page 58950]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.000

Map Unit 1: Contra Costa County, California. From 1992
Orthophoto quads, Mount Diablo Base Meridian, California: T. 2 N.,
R. 4 W., S\1/2\ 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.

[[Page 58951]]

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.

[[Page 58952]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.001

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

[[Page 58953]]

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.

[[Page 58954]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.002

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

[[Page 58955]]

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.

[[Page 58956]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.003

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

[[Page 58957]]

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/12 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.

[[Page 58958]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.004

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

[[Page 58959]]

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.

[[Page 58960]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.005

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

[[Page 58961]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.006

BILLING CODE 4310-55-C

[[Page 58962]]

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, 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: September 21, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-24763 Filed 10-2-00; 8:45 am]
BILLING CODE 4310-55-P