[Federal Register Volume 69, Number 71 (Tuesday, April 13, 2004)]
[Proposed Rules]
[Pages 19620-19642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7693]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for the California Red-legged Frog (Rana aurora 
draytonii); Proposed Rule

  Federal Register / Vol. 69, No. 71 / Tuesday, April 13, 2004 / 
Proposed Rules  

[[Page 19620]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN-1018-AJ16


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the California Red-legged Frog 
(Rana aurora draytonii)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the California red-legged frog (Rana 
aurora draytonii) pursuant to the Endangered Species Act of 1973, as 
amended (Act). A total of approximately 1,674,582 hectares (4,138,064 
acres) in Alameda, Butte, Contra Costa, El Dorado, Fresno, Kern, Los 
Angeles, Marin, Mariposa, Merced, Monterey, Napa, Plumas, Riverside, 
San Benito, San Diego, San Joaquin, San Luis Obispo, San Mateo, Santa 
Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Stanislaus, Tehama, 
Tuolumne, and Ventura Counties, California, is proposed for designation 
as critical habitat.
    This proposed designation of critical habitat for the California 
red-legged frog is being published in accordance with the November 6, 
2002, consent decree that ordered us to publish a proposal by March 
2004. In light of this deadline, we have based this proposal solely on 
the configuration of our previously published final designation of 
critical habitat for the California red-legged frog (66 FR 14626, March 
13, 2001). We hereby solicit data and comments from the public on all 
aspects of this proposal, incuding data on economic and other impacts 
of the designation.
    We may revise this proposal prior to final designation to 
incorporate or address new information received during public comment 
periods or otherwise available to us.

DATES: We will accept comments until June 14, 2004. Public hearing 
requests must be received by May 28, 2004.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2800 Cottage Way, Suite W. 2605, Sacramento, California 95825.
    2. You may hand-deliver written comments and information to our 
Sacramento Fish and Wildlife Office, at the above address, or fax your 
comments to 916/414-6712.
    3. You may send your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section below. In 
the event that our Internet connection is not functional, please submit 
comments by the alternate methods mentioned above.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: For general information, and for 
information about Alameda, Butte, Contra Costa, El Dorado, Fresno, 
Kern, Marin, Mariposa, Merced, Napa, Plumas, San Joaquin, San Mateo, 
Santa Clara, Solano, Sonoma, Stanislaus, Tehama, and Tuolumne Counties, 
contact Wayne White, Field Supervisor, Sacramento Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W. 
2605, Sacramento, California 95825 (telephone 916/414-6600; facsimile 
916/414-6712).
    For information about Monterey, Los Angeles, San Benito, San Luis 
Obispo, Santa Barbara, Santa Cruz, and Ventura Counties, contact Diane 
Noda, Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2394 Portola Road, Suite B, Ventura, California 93003 
(telephone 805/644-1766; facsimile 805/644-3958).
    For information about areas in the San Gabriel Mountains of Los 
Angeles County or Riverside and San Diego Counties, contact Jim Bartel, 
Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 92008 
(telephone 760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    It is our intent that any final action resulting from this proposal 
will be as accurate as possible. Therefore, we solicit comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. On the basis of public comment, during 
the development of the final rule we may find that areas proposed are 
not essential, appropriate for exclusion under section 4(b)(2), or not 
appropriate for exclusion, in which case they would be removed from or 
made part of the final designation. We particularly seek comments 
concerning:
    (1) The reasons why any areas should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species resulting from the designation;
    (2) Specific information on the amount and distribution of 
California red-legged frog and its habitat, and which habitat or 
habitat components are essential to the conservation of this species 
and why;
    (3) Whether the primary constituent elements for the California 
red-legged frog as defined in this proposal are biologically and 
scientifically accurate, specifically,
    (a) Whether aquatic habitat used for breeding must have a minimum 
deep water depth of 0.5 meters (m) (20 inches (in));
    (b) Whether aquatic components must consist of two or more breeding 
sites located within 2 kilometers (km) (1.25 miles (mi)) of each other;
    (c) Should the primary constituent elements be more descriptive of 
the variations in habitat preference throughout the range of the 
subspecies;
    (4) Whether the two recently discovered populations of California 
red-legged frogs in Youngs Creek, in Calaveras County, and in 
artificial ponds in Nevada County are essential to the conservation of 
the subspecies and should be included in designated critical habitat;
    (5) Land use designations and current or planned activities in or 
adjacent to the areas proposed and their possible impacts on proposed 
critical habitat;
    (6) Any foreseeable economic or other potential impacts resulting 
from the proposed designation, in particular, any impacts on small 
entities;
    (7) Some of the lands we have identified as essential for the 
conservation of the California red-legged frog are not being proposed 
as critical habitat. We specifically solicit comment on the inclusion 
or exclusion of such areas and:
    (a) Whether these areas are essential;
    (b) Whether these areas warrant exclusion; and
    (c) The basis for not designating these areas as critical habitat 
(section 3(5)(A) or section 4(b)(2) of the Act);
    (8) With specific reference to the recent amendments to sections 
4(a)(3) and 4(b)(2) of the Act, we request information from the 
Department of Defense to assist the Secretary of the Interior in 
excluding critical habitat on lands administered by or under the

[[Page 19621]]

control of the Department of Defense based on the benefit of an 
Integrated Natural Resources Management Plan (INRMP) to the 
conservation of the species; and information regarding impacts to 
national security associated with proposed designation of critical 
habitat; and
    (9) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit electronic comments in ASCII file format and 
avoid the use of special characters or any form of encryption. Please 
also include ``Attn: RIN 1018-AJ16'' in your e-mail subject header and 
your name and return address in the body of your message. If you do not 
receive a confirmation from the system that we have received your 
Internet message, contact us directly by calling our Sacramento Fish 
and Wildlife Office at phone number 916/414-6600. Please note that the 
e-mail address [email protected] will be closed out at the termination 
of the public comment period. In the event that our Internet connection 
is not functional, please submit comments by the alternate methods 
mentioned above.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review. Individual 
respondents may request that we withhold their home addresses from the 
rulemaking record, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

Preamble

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of conservation resources. The Service's present system for designating 
critical habitat is driven by litigation rather than biology, limits 
our ability to fully evaluate the science involved, consumes enormous 
agency resources, and imposes huge social and economic costs. The 
Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the ESA [Act] 
can protect species with and without critical habitat designation, 
critical habitat designation may be redundant to the other consultation 
requirements of section 7.''
    Currently, only 445 or 36 percent of the 1244 listed species in the 
U.S. under the jurisdiction of the Service have designated critical 
habitat (Service 2004). We address the habitat needs of all 1244 listed 
species through conservation mechanisms such as listing, section 7 
consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, and the Section 10 incidental take permit process. The Service 
believes that it is these measures that may make the difference between 
extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits regarding critical habitat 
designation, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits and to comply 
with the growing number of adverse court orders. As a result, the 
Service's own to proposals to undertake conservation actions based on 
biological priorities are significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for additional public 
participation beyond those minimally required by the Administrative 
Procedure Act (APA), the Act, and the Service's implementing 
regulations, or to take additional time for review of comments and 
information to ensure the rule has addressed all the pertinent issues 
before making decisions on listing and critical habitat proposals, due 
to the risks associated with noncompliance with judicially imposed 
deadlines. This in turn fosters a second round of litigation in which 
those who will suffer adverse impacts from these decisions challenge 
them. The cycle of litigation appears endless, is very expensive, and 
in the final analysis provides little additional protection to listed 
species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with National 
Environmental Policy Act (NEPA); all are part of the cost of critical 
habitat designation. These costs result in minimal benefits to the 
species that are not already afforded by the protections of the Act 
enumerated earlier, and they directly reduce the funds available for 
direct and tangible conservation actions.

Background

Species Description

    The California red-legged frog (Rana aurora draytonii) is the 
largest native frog in the western United States. It is endemic to 
California and Baja California, Mexico. It is typically found from sea 
level to elevations of approximately 1,500 meters (m) (5,000 feet 
(ft)). The California red-legged frog ranges in body length from 40 to 
130 millimeters (mm) (1.6 to 5.1 in), with

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adult females attaining a significantly longer body length than males 
(138 mm (5.4 in) versus 116 mm (4.6 in)) (Hayes and Miyamoto 1984). The 
posterior abdomen and hind legs of adults vary in color, but are often 
red or salmon pink; the back is characterized by small black flecks and 
larger irregular dark blotches with indistinct outlines on a brown, 
gray, olive, or reddish-brown background. Dorsal spots usually have 
light centers (Stebbins 1985), and the dorsolateral folds (folds along 
the sides of the frog) are prominent. Larvae range from 14 to 80 mm 
(0.6 to 3.1 in) in length, and the background color of the body is dark 
brown or olive with darker spots (Storer 1925). A line of very small, 
indistinct gold-colored spots are thought to become the dorsolateral 
fold. The California red-legged frog is one of two subspecies of the 
red-legged frog (R. aurora). For a detailed description of the two 
subspecies, see the Recovery Plan for the California Red-legged Frog 
(Service 2002) and references identified within the plan.

Life History

    Male California red-legged frogs appear at breeding sites 2 to 4 
weeks before females (Storer 1925). A pair in amplexus (breeding 
position) moves to an oviposition site (the location where eggs are 
laid), and the eggs are fertilized while being attached to a brace. 
Braces include emergent vegetation such as bulrushes (Scirpus sp.), 
cattails (Typha sp.), or roots and twigs, although breeding has been 
documented in ponds without emergent vegetation (Steven Bobzien in 
litt. 2001). Each mass contains about 2,000 to 5,000 individual eggs 
measuring approximately 2.0 to 2.8 mm (0.08 to 0.11 in) in diameter. 
Eggs hatch in 6 to 14 days depending on water temperatures (Jennings et 
al., 1992). Larvae typically metamorphose between July and September 
3.5 to 7 months after eggs are laid (Storer 1925; Wright and Wright 
1949). However, several researchers have recently observed larvae to 
overwinter in Contra Costa, Marin, Santa Clara, and San Luis Obispo 
Counties (Bobzien et al. 2000), and possibly in Ventura County (R. 
Smith, Los Angeles Zoo, in litt. 2001), with new metamorphs being 
observed in March and April.
    Of the various life stages, larvae probably experience the highest 
mortality rates. Survival rate from hatching to metamorphosis (the 
process of changing from a tadpole to a frog) has been estimated as 
less than 1 percent (Jennings et al. 1992), 1.9 percent (Cook 1997), or 
less than 5 percent (Lawler et al. 1999) for California red-legged frog 
tadpoles co-occurring with bullfrog tadpoles, and 30 to 40 percent for 
California red-legged frog tadpoles occurring without bullfrogs (Lawler 
et al. 1999). Sexual maturity can be attained at 2 years of age by 
males and 3 years of age by females (Jennings and Hayes 1985), with 
adults living 8 to 10 years (Jennings, U.S. Geological Survey (USGS), 
Biological Resources Division (BRD), pers. comm. 2000). However, the 
average life span is probably much lower (Scott, USGS, BRD, pers. comm. 
2000).

Geographic Range

    The historic range of the California red-legged frog extended along 
the coast from the vicinity of Point Reyes National Seashore, Marin 
County, California, and inland from the vicinity of Redding, Shasta 
County, California, southward to northwestern Baja California, Mexico 
(Jennings and Hayes 1985; Hayes and Krempels 1986). California red-
legged frogs have been documented in 46 counties in California, but now 
remain in only 248 streams or drainages in 26 counties; the subspecies 
has lost approximately 70 percent of its former range (61 FR 25813, May 
23, 1996). California red-legged frogs are still locally abundant 
within portions of the San Francisco Bay area (including Marin County) 
and the central coast. Within the remaining distribution of the 
subspecies, only isolated populations have been documented in the 
Sierra Nevada, northern Coast, and northern Transverse ranges. The 
subspecies was previously believed to be extirpated (exterminated) from 
most of its range in the southern Transverse and Peninsular Ranges, but 
two additional populations have recently been discovered. The species 
is still present in Baja California, Mexico (California Natural 
Diversity Data Base (CNDDB) 1998; Service, in litt. 2003).

Threats

    The California red-legged frog was listed as a threatened 
subspecies on May 23, 1996 (61 FR 25813). Habitat loss and alteration, 
overexploitation, and introduction of exotic predators were significant 
factors in the subspecies' decline in the early-to-mid-1900s. Reservoir 
construction, expansion of introduced predators, management of grazing 
in riparian areas resulting in loss of stream bank habitat and plunge 
pools, and prolonged drought fragmented and eliminated many of the 
Sierra Nevada foothill populations. Only a few drainages currently 
support California red-legged frogs in the Sierra Nevada foothills, 
compared to more than 60 historical records. In Northern California, 
few California red-legged frog populations occupy naturally occurring 
wetland environments. As natural wetlands and streams were converted 
for agriculture, flood control, and urban development, California red-
legged frogs colonized small artificial impoundments created by cattle 
ranchers for the purpose of providing water for their cattle. Without 
these impoundments, the range of California red-legged frogs would be 
limited further in this region.
    Several researchers have attributed the decline and extirpation of 
California red-legged frogs to the introduction of bullfrogs (Rana 
catesbeiana) and predatory fishes (Hayes and Jennings 1986; Moyle 
1973). This decline has been attributed to both predation and 
competition. Twedt (1993) observed the predation of juvenile northern 
red-legged frogs (R. aurora aurora) and suggested that bullfrogs may 
prey on subadult red-legged frogs. This is supported by Cook (Sonoma 
County Water Agency, in litt. 2000) and David Cook and M. Jennings (in 
litt. 2000), who documented bull frog predation of both tadpoles and 
juvenile California red-legged frogs, as well as a large adult, by 
bullfrogs. In addition, bullfrogs may have a competitive advantage over 
red-legged frogs. Bullfrogs are larger, have more generalized food 
habits (Bury and Whelan 1984), and have an extended breeding season 
(Storer 1933) during which an individual female produces as many as 
20,000 eggs (Emlen 1977). Further, bullfrog larvae are unpalatable to 
predatory fish (Kruse and Francis 1977). Bullfrogs also interfere with 
red-legged frog reproduction. Both California and northern red-legged 
frogs have been observed in amplexus with both male and female 
bullfrogs (Twedt 1993; Service files).
    California red-legged frogs are currently threatened by human 
activities, many of which operate concurrently and cumulatively with 
each other and with natural disturbances (e.g., droughts and floods). 
Current factors associated with declining populations of the frog 
include degradation and loss of habitat through urbanization, mining, 
improper management of grazing, recreation, invasion of nonnative 
plants, impoundments, water diversions, degraded water quality, and 
introduced predators. These factors have resulted in the isolation and 
fragmentation of habitats within many watersheds, often precluding 
dispersal between subpopulations and jeopardizing the viability of 
metapopulations (broadly defined as multiple subpopulations that 
occasionally exchange individuals through dispersal and are capable of

[[Page 19623]]

colonizing or rescuing habitat patches when the local subpopulations 
have been extirpated). The fragmentation of existing habitat, and the 
continued colonization of existing habitat by nonnative species, may 
represent the most significant current threats to California red-legged 
frogs.
    Numerous studies have demonstrated the impacts of fragmentation on 
other anuran (frog and toad) species. Urban populations of common frogs 
(Rana temporaria) were more genetically distinct than rural populations 
(Hitchins and Beebee 1997). Based on genetic analysis, Reh and Seitz 
(1990) found that highways effectively isolated R. temporaria 
populations. Kuhn (1987, in Reh and Seitz 1990) estimated that 24 to 40 
cars per hour killed 50 percent of common toad (Bufo bufo) individuals 
migrating across a road, while Heine (1987, in Reh and Seitz 1990) 
found that 26 cars per hour could reduce the survival rate of toads 
crossing roads to zero. In addition, Fahrig et al. (1995) found a 
significant negative correlation between traffic density and the 
density of anuran populations. Thus, heavily traveled roads are an 
important human-caused landscape component, hindering amphibian 
movement through vehicle strikes and thereby fragmenting amphibian 
populations.
    In addition to the fragmentation of habitat, activities that occur 
on upland habitats can have both direct and indirect significant 
deleterious impacts on California red-legged frogs. For example, 
amphibian species-richness (number of species in an area) is related to 
land use in the watersheds of Puget Sound, Washington (Richter and 
Azous 1995, 1997); species-richness was significantly lower in 
watersheds where more than 40 percent of the land area was developed. 
This was attributed to increases in the total water level fluctuations 
within wetlands (e.g., both increases in the number of fluctuations of 
water levels within the wetland and increases in the magnitude of 
fluctuations). Specifically, urbanization leads to higher peak flows 
and volumes, resulting in increases in the magnitude, frequency, and 
duration of wetland hydroperiods and stream levels (Reinalt and Taylor 
1997). Urbanization within the range of the California red-legged frog 
often results in similar effects on wetlands.
    Urbanization results in additional water runoff sources into 
wetlands and stream courses associated with irrigation and home use 
activities, especially during the summer months. This often drastically 
alters the hydroperiod and converts intermittent streams and seasonal 
wetlands to perennial aquatic habitat. Such alteration allows nonnative 
species such as bullfrogs and nonnative warm water fish species to 
invade the habitat and further adversely affect California red-legged 
frog populations. California red-legged frogs are rarely found in areas 
where a large majority of the watershed has been developed (H.T. Harvey 
and Associates 1997, Service files). This is further supported by 
Schueler (1994), who summarized research examining macroinvertebrate 
and fish diversity. Those results illustrated the difficulty of 
maintaining predevelopment stream quality when watershed development 
exceeds 10-15 percent impervious cover. For example, Klein (1979, in 
Schueler 1994) found that macroinvertebrate diversity consistently 
became poor when watershed imperviousness exceeded 10 to 15 percent; 
this has been supported by Schueler and Galli (1992 in Schueler 1994) 
and Shaver et al. (1994, in Schueler 1994). This loss of diversity has 
also been observed in fish (Klein 1979; Limburg and Schmidt 1990, both 
in Schueler 1994).
    In addition to the modification of hydroperiod, impacts within the 
watershed can also affect water and habitat quality. As watersheds are 
developed, the area of impervious surface increases, resulting in an 
increase of sediments containing organic matter, pesticides and 
fertilizers, heavy metals, hydrocarbons, and other debris entering 
streams and wetlands (U.S. Environmental Protection Agency (EPA) 1993). 
Skinner et al. (1999) found developed watersheds had greater 
concentrations of toxic effluents than less developed areas with more 
open space. The decrease in water quality can have profound impacts on 
native amphibians and other wetland vertebrates. Richter and Azous 
(1997) observed that wetlands adjacent to undeveloped upland areas were 
more likely to have richer populations of native amphibians. Mensing et 
al. (1998) found that amphibian abundance was negatively influenced by 
land use at small scales (e.g., within 0.5 to 1.0 km (0.30 to 0.60 mi).
    Habitat fragmentation, wetland conversions, and hydrological 
alterations cumulatively result in changes in wetland species 
composition, including amphibian composition. Amphibian declines can be 
attributed to increasing numbers of nonnative competitors and predators 
capable of thriving in disturbed conditions (Harris 1998). Onorato et 
al. (1998) found native fish species were sensitive to anthropogenic 
disturbances and were becoming less abundant within the study area. 
They also found introduced generalists able to tolerate lower quality 
habitat and to replace native fish species within the system. This 
scenario has been demonstrated in Santa Clara Valley, California, where 
the loss of California red-legged frog populations was attributed in 
part to the invasion of bullfrogs into urbanized areas (H.T. Harvey and 
Associates 1997).

Climate

    California red-legged frogs are adapted to survive in a 
Mediterranean climate where habitat quality varies spatially and 
temporally. Due to this variability, population sizes can vary widely 
from year to year. During favorable years, California red-legged frogs 
can experience extremely high rates of reproduction and produce large 
numbers of dispersing young, resulting in an increase in the number of 
occupied sites. In contrast, frogs may temporarily disappear from an 
area during periods of extended drought. Therefore, it is important for 
the long-term survival and recovery of the species to protect those 
sites that appear to be unoccupied, but can be recolonized by 
dispersing individuals from nearby subpopulations (Semlitsch 2000).

Habitat

    California red-legged frogs use a variety of habitat types, 
including various aquatic, riparian, and upland habitats. They include, 
but are not limited to, ephemeral ponds, intermittent streams, seasonal 
wetlands, springs, seeps, permanent ponds, perennial creeks, manmade 
aquatic features, marshes, dune ponds, lagoons, riparian corridors, 
blackberry (Rubus sp.) thickets, nonnative annual grasslands, and oak 
savannas. Among the variety of habitats where California red-legged 
frogs have been found, the only common factor is association with a 
permanent water source. Apparently, California red-legged frogs can use 
virtually any aquatic system, provided a permanent water source, 
ideally free of nonnative predators, is nearby. Permanent water sources 
can include, but are not limited to, ponds, perennial creeks (or 
permanent plunge pools within intermittent creeks), seeps, and natural 
and artificial springs. California red-legged frogs may complete their 
entire life cycle in a particular area (i.e., a pond that is suitable 
for all life stages) or utilize multiple habitat types. These variable 
life-history characteristics enable California red-legged frogs to 
change habitat use in response to

[[Page 19624]]

varying conditions. During a period of abundant rainfall, the entire 
landscape may become suitable habitat. Conversely, habitat use may be 
drastically confined during periods of prolonged drought.
    Populations of California red-legged frogs are most likely to 
persist where multiple breeding areas are within an assemblage of 
habitats used for dispersal (N. Scott and G. Rathbun in litt. USGS, 
BRD, 1998), a trait typical of many frog and toad species (Laan and 
Verboom 1990; Reh and Seitz 1990; Mann et al. 1991; Sjogren-Gulve 1994; 
Griffiths 1997; Marsh et al. 1999). Breeding sites have been documented 
in a variety of aquatic habitats. Larvae, juveniles, and adult frogs 
have been observed inhabiting streams, creeks, ponds, marshes, sag 
ponds, deep pools, and backwaters within streams and creeks, dune 
ponds, lagoons, estuaries, and artificial impoundments, such as stock 
ponds. Furthermore, breeding has been documented in these habitat types 
irrespective of vegetation cover. Frogs successfully breed in 
artificial ponds with little or no emergent vegetation (S. Bobzien in 
litt. 2000), and have been observed to successfully breed and inhabit 
stream reaches that are not cloaked in riparian vegetation (Bobzien et 
al. 2000). The importance of riparian vegetation for this subspecies is 
not well understood. It is believed that riparian plant communities 
provide good foraging habitat due to the moisture and camouflage that 
occur within the community, as well as providing areas for dispersal 
and supporting pools and backwater aquatic areas for breeding. However, 
other factors are more likely to influence the suitability of aquatic 
breeding sites, such as the general lack of introduced aquatic 
predators.
    California red-legged frogs often disperse from their breeding 
habitat to utilize various aquatic, riparian, and upland estivation 
habitats in the summer; however, it is also common for individuals to 
remain in the breeding area on a year-round basis. Frogs use a number 
of habitat features, including ponds, streams, marshes, boulders or 
rocks, organic debris such as downed trees or logs, industrial debris, 
and agricultural features such as drains, watering troughs, or spring 
boxes. When riparian habitat is present, frogs spend considerable time 
resting and feeding in the vegetation (G. Rathbun in litt. 2000). When 
riparian habitat is absent, frogs spend considerable time resting and 
feeding under rocks and ledges, both in and out of water (Trish 
Tatarian, Sonoma State University, Sonoma County in litt. 2000). 
California red-legged frogs can also use small mammal burrows and moist 
leaf litter (Jennings and Hayes 1994). Stream channels with portions 
narrower and deeper than 46 centimeters (cm) (18 in) may also provide 
habitat (61 FR 25813). This type of dispersal and habitat use is not 
observed in all California red-legged frogs, however, and is likely 
dependent on the year-to-year variations in climate and habitat 
suitability and varying requirements of each life stage.

Dispersal

    At any time of the year, adult California red-legged frogs may move 
from breeding sites. They can be encountered living within streams at 
distances exceeding 2.9 km (1.8 mi) from the breeding site and have 
been found farther than 100 m (328 ft) from water in adjacent dense 
riparian vegetation. The California red-legged frog has been observed 
inhabiting riparian areas for up to 77 days (J. Bulger et al., USGS, 
BRD, in litt. 2000), but typically remains within 60 m (200 ft) of 
water. During periods of wet weather, starting with the first rains of 
fall, some individuals may make overland excursions through upland 
habitats. Most of these overland movements occur at night. Evidence 
from marked adult frogs on the San Simeon coast of San Luis Obispo 
County, California, suggests that frog movements of about 1.6 km (1 
mi), over upland habitats, are possible over the course of a wet season 
(N. Scott and G. Rathbun, in litt. 1998). Frogs will make long-
distance, straight-line, point-to-point movements rather than using 
corridors for moving between habitats (N. Scott and G. Rathbun, in 
litt. 1998). Dispersing adult frogs in northern Santa Cruz County 
traveled distances from 0.4 km (0.25 mi) to more than 3.2 km (2 mi) 
without apparent regard to topography, vegetation type, or riparian 
corridors (J. Bulger, in litt. 2000). Many newly metamorphosed 
juveniles tend to disperse short distances initially from July through 
September, and then move farther away from the breeding habitat during 
warm rain events (Monk 1997a; M. Jennings in litt. 2000; N. Scott in 
litt. 2000; Brian Mori in litt. 2000). Bobzien et al. (2000) observed 
juveniles inhabiting a wide variety of habitats while adults primarily 
inhabited deep pools; and they postulated that juveniles might 
segregate themselves away from adults to escape predation and 
competition.
    The dispersal capabilities of juveniles have not been studied, but 
are likely dependent upon rainfall and moisture levels during and 
immediately following dispersal events and on habitat availability and 
environmental variability. There is anecdotal evidence that juvenile 
red-legged frogs disperse at least 1 km (0.6 mi) away from breeding 
habitat. These data are the result of consulting biologists conducting 
surveys for California tiger salamanders (Ambystoma californiense) in 
eastern Alameda (Monk and Associates 1997a and 1997b) and Santa Clara 
Counties (B. Mori, in litt. 2000). In both locations, newly 
metamorphosed California red-legged frogs were found dispersing away 
from breeding habitat during rain events. The ability of juveniles and 
adults to disperse is important for the long-term survival and recovery 
of the subspecies because the dispersing individuals can recolonize 
areas subjected to localized extirpation.
    The manner in which nondispersing California red-legged frogs use 
upland habitats is not well understood. The length of time California 
red-legged frogs spend in upland habitats, patterns of use, and whether 
juveniles, subadults, and adults use uplands differently are under 
study. Preliminary data from San Simeon and Pico creeks in central 
California indicated that the number of days when California red-legged 
frogs were found more than 2.0 m (7 ft) from water ranged from 0 to 56 
days (G. Rathbun, in litt. 2000), while the majority of California red-
legged frogs observed in eastern Contra Costa County spent the entire 
wet season within streamside habitat (T. Tatarian, in litt. 2000). 
However, several frogs have been documented moving away from the 
streamside habitat for varying periods (T. Tatarian, pers. comm. 2001).
    The healthiest California red-legged frog populations persist as a 
collection of subpopulations that exchange genetic information through 
individual dispersal events. These populations persist and flourish 
where suitable breeding and nonbreeding habitats are interspersed 
throughout the landscape and are interconnected by unfragmented 
dispersal habitat. Where this habitat mosaic exists, local extirpations 
may be counterbalanced by the colonization of new habitat or 
recolonization of unoccupied areas of suitable habitat. Studies on 
other frogs and toads have demonstrated that the probability of a 
habitat being occupied is positively correlated with the distance to 
the nearest currently occupied habitat patch (Laan and Verboom 1990; 
Mann et al. 1991; Marsh et al. 1999). Isolated patches far removed from 
occupied patches eventually became extirpated (Sjogren-Gulve 1994). In 
addition to distance between habitat patches, the fragmentation of 
dispersal routes can also result in the isolation of subpopulations. 
Studies from other

[[Page 19625]]

anuran species have shown that fragmentation has resulted in problems 
associated with inbreeding (Reh and Seitz 1990; Hitchings and Beebee 
1997) and an increase in unoccupied suitable habitat, and can 
ultimately result in extinction (Sjogren-Gulve 1994).
    The long-term probability of the survival and recovery of 
California red-legged frogs is dependent upon the protection of 
existing breeding habitat, the movements of individuals between aquatic 
patches, and the ability to recolonize newly created or vacated 
habitats. Recolonization, which is vital to the recovery of this 
subspecies, is dependent upon landscape characteristics including the 
distance between patches, the number and severity of barriers between 
patches, and the presence of interconnecting elements (e.g., habitat 
where frogs can rehydrate), and upon the dispersal capability of 
California red-legged frogs (Laan and Verboom 1990).
    Since the publication of our last designation of critical habitat 
for the California red-legged frog on March 13, 2001 (66 FR 14626), two 
new populations of the subspecies have been documented. However, due to 
limited access to these populations since they occur on private 
property and the limited information we have concerning their status, 
we have not been able to make a determination at this time as to 
whether they are essential to the conservation of the subspecies. We 
specifically seek information concerning these two new populations to 
assist us in making that determination. If, upon receipt of additional 
data and further analysis, we determine these populations to be 
essential to the conservation of the subspecies, it would be our 
intention to include them in final critical habitat.
    The first population was discovered on private property in the 
South Fork Yuba River watershed in Nevada County, California, in 2002. 
This presence of this population was subsequently confirmed by 
Sacramento Fish and Wildlife staff in 2003. During the site visit, 
California red-legged frog tadpoles were observed suggesting the 
presence of a breeding population. Further, during this site visit, 
there was no specific evidence visible of invasive or predatory species 
on site. The California red-legged frogs on this site occur in 
artificial ponds, but they are not active stock ponds. Because this 
population is located on private land, we have not had the opportunity 
to study it. Consequently, we are not able to make any specific 
conclusions regarding the status of this population of the subspecies 
at this locale.
    A second population of California red-legged frogs was discovered 
on private land in Youngs Creek, Calaveras County, California, in 2003. 
The population was subsequently confirmed, but due to limited access, 
we have not been able to determine the extent of this population. 
Youngs Creek is a tributary of Cosgove Creek, a tributary to Calaveras 
River; however, during the site visits, there was no specific evidence 
visible of invasive or predatory species bullfrogs are known to occur 
in ponds on adjacent property.

Previous Federal Action

    On February 2, 1994, we published a proposal to list the frog as an 
endangered species (59 FR 4888). Based on information provided during 
the public comment period, we subsequently published a final rule 
listing the California red-legged frog as threatened on May 23, 1996 
(61 FR 25813). At the time of the final listing, we determined that 
designating critical habitat was not prudent due to the potential 
increased degree of threat from the publication of specific localities. 
This specific information would make the species more vulnerable to 
vandalism and also to collection for market consumption. Consequently, 
we did not designate critical habitat for the subspecies.
    On March 24, 1999, the Earthjustice Legal Defense Fund, on behalf 
of the Jumping Frog Research Institute, the Southwest Center for 
Biological Diversity, and the Center for Sierra Nevada Conservation, 
filed a lawsuit in the Northern District of California on our failure 
to designate critical habitat for the California red-legged frog.
    On December 15, 1999, the court ordered us to make a prudency 
determination by August 31, 2000, and issue a final rule by December 
29, 2001. On January 18, 2000, the court clarified an error in the 
December 15, 1999, order stating that the Service shall issue a final 
rule by December 29, 2000. On August 22, 2000, we submitted a 
declaration requesting an extension of the court order to March 1, 
2001, citing the need to extend the comment period. On September 11, 
2000, we published a proposed rule to designate approximately 2,175,000 
ha (5,373,650 ac) as critical habitat for the California red-legged 
frog (65 FR 54891) in California. The comment period was open until 
October 11, 2000. During this comment period, four public hearings were 
held in Ventura (September 19, 2000), San Luis Obispo (September 21, 
2000), Dublin (September 26, 2000), and Sacramento (September 28, 
2000). On December 21, 2000, we published a notice (65 FR 80409) 
announcing the reopening of the comment period on the proposal to 
designate critical habitat for the California red-legged frog and a 
notice of availability of the draft economic analysis on the proposed 
determination. The comment period was reopened until January 22, 2001. 
A final rule designating critical habitat for the California red-legged 
frog was signed on March 1, 2001, and published in the Federal Register 
on March 13, 2001 (66 FR 14626).
    On June 8, 2001, the Home Builders Association of Northern 
California, California Chamber of Commerce, California Building 
Industry Association, California Alliance for Jobs, and the Building 
Industry Legal Defense Fund filed a lawsuit in the U.S. District Court 
for the District of Columbia challenging the Service's designation of 
critical habitat for the California red-legged frog. Home Builders 
Ass'n of Northern California, et al. v. Norton, et al., Civ. No. 01-
1291 (RJL) (D. D.C.). On November 6, 2002, the court entered a consent 
decree remanding the designation to the Service to conduct an economic 
analysis in accordance with the Tenth Circuit's decision in New Mexico 
Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277 
(10th Cir. 2001). The consent decree vacated the critical habitat 
designation for the California red-legged frog with the exception of 
Units 5 and 31, Units not known to be occupied by the frog, and ordered 
the Service to promulgate a proposed revised designation by March 2004, 
and a final revised rule by November 2005. This proposed rule is 
published in accordance with the November 6, 2002, consent decree.

Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve,

[[Page 19626]]

preserve, or other conservation area. It does not allow government or 
public access to private lands. Under section 7 of the Act, Federal 
agencies must consult with us on activities they undertake, fund, or 
permit that may affect critical habitat and lead to its destruction or 
adverse modification. However, the Act prohibits unauthorized take of 
listed species and requires consultation for activities that may affect 
them, including habitat alterations, regardless of whether critical 
habitat has been designated. We have found that the designation of 
critical habitat provides little additional protection to most listed 
species.
    To be included in a critical habitat designation, habitat must be 
either a specific area within the geographic area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species (primary constituent 
elements, as defined at 50 CFR 424.12(b)) and which may require special 
management considerations or protections, or be specific areas outside 
of the geographic area occupied by the species which are determined to 
be essential to the conservation of the species. Section 3(5)(C) of the 
Act states that not all areas that can be occupied by a species should 
be designated as critical habitat unless the Secretary determines that 
all such areas are essential to the conservation of the species. Our 
regulations (50 CFR 424.12(e)) also state that, ``The Secretary shall 
designate as critical habitat areas outside the geographic area 
presently occupied by the species only when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species.'' Regulations at 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas that are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us. Accordingly, 
we do not designate critical habitat in areas outside the geographic 
area occupied by the species unless the best available scientific and 
commercial data demonstrate that unoccupied areas are essential for the 
conservation needs of the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic, national security, 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.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271) 
and our U.S. Fish and Wildlife Service Information Quality Guidelines 
(2002) provide criteria, establish procedures, and provide guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of what we know at the time of designation. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations of a listed species, but are outside 
the designation of critical habitat for it, will continue to be subject 
to conservation actions implemented under section 7(a)(1) of the Act 
and to the regulatory protections afforded by the section 7(a)(2) 
jeopardy standard, as determined on the basis of the best available 
information at the time of the action. Federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans, or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.

Methods

    In identifying areas that are essential to conserve the California 
red-legged frog, we used the best scientific and commercial data 
available. These included data from research and survey observations 
published in peer-reviewed articles, recovery criteria and strategy 
outlined in the Recovery Plan (Service 2002), regional Geographic 
Information System (GIS) watershed and species coverages, data compiled 
in the California Natural Diversity Database (CNDDB), data and analysis 
used to develop regional Habitat Conservation Plans (HCPs), and data 
collected from reports submitted by biologists holding section 
10(a)(1)(A) recovery permits. In the development of this proposal, we 
also took into consideration any information provided to us during the 
public comment periods on our previous proposed critical habitat 
designation (65 FR 54891, September 11, 2000) and draft economic 
analysis of our proposed critical habitat (65 FR 80409, December 21, 
2000).

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we are required to consider those physical and biological 
features (primary constituent elements) that are essential to the 
conservation of the species, and that may require special management 
considerations and protection. These 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, rearing (or development) of offspring; and habitats that 
are protected protection from disturbance or are representative of the 
historic geographical and ecological distributions of a species.
    Due to the complex life history and dispersal capabilities of the 
California red-legged frog, and the dynamic nature of the environments 
in which they are found, the primary constituent elements described 
below are found throughout the watersheds that are being designated as 
critical habitat. Special management, such as habitat rehabilitation 
efforts (e.g., removal of nonnative predators),

[[Page 19627]]

may be necessary throughout the area being proposed for designation. 
Critical habitat for California red-legged frogs will provide for 
breeding and nonbreeding habitat and for dispersal between these 
habitats, as well as allowing for expansion of frog populations, which 
is essential to the conservation of the subspecies.
    Critical habitat includes: (a) Essential aquatic habitat; (b) 
associated uplands; and (c) dispersal habitat connecting essential 
aquatic habitat.

Breeding and Foraging Habitat

    Aquatic habitat is essential for providing space, food, and cover, 
necessary to sustain all life stages of California red-legged frogs. It 
consists of virtually all low-gradient fresh water bodies, including 
natural and man-made (e.g., stock) ponds, backwaters within streams and 
creeks, marshes, lagoons, and dune ponds, except for deep lacustrine 
water habitat (e.g., deep lakes and reservoirs 20 ha (50 ac) or larger 
in size) inhabited by nonnative predators. The subspecies requires a 
permanent water source to ensure that aquatic habitat is available year 
round. Permanent water sources can include, but are not limited to, 
ponds, perennial creeks (or permanent plunge pools within intermittent 
creeks), seeps, and springs. Aquatic habitat used for breeding must 
have a minimum deep water depth of 0.5 m (20 in) and maintain water 
during the entire tadpole rearing season (at least March through July). 
During periods of drought, or less-than-average rainfall, these 
breeding sites may not hold water long enough for individuals to 
complete metamorphosis, but these sites would still be considered 
essential breeding habitat in wetter years. Ponds that support a small 
population of California red-legged frogs, but are not surrounded by 
suitable upland habitat, or are cut off from other breeding ponds or 
permanent water sources by impassable dispersal barriers, do not have 
the primary constituent elements for California red-legged frog 
critical habitat.
    To be a primary constituent element for California red-legged frog 
critical habitat, the aquatic components must consist of two or more 
breeding sites located within 2 km (1.25 mi) of each other; at least 
one of the breeding sites must also be a permanent water source. Also, 
the aquatic component can consist of two or more seasonal breeding 
sites with a permanent nonbreeding water source located within 2 km 
(1.25 mi) of each breeding site. California red-legged frogs have been 
documented to travel 3.6 km (2.25 mi) in a virtual straight-line 
migration from nonbreeding to breeding habitats (J. Bulger, in litt. 
2000). We believe that this is likely the upward limit of dispersal 
capability and that the 2-km (1.25-mi) dispersal element will ensure 
that connectivity between breeding habitats will be maintained within 
areas designated as critical habitat. In addition, breeding sites must 
be connected by essential dispersal habitat, described below.

Associated Upland Habitat For Forage, Shelter, Water Quality 
Maintenance

    Associated upland and riparian habitat is essential to maintain 
California red-legged frog populations associated with essential 
aquatic habitat. The associated uplands and riparian habitat provide 
food and shelter sites for California red-legged frogs and assist in 
maintaining the integrity of aquatic sites by protecting them from 
disturbance and supporting the normal functions of the aquatic habitat. 
The palustrine or emergent aquatic habitat is often characterized by 
presence of cattail (Typha spp.), bulrush (Scirpus spp.), and other 
persistent emergent vegetation that allows for shelter, forage, and 
attachment of egg masses, while the associated adjacent upland habitat 
often contains blackberry (Rubus sp.) and other upland perennial 
species that provide for shelter from predatory species and forage 
habitat (Service 2002).
    Key conditions include the timing, duration, and extent of water 
moving within the system, filtering capacity, and maintaining the 
habitat to favor California red-legged frogs and discourage the 
colonization of nonnative species such as bullfrogs. Essential upland 
habitat consists of all upland areas within 90 m (300 ft) of the edge 
of the ordinary high-water mark, or no further than the watershed 
boundary. This is based, in part, on the work of J. Bulger et al. (in 
litt. 2000), who found that frogs were capable of inhabiting upland 
habitats within 60 m (200 feet) of aquatic habitat for continuous 
durations exceeding 20 days, and G. Rathbun (in litt. 2000), who 
observed frogs inhabiting riparian habitat for durations exceeding 30 
days.

Dispersal Habitat

    Essential dispersal habitat provides connectivity among California 
red-legged frog breeding habitat (and associated upland) patches. While 
frogs can pass many obstacles, and do not require a particular type of 
habitat for dispersal, the habitat connecting essential breeding 
locations and other aquatic habitat must be free of barriers (e.g., a 
physical or biological feature that prevents frogs from dispersing 
beyond the feature) and at least 90 m (300 ft) wide. Essential 
dispersal habitat consists of all upland and wetland habitat free of 
barriers that connects two or more patches of essential breeding 
habitat within 2 km (1.25 mi) of one another. Dispersal barriers 
include heavily traveled roads (an average of 30 cars per hour from 10 
p.m. to 4 a.m.) that possess no bridges or culverts; moderate to high 
density urban or industrial developments; and large reservoirs over 20 
ha (50 ac) in size. Agricultural lands such as row crops, orchards, 
vineyards, and pastures do not constitute barriers to California red-
legged frog dispersal.
    In summary, the primary constituent elements for the California 
red-legged frog consist of three components:
    (1) Aquatic habitat with a permanent water source with pools (i.e., 
water bodies) having a minimum depth of 0.5 m (20 in) for breeding and 
which can maintain water during the entire tadpole rearing season;
    (2) Upland areas up to 90 m (300 ft) from the water's edge 
associated with the above aquatic habitat that will provide for 
shelter, forage, maintenance of the water quality of the aquatic 
habitat, and dispersal; and
    (3) Upland barrier-free dispersal habitat that is at least 90 m 
(300 ft) in width that connect at least two (or more) suitable breeding 
locations defined by the aquatic habitat above, all within 2 km (1.25 
miles) of one another.

Criteria Used To Identify Critical Habitat

    We considered several criteria in the selection and proposal of 
specific boundaries for California red-legged frog critical habitat. 
These criteria, which follow the recovery strategy outlined in the 
final Recovery Plan (Service 2002), focused on designating units (1) 
Throughout the geographic and elevational range of the subspecies; (2) 
that would result in protecting populations that are geographically 
distributed in a manner that allows for the continued existence of 
viable and essential metapopulations despite fluctuations in the status 
of subpopulations; and (3) that possess large continuous blocks of 
occupied habitat, representing source populations and/or unique 
ecological characteristics, or areas where the re-establishment of 
California red-legged frogs is essential to the recovery of the 
subspecies (Service 2002). We first determined the occupancy status of 
areas. Areas were considered to possess extant populations if 
California red-legged frogs have been documented in that area since 
1985. We then selected areas that

[[Page 19628]]

are inhabited by populations (source populations) that are capable of 
maintaining their current population levels and capable of providing 
individuals to recruit into subpopulations found in adjacent areas. We 
also selected several areas that may lack source populations, but which 
have other unique ecological significance, with the goal of maintaining 
the full range of the genetic variability and evolutionary adaptation 
in the subspecies. These include areas on the periphery of the current 
range and elsewhere that represent the historic distribution of the 
subspecies, and areas that provide connectivity among source 
populations or between source populations and unoccupied extirpated 
areas. Of the approximate 1,674,582 ha (4,140,440 ac) that are proposed 
for designation as critical habitat for the California red-legged frog, 
an estimated 81,020 ha (200,212 ac) are considered unoccupied habitat 
(Units 5 and 31). All of this unoccupied habitat occurs on Federal 
lands, and was identified in the core areas essential for California 
red-legged frog recovery in our final Recovery Plan (Service 2002). 
Both unoccupied and occupied areas not included in this designation can 
still be targets for recovery actions, including reestablishing 
populations.
    The critical habitat units were delineated by first creating data 
layers in a geographic information system (GIS) format of all of the 
core areas as proposed in the final Recovery Plan (Service 2002). We 
then used the California Watershed Map (CALWATER version 2.2), a 
coverage developed by California Department of Water Resources (DWR), 
to identify watersheds containing core areas and delineate their 
boundaries in a 1:24,000 format. CALWATER is a set of watershed 
boundaries meeting standardized delineation criteria, consisting of six 
levels of increasing specificity, with the primary purpose of assigning 
a single, unique code to a specific watershed polygon (e.g., a planning 
watershed). CALWATER delineates the boundaries of planning watersheds 
1,200 to 4,000 ha (3,000 to 10,000 ac) in size. We used these planning 
watersheds as the minimum mapping unit to delineate critical habitat 
units because watersheds represent functional, hydrologic management 
units that allow for efficient evaluation of factors that affect the 
quality of aquatic habitat and, thus, are extremely relevant to 
amphibian populations. The use of planning watersheds also allowed us 
to delineate critical habitat that protects habitat quality, breeding 
and nonbreeding habitat, and dispersal habitat in a manner consistent 
with the overall goal of protecting and sustaining metapopulations.
    We selected all of the planning watersheds that intersected areas 
of high California red-legged frog abundance, areas essential to 
maintain connectivity, and/or areas of unique ecological significance 
as identified by the core areas from the final Recovery Plan (Service 
2002). In areas where planning watersheds were large and/or watersheds 
were significantly altered hydrologically, we used alternative 
structural, political, or topographic boundaries (e.g., roads, county 
boundaries, elevation contour lines) as critical habitat boundaries 
because in these areas the benefits of using planning watersheds were 
limited.
    Using the planning watersheds as the minimum mapping unit of this 
critical habitat designation would not allow us to avoid towns, other 
developed areas, or other areas where the primary constituent elements 
are not found. To address this shortcoming, we overlayed the planning 
watersheds with a 100-m Universal Transverse Mercator (UTM) North 
American Datum of 1983 (NAD 83) grid. Using information from recent 
digital aerial photography, we then removed NAD 83 grid cells that did 
not contain the primary constituent elements. Although the data 
available to us were not sufficiently detailed to definitively map the 
primary constituent elements by grid cell, this approach did allow us 
to remove significant urban and other developed areas, including some 
agricultural lands, from the final designation.
    We could not depend solely on federally owned lands for critical 
habitat designation as these lands are limited in geographic location, 
size, and habitat quality within the current range of the California 
red-legged frog. In addition to the federally owned lands, we are 
designating critical habitat on non-Federal public lands and privately 
owned lands, including land owned by the California Department of Parks 
and Recreation, the California Department of Fish and Game, DWR, and 
the University of California, as well as regional and local park lands 
and water district lands. All non-Federal lands designated as critical 
habitat meet the definition of critical habitat under section 3 of the 
Act in that they are within the geographical area occupied by the 
subspecies, are essential to the conservation of the subspecies, and 
may require special management considerations or protection.
    We are also proposing to designate areas that are not currently 
known to be occupied by the subspecies, but which are essential for its 
conservation. We included one area in Tuolumne County in the Sierra 
Nevada and one in the Tujunga watershed in Los Angeles County in the 
Peninsular Range of southern California. These areas, within the 
historic range of the subspecies with some occurrences documented as 
recently as the mid-1980s, are strong candidate areas for re-
establishment due to preliminary positive discussions with Federal 
agencies and adjacent landowners, are composed entirely of large blocks 
of Federal land, and are identified in the final Recovery Plan (Service 
2002) as important reestablishment areas essential to the recovery of 
the California red-legged frog. These areas also provide important 
connectivity among currently occupied areas. In order for future 
reestablishment to be successful, special management in these areas is 
needed, including habitat restoration and the removal of nonnative 
species, such as predators. However, the primary constituent elements 
for California red-legged frogs are present in these areas.
    Without reestablishment in the Sierra Nevada and Southern 
California, it is probable that California red-legged frogs will be 
extirpated from these areas, greatly reducing the likelihood of 
eventual recovery of the species. As a result, we have determined that 
re-establishment of California red-legged frog populations in these 
currently unoccupied areas is essential to the conservation of the 
species. Since the listing of California red-legged frogs as a 
threatened species in 1996, no progress has been made improving habitat 
for this species within these unoccupied areas. Because California red-
legged frogs have been extirpated from these areas, Federal agencies 
have determined their actions will not adversely affect California red-
legged frogs and have further declined to use their authority under 
section 7(a)(1) to help recover the California red-legged frogs in the 
Sierra Nevada and southern Transverse and Peninsular Ranges. Therefore, 
given the lack of protection for these areas, it is important to ensure 
that special management actions are implemented in unoccupied lands 
within the Sierra Nevada by designating them as critical habitat.

Special Management Considerations or Protections

    As we undertake the process of designating critical habitat for a 
species, we first evaluate lands defined by those physical and 
biological features

[[Page 19629]]

essential to the conservation of the species for inclusion in the 
designation pursuant to section 3(5)(A) of the Act. Secondly, we then 
evaluate lands defined by those features to assess whether they may 
require special management considerations or protections. As discussed 
throughout this proposed rule, our previous final designation of 
critical habitat for the California red-legged frog (66 FR 14626, March 
13, 2001) and in our final recovery plan for the species (Service 
2002), the frog and its habitat are threatened by a multitude of 
factors including by not limited to: degradation and loss of habitat 
through urbanization, mining, improper management of grazing, 
recreation, invasion of nonnative plants, impoundments, water 
diversions, degraded water quality, and introduced predators, and 
previous overexploitation. While many of these threats operate 
concurrently and cumulatively with each other and with natural 
disturbances (e.g., droughts and floods), the fragmentation of existing 
habitat, and the continued colonization of existing habitat by 
nonnative species, may represent the most significant current threats 
to California red-legged frogs. As such we believe that each area 
proposed for designation as critical habitat may require some level of 
management and/or protection to address the current and future threats 
to the California red-legged frog and habitat essential to its 
conservation to ensure the overall recovery of the subspecies.

Relationship to Section 4(a)(3) of the Act

    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resources Management Plan 
(INRMP). An INRMP integrates implementation of the military mission of 
the installation with stewardship of the natural resources found there. 
Each INRMP includes an assessment of the ecological needs on the 
installation, including needs to provide for the conservation of listed 
species; a statement of goals and priorities; a detailed description of 
management actions to be implemented to provide for these ecological 
needs; and a monitoring and adaptive management plan. We consult with 
the military on the development and implementation of INRMPs for 
installations with listed species.
    The 2004 National Defense Authorization Act (Pub. L. 108-136, 
November 2003), Section 318 Military Readiness and Conservation of 
Protected Species makes the following amendment to section 4(a)(3) of 
the Act:

The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an 
integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the 
species for which critical habitat is proposed for designation.

    We believe that bases that have completed and approved INRMPs that 
address the needs of the species generally do not meet the definition 
of critical habitat as those bases require no additional special 
management or protection. Further, the statutory amendment to section 
4(a)(3) the Act provides guidance on the relationship of INRMPs to 
critical habitat. Therefore, lands essential to the conservation of a 
species that are owned or managed by DOD and covered by INRMPs are 
excluded from critical habitat designations if they meet the following 
three criteria: (1) A current INRMP must be complete and provide a 
conservation benefit to the species; (2) the plan must provide 
assurances that the conservation management strategies will be 
implemented; and (3) the plan must provide assurances that the 
conservation management strategies will be effective, by providing for 
periodic monitoring and revisions as necessary. If all of these 
criteria are met, then the lands covered under the plan would be 
excluded from a designation of critical habitat for the species.
    Vandenberg Air Force Base completed an INRMP in 1997 prior to the 
passage and implementation of the Sikes Act Improvements Act of 1997. 
While we did not specifically participate in its development, this 
older plan does provide conservation measures for the California red-
legged frog, as well as for the management of important wetland 
habitats across the base. The INRMP provides management direction on 
conserving listed and imperiled species and their habitats on the base. 
Known frog sites are protected from disturbance from human activities 
and grazing through measures appropriate to the given situation. 
Vandenberg's INRMP specifies monitoring of California red-legged frog 
populations on the base, and periodic surveys to provide continuous 
evaluation of the subspecies' status at known and new sites identified 
on the base. In addition, Vandenberg actively consults with us on all 
actions that may affect California red-legged frogs on the base, and 
has implemented conservation measures as recommended. Therefore, we 
have determined that Vandenberg Air Force Base that the INRMP as 
drafted and implemented provides a conservation benefit to the 
California red-legged frog. As such, the lands essential to the 
conservation of the California red-legged frog on Vandenberg Air Force 
Base have been excluded from this proposed designation of critical 
habitat for the subspecies.
    The Camp Parks U.S. Army Reserve Training Area completed an INRMP 
in 2003 and a biological opinion was issued in July of 2003. The INRMP 
does provide conservation measures for the California red-legged frog 
and provides management direction on conserving listed and imperiled 
species and their habitats on the base. In addition, Camp Parks 
actively consults with us on all actions that may affect California 
red-legged frogs on the base, and has implemented conservation measures 
as recommended. Therefore, we have determined that the INRMP as drafted 
and implemented provides a conservation benefit to the California red-
legged frog. As such, the lands essential to the conservation of the 
California red-legged frog on Camp Parks have been excluded from this 
proposed designation of critical habitat for the subspecies. Camp Parks 
has worked with us and developed an Endangered Species Management Plan 
(ESMP) as an appendix to their INRMP. The ESMP was drafted specifically 
for California red-legged frogs and includes nonnative predator control 
and other conservation measures that would benefit the frog. Camp Parks 
has already implemented several portions of the ESMP and had done so 
even prior to the final approval of the INRMP.

Relationship to Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data available after taking into consideration the economic impact, the 
effect on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined, following an 
analysis, that the benefits of such exclusion outweigh the benefits of 
specifying a particular area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species. Consequently, we may exclude an area from designated 
critical habitat based on economic impacts, the effect on national

[[Page 19630]]

security, or other relevant impacts such as preservation of 
conservation partnerships, if we determine the benefits of excluding an 
area from critical habitat outweigh the benefits of including the area 
in critical habitat, provided the action of excluding the area will not 
result in the extinction of the species.
    In our critical habitat designations, we have used both the 
provisions outlined in section 4(b)(2) of the Act to evaluate those 
specific areas that are proposed for designation as critical habitat 
and those areas which are subsequently finalized (i.e., designated). We 
have applied the provisions of these sections of the Act to lands 
essential to the conservation of the subject species to evaluate and 
either exclude them from final critical habitat or not include them in 
proposed critical habitat. Lands which we have either excluded from or 
not included in critical habitat based on those provisions include 
those covered by: (1) Legally operative HCPs that cover the species, 
and provide assurances that the conservation measures for the species 
will be implemented and effective; (2) draft HCPs that cover the 
species, have undergone public review and comment, and provide 
assurances that the conservation measures for the species will be 
implemented and effective (i.e., pending HCPs); (3) Tribal conservation 
plans that cover the species and provide assurances that the 
conservation measures for the species will be implemented and 
effective; (4) State conservation plans that provide assurances that 
the conservation measures for the species will be implemented and 
effective; (5) Fish and Wildlife Service Comprehensive Conservation 
Plans that provide assurances that the conservation measures for the 
species will be implemented and effective.

Exclusions of Military Lands Pursuant to Section 4(b)(2) of the Act

    Although Camp San Luis Obispo (CSLO) completed their INRMP in 
November 2001, they are now updating it to include an additional 
species, and we are in process of evaluating it to determine if it 
adequately covers and provides a conservation benefit to the California 
red-legged frog. CSLO contains habitat essential to the conservation of 
the California red-legged frog. The proposed critical habitat 
encompasses more than 90 percent of CSLO. Subsection 4(b)(2) of the Act 
allows us to exclude areas from critical habitat designation where the 
benefits of exclusion outweigh the benefits of designation, provided 
the exclusion will not result in the extinction of the species, in this 
case, the California red-legged frog.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
activities in such habitat that may affect critical habitat require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. In the absence of designated critical habitat, this 
consultation will not look specifically at the issue of adverse 
modification of critical habitat; however, it will look at the very 
similar concept of jeopardy to the listed species. Our experience is 
that, under most circumstances, consultations under the jeopardy 
standard will reach the same result as consultations under the adverse 
modification standard. Implementing regulations (50 CFR Part 402) 
define ``jeopardize the continued existence of'' and ``destruction or 
adverse modification of'' in virtually identical terms. Jeopardize the 
continued existence of means to engage in an action ``that reasonably 
would be expected * * * to reduce appreciably the likelihood of both 
the survival and recovery of a listed species.'' Destruction or adverse 
modification means an Aalteration that appreciably diminishes the value 
of critical habitat for both the survival and recovery of a listed 
species.'' Common to both definitions is an appreciable detrimental 
effect on both survival and recovery of a listed species, in the case 
of critical habitat by reducing the value of the habitat so designated. 
Thus, actions satisfying the standard for adverse modification are 
nearly always found to also jeopardize the species concerned, and the 
existence of a critical habitat designation does not materially affect 
the outcome of consultation. Additional measures to protect the habitat 
from adverse modification are not likely to be required.
    We have determined that the benefits of designating critical 
habitat on CSLO are small. The primary benefit of designation is the 
prohibition on destruction or adverse modification of critical habitat 
under section 7 of the Act. However, all frog habitat on CSLO is 
occupied, and we believe that section 7 consultation on any proposed 
action on these bases that would result in an adverse modification 
conclusion would also result in a jeopardy conclusion. As noted above, 
we expect that, when completed and adopted, the updated INRMPs will 
provide equal or greater protection to California red-legged frog 
habitat on the bases than a critical habitat designation.
(2) Benefits of Exclusion
    CSLO is a training facilities managed by the California Army 
Reserve National Guard (CA ARNG) and the U.S. Army (Army), 
respectively. Their mission is to provide a major training area for 
National Guard and U.S. Army Reserve troops for overseas deployment, 
and to protect public safety during emergency disasters. During the 
public comment period for the proposal for the previous designation of 
critical habitat for the California red-legged frog, CSLO concluded 
that the designation, if it were to become final, would seriously limit 
their ability to conduct their critical training activities. They 
conclude that a final designation that includes these installations 
would likely result in delays in training and closure of areas to allow 
for reinitiation of section 7 consultation on critical habitat. They 
asserted that the designation of critical habitat for the California 
red-legged frog on their facilities will have a detrimental effect on 
the ability of the CA ARNG and Army to meet their training mission and 
potentially affect national security.
    Even though the lands on these bases currently meet the definition 
of critical habitat for the California red-legged frog, we have 
determined that it is appropriate to exclude CSLO from this critical 
habitat designation under section 4(b)(2) of the Act in the interest of 
national security. The primary benefit of excluding CSLO is to ensure 
that their mission-critical military training activities can continue 
without interruption while the INRMPs are being completed. CSLO is in 
the process of updating their draft INRMP. We fully expect that, once 
the INRMP is completed and approved, areas of the base included in the 
proposed critical habitat designation will no longer meet the 
definition of critical habitat, as they will require no additional 
special management or protection.
    Training activities are ongoing, and the CA ARNG and Army believe 
that by implementing specific conservation measures, their training 
activities are not likely to adversely affect California red-legged 
frogs on the bases, ensuring compliance with section 7(d) of the Act. 
In particular, CSLO considers all permanent and intermittent waterways 
and riparian areas to be sensitive habitat and provides buffers. 
Sections of Chorro Creek, and several ponds, springs, and reservoirs 
have been fenced to exclude military training activities and cattle 
grazing. Although avoiding these areas constrains training activities 
to some

[[Page 19631]]

degree, the effectiveness of their overall mission is not compromised. 
Camp Parks has also identified essential California red-legged frog 
habitat and has designated these areas as sensitive habitat areas. 
Further, Camp Parks is currently implementing measures to promote the 
conservation of California red-legged frogs by implementing control of 
non-native predators.
    The proposed critical habitat designation included about 90 percent 
of CSLO. If these areas are included in the final designation of 
critical habitat for the California red-legged frog, the CA ARNG and 
U.S. Army would be compelled by their interpretation of the Act to 
significantly curtail necessary training within the area designated as 
critical habitat, to the detriment of mission-critical training 
capability and potentially national security, until the reinitiation of 
consultation is concluded. As a result, this would greatly restrict use 
of the installation, severely limiting CSLO's utility as training 
sites.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    Through the development of this proposal, we have identified lands 
that we believe to be essential to the conservation of the California 
red-legged frog. We have considered these lands in relation to lands 
owned and managed by DOD that are used for mission-critical training. 
Based on our analysis above and our analysis and treatment of these 
lands in our previous designation of critical habitat for the 
California red-legged frog, we have determined that the benefits of 
excluding these lands from critical habitat pursuant to the potential 
effects on national security as allowed under section 4(b)(2) of the 
Act outweigh the potential benefits of including these lands in the 
proposed designation. Further, we have determined that excluding the 
bases will not result in the extinction of the red-legged frog, as 
numerous frog core areas remain within the final critical habitat 
designation and sections 7(a)(2) and 9 of the Act still apply to the 
activities affecting red-legged frogs on CSLO.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these areas compared to 
the benefits of including them in the critical habitat designation, we 
may revise this final designation accordingly. Maps delineating 
essential habitat for the California red-legged frog, overlaid with 
``mission-critical'' training areas on CSLO, are available for public 
review and comment at the Sacramento Fish and Wildlife Office (see 
ADDRESSES section) or on the Internet at http://sacramento.fws.gov/es/documents. These maps are provided to allow the public the opportunity 
to adequately comment on these exclusions.

Relationship of Critical Habitat to the San Joaquin County Multi-
Species/Open Space Habitat Conservation Plan (San Joaquin County MSHCP)

    The San Joaquin County MSHCP was developed and a finalized EIR/EIS 
completed in November 2000. A non-jeopardy biological opinion was 
issued on the plan in May 2001. Participants in this HCP include seven 
cities and the County of San Joaquin. The San Joaquin MSHCP encompasses 
all of San Joaquin County except for federally-owned lands at the 
Lawrence Livermore Laboratory and some areas encompassing projects not 
covered by the San Joaquin County MSHCP (Tracy Hills, The American 
River Water Resources Investigation Project, Folsom South Canal 
Connection of the East Bay Municipal Utility District Supplemental 
Water Supply Program, and the South County Surface Water Supply 
Project). The San Joaquin County MSHCP is also a subregional plan under 
the State's NCCP and was developed in cooperation with the California 
Department of Fish and Game. Approximately 100,841 ac (40,808 ha) of 
covered species habitat are proposed for conservation.
    We are proposing to exclude a portion of Unit 15 from proposed 
critical habitat for the California red-legged frog pursuant to section 
4(b)(2) of the Act because it is within the planning area boundary for 
the San Joaquin County MSHCP. Our analysis for excluding portions of 
Unit 15 from proposed critical habitat is outlined below. The San 
Joaquin County Multi-Species Conservation Plan (SJMSCP) identifies the 
California red-legged frog as a covered species and has identified 
areas where growth and development are expected to occur (build-out 
areas). Only one percent of the area considered habitat for the 
California red-legged frog would be affected by development activities.
Benefits of Inclusion
    As stated previously, the benefits of designating critical habitat 
on lands within the boundaries of approved HCPs are small. Where HCPs 
are in place that include coverage for the California red-legged frog, 
the HCPs and their IAs include management measures and protections 
designed to protect, restore, monitor, manage, and enhance the habitat 
to benefit the conservation of the species. The San Joaquin County 
MSHCP seeks to accomplish these goals for the California red-legged 
frog through the implementation of specific conservation objectives. 
The principal benefit of designating critical habitat is that federally 
authorized or funded activities that may affect a species' critical 
habitat would require consultation with us under section 7 of the Act. 
In the case of the San Joaquin County MSHCP, we must evaluate the 
impact of the plan on the species for which the participants are 
seeking incidental take permits, pursuant to section 7 of the Act.
Benefits of Exclusion
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs, particularly large regional HCPs, take many years 
to develop and, upon completion, become regional conservation plans 
that are consistent with the recovery objectives for listed species 
that are covered within the plan area. Additionally, many of these HCPs 
provide conservation benefits to unlisted sensitive species. Imposing 
an additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of species' benefits if participants abandon the 
voluntary HCP process because it may result in additional regulations 
requiring more of the participants than other parties who have not 
voluntarily participated in species conservation. Designation of 
critical habitat within the boundaries of approved HCPs could be viewed 
as a disincentive to those entities currently developing HCPs or 
contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
preemptively

[[Page 19632]]

excluding these lands, we preserve our current partnerships and 
encourage additional conservation actions in the future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act. HCP and NCCP/HCPs typically provide for 
greater conservation benefits to a covered species than section 7 
consultations because HCPs and NCCP/HCPs assure the long-term 
protection and management of a covered species and its habitat, and 
funding for such management through the standards found in the 5 Point 
Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' regulation 
(63 FR 8859). Such assurances are typically not provided by section 7 
consultations, which, in contrast to HCPs, often do not commit the 
project proponent to long-term special management or protections. Thus, 
a consultation typically does not accord the lands it covers the 
extensive benefits a HCP or NCCP/HCP provides. The development and 
implementation of HCPs or NCCP/HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while allowing for development.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated HCPs and NCCP/HCPs currently 
approved and implemented within the areas being proposed as critical 
habitat for the California red-legged frog. Based on this evaluation, 
we find that the benefits of exclusion of the lands essential to the 
conservation of the California red-legged frog in the planning area for 
the San Joaquin County MSHCP outweigh the benefits of proposing 
portions of Unit 15 as critical habitat.
    The exclusion of these lands from critical habitat will help 
preserve the partnerships that we have developed with the local 
jurisdiction and project proponent in the development of the HCP and 
NCCP/HCP. The educational benefits of critical habitat, including 
informing the public of areas that are essential for the long-term 
survival and conservation of the species are still accomplished from 
material provided on our website and through public notice and comment 
procedures required to establish an HCP or NCCP/HCP. The public has 
also been informed through the public participation that occurs in the 
development of many regional HCPs or NCCP/HCPs. For these reasons, we 
believe that proposing critical habitat has little benefit in areas 
covered by HCPs, provided that the HCP or NCCP/HCP specifically and 
adequately covers the species for which critical habitat is being 
proposed. We do not believe that this exclusion would result in the 
extinction of the species.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these areas compared to 
the benefits of including them in the critical habitat designation, we 
may revise this final designation accordingly. Maps delineating 
essential habitat for the California red-legged frog, overlaid with the 
planning area for the San Joaquin County MSHCP, are available for 
public review and comment at the Sacramento Fish and Wildlife Office 
(see ADDRESSES section) or on the Internet at http://sacramento.fws.gov. These maps are provided to allow the public the 
opportunity to adequately comment on these exclusions.

Relationship of Critical Habitat to the Draft Western Riverside 
Multiple Species Habitat Conservation Plan (MSHCP)

    The Draft Western Riverside Multiple Species Habitat Conservation 
Plan (MSHCP) has been in development for several years. Participants in 
this HCP include 14 cities; the County of Riverside, including the 
Riverside County Flood Control and Water Conservation Agency, Riverside 
County Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department; the California 
Department of Parks and Recreation; and the California Department of 
Transportation. The Western Riverside MSHCP is also being proposed as a 
subregional plan under the State's NCCP and is being developed in 
cooperation with the California Department of Fish and Game. Within the 
1.26 million-acre (510,000 ha) planning area of the MSHCP, 
approximately 153,000 ac (62,000 ha) of diverse habitats are proposed 
for conservation. The proposed conservation of 153,000 ac (62,000 ha) 
will complement other existing natural and open space areas that are 
already conserved through other means (e.g., State Parks, Forest 
Service, and County Park Lands).
    The County of Riverside and the participating jurisdictions have 
signaled their sustained support for the Western Riverside MSHCP as 
evidenced by the November 5, 2002, passage of a local bond measure to 
fund the acquisition of land in support of the MSHCP. On November 14, 
2002, a Notice of Availability of a Draft Environmental Impact Report 
(EIS/EIR) and Receipt of and Application for an Incidental Take Permit 
was published in the Federal Register. Public comment on these 
documents was accepted until January 14, 2003. Subsequently, on June 
17, 2003, the County of Riverside Board of Supervisors voted 
unanimously to support the completion of the Western Riverside MSHCP.
    The Western Riverside MSHCP indicates that conservation actions 
within their planning area will be implemented such that the long-term 
conservation of the Riverside fairy shrimp will be addressed. Although 
the MSHCP is not yet completed and implemented, significant progress 
has been achieved in the development of this HCP, including the 
preparation of the EIS/EIR, the solicitation of public review and 
comment, and the initiation of a consultation with us on the issuance 
of incidental take permits for those species identified for coverage 
within the draft plan.
    We are excluding a portion of Unit 30 from proposed critical 
habitat for the California red-legged frog pursuant to section 4(b)(2) 
of the Act because it is within the planning area boundary for the 
proposed Western Riverside MSHCP. Our analysis for excluding the 
portion of Unit 30 within the planning area boundary for the Western 
Riverside MSHCP from proposed critical habitat is outlined below.
Benefits of Inclusion
    As stated previously, the benefits of designating critical habitat 
on lands within the boundaries of approved HCPs are small. Where HCPs 
are in place that include coverage for the California red-legged frog, 
the HCPs and their IAs include management measures and protections 
designed to protect, restore, monitor, manage, and enhance the habitat 
to benefit the conservation of the species. The Western Riverside MSHCP 
seeks to accomplish these goals for the California red-legged frog 
through the implementation of specific conservation objectives. The 
principal benefit of designating critical habitat is that federally 
authorized or funded

[[Page 19633]]

activities that may affect a species' critical habitat would require 
consultation with us under section 7 of the Act. In the case of the 
proposed Western Riverside MSHCP, we must evaluate the impact of the 
plan on the species for which the participants are seeking incidental 
take permits, pursuant to section 7 of the Act.
Benefits of Exclusion
    The benefits of excluding lands within HCPs from critical habitat 
designation include relieving landowners, communities, and counties of 
any additional regulatory burden that might be imposed by critical 
habitat. Many HCPs, particularly large regional HCPs take many years to 
develop and, upon completion, become regional conservation plans that 
are consistent with the recovery objectives for listed species that are 
covered within the plan area. Additionally, many of these HCPs provide 
conservation benefits to unlisted, sensitive species. Imposing an 
additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and partnerships in many areas. In fact, it could 
result in the loss of species' benefits if participants abandon the 
voluntary HCP process because it may result in additional regulations 
requiring more of them than other parties who have not voluntarily 
participated in species conservation. Designation of critical habitat 
within the boundaries of approved HCPs could be viewed as a 
disincentive to those entities currently developing HCPs or 
contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including states, counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as critical habitat, it would likely have a negative 
effect on our ability to establish new partnerships to develop HCPs, 
particularly large, regional HCPs that involve numerous participants 
and address landscape-level conservation of species and habitats. By 
preemptively excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the issue of adverse modification to critical habitat, unless critical 
habitat has already been designated within the proposed plan area, it 
will determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act. HCP and NCCP/HCPs typically provide for 
greater conservation benefits to a covered species than section 7 
consultations because HCPs and NCCP/HCPs assure the long-term 
protection and management of a covered species and its habitat, and 
funding for such management through the standards found in the 5 Point 
Policy for HCPs (64 FR 35242) and the HCP ``No Surprises'' regulation 
(63 FR 8859). Such assurances are typically not provided by section 7 
consultations that, in contrast to HCPs, often do not commit the 
project proponent to long-term special management or protections. Thus, 
a consultation typically does not accord the lands it covers the 
extensive benefits a HCP or NCCP/HCP provides. The development and 
implementation of HCPs or NCCP/HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while allowing for development.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated HCPs and NCCP/HCPs currently 
approved and implemented within the areas being proposed as critical 
habitat for the California red-legged frog. Based on this evaluation, 
we find that the benefits of exclusion the lands essential to the 
conservation of the California red-legged frog in the planning area for 
the proposed and pending Western Riverside MSHCP outweigh the benefits 
of proposing portions of Unit 30 as critical habitat.
    The exclusion of these lands from critical habitat will help 
preserve the partnerships that we have developed with the local 
jurisdiction and project proponent in the development of the HCP and 
NCCP/HCP. The educational benefits of critical habitat, including 
informing the public of areas that are essential for the long-term 
survival and conservation of the species is still accomplished from 
material provided on our website and through public notice and comment 
procedures required to establish a HCP or NCCP/HCP. The public has also 
been informed through the public participation that occurs in the 
development of many regional HCPs or NCCP/HCPs. For these reasons, we 
believe that proposing critical habitat has little benefit in areas 
covered by HCPs, provided that the HCP or NCCP/HCP specifically and 
adequately covers the species for which critical habitat is being 
proposed. We do not believe that this exclusion would result in the 
extinction of the species.
    In the event that the Western Riverside MSHCP is not found to 
benefit the California red-legged frog and the coverage for this 
species is not granted, we will include the areas essential to the 
conservation of the California red-legged frog in Unit 30 in the final 
designation of Critical Habitat.
    Maps delineating essential habitat for the California red-legged 
frog, overlaid with the planning area for the Western Riverside MSHCP 
are available for public review and comment at the Sacramento Fish and 
Wildlife Office (see ADDRESSES section) or on the Internet at http://sacramento.fws.gov/es/documents. These maps are provided to allow the 
public the opportunity to adequately comment on these exclusions.

Critical Habitat Designation

    The areas we are proposing as critical habitat currently provide 
all of those habitat components necessary to meet the primary 
biological needs of the California red-legged frog, as described in the 
final Recovery Plan (Service 2002), and defined by the primary 
constituent elements. We did not include all areas currently occupied 
by California red-legged frogs, only areas possessing large 
populations, representing unique ecological characteristics, or 
representing historic geographic area where California red-legged frogs 
can be re-established.
    In selecting areas of critical habitat, we made an effort to avoid 
developed areas, such as towns and other similar lands that are not 
likely to contribute to California red-legged frog conservation. 
However, the minimum mapping unit that we used to approximate our 
delineation of critical habitat for California red-legged frogs did not 
allow us to exclude all developed areas such as roads and rural 
developed areas or other lands. Existing features and structures within 
the boundaries of the mapped units, such as buildings, roads, 
aqueducts, railroads, other paved areas, lawns, and other urban 
landscaped areas, and uplands removed from essential aquatic and 
dispersal habitat, are not likely to contain the primary

[[Page 19634]]

constituent elements essential for the conservation of the California 
red-legged frog. Therefore, Federal actions limited to these areas 
would not trigger a section 7 consultation, unless they affect the 
species and/or primary constituent elements in adjacent critical 
habitat.
    Table 1 shows the approximate area of proposed critical habitat by 
county and land ownership. Proposed critical habitat for the California 
red-legged frog includes approximately 1,674,582 ha (4,140,440 ac) in 
Alameda, Butte, Contra Costa, El Dorado, Fresno, Kern, Los Angeles, 
Marin, Mariposa, Merced, Monterey, Napa, Plumas, Riverside, San Benito, 
San Diego, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, 
Santa Clara, Santa Cruz, Solano, Sonoma, Stanislaus, Tehama, Tuolumne, 
and Ventura Counties, California. These total numbers also include the 
specific areas excluded as discussed above. A brief description of each 
proposed critical habitat unit is given below.

  Table 1.--Approximate Area Encompassing Proposed Critical Habitat in Hectares (ha) (Acres (ac)) by County and
                                                 Land Ownership
----------------------------------------------------------------------------------------------------------------
             County                 Federal land     Local/state land     Private land             Total
----------------------------------------------------------------------------------------------------------------
Plumas.........................  22,904 ha........  NA...............  2,458 ha.........  25,362 ha
                                 (56,598 ac)......  .................  (6,074 ac).......  (62,672 ac)
Butte..........................  15,115 ha........  135 ha...........  6,305 ha.........  21,555 ha
                                 (37,350 ac)......  (335 ac).........  (15,582 ac)......  (53,267 ac)
El Dorado......................  8,624 ha.........  10 ha............  15,456 ha........  24,090 ha
                                 (21,312 ac)......  (26 ac)..........  (38,193 ac)......  (59,531 ac)
Tuolumne.......................  49,054 ha........  NA...............  NA...............  49,054 ha
                                 (121,216 ac).....  .................  .................  (121,216 ac)
Mariposa.......................  1,262 ha.........  NA...............  NA...............  1,262 ha
                                 (3,120 ac).......  .................  .................  (3,120 ac)
Tehama.........................  2,727 ha.........  NA...............  12,771 ha........  15,498 ha
                                 (6,740 ac).......  .................  (31,560 ac)......  (38,300 ac)
Napa...........................  2,151 ha.........  758 ha...........  20,056 ha........  22,965 ha
                                 (5,317 ac).......  (1,874 ac).......  (49,562 ac)......  (56,753 ac)
Sonoma.........................  NA...............  819 ha...........  7,154 ha.........  7,973 ha
                                 .................  (2,025 ac).......  (17,678 ac)......  (19,703 ac)
Solano.........................  826 ha...........  67 ha............  9,765 ha.........  10,658 ha
                                 (2,042 ac).......  (168 ac).........  (24,130 ac)......  (26,340 ac)
Marin..........................  30,247 ha........  4,846 ha.........  45,649 ha........  80,742 ha
                                 (74,742 ac)......  (11,976 ac)......  (112,802 ac).....  (199,520 ac)
Alameda........................  337 ha...........  1,853 ha.........  95,404 ha........  97,594 ha
                                 (833 ac).........  (4,581 ac).......  (235,750 ac).....  (241,164 ac)
Contra Costa...................  47 ha............  7,618 ha.........  47,676 ha........  55,341 ha
                                 (117 ac).........  (18,826 ac)......  (117,810 ac).....  (136,753 ac)
Santa Clara....................  2,298 ha.........  15,563 ha........  69,941 ha........  87,802 ha
                                 (5,678 ac).......  (38,459 ac)......  (172,828 ac).....  (216,966 ac)
San Joaquin....................  NA...............  38 ha............  11,386 ha........  11,424 ha
                                 .................  (96 ac)..........  (28,136 ac)......  (28,232 ac)
Stanislaus.....................  27 ha............  10,809 ha........  5,824 ha.........  16,660 ha
                                 (67 ac)..........  (26,711 ac)......  (14,392 ac)......  (41,170 ac)
Merced.........................  1,010 ha.........  2,627 ha.........  66,880 ha........  70,517 ha
                                 (2,496 ac).......  (6,493 ac).......  (165,266 ac).....  (174,255 ac)
Fresno.........................  6,807 ha.........  NA...............  3,058 ha.........  9,865 ha
                                 (16,822 ac)......  .................  (7,557 ac).......  (24,379 ac)
San Benito.....................  11,826 ha........  NA...............  102,340 ha.......  114,166 ha
                                 (29,224..........  .................  (252,888.........  (282,112 ac)
San Mateo......................  418 ha...........  9,785 ha.........  67,711 ha........  77,914 ha
                                 (1,033 ac).......  (24,180 ac)......  (167,319.........  (192,532 ac)
Santa Cruz.....................  137 ha...........  10,059 ha........  32,773 ha........  42,969 ha
                                 (340 ac).........  (24,858 ac)......  (80,985 ac)......  (106,183 ac)
Monterey.......................  18,604 ha........  1,487 ha.........  135,419 ha.......  155,510 ha
                                 (45,972 ac)......  (3,675 ac).......  (334,629 ac).....  (384,276 ac)
San Luis Obispo................  11,010 ha........  2,050 ha.........  203,916 ha.......  216,976 ha
                                 (27,208 ac)......  (5,068 ac).......  (503,889 ac).....  (536,165 ac)
Kern...........................  473 ha...........  NA...............  12,148 ha........  12,621 ha
                                 (1,171 ac).......  .................  (30,021 ac)......  (31,192 ac)
Santa Barbara..................  79,365 ha........  1,134 ha.........  123,083 ha.......  203,582 ha
                                 (196,117 ac).....  (2,804 ac).......  (304,147 ac).....  (503,068 ac)
Ventura........................  104,547 ha.......  NA...............  6,458 ha.........  111,005 ha
                                 (258,343 ac).....  .................  (15,959 ac)......  (274,302 ac)
Los Angeles....................  76,927 ha........  4,961 ha.........  26,269 ha........  108,157 ha
                                 (190,091 ac).....  (12,261 ac)......  (64,914 ac)......  (267,266 ac)
Riverside......................  11,829 ha........  NA...............  6,784 ha.........  18,613 ha
                                 (29,232 ac)......  .................  (16,764 ac)......  (45,996 ac)
San Diego......................  4,296 ha.........  NA...............  410 ha...........  4,706 ha
                                 (10,616 ac)......  .................  (1,015 ac).......  (11,631 ac)
                                --------------------
    Total......................  463,438 ha.......  74,949 ha........  1,147,070 ha.....  1,674,582 ha
                                 (1,145,211 ac)...  (185,229 ac).....  (2,834,503 ac)...  (4,138,064 ac)
----------------------------------------------------------------------------------------------------------------


[[Page 19635]]

Unit 1. North Fork Feather Unit

    Unit 1 consists of drainages found within the North Fork Feather 
River drainage. The unit encompasses approximately 46,917 ha (115,939 
ac). The North Fork Feather unit is the northeasternmost of the 
critical habitat units. This unit is located in Plumas and Butte 
Counties. Approximately 81 percent of the unit consists of Federal 
lands managed by Plumas and Lassen National Forests, and the majority 
of the remaining area is privately owned. California red-legged frogs 
have been documented in the French Creek watershed in Butte County. 
This population represents one of only three existing populations in 
the Sierra Nevada. This unit is in need of special management, 
including the eradication of exotic predators in suitable breeding 
habitat adjacent to documented breeding habitats. Other necessary 
management may include re-establishment of red-legged frogs within the 
area; however, natural recolonization is likely to occur if nonnative 
predators are removed.

Unit 2

    Unit 2 is an artifact of the previous proposed designation of 
critical habitat for the California red-legged frog. There is no Unit 2 
in this current proposal.

Unit 3. Weber Creek/Cosumnes Unit

    Unit 3 consists of drainages in the Weber Creek and North Fork 
Cosumnes River watersheds in El Dorado County. The unit encompasses 
approximately 24,090 ha (59,531 ac), of which 36 percent is within the 
El Dorado National Forest and 64 percent is privately owned. California 
red-legged frogs have been documented in the Weber Creek watershed. 
This population represents one of only three existing populations in 
the Sierra Nevada. This unit requires special management, including the 
eradication of exotic predators in suitable breeding habitat adjacent 
to documented breeding habitats. Other necessary management may include 
re-establishment of red-legged frogs within the area; however, natural 
recolonization is likely to occur if nonnative predators are removed.

Unit 4

    Unit 4 is an artifact of the previous proposed designation of 
critical habitat for the California red-legged frog. There is no Unit 4 
in this current proposal.

Unit 5. Yosemite Unit

    Unit 5 consists of drainages found in the tributaries of the 
Tuolumne River and Jordan Creek, a tributary to the Merced River, in 
Tuolumne and Mariposa Counties. The unit encompasses approximately 
50,316 ha (124,336 ac), of which 100 percent is managed by Stanislaus 
National Forest or the National Park Service (NPS). Historically, 
California red-legged frogs were found in several locations in Unit 5 
and in adjacent areas, including two historical occurrences from 1984. 
Although this unit currently is considered unoccupied, it contains all 
of the constituent elements and is in need of special management 
practices that include the eradication of nonnative predators in 
suitable breeding habitat. This area is a candidate for 
reestablishment, and is within a core recovery area as defined in the 
draft Recovery Plan and considered essential to the conservation of 
California red-legged frogs in the Sierra Nevada.

Unit 6. Headwaters of Cottonwood Creek Unit

    Unit 6 consists of drainages found within the headwaters of 
Cottonwood and Red Bank Creeks in Tehama County. The unit encompasses 
approximately 15,498 ha (38,300 ac), of which approximately 18 percent 
is within the boundaries of the Mendocino National Forest; the majority 
of the remaining 82 percent is privately owned. Unit 6 is occupied by a 
population known from CNDDB (2000) records. No additional sightings 
have been reported from the area. This area contains all of the 
constituent elements and is essential in that it represents the 
northernmost population of California red-legged frogs within the Coast 
Range. This area has not been adequately surveyed and additional 
populations may be present. This population may be used as a source 
population to provide natural reestablishment in the northern portion 
of the Coast Range.

Unit 7. Cleary Preserve Unit

    Unit 7 consists of drainages found within the watersheds that form 
the tributaries to Pope Creek in Napa County. The unit encompasses 
approximately 13,793 ha (34,087 ac), of which approximately 88 percent 
is privately owned; the remaining 12 percent is managed by Federal or 
State agencies. Unit 7 represents one of the few documented occurrences 
of California red-legged frogs in this area (McGinnis 2001) and 
represents an important link between populations in Marin County and 
populations on the east side of the Coast Range.

Unit 8. Annadel State Park Preserve Unit

    Unit 8 consists of the Upper Sonoma Creek watershed found partially 
within Annadel State Park in Sonoma County. The unit encompasses 
approximately 2,559 ha (6,326 ac), of which approximately 76 percent is 
privately owned and 24 percent is managed by the California Department 
of Parks and Recreation (CDPR). Unit 8 is occupied by one known core 
population of California red-legged frogs (Cook 1997). This area 
represents a source population with potential linkage to the Sears 
Point unit as well as units to the west.

Unit 9. Stebbins Cold Canyon Preserve Unit

    Unit 9 consists of drainages found within and adjacent to Stebbins 
Cold Canyon Preserve and the Quail Ridge Wilderness Preserve in Napa 
and Solano Counties. The unit is comprised of watersheds that form 
Capell Creek, including Wragg Canyon, Markley Canyon, Steel Canyon, and 
Wild Horse Canyon watersheds. The unit encompasses approximately 8,589 
ha (21,227 ac), of which approximately 75 percent is privately owned 
and 25 percent is managed by the University of California Natural 
Reserve System, the Quail Ridge Wilderness Conservancy, and the Bureau 
of Land Management (BLM). Unit 9 represents one of the historic 
occurrences of California red-legged frogs in this area, and represents 
an important link between populations in Marin County and populations 
on the east side of the Coast Range.

Unit 10. Sears Point Unit

    Unit 10 consists of Stage Gulch and Lower Petaluma River 
watersheds, tributaries to the Petaluma River. This unit is located in 
and adjacent to Sears Point in Sonoma and Marin Counties and 
encompasses approximately 4,358 ha (10,771 ac), all of which is 
privately owned. Unit 10 is occupied by several subpopulations. 
Essential breeding habitat is dispersed throughout the unit, and has 
been documented in several ponds and streams. This unit provides 
linkages to the units to the north, east, and west.

Unit 11. American Canyon Unit

    Unit 11 consists of watersheds within and adjacent to American 
Canyon Creek and Sulphur Springs Creek in Napa and Solano Counties. 
Watersheds within this unit include Fagan Creek, a tributary to the 
Napa River, the Jameson Canyon watershed, and the Sky Valley and Pine 
Lake watersheds that flow into Lake Herman. The unit encompasses 
approximately 11,240 ha (27,779 ac), of which 99 percent is privately 
owned. Unit 11 is occupied by several subpopulations.

[[Page 19636]]

Unit 12. Point Reyes Unit

    Unit 12 consists of watersheds within and adjacent to Bolinas 
Lagoon, Point Reyes, and Tomales Bay in Marin and Sonoma Counties. This 
unit encompasses approximately 81,168 ha (200,572 ac); 44 percent is 
managed by the NPS, CDPR, and the Marin Municipal Water District, and 
56 percent is privately owned. Unit 12 is occupied with several 
populations known primarily through research by G. Fellers, BRD 
(Service files). Essential breeding habitat is dispersed throughout the 
unit. This unit contains one of the largest known populations of 
California red-legged frogs.

Unit 13. Tiburon Peninsula Unit

    Unit 13 consists of the Belvedere Lagoon watershed within and 
adjacent to the Tiburon Peninsula in Marin County. The unit encompasses 
approximately 628 ha (1,554 ac), all of which is privately owned. Unit 
12 is occupied by one known breeding population known from CNDDB (2000) 
records.

Unit 14. San Mateo/Northern Santa Cruz Unit

    Unit 14 consists of coastal watersheds within San Mateo County and 
northern Santa Cruz County that drain into the Pacific Ocean. The unit 
encompasses approximately 96,296 ha (237,955 ac), of which 83 percent 
is privately owned; the remaining 17 percent is primarily managed by 
the San Francisco Public Utilities Commission (SFPUC) and CDPR. Unit 14 
is occupied by several core subpopulations known from various sources 
including formal consultations with the U.S. Army Corps of Engineers 
(Corps) (Service files). Essential breeding habitat is dispersed 
throughout the unit; populations have been documented in ponds and 
wetlands throughout Unit 14. This area contains numerous areas with 
large populations including Pescadero Marsh, and watersheds to the 
south.

Unit 15. East Bay/Diablo Range Unit

    Unit 15 consists of watersheds within Contra Costa, Alameda, San 
Joaquin, Santa Clara, Stanislaus, San Benito, Merced, and Fresno 
Counties. The unit encompasses approximately 426,480 ha (1,053,850 ac), 
of which 87 percent is privately owned; the remaining 13 percent is 
managed, in part, by East Bay Regional Park District (EBRPD), East Bay 
Municipal Utilities District (EBMUD), Contra Costa Water District 
(CCWD), U.S. Bureau of Reclamation (BOR), U.S. Department of Energy 
(DOE), CDPR, SFPUC, CDFG, Santa Clara Valley Water District, and DWR. 
Unit 15 is occupied with several large core subpopulations, including 
the population within CCWD and EBRPD lands, and essential breeding 
habitat is located throughout the unit.

Unit 16. Pajaro River Unit

    Unit 16 consists of portions of two watersheds that are part of the 
Pajaro River Drainage, the Flint Hills watershed in San Benito County, 
and the Santa Clara Valley watershed in Santa Clara and San Benito 
Counties. The unit encompasses approximately 19,524 ha (48,247 ac) and 
is all privately owned. Unit 16 is occupied and is an essential unit in 
providing connectivity from the outer coast plain and ranges to the 
inner Coast Ranges.

Unit 17. Elkhorn Slough/Salinas River Unit

    Unit 17 consists of coastal drainages of southern Santa Cruz and 
northern Monterey Counties. The unit is located in Santa Cruz, 
Monterey, and San Benito Counties. The unit encompasses approximately 
66,799 ha (165,067 ac), of which 93 percent is privately owned; CDPR 
and the Elkhorn Slough National Estuarine Research Reserve manage the 
remaining 7 percent. Unit 17 is occupied and provides connectivity from 
the coastal plain and outer coast ranges to the inner coast ranges. The 
unit represents a unique ecological set in that it is a large estuary/
freshwater slough system not typically found on the California coast.

Unit 18. Carmel River Unit

    Unit 18 consists of drainages comprising the Carmel River watershed 
in Monterey County. This unit encompasses approximately 62,976 ha 
(155,620 ac), of which approximately 26 percent is managed by the Los 
Padres National Forest and CDPR, while the remaining 74 percent is 
privately owned. Unit 18 is occupied, and populations of California 
red-legged frogs are found throughout the drainage from the headwaters 
to the coast. This unit provides connectivity from the Elkhorn Slough 
unit to the more southern coastal units.

Unit 19. The Pinnacles Unit

    Unit 19 consists of two watersheds, Gloria Lake and George Hansen 
Canyon, in San Benito and Monterey Counties. This unit encompasses 
approximately 11,051 ha (27,309 ac), of which 57 percent is managed by 
the NPS and BLM; the remaining 43 percent is privately owned. Unit 19 
is occupied and is representative of the inner coast range. The unit 
provides connectivity between the Pajaro River and other populations to 
the north and populations in southern Monterey County and northern San 
Luis Obispo County.

Unit 20. Estrella River/Cholame Creek Unit

    Unit 20 consists of the drainages comprising the Cholame Creek, 
Estrella River, and the Saw Tooth Ridge watersheds in Monterey, San 
Luis Obispo, and Kern Counties. The unit encompasses approximately 
159,576 ha (394,325 ac), of which 99 percent is privately owned and the 
remaining 1 percent is federally managed. Unit 20 is occupied by a 
large population. The unit contains areas in a unique ecological 
setting of springs, wetlands and vernal pools in a very dry ecological 
setting. This unit also provides connectivity between inner and outer 
Coast Ranges and into the Transverse Ranges.

Unit 21. San Simeon Unit/Morro Bay Unit

    Unit 21 consists of the coastal watersheds of San Luis Obispo 
County from Arroyo de la Cruz south to Los Osos Creek. The unit 
encompasses approximately 84,757 ha (209,445 ac), of which 94 percent 
is privately owned; the remaining 6 percent is managed by CDPR and 
Federal agencies. Unit 21 is occupied and contains several core 
populations of California red-legged frogs. This unit also supports a 
unique ecological setting, representative of the central coastal oak 
savannah grassland. This unit also provides connectivity from the outer 
Coast Range in Monterey County into the Transverse Ranges in San Luis 
Obispo and Santa Barbara Counties.

Unit 22. Lopez Lake/Arroyo Grande Creek Unit

    Unit 22 consists of the watersheds of Arroyo Grande Creek and its 
tributaries in San Luis Obispo County. The unit encompasses 
approximately 34,500 ha (85,254 ac), of which 79 percent is privately 
owned and Los Padres National Forest and BLM manage the remaining 21 
percent. Unit 22 is occupied and provides habitat connectivity from the 
San Simeon Unit-Morro Bay Unit down into the Sisquoc River Unit and 
Transverse Range.

Unit 23. Coastal Dunes Unit

    Unit 23 consists of coastal watersheds comprising the coastal dune 
ponds from Arroyo Grande south to San Antonio Creek in San Luis Obispo 
and Santa Barbara Counties. The unit encompasses approximately 21,358 
ha (52,782 ac), of which 3 percent is managed by Federal,

[[Page 19637]]

State, and local municipalities (primarily Service and CDPR), with the 
remaining 97 percent in private ownership. Unit 23 is occupied and 
represents a core population occupying a unique coastal dune system. 
This unit also provides connectivity between the Lopez Lake/Arroyo 
Grande Creek Unit down into the Santa Ynez River Unit.

Unit 24. Santa Ynez River Unit

    Unit 24 consists of watersheds forming the Santa Ynez River in 
Santa Barbara County. The unit encompasses approximately 98,744 ha 
(244,004 ac), of which approximately 60 percent is privately owned; the 
BOR and Los Padres National Forest manage the remaining 40 percent. 
Unit 24 is occupied and contains core populations. Frogs are found on 
the Santa Ynez River from the headwaters to the estuary. The headwaters 
provide connectivity to the Sisquoc River Unit and the Matilija/Sespe/
Piru Creek Unit. This unit provides essential connectivity from coastal 
dune systems, up the Santa Ynez River to the headwaters of the 
Transverse Range.

Unit 25. Sisquoc River Unit

    Unit 25 consists of watersheds forming the drainages of the Sisquoc 
River in Santa Barbara County. These include the Cherokee Spring, 
Ernest Blanco Spring, Horse Canyon, La Brea Creek, Manzano Creek, Peach 
Tree Spring, and the Lower Sisquoc River watersheds. The unit 
encompasses approximately 49,284 ha (121,785 ac), of which 39 percent 
is privately owned, and 61 percent is managed by the Los Padres 
National Forest. Unit 25 is occupied. This unit represents a core 
population that provides connectivity from Lopez Lake/Arroyo Grande 
Creek Unit into the westernmost portion of the Transverse Ranges. It is 
also the only undammed river included as critical habitat in this 
region; for this reason, the threats of nonnative fish are minimal.

Unit 26. Coastal Santa Barbara Unit

    Unit 26 consists of coastal tributaries including the Bear Creek 
watershed, east to and including the Ellwood Canyon watershed in Santa 
Barbara County. The unit encompasses approximately 39,977 ha (98,791 
ac), of which 23 percent is managed by the Los Padres National Forest 
and the CDPR; the remaining 77 percent is privately owned. Unit 26 is 
occupied by numerous small populations. It contains a unique ecological 
setting: numerous and relatively small watersheds along a south-facing 
coastal terrace drain directly into the Pacific Ocean. This type of 
habitat is not found elsewhere in California. Populations in this unit 
may play an important role in stabilizing populations in tributaries to 
the Santa Ynez River, which is affected by agriculture, water 
management, and non-native species.

Unit 27. Matilija/Sespe/Piru Creek Unit

    This unit consists of watersheds that comprise portions of the 
Matilija, Sespe, and Piru Creek drainages in Santa Barbara, Ventura, 
and Los Angeles Counties. The unit encompasses approximately 126,955 ha 
(313,716 ac), of which 96 percent is managed by the Los Padres National 
Forest and 4 percent is privately owned. Unit 27 is occupied and 
provides connectivity across the Transverse Ranges from the Santa Ynez 
River Unit to the San Francisquito-Amargosa Creek Unit. The Sespe Creek 
area, which includes portions of the Sespe Wilderness and provides the 
primary east-west connectivity, currently supports large numbers of 
bullfrogs and predatory fish and is in need of special management.

Unit 28. San Francisquito-Amargosa Creek Unit

    This unit consists of San Francisquito and Amargosa Creeks and the 
intervening drainages in Los Angeles County, including all or parts of 
the Lancaster, Rock Creek, Acton, Bouquet Eastern, Mint Canyon, and 
Sierra Pelona watersheds. The unit encompasses approximately 42,851 ha 
(105,890 ac), of which 80% percent is primarily managed by the Angeles 
National Forest; the remaining 20% percent is privately owned. Unit 28 
is occupied, supporting a substantial core population and may be a 
source population for units to the south and west. This unit also 
supports the only known population occupying a drainage flowing into 
the Mojave Desert.

Unit 29. Malibu Coastal Unit

    This unit consists of the upper coastal watersheds in the Santa 
Monica Mountains of Ventura and Los Angeles Counties that drain into 
the Pacific Ocean near Malibu, including the West Las Virgenes Canyon, 
Lindero Canyon, Sherwood, Triunfo Canyon, East Las Virgenes Canyon, and 
Monte Nido watersheds. The unit encompasses approximately 21,235 ha 
(52,475 ac), of which approximately 67 percent is privately owned and 
33 percent is managed in part by the NPS, CDPR, and local 
municipalities. Unit 29 contains one occupied drainage; California red-
legged frogs have likely persisted in this drainage because of its 
isolation from the nonnative predators that are prevalent in most 
drainages in this recovery unit. Unit 29 contains all of the 
constituent elements, in addition it supports a habitat mosaic of 
coastal sage scrub, coast live oak woodlands, and grasslands that is 
substantially different from habitat contained in other units.

Unit 30. Santa Rosa Plateau/Santa Ana Mountains Unit

    This unit consists of portions of the watersheds comprising the 
Santa Rosa Plateau and the Santa Ana Mountains in Riverside and San 
Diego Counties, including De Luz Creek, Murrieta, and San Mateo Canyon 
watersheds. The unit encompasses approximately 23,319 ha (57,627 ac), 
of which approximately 69 percent is managed by the U.S. Forest Service 
(Forest Service), and approximately 31 percent is privately owned (a 
portion of which is owned by The Nature Conservancy).
    The unit includes habitat essential to the conservation of the 
California red-legged frog, and is within a core recovery area, as 
defined in the draft Recovery Plan. This unit contains a small, 
genetically unique population on The Nature Conservancy's Santa Rosa 
Plateau Ecological Reserve (Reserve). This unit is the focal point of 
recovery efforts essential for the conservation of the California red-
legged frog and its genetic diversity in southern California. The 
Reserve and adjacent watershed lands contain riparian habitat with the 
primary constituent elements essential to the maintenance of the 
California red-legged frog population and the re-establishment of the 
subspecies in southern California. A recovery program is currently 
being implemented on the Reserve that includes habitat restoration, 
nonnative species/predator removal, and augmentation of the red-legged 
frog population. Preliminary discussions have been initiated with the 
Cleveland National Forest concerning re-establishment of California 
red-legged frogs in the San Mateo watershed. Additionally, The Nature 
Conservancy has acquired lands between the current Reserve and 
Cleveland National Forest, and intends to acquire additional lands in 
this corridor to add to the Reserve. Habitat restoration, and nonnative 
predator management activities are being conducted in these areas, and 
these lands are being evaluated for possible red-legged frog re-
establishment.

Unit 31. Tujunga Unit

    This unit consists of portions of the Tujunga watersheds in Los 
Angeles County. It encompasses approximately 29,744 ha (73,500 ac), of 
which 100 percent is managed by the Angeles National Forest. This unit 
contains

[[Page 19638]]

habitat essential to the conservation of California red-legged frogs in 
southern California and is within a core recovery area as defined in 
the draft Recovery Plan. Red-legged frogs are not known to currently 
occupy this unit, but numerous populations have been historically 
documented within the boundaries of the unit and adjacent Forest 
Service lands. This unit is a focal point for reestablishment of the 
California red-legged frog in southern California. Preliminary 
discussions have been initiated with the Angeles National Forest 
concerning the re-establishment project, in addition to nonnative 
species management and habitat restoration.

Effect of Critical Habitat Designation

Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. This requirement is met 
through section 7 consultation under the Act. Our regulations define 
``jeopardize the continued existence'' as to engage in an action that 
reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). ``Destruction or adverse 
modification of designated critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of the 
critical habitat for both the survival and recovery of the species (50 
CFR 402.02). Such alterations include, but are not limited to, adverse 
changes to the physical or biological features, i.e., the primary 
constituent elements, that were the basis for determining the habitat 
to be critical. However, in a March 15, 2001, decision of the United 
States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., 245 F.3d 434), the Court found our 
definition of destruction or adverse modification to be invalid. In 
response to this decision, we are reviewing the regulatory definition 
of adverse modification in relation to the conservation of the species.
    Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if critical habitat 
were designated. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities 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, the 
action agency would ensure that the permitted actions do not destroy or 
adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we would 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 Service's Regional Director believes would avoid the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the California red-legged frog, 
occupied habitat, or its critical habitat will require consultation 
under section 7. Activities on private, State, county, or lands under 
local jurisdictions requiring a permit from a Federal agency, such as 
Federal Highway Administration or Federal Emergency Management Act 
funding, or a permit from the Corps under section 404 of the Clean 
Water Act, will 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, authorized, or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. We 
note that such activities may also jeopardize the continued existence 
of the species.
    Activities that, when carried out, funded, or authorized by a 
Federal agency may directly or indirectly destroy or adversely modify 
critical habitat for California red-legged frog include, but are not 
limited to:
    (1) Sale, exchange, or lease of lands managed by the BLM, BOR, 
Department of Defense (DOD), DOE, NPS, or Forest Service;
    (2) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act, with the 
exception of maintenance activities on ponds located on private lands 
for the express purposes of maintaining the area to water stock;
    (3) Regulation of water flows, water delivery, damming, diversion, 
and

[[Page 19639]]

channelization by the BOR and the Corps or other water transfers, 
diversion, or impoundment, groundwater pumping, irrigation activity 
that causes barriers or deterrents to dispersal, inundates or drains 
habitat, or significantly converts habitat;
    (4) Regulation of grazing, recreation, mining, or logging by the 
BLM, BOR, DOD, or NPS;
    (5) Funding and implementation of disaster relief projects by the 
FEMA and the Natural Resource Conservation Service's Emergency 
Watershed Program, including erosion control, flood control, streambank 
repair to reduce the risk of loss of property;
    (6) Funding and regulation of new road construction or road 
improvements by the FHA;
    (7) Funding of construction or development activities by the 
Department of Housing and Urban Development or other agencies that 
destroy, fragment, or degrade suitable habitat;
    (8) Clearing of vegetation and hydrological modifications by the 
DOE or other agencies; and
    (9) Promulgation of air and water quality standards under the Clean 
Air Act and the Clean Water Act and the clean up 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 EPA.
    With the exception of the two unoccupied units, all lands proposed 
for designation as critical habitat are within the geographic range of 
the California red-legged frog and are occupied by the subspecies, and/
or are likely to be used by the subspecies, whether for foraging, 
breeding, growth of larvae and juveniles, intra-specific communication, 
dispersal, migration, genetic exchange and sheltering. Federal agencies 
already consult with us on activities in areas currently occupied by 
the subspecies, or if the subspecies may be affected by the action, to 
ensure that their actions do not jeopardize the continued existence of 
the subspecies. Furthermore, in unoccupied habitat, we are only 
proposing to designate federally managed land as critical habitat. 
Thus, we do not anticipate substantial additional regulatory protection 
will result from the proposed critical habitat designation.
    If you have questions regarding whether specific activities may 
constitute adverse modification of critical habitat in California, 
contact the Field Supervisor, Sacramento Fish and Wildlife Office (see 
ADDRESSES section). Requests for copies of the regulations on listed 
plants and wildlife and inquiries about prohibitions and permits may be 
addressed to the U.S. Fish and Wildlife Service, Branch of Endangered 
Species, 911 N.E. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; 
facsimile 503/231-6243).

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, national security, 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.
    An analysis of the economic impacts of proposing critical habitat 
for California red-legged frog is being prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. When published, 
copies of the draft economic analysis will be available by contacting 
the Sacramento Fish and Wildlife Office directly (see ADDRESSES 
section) or available for downloading from the Internet at http://sacramento.fws.gov/es/documents.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of this review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite the selected peer reviewers to 
comment, during the public comment period, on the specific assumptions 
and conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
public comment periods on this proposed rule during the preparation of 
a final rulemaking. Accordingly, the decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing 45 
days following the publication of the proposal in the Federal Register. 
We will schedule public hearings on this proposal, if any are 
requested, and will announce the dates, times and locations of those 
hearings in the Federal Register and local newspapers at least 15 days 
prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (groupings and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? What else 
could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. As such, 
the Office of Management and Budget (OMB) has reviewed this rule. The 
Service is preparing a draft economic analysis of this proposed action. 
The Service will use this analysis to meet the requirement of section 
4(b)(2) of the Act to determine the economic consequences of 
designating the specific areas as critical habitat and excluding any 
area from critical habitat if it is determined that the benefits of 
such exclusion outweigh the benefits of specifying such areas as part 
of the critical habitat, unless failure to designate such area as 
critical habitat will lead to the extinction of the California red-
legged frog. This analysis will also be used to determine

[[Page 19640]]

compliance with Executive Order 12866, Regulatory Flexibility Act, 
Small Business Regulatory Enforcement Fairness Act, and Executive Order 
12630.
    This analysis will be made available for public review and comment. 
Copies may be obtained from the Sacramento Fish and Wildlife Office's 
Internet Web site at http://sacramento.fws.gov/es/documents, or by 
contacting the Sacramento Fish and Wildlife Office directly (see 
ADDRESSES section)

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    The SBREFA amended the Regulatory Flexibility Act (RFA) to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities are affected by this proposed designation, the following 
analysis considers the relative number of small entities likely to be 
impacted in an area. The SBREFA also amended the RFA to require a 
certification statement.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
proposed rule as well as types of project modifications that may 
result. In general, the term significant economic impact is meant to 
apply to a typical small business firm's business operations.
    To determine if this proposed rule would affect a substantial 
number of small entities, we considered the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, oil and gas production, timber harvesting etc.). We 
considered each industry individually to determine if certification is 
appropriate. In estimating the numbers of small entities potentially 
affected, we also considered whether their activities have any Federal 
involvement; some kinds of activities are unlikely to have any Federal 
involvement and so will not be affected by the designation of critical 
habitat. Designation of critical habitat only affects activities 
conducted, funded, permitted or authorized by Federal agencies; non-
Federal activities are not affected by the designation.
    If this critical habitat designation is made final, Federal 
agencies must consult with us if their activities may affect designated 
critical habitat. Consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process. In areas where occupancy by California 
red-legged frog is unknown, the designation of critical habitat could 
trigger additional review of Federal agencies pursuant to section 7 of 
the Act and may result in additional requirements on Federal activities 
to avoid destruction or adverse modification of critical habitat. There 
are two units (Unit 5 and Unit 31) in this proposed designation that 
are currently not known to be occupied by the California red-legged 
frog. These units occur entirely on Federal lands or are managed by 
Federal agencies, the Stanislaus National Forest and the NPS (Unit 5) 
and Angeles National Forest (Unit 31).
    During the development of our last designation of critical habitat 
for the California red-legged frog, we conducted an economic analysis 
of our proposed designation (65 FR 54892, September 11, 2000) and made 
it available to the public for review on December 21, 2000 (65 FR 
80409). Because the scope of this analysis was the proposed critical 
habitat, it evaluated the potential economic impacts of the proposed 
regulation to approximately 2,175,000 ha (5,373,650 ac), a 
significantly larger area than was designated as final critical habitat 
for the California red-legged frog. In that analysis we additionally 
evaluated the potential effect of the proposed regulation on small 
entities. We determined in that analysis that small business in the 
construction, development, mining, ranching and timber industries could 
potentially be affected by proposed regulation if the designation leads 
to significant project modifications or delays associated with those 
activities. The results of the analysis further suggested that if the 
areas proposed as critical habitat were designated, it appeared 
unlikely that the designation would lead to a significant increased 
number of consultations and project modifications (i.e., significant 
additional regulatory and/or economic burden) because the majority of 
the area designated is considered occupied by the species. As such, 
this rule is not expected to result in any significant regulatory 
restrictions in addition to those currently in existence.
    Many of the activities sponsored by Federal agencies within 
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 
already currently required to comply with the protections of the Act, 
and the designation of critical habitat is not anticipated to have any 
additional effects on these activities. The analysis did, however, 
recognize that to the extent that these industries constitute small 
business entities, there may be some costs resulting from the 
regulation. However, we did not believe that these costs would reach 
the threshold for being considered significant economic impacts to a 
substantial number of small business entities.
    In the development of our final designation of critical habitat, we 
significantly modified our proposal such that only 1,674,582 ha 
(4,140,440 ac) were designated, a reduction of approximately 22 percent 
or 488,580 ha (1,206,330 ac) from the proposal. Of the approximate 
1,674,582 ha (4,140,440 ac) that were finalized and which are currently 
being proposed for designation as critical habitat for the California 
red-legged frog, an estimated 5 percent or 81,020 ha (200,212 ac) is 
considered unoccupied habitat (Units 5 and 31). Because the scope of 
the final designation and this new proposed designation is 
significantly less than that originally proposed in 2000 and analyzed, 
we believe that it is unlikely

[[Page 19641]]

that this proposal, if finalized, would result in a significant 
economic impact on a substantial number of small entities. We will 
further analyze this when we conduct our analysis of the potential 
economic effects of this new proposed designation of critical habitat 
for the California red-legged frog.
    Therefore, based on the analysis conducted for our previous 
designation, we are certifying that this proposed designation of 
critical habitat is not expected to have a significant adverse impact 
on a substantial number of small entities, and an initial regulatory 
flexibility analysis is not required.
    This assessment of economic effect may be modified prior to 
publication of a final rule, based on a review of the draft economic 
analysis currently being prepared pursuant to section 4(b)(2) of the 
Act, Executive Order 12866, and public comments received during the 
public comment period. This analysis is for the purposes of compliance 
with the Regulatory Flexibility Act and does not reflect our position 
on the type of economic analysis required by New Mexico Cattle Growers 
Assn. v. U.S. Fish & Wildlife Service 248 F. 3d 1277 (10th Cir. 2001).

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order 13211 
(E.O. 13211) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
proposed rule is considered by OMB to be a significant regulatory 
action under E.O. 12866 in that it may raise novel legal and policy 
issues. However, we do not anticipate that the proposed designation of 
critical habitat for the California red-legged frog will significantly 
affect energy supplies, distribution, or use. Therefore, we do not 
believe that this action is a significant action and no Statement of 
Energy Effects is required. We will further examine any potential 
effect in our economic analysis of this proposal.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the subspecies, and no further restrictions are anticipated.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule is not 
anticipated to have significant takings implications. A takings 
implication assessment is not required. As discussed above, the 
designation of critical habitat affects only Federal actions. The rule 
will not increase or decrease the current restrictions on private 
property concerning take of the California red-legged frog. Due to 
current public knowledge of the subspecies' protections, the 
prohibition against take of the subspecies both within and outside of 
the designated areas, and the fact that critical habitat provides no 
substantial incremental restrictions in areas occupied by the 
California red-legged frog, we do not anticipate that property values 
will be affected by the critical habitat designation. While real estate 
market values may temporarily decline following designation, due to the 
perception that critical habitat designation may impose additional 
regulatory burdens on land use, we expect any such impacts to be short 
term. Additionally, critical habitat designation does not preclude 
development of HCPs and issuances of incidental take permits. Owners of 
areas that are included in proposed critical habitat will continue to 
have the opportunity to utilize their property in ways consistent with 
the survival of the California red-legged frog.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in California. The impact of the proposed designation 
on State and local governments and their activities is not believed to 
be significant. We will examine this more fully in our economic 
analysis of the proposal. 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, it may assist these local governments in long-
range planning, rather than forcing/necessitating them to wait for 
case-by-case section 7 consultations to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this proposed 
rule does not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. We are 
proposing to designate critical habitat in accordance with the 
provisions of the Endangered Species Act. The rule uses standard 
property descriptions and identifies the primary constituent elements 
within the designated areas to assist the public in understanding the 
habitat needs of the California red-legged frog.

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

    This proposed rule does not contain any information collection 
requirements that require OMB approval under the Paperwork Reduction 
Act. An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a valid 
OMB Control Number.

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175 (November 9, 2000; 
65 FR 67249) and DOI's manual at 512 DM 2, we readily acknowledge our

[[Page 19642]]

responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.
    We are not aware of any Tribal lands essential for the conservation 
of the California red-legged frog within the areas proposed for 
designation as critical habitat. Therefore, this proposal does not 
contain any Tribal lands or lands that we have identified as impacting 
Tribal trust resources.

Relationship With Mexico

    We are not aware of any existing national-level regulatory 
mechanism in Mexico that would protect the California red-legged frog 
or its habitat. Although new legislation for wildlife is pending in 
Mexico, and Mexico has laws that could provide protection for rare 
species, there are enforcement challenges. Even if specific protections 
were available and enforceable in Mexico, the portion of the California 
red-legged frog's range in Mexico alone, in isolation, would not be 
adequate to ensure the long-term conservation of the subspecies.

References Cited

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

Authors

    The primary authors of this notice are Douglas Krofta of the 
Arlington Fish and Wildlife Office and staff from the Carlsbad, 
Ventura, and Sacramento Fish and Wildlife Offices (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons outlined in the preamble, we propose to amend part 
17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as follows:

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. Amend Sec.  17.95(d) by revising the introductory text of the 
critical habitat designation for the California red-legged frog (Rana 
aurora draytonii) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *

    (d) Amphibians.
* * * * *

CALIFORNIA RED-LEGGED FROG (Rana aurora draytonii)

    1. Critical habitat units are depicted for Alameda, Butte, 
Contra Costa, El Dorado, Fresno, Kern, Los Angeles, Marin, Mariposa, 
Merced, Monterey, Napa, Plumas, Riverside, San Benito, San Diego, 
San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, 
Santa Cruz, Solano, Sonoma, Stanislaus, Tehama, Tuolumne, and 
Ventura Counties, California, on the maps below.
    2. Within these areas, the primary constituent elements for the 
California red-legged frog consist of three components:
    (a) Aquatic habitat with a permanent water source with pools 
(i.e., water bodies) having a minimum depth of 0.5 m (20 in) for 
breeding and which can maintain water during the entire tadpole 
rearing season;
    (b) Upland areas up to 90 m (300 ft) from the water's edge 
associated with the above aquatic habitat that will provide for 
shelter, forage, maintenance of the water quality of the aquatic 
habitat, and dispersal; and
    (c) Upland barrier-free dispersal habitat that is at least 90 m 
(300 ft) in width that connects two or more suitable breeding 
locations defined by the aquatic habitat above, all within 2 km 
(1.25 mi) of one another.
    3. Existing features and structures within the boundaries of the 
mapped units, such as buildings, roads, aqueducts, railroads, other 
paved areas, lawns, and other urban landscaped areas, and uplands 
removed from essential aquatic and dispersal habitat, will not 
contain one or more of the primary constituent elements and, 
therefore, would not trigger a section 7 consultation, unless they 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
    4. Map 1, Index map of critical habitat units for California 
Red-Legged Frog, follows:
* * * * *

    Dated: March 30, 2004.
Paul Hoffman,
Acting Assistant Secretary of Fish and Wildlife and Parks.
[FR Doc. 04-7693 Filed 4-12-04; 8:45 am]
BILLING CODE 4310-55-P