[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Rules and Regulations]
[Pages 74138-74163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23701]



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Part III





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; Designation of Critical 
Habitat for the Sonoma County Distinct Population Segment of the 
California Tiger Salamander; Final Rule

  Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / 
Rules and Regulations  

[[Page 74138]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU23


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Sonoma County Distinct Population Segment of 
the California Tiger Salamander

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final decision in rulemaking process.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
and exclude approximately 17,418 acres (ac) (7,049 hectares (ha)) of 
critical habitat for the Sonoma County distinct population segment of 
the California tiger salamander (Ambystoma californiense) pursuant to 
the Endangered Species Act of 1973, as amended (Act). We are excluding 
all critical habitat based on interim conservation strategies and 
measures being implemented by those local governing agencies with land 
use authority over the area and also as a result of economic exclusions 
authorized under section 4(b)(2) of the Act. Therefore, no critical 
habitat is being designated for the Sonoma County distinct population 
segment of the California tiger salamander in Sonoma County, 
California.

DATES: This final decision becomes effective on January 13, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this rulemaking, will be 
available for public inspection, by appointment, during normal business 
hours, at the Sacramento Fish and Wildlife Office (SFWO), 2800 Cottage 
Way, W-2605, Sacramento, CA 95825. The final rule and economic analysis 
will be available via the Internet at http://www.fws.gov/sacramento/.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Sacramento Fish and 
Wildlife Office, at the above address, (telephone (916) 414-6600; 
facsimile (916) 414-6712).

SUPPLEMENTARY INFORMATION:

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 available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts 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 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 466 species or 36.7 
percent of the 1,269 listed species in the United States under the 
jurisdiction of the Service have designated critical habitat.
    We address the habitat needs of all 1,269 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 for the 
conservation of many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service). On December 9, 2004, the Director issued 
guidance to be used in making section 7 adverse modification 
determinations.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, 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, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process 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 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively 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 the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is 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

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information 
on the Sonoma County distinct population segment of the California 
tiger salamander, refer to the final listing rule and proposed critical 
habitat rule

[[Page 74139]]

published in the Federal Register on March 19, 2003 (68 FR 13498), and 
August 2, 2005 (70 FR 44301), respectively.
    As previously mentioned in the proposed critical habitat rule 
published in the Federal Register on August 2, 2005 (70 FR 44301), we 
have been cooperatively working with Federal, State, County, and local 
officials as well as representatives from local business and 
environmental groups over the last 18 months to develop a conservation 
strategy for the California tiger salamander in Sonoma County. The 
development of the Santa Rosa Plain Conservation Strategy (Conservation 
Strategy) along with implementation measures has been moving forward 
and the County of Sonoma along with the cities of Santa Rosa, Rohnert 
Park, Cotati and Windsor have all passed resolutions supporting the 
development and agree to work toward implementation of the Conservation 
Strategy for the protection of the Sonoma County distinct population 
segment of the California tiger salamander as well as several other 
Federally listed plant species occurring on the Santa Rosa Plain.
    On June 29, 2005, the Service and the California Department of Fish 
and Game (CDFG) issued interim guidelines which contain project 
specific conservation measures for projects affecting the California 
tiger salamander on the Santa Rosa Plain. These interim guidelines are 
in place and the measures identified in them are currently being 
implemented by those individuals impacting habitat features considered 
essential for the conservation of the Sonoma County distinct population 
segment of the California tiger salamander. These conservation measures 
have been reviewed by the team developing the Conservation Strategy as 
well as peer reviewed by biologists knowledgeable of amphibian 
conservation or ecological conservation in general and are consistent 
with long-term conservation of the California tiger salamander and 
other listed plants on the Santa Rosa Plain. As the Conservation 
Strategy is finalized, the Service and the CDFG intend to continue to 
implement and or revise these interim guidelines to best conserve the 
California tiger salamander and other Federally-listed plant species on 
the Santa Rosa Plain.

Previous Federal Actions

    On October 13, 2004, a complaint was filed in the U.S. District 
Court for the Northern District of California (Center for Biological 
Diversity and Environmental Defense Council v. U.S. Fish and Wildlife 
Service et al. (Case No. C-04 4324 FMS)). On February 3, 2005, the 
District Court required the Service to submit for publication in the 
Federal Register, a final determination on the proposed critical 
habitat designation on or before December 1, 2005. On August 2, 2005, 
we noticed in the Federal Register a proposed critical habitat 
designation (70 FR 44301). On August 19, 2005, a court order was filed 
on the above complaint, which upheld the section 4(d) rule exempting 
grazing from Section 9 prohibitions, but vacated the downlisting of the 
Santa Barbara and Sonoma populations and reinstated their endangered 
distinct population segment status. On October 25, 2005, we noticed in 
the Federal Register the availability of a draft economic analysis on 
the proposed designation (70 FR 61591). In a November 17, 2005 Federal 
Register notice (70 FR 69717), we requested comments on a refinement of 
those areas considered to contain the essential features necessary for 
the conservation of the Sonoma County distinct population segment of 
the California tiger salamander, and identified the adjusted economic 
impacts. This final decision associated with the rulemaking process is 
in accordance with the settlement agreement and court order. For more 
information on previous Federal actions concerning the California tiger 
salamander, refer to the proposed rule to designate critical habitat in 
Sonoma County published in the Federal Register on August 2, 2005 (70 
FR 44301), as well as the listing notice published in the Federal 
Register on March 19, 2003 (68 FR 13498).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for California tiger salamander in the 
proposed rule published on August 2, 2005 (70 FR 44301). We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. In addition, we held two public hearings on 
September 8, 2005, in Santa Rosa, California.
    We had three open comment periods, totaling 91 days, between August 
2, 2005 and November 28, 2005. During those periods, we received 
comments directly addressing the proposed critical habitat designation: 
three from peer reviewers, six from local government, and 55 from 
organizations or individuals. We reviewed all comments received from 
the peer reviewers and the public for substantive issues and new 
information regarding critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander. Comments 
received were grouped into general issues specifically relating to the 
proposed critical habitat rulemaking for the Sonoma County distinct 
population segment of the California tiger salamander, are addressed in 
the following summary, and incorporated into the final rule as 
appropriate.

Comments From the State

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition.'' We did 
not receive any comments from State agencies regarding the proposal to 
designate critical habitat for the Sonoma County distinct population 
segment of the California tiger salamander.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from six knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received a response from three of the peer 
reviewers. These reviewers provided specific information regarding 
species location and habitat as well as information on the areas that 
could be excluded based on soil information, locations of wetlands, 
potential breeding habitat, elevation information, and habitat 
fragmentation. This information was used to assist us in determining 
the final critical habitat boundaries. Any changes as a result of peer 
review information are reflected and incorporated in this final 
rulemaking as appropriate. Specific peer review comments are addressed 
in the following summary below.

Peer Review Comments

    Comment: The critical habitat area should be reduced to 
approximately 18,000-20,000+ acres of extant occupied habitat and 
comprised of a 1.3 mile (mi) (2 kilometer (km)) buffer around known 
breeding locations.
    Our Response: As outlined in our notice published in the Federal 
Register on November 17, 2005 (70 FR 69717), we refined the proposed 
designation to just those areas surrounding known breeding locations, 
and by applying parameters for dispersal and upland habitat similar to 
those we used in critical habitat designation for the Santa

[[Page 74140]]

Barbara and Central populations of the California tiger salamander. We 
began mapping habitat by buffering breeding locations by a distance of 
0.70 mi (1.1 km) to capture dispersal and upland habitat use by the 
species. Some research has found that 99 percent of interpond dispersal 
would be captured using this 0.7 mi (1.1 km) radius around a breeding 
pond (Trenham et al. 2001; Trenham and Shaffer 2005). Salamanders have 
been documented dispersing even farther than 0.7 mi (1.1 km) (Sweet 
1998) however, and the Conservation Strategy chose a radius of 1.3 mi 
(2.1 km) to ensure that incidental take coverage would be inclusive of 
all areas likely to be occupied by salamanders and to establish a broad 
area in which conservation for salamander would be implemented. 
Ultimately however, as discussed below, we excluded all areas 
designation as critical habitat (see Application of Exclusions Under 
Section 4(b)(2) of the Act).
    Comment: Existing urban centers within the historic range of 
California tiger salamander should be removed from the designation. 
Retaining these urban centers will bias the economic evaluation of 
critical habitat.
    Our Response: In our final designation, we mapped only those areas 
which contained the essential features necessary to conserve the Sonoma 
County distinct population segment of the California tiger salamander. 
We removed all developed and nonessential areas to the best of our 
ability, however due to mapping precision we were unable to remove all 
such development. The scale of the maps prepared under the parameters 
for publication within the Code of Federal Regulations may not reflect 
the exclusion of such developed areas. Any such structures and the land 
under them left inside the critical habitat boundaries shown on the 
maps of this final rule have been excluded by text in the rule and are 
not designated as critical habitat. These developed and nonessential 
habitat areas although within the boundary of the final designation 
would not contain the primary constituent elements and as such would 
not be considered critical habitat. We excluded all the final critical 
habitat based on implementation of local government management 
strategies and economic cost (see Exclusions Under Section 4(b)(2) of 
the Act section).
    Comment: There is anecdotal evidence of one adult California tiger 
salamander near Rainsville Road in the 1990s from an amateur 
herpetologist and the critical habitat boundary should extend south to 
Rainsville Road, north of Petaluma.
    Our Response: As part of our deliberation over which areas to 
designate, we used currently known California tiger salamander breeding 
locations within Sonoma County. We believe that basing our designation 
on breeding locations would ensure the conservation of the species by 
providing areas which contain the essential features of aquatic, 
upland, and dispersal habitats. We lacked adequate documentation of 
essential features, particularly breeding habitat, that might be 
associated with this observation to include it in a critical habitat 
designation. 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, but are outside the critical habitat 
designation, will continue to be subject 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.

Other Comments

Issue 1: Habitat and Species Specific Information

    Comment: A few comments stated they were in favor of including the 
Petaluma area as critical habitat because they have observed 
salamanders in this area and suitable habitat exists.
    Our Response: We have been unable to confirm the claims of these 
comments. Breeding or individual observations of the species in the 
Petaluma area have yet to be verified by recognized experts. Since the 
emergency listing in July, 2002, we have received numerous claims from 
the public that they have seen salamanders at various locations within 
the potential range of the species. Upon further investigation by 
recognized experts in those instances, the arboreal salamander (Aneides 
lugubris) is frequently mistaken for the California tiger salamander 
and no confirmed breeding areas for the California tiger salamander 
have been confirmed outside those identified during this rulemaking 
process.

Issue 2: Unit Designations

    Comment: Several comments included specific recommendations on how 
the critical habitat unit(s) should be designed including specific 
areas which should be included and excluded from the final designation.
    Our Response: We used the best scientific information available in 
determining the extent of the critical habitat boundaries and revised 
our proposed rule based on comments received and peer review. We mapped 
only those areas which contained the essential features necessary to 
conserve the Sonoma County distinct population segment of the 
California tiger salamander. When determining critical habitat 
boundaries, we made every effort to avoid including within the 
boundaries of the map contained within this final rule developed areas 
such as buildings, paved areas, and other structures that lack the 
primary constituent elements for the California tiger salamander. The 
scale of the maps prepared under the parameters for publication within 
the Code of Federal Regulations may not reflect the exclusion of such 
developed areas. Any such structures and the land under them 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the rule and are not 
designated as critical habitat. These developed and nonessential 
habitat areas would not contain the primary constituent elements and as 
such would not be considered critical habitat. We excluded all the area 
which would otherwise have been designated as final critical habitat 
based on implementation of local government management strategies and 
economic cost (see Exclusions Under Section 4(b)(2) of the Act 
section).
    Comment: One commenter stated that critical habitat unit is too 
limited and that California tiger salamanders have been observed south 
to Muir Woods, Marin County.
    Our Response: We used the best scientific data available for the 
designation of critical habitat and alternative considered for the 
Sonoma County distinct population segment of the California tiger 
salamander, as per section 3(5)(A)(i) of the Act and regulations at 50 
CFR 424.12. We used the California Natural Diversity Database (CNDDB), 
survey records, and other information to determine the historical and 
potential range of the species at the time of listing in March 2003. 
There are no confirmed records of the Sonoma County distinct population 
segment of the California tiger salamander found in Marin County.
    Comment: Several commenters stated that the extension of California 
tiger salamander critical habitat into the Petaluma area is not 
justified based on the current known locations of the

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species and distribution of California tiger salamander habitats. 
Several commenters also stated that the Petaluma area is nearly 
completely developed and lacks the primary constituent elements, the 
designation would cause significant economic impacts; and that the 
lands within the Petaluma city limit should be excluded from critical 
habitat.
    Our Response: We used the best scientific information available in 
determining the extent of the critical habitat boundaries and revised 
our proposed rule based on comments received and peer review. The area 
which otherwise would have received a designation as critical habitat 
is based on known breeding locations for the species. As a result, the 
area south of Pepper Road in Cotati was not considered essential to the 
conservation of the species. In addition, as a result of analyzing the 
benefits of designating critical habitat versus benefits of not 
designating critical habitat we excluded all the final critical habitat 
based on implementation of local government management conservation 
strategies and economic costs (see Exclusions Under Section 4(b)(2) of 
the Act section). Although the area considered essential in the final 
determination does not include the Petaluma area, this does not mean 
that the area does not contain appropriate habitat for the California 
tiger salamander or that the area may be needed for recovery of the 
species. We continue to encourage all local governmental municipalities 
to work closely with State and Federal resource agencies to conserve 
and protect endangered and sensitive species and their habitats.
    Comment: One commenter recommends excluding the areas north of 
Santa Rosa Creek; within the 100 year flood plain; east of Highway 101 
from Rohnert Park Expressway north; and south of Pepper Road to Lichau 
Creek.
    Our Response: We have revised the areas considered as critical 
habitat based on scientific information, peer review, and comments 
received. As a result, we have removed many areas from the proposed 
rule that did not contain the essential features. Also our final 
determination has excluded all the remaining area which otherwise would 
have been designated as critical habitat based on implementation of 
local government management strategies and economic cost (see 
Exclusions Under Section 4(b)(2) of the Act section).

Issue 3: Social and Economic Costs/Regulatory Burden

    Comment: Several commenters requested excluding the lands in the 
City of Santa Rosa's urban grown boundary as critical habitat because 
of their concerns of high economic impacts.
    Our Response: Section 4 of the Endangered Species Act of 1973, as 
amended, and our implementing regulations, state that critical habitat 
shall be designated for species listed under the Act. We have excluded 
all areas which otherwise would have been designated as critical 
habitat, including areas within the City of Santa Rosa urban growth 
boundary (UGB), after taking into consideration the economic impact and 
conservation measures being implemented by local governmental agencies 
(see Exclusions Under Section 4(b)(2) of the Act section).
    Comment: One commenter expressed concern about the burden on 
agricultural practices such as plowing fields, planting new vines, and 
the removal of existing vines.
    Our Response: Designation of critical habitat in areas occupied by 
the species does not necessarily result in a regulatory burden above 
that already in place due to the presence of the listed species. The 
Service works with private landowners to identify activities and 
modifications to activities that will not result in take, to develop 
measures to minimize the potential for take, and to provide 
authorizations for take through Sections 7 and 10 of the Act. One 
intention of critical habitat is to inform people of areas that contain 
the features that are essential for the conservation of the species. We 
encourage landowners to work in partnership with us to develop plans 
that allow their land management and development practices to proceed 
in a manner consistent with the conservation of listed species. The 
California tiger salamander is already a Federally-listed species, and 
as such, projects that may result in take of the species are already 
required to consult with the Service under Section 7 or Section 10 of 
the Act. However, we excluded all areas which otherwise would have been 
designated as critical habitat based on implementation of local 
government management strategies and economic cost (see Exclusions 
Under Section 4(b)(2) of the Act section).

Issue 4: Notification and Comment Period Comments

    Comment: One commenter stated that the comment period was too short 
and the information about the Conservation Strategy was not available 
until just recently.
    Our Response: The proposed critical habitat designation was 
published in the Federal Register on August 2, 2005 (70 FR 44301), and 
we accepted comments from all interested parties for a 60-day comment 
period, until October 3, 2005. On October 25, 2005, we reopened the 
comment period for 21 days until November 14, 2005, and made available 
the draft economic analysis (70 FR 61591). On November 17, 2005, we 
reopened the comment period for 12 days until November 28, 2005 (70 FR 
69717), and requested comments on a refinement of those areas 
considered to contain the essential features necessary for the 
conservation of the Sonoma County distinct population segment of the 
California tiger salamander. The Conservation Strategy was released for 
public comment on August 17, 2005. The document was posted on the 
websites of the City of Santa Rosa and the Sacramento Fish and Wildlife 
Office of the U.S. Fish and Wildlife Service. The Service issued a 
press release and local media reported the event. A public meeting to 
accept comments and provide information was held in Santa Rosa on 
September 12, 2005. The public comment period closed on the 
Conservation Strategy on September 17, 2005.

Issue 5: Designation Process

    Comment: One commenter stated that the proposed rule's boilerplate 
position statement that critical habitat provides no additional benefit 
to listed species violates the Act's requirement that the Service base 
its determinations solely on the best available science.
    Our Response: The Service's statements regarding the general 
protections provided by critical habitat does not change the method in 
which we make our final critical habitat determinations. We used the 
best scientific data available in determining the extent of the area 
which would be designated as critical habitat absent exclusions and in 
identifying areas which contain the features essential to the 
conservation of the species.
    Comment: One commenter stated that the proposed rule implies that 
if the Service does not receive justification for inclusion of an area 
during the public comment period, then that area will be dropped from 
the final critical habitat designation. The commenter also stated that 
the Service needs to make its decision on the basis of the best 
available scientific information and where the information is not 
completely clear or incomplete, the benefit of the doubt should go 
toward actions which would benefit conservation of the species.
    Our Response: It was not our intent to suggest that areas would be 
removed from the designation if information was

[[Page 74142]]

not received to justify their inclusion. We based the final critical 
habitat on the best scientific information available as well as 
incorporated appropriate peer review information. We believe that the 
final area identified as critical habitat prior to exclusion under 
section 4(b)(2) represents the best scientific information as to what 
areas contain the essential features necessary for conservation of the 
Sonoma County distinct population segment of the California tiger 
salamander considering the economic and other relevant impacts.
    Comment: One commenter stated that the Service needs to narrow the 
scope of the proposed critical habitat and not include the entire 
geographical area that can be occupied by the threatened or endangered 
species.
    Our Response: The final boundaries of that area which would be 
designated as critical habitat prior to exclusion under section 4(b)(2) 
for the Sonoma County distinct population segment of the California 
tiger salamander has been greatly reduced from the proposed 
designation. Based on the best scientific data available, we removed 
those areas from the proposed designation which did not contain the 
essential habitat features, were already developed, or were outside the 
current range of the species. The final area which would be designated 
as critical habitat absent exclusion under section 4(b)(2) is based on 
the aquatic, upland and dispersal habitat surrounding known breeding 
locations.

Issue 6: Cooperative Efforts

    Comment: One commenter expressed their support of the cooperative/
partnership approach being used by the Conservation Strategy members. 
They stated that designating critical habitat would provide 
disincentives to private landowners by requiring farmers and ranchers 
obtaining funds from the U.S. Department of Agriculture through the 
Farm Bill to complete the consultation process, which hinders the 
completion of conservation activities on these lands.
    Our Response: We support all cooperative/partnership efforts to 
conserve federally listed threatened and endangered species. Federal 
agencies already consult with us on activities (i.e., permitting or 
funding of projects) in areas currently occupied by the species or if 
the species may be affected by the action to ensure that their actions 
do not jeopardize the continued existence of the species. Therefore, we 
believe that the designation of critical habitat would not likely 
result in significant additional regulatory burden above that already 
in place due to the presence of the listed species. However, we 
excluded all the area which would otherwise be designated as critical 
habitat based on implementation of local government management 
strategies and economic cost (see Application of Exclusions Under 
Section 4(b)(2) of the Act section).

Issue 8: Conservation Strategy

    Comment: One commenter stated that identifying the Conservation 
Strategy as an alternative to designating critical habitat is not 
appropriate or lawful under the Endangered Species Act.
    Our Response: We did not propose the Conservation Strategy to be an 
alternative to designating critical habitat. However, Section 4(b)(2) 
of the Act states that ``The Secretary may exclude any area from 
critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless [s]he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.'' We 
excluded all the area which would otherwise have been designated as 
critical habitat based on implementation of local government management 
strategies and economic cost (see Application of Exclusions Under 
Section 4(b)(2) of the Act section).
    Comment: Several commenters expressed support of the Conservation 
Strategy, but had reservations because it was not finalized and that it 
needs improvement in order to conserve the Sonoma County distinct 
population segment of the California tiger salamander and four 
Federally-listed plants.
    Our Response: In development of the Conservation Strategy, the 
Federal, State, County and local government agencies, as well as 
representatives from the building industry and environmental 
organizations, received similar comments regarding issues with the 
Conservation Strategy. The Conservation Strategy has been independently 
peer reviewed and comments received from peer reviewers have been 
incorporated into the current version of the plan. The Conservation 
Strategy focuses on establishing large, contiguous preserves and a 
coordinated region-wide restoration and management strategy, species 
research, endowment funding, administration of preserve management, and 
implementation that will contribute to the recovery of the California 
tiger salamander and four Federal and State listed plants in Sonoma 
County. The County of Sonoma, the City of Santa Rosa, the City of 
Cotati, the Town of Windsor, the City of Rohnert Park, the California 
Department of Fish and Game, and the Service have signed a planning 
agreement and the local jurisdictions adopted individual resolutions 
that agree to implement an interim conservation strategy while the 
Conservation Strategy is fully adopted and implemented. We have 
outlined those reasons why we believe the current Conservation Strategy 
would provide a benefit above that of designating critical habitat (see 
Exclusion Under Section 4(b)(2) of the Act section). However, the 
Conservation Strategy is still under development and subject to final 
approval. Should the current Conservation Strategy not be implemented 
or changed to such an extent as it no longer provides for the 
conservation of the Sonoma County distinct population segment of the 
California tiger salamander, we would revisit our current determination 
on designating critical habitat for the species and repropose critical 
habitat.
    Comment: One commenter stated that the Service needs to protect the 
areas where the California tiger salamander reside rather than relocate 
them as is identified in the Conservation Strategy.
    Our Response: The designation of critical habitat does not 
prescribe management actions but does define areas which contain the 
essential features described as primary constituent elements. We agree 
that protection of areas where California tiger salamanders are endemic 
should be the priority of the strategy, and this is demonstrated by the 
conservation areas identified in the Conservation Strategy. The 
Conservation Strategy identifies areas that support potential habitat 
but is not currently occupied by the California tiger salamander and 
recommends translocation of the species to be an option only under 
certain circumstances. These areas may be suitable for translocation of 
individuals to aid in the recovery of the species. Some projects 
authorized under Section 7 or 10 of the ESA may have unavoidable 
impacts to the species. These unavoidable impacts may be minimized by 
salvaging individuals and relocating them to suitable habitat on a case 
by case basis. Preliminary data has demonstrated that this management 
technique may be successful. The Conservation Strategy has been peer 
reviewed by recognized experts and the comments regarding translocation 
have been incorporated into the current version of the plan.

[[Page 74143]]

Issue 9: Economic Analysis

    Comment: One commenter states that the Draft Economic Analysis 
(DEA) fails to evaluate benefits associated with conserving the 
California tiger salamander. Further, this commenter states that the 
DEA should review the benefits of conserving open space and riparian 
areas.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas in need of special management that contain the features 
essential to the conservation of listed species. While a listed species 
may be the primary beneficiary of designated critical habitat, the 
designation of critical habitat may also result in two distinct 
categories of benefits to society: (1) Use, and (2) non-use benefits. 
Use benefits are the social benefits that accrue from the physical use 
of a resource. Visiting critical habitat to see endangered species in 
their natural habitat would be a primary example. Non-use benefits, in 
contrast, represent welfare gains from just knowing that a particular 
listed species' natural habitat is being specially managed for the 
conservation of that species. Both use and non-use benefits may occur 
unaccompanied by any market transactions.
    A primary reason for conducting this analysis is to provide 
information regarding the economic impacts associated with a proposed 
critical habitat designation. Section 4(b)(2) of the Act requires the 
Secretary to designate critical habitat based on the best scientific 
data available after taking into consideration the economic impact, and 
any other relevant impact, of specifying any particular area as 
critical habitat. Economic impacts can be both positive and negative 
and by definition, are observable through market transactions.
    Where data are available, this analysis attempts to recognize and 
measure the net economic impact of the proposed designation. For 
example, the DEA investigates whether conserved open space at 
designated mitigation sites results in increased property values. The 
DEA did not find any evidence that housing price was influenced by 
proximity to the nearest conservation area. The authors hypothesize 
that this may be attributable to the large amount of open space in 
Sonoma County. While section 4(b)(2) of the Act gives the Secretary 
discretion to exclude certain areas from the final designation, she is 
authorized to do so only if an exclusion does not result in the 
extinction of the species. In terms of carrying out its 
responsibilities under section 4(b)(2) then, the Service need only to 
consider whether the economic impacts (both positive and negative) or 
any other impact are significant enough to merit exclusion of any 
particular area without causing the species to go extinct.
    Comment: One commenter states that the DEA overestimates costs 
associated with conserving California tiger salamander, because it 
includes economic impacts attributable to listing under the Act. The 
commenter further states that the DEA confuses the economic costs by 
including costs of conservation efforts to protect the species (not its 
critical habitat) with conservation of the proposed critical habitat. 
For this reason, the commenter questions why the DEA includes pre-
designation costs, as these costs are associated with listing of the 
species.
    Our Response: This analysis identifies those economic activities 
believed to most likely threaten the California tiger salamander and 
its habitat and, where possible, quantifies the economic impact to 
avoid, mitigate, or compensate for such threats within the boundaries 
of the critical habitat. In instances where critical habitat is being 
proposed after a species is listed, some future impacts may be 
unavoidable, regardless of the final designation and exclusions under 
4(b)(2). However, due to the difficulty in making a credible 
distinction between listing and critical habitat effects within 
critical habitat boundaries, this analysis considers all future 
conservation-related impacts to be coextensive with the designation.
    Comment: Several commenters state that the DEA should incorporate 
the recent ruling in the Ninth Circuit Court of Appeals, Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service.
    Our Response: The DEA acknowledges that the Ninth Circuit judicial 
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. The Service is currently 
reviewing the decision to determine what affect it (and to a limited 
extent Center for Biological Diversity v. Bureau of Land Management 
(Case No. C-03-2509-SI, N.D. Cal.)) may have on the outcome of 
consultations pursuant to section 7 of the Act. As a result of this 
ruling, the DEA assumes that efforts to mitigate impacts to the habitat 
must occur within the boundaries of critical habitat. Consistent with 
this requirement, zonal mitigation sites assumed in the DEA are those 
identified in the Santa Rosa Plain Conservation Strategy.
    Comment: Several commenters state that the DEA underestimates the 
impact of critical habitat on transportation projects in Sonoma County.
    Our Response: Planned transportation projects are captured in the 
DEA using the California Department of Transportation's California 
Transportation Investment System (CTIS) tool that includes information 
for interstates, principal arterials, and rural minor arterials. The 
CTIS tool incorporates information about projects overseen by the State 
Transportation Improvement Program, the State Highway Operations and 
Protection Program, the Interregional Transportation Strategic Plan, 
the California Aviation System Plan, and various regional 
transportation planning organizations. Version 1.3.2 of this tool is 
used in the DEA as the updated Version 2.0 had not been released at the 
time the report was prepared. Accordingly, the DEA is prepared using 
the most current publicly available information on planned 
transportation projects. Public comments received were inadequate to 
update impact calculations.
    Based on the public comments received, the Service's contractor for 
completing the economic analysis contacted the Sonoma County 
Transportation Authority (Authority) to request more detailed 
information on the nature, location and scope of additional planned 
projects. The Authority was unable to provide the needed information in 
time to revise the impact analysis within the court-directed timeframe. 
However, since no critical habitat is being designated, the impacts 
asserted by the commenter will not be incurred.
    Comment: Several commenters state that mitigation prices used in 
the DEA are too low. The comments further cite a wide range of current 
market prices for mitigation in Sonoma County.
    Our Response: The DEA calculates mitigation prices as the cost of 
land assembly in the various California tiger salamander mitigation 
zones plus the cost of required improvements to land to make the site 
suitable for California tiger salamander occupation. This approach is 
consistent with the welfare-theoretic underpinnings of the impact 
model, in particular its focus on efficiency effects. One social cost 
of using land for mitigation is the value of the foregone alternative 
uses of the land. These values are approximately equal to the purchase 
price of the land. Another social cost of mitigation is the value of 
the resources used to modify the land to make it suitable for 
California tiger salamander occupation.

[[Page 74144]]

    Mitigation prices may rise above the supply price of mitigation, 
for example when the supply of mitigation is constrained by permitting 
delays or other factors. However, prices above supply cost are a 
transfer between agents and net out of an efficiency impact.
    Comment: Two commenters state that the DEA should not use 
mitigation formulas described in the Conservation Strategy since it is 
not a legally binding document. Further, the commenters state that the 
DEA should not assume that critical habitat has no impacts outside of a 
1.3-mile buffer around breeding habitat.
    Our Response: The cities of Santa Rosa, Rohnert Park, and Cotati, 
the town of Windsor, Sonoma County, the local development community, 
environmental organizations, the Service, and other federal and state 
agencies have undertaken a process to support California tiger 
salamander conservation at a regional level. This effort has involved 
extensive scientific research and analysis of the biological and 
ecological issues relating to California tiger salamander and of its 
specific circumstances in the region. During the week of November 7, 
2005, all of the local jurisdictions formally approved execution of a 
planning agreement that commits them to work with the Service and other 
parties to finalize and implement the Conservation Strategy. Indeed, 
one economic cost of critical habitat may be to disrupt and impose 
additional costs on this collaborative effort.
    Comment: Two commenters state that the DEA underestimates or 
ignores potential impacts to agriculture. In particular, commenters are 
concerned that the DEA does not quantify impacts to the wine grape 
industry and does not quantify increases in production costs or 
decreases in agricultural land values resulting from critical habitat.
    Our Response: The DEA quantifies the reduction in agricultural land 
values resulting from foregone or constrained land development 
opportunities. A review of available biological opinions did not reveal 
any evidence of limitations on crop production practices resulting from 
listing of the California tiger salamander.
    The DEA acknowledges that critical habitat may increase the costs 
and reduce the economic optimality of vineyard development within 
critical habitat. However, given the relative abundance of substitute 
vineyard sites within Sonoma County relative to the forecasted increase 
in vineyard acreage, it is speculative at present to assign costs to 
this potential impact.

Summary of Changes From Proposed Rule

    In the proposed critical habitat rule for the Sonoma County 
distinct population segment of the California tiger salamander, we 
identified the historical and potential range of the species in Sonoma 
County, utilizing all known breeding and adult locality data and GIS 
resources available to the Service. Based on comments received from the 
public and from peer review, and a refinement of our parameters for 
dispersal and upland habitat use by the species, we revised the final 
designation of critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander, as follows:
    (1) As outlined in our notice published in the Federal Register on 
November 17, 2005 (70 FR 69717), we refined the proposed designation by 
applying parameters for dispersal and upland habitat similar to those 
we used in critical habitat designation for the Santa Barbara and 
Central populations of the California tiger salamander. We began 
mapping habitat by buffering known salamander breeding locations by a 
distance of 0.70 mi (1.1 km) to capture dispersal and upland habitat 
use by the species. We adjusted the 0.70 mi (1.1 km) area around 
breeding sites depending on habitat availability, dispersal barriers, 
and development and removed areas which did not contain the essential 
features. See Methodology and Criteria Sections below for more 
information.
    (2) We revised the proposed critical habitat unit based on comments 
and biological information and peer review received during the public 
comment periods.
    (3) Collectively, we excluded or removed the entire designation. 
Some areas in the proposed rule were removed because they did not 
contain the primary constituent elements. Other areas were excluded 
based on conservation measures being implemented by the local 
government agencies, or because of disproportionately high economic 
costs, as authorized under section 4(b)(2) of the Act (see 
``Application of Exclusions Under Section 4(b)(2) of the Act'' section 
below).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical 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 
geographical 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.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species (as discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2)). Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species so 
require, we will not designate critical habitat in areas outside the 
geographical area occupied by the species at the time of listing. An 
area currently occupied by the species but was not known to be occupied 
at the time of listing will likely be essential to the conservation of 
the species and, therefore, included in the critical habitat 
designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations

[[Page 74145]]

Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the 
associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific and 
commercial data available. They require Service 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 is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. 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 conservation 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, but are outside the critical 
habitat designation, 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

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of the Sonoma County 
distinct population segment of the California tiger salamander. In 
determining the areas to designate critical habitat for the California 
tiger salamander, we used the best scientific data available. We have 
reviewed the overall approach to the conservation of the Sonoma County 
distinct population segment of the California tiger salamander 
undertaken by local, State, and Federal agencies operating within the 
species' range since its listing in 2003 (68 FR 13498).
    We have also reviewed available information that pertains to the 
habitat requirements of this species. The material included data in 
reports submitted during section 7 consultations and by biologists 
holding section 10(a)(1)(A) recovery permits; research published in 
peer-reviewed articles and presented in academic theses and agency 
reports; and regional Geographic Information System (GIS) coverages.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific data available and to consider those physical and 
biological features (primary constituent elements (PCEs)) 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, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distribution of a species.
    The specific primary constituent elements required for the 
California tiger salamander are derived from the biological needs of 
the California tiger salamander as described below and in the 
Background section of this designation and previous listing or critical 
habitat designation for the species.
    The areas determined to contain the features essential for the 
conservation of the California tiger salamander are designed to provide 
sufficient aquatic habitat for breeding and upland habitat as refugia 
for adults to maintain and sustain populations of California tiger 
salamanders throughout their range, and provide those habitat 
components necessary for the species. Conserving California tiger 
salamanders over the long term requires a three-pronged approach: (1) 
Protecting the hydrology and water quality of breeding pools and ponds; 
(2) retaining or providing for connectivity between breeding locations 
for genetic exchange and recolonization; and (3) protecting sufficient 
upland habitat around each breeding location to allow for enough adult 
survival to maintain a breeding population over the long term. In our 
determination of the amount of critical habitat to designate, we 
focused on identifying those areas which contained the features which 
would provide the breeding and upland habitat to maintain and sustain 
existing populations of salamanders in documented breeding sites 
(vernal pool complexes) identified within Sonoma County. Due to the 
complex life history and dispersal capabilities of California tiger 
salamanders, and the dynamic nature of the environments in which they 
are found, the primary constituent elements described below should be 
found throughout the unit that is being identified as critical habitat. 
Critical habitat for the Sonoma County distinct population segment of 
the California tiger salamander will provide for breeding and 
nonbreeding habitat and for dispersal between these habitats, as well 
as allowing for an increase in the size of the Sonoma County distinct 
population segment of the California tiger salamander.

Space for Individual and Population Growth and Normal Behavior

    California tiger salamanders require a combination of aquatic 
habitat and upland habitat in order to successfully maintain normal 
population growth and behavior. Aquatic habitat is essential for 
California tiger salamander breeding and for providing space, food, and 
cover necessary to sustain early life history stages of California 
tiger salamanders. Breeding habitat consists of fresh water bodies, 
including natural and man-made ponds, vernal pools, or other ephemeral 
or permanent wetland features which allow California tiger salamanders 
to complete their aquatic portion of their lifecycle. To be considered 
essential, aquatic habitats must have the potential

[[Page 74146]]

to hold water for a minimum of 12 weeks in the winter or spring in a 
year of average rainfall. This is the amount of time needed for 
juveniles to complete metamorphosis and become capable of surviving in 
upland habitats. 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 because they constitute breeding habitat in years of average 
rainfall. Without its essential aquatic habitat features, the 
California tiger salamander would not survive, because breeding could 
not occur.

Upland Habitat

    Associated upland habitat containing underground refugia is 
essential for the survival of adult California tiger salamanders and 
juveniles that have recently undergone metamorphosis. Adult and 
juvenile California tiger salamanders are terrestrial, and they enter 
aquatic habitats only for short periods of time to breed. For the 
majority of their life cycle, California tiger salamanders depend for 
survival on upland habitats containing underground or covered refugia 
where they are protected from desiccation. Juveniles have been found in 
soil cracks and rodent burrows and adults almost exclusively in rodent 
burrows. These underground refugia provide protection from the hot, dry 
weather in the nonbreeding season (Shaffer and Trenham 2005). 
California tiger salamanders also find food in small mammal burrows and 
rely on the burrows for protection from predators. The upland areas 
also regulate the hydrological functioning and protect water quality of 
the aquatic habitat (Hanes and Stromberg 1998). As described in 
previous rules (69 FR 68572; 70 FR 49380), California tiger salamanders 
have been found up to 1.3 mi (2 km) from occupied occurrences (Sweet, 
1998). The only known study we are aware of that specifically 
investigated movement of California tiger salamanders between breeding 
ponds projected that 0.70 mi (1.1 km) would encompass 99 percent of 
interpond dispersal (Trenham et al. 2001; Trenham and Shaffer 2005). As 
we did for the Santa Barbara and Central populations, we used the 0.70 
mi (1.1 km) away from breeding location to identify those upland 
habitat features essential for the Sonoma County distinct population 
segment of the California tiger salamander.

Food

    California tiger salamanders use both aquatic and terrestrial 
habitat during their lifecycle. As a result California tiger 
salamanders require areas which support a prey base of both aquatic 
(e.g., zooplankton, aquatic larvae, aquatic invertebrates, tadpoles, 
etc.) and terrestrial (e.g., terrestrial invertebrates, insects, frogs, 
worms, etc.) species. The aquatic and upland habitat features would 
support the necessary prey base in all aspects of the California tiger 
salamander lifecycle.

Reproduction

    Lifetime reproductive success for California and other tiger 
salamanders is low. Trenham et al. (2000) found the average female bred 
1.4 times and produced 8.5 young that survived to metamorphosis per 
reproductive effort. This resulted in roughly 11 metamorphic offspring 
over the lifetime of a female. In part, this low reproductive success 
is due to the extended time it takes for California tiger salamanders 
to reach sexual maturity: Most do not breed until 4 or 5 years of age. 
While individuals may survive for more than 10 years, many breed only 
once. Combined with low survivorship of metamorphosed individuals (in 
some populations, less than 5 percent of marked juveniles survive to 
become breeding adults (Trenham et al. 2000)), reproductive output in 
most years is not sufficient to maintain populations. This trend 
suggests that the species requires occasional ``boom'' breeding events 
to prevent extirpation (temporary or permanent loss of the species from 
a particular habitat) or extinction (Trenham et al. 2000). With such 
low recruitment, isolated populations are susceptible to unusual, 
randomly occurring natural events as well as from human-caused factors 
that reduce breeding success and individual survival. Factors that 
repeatedly lower breeding success in isolated pools can quickly 
extirpate a population. California tiger salamanders would require an 
interconnected network of ponds and upland areas so that they can 
disperse from one pond to nearby ponds in order to augment or 
recolonize locally extirpated ponds and uplands.

Dispersal Habitat

    Protecting the ability of California tiger salamanders to move 
freely across the landscape in search of breeding ponds is essential in 
maintaining gene flow and for recolonization of sites that are 
temporarily extirpated and is essential in preserving the California 
tiger salamander's population structure. The life history and ecology 
of the California tiger salamander make it likely that this species has 
a metapopulation structure (Hanski and Gilpin 1991). A metapopulation 
is a set of local populations or breeding sites within an area, where 
typically migration from one local population or breeding site to other 
areas containing suitable habitat is possible, but not routine. 
Movement between areas containing suitable habitat (i.e. dispersal) is 
restricted due to inhospitable conditions around and between areas of 
suitable habitat. Because many of the areas of suitable habitat may be 
small and support small numbers of salamanders, local extinction of 
these small units may be common.
    A metapopulation's persistence depends on the combined dynamics of 
these local extinctions and the subsequent recolonization of these 
areas through dispersal (Hanski and Gilpin 1991; Hanski 1994). The 
essential dispersal habitat feature generally consists of upland areas 
adjacent to essential aquatic habitat that are not isolated from 
breeding ponds by barriers that California tiger salamanders cannot 
cross. Essential dispersal habitat features provide connectivity among 
California tiger salamander breeding ponds. While California tiger 
salamanders can bypass many obstacles, and do not require a particular 
type of habitat for dispersal, the habitat connecting essential aquatic 
habitat features must be free of barriers (e.g. a physical or 
biological feature that prevents salamanders from dispersing beyond the 
feature). Examples of barriers are areas of steep topography devoid of 
soil or vegetation and State Highway 101. Agricultural lands such as 
row crops, orchards, vineyards, and pastures do not constitute barriers 
to the dispersal of California tiger salamanders. Therefore, a critical 
element for successful conservation is the maintenance of sets of 
interconnected sites that are within the ``rescue'' distance of other 
ponds (Trenham et al. 2001).

Primary Constituent Elements for the Sonoma County Distinct Population 
Segment of the County California Tiger Salamander

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Sonoma County distinct population segment of the California 
tiger salamander's primary constituent elements (PCEs) are:
    (1) Standing bodies of fresh water, including natural and manmade 
ponds, vernal pools, and other ephemeral or

[[Page 74147]]

permanent water bodies that typically become inundated during winter 
rains and hold water for a sufficient length of time (i.e., 12 weeks) 
necessary for the species to complete the aquatic portion of its life 
cycle;
    (2) Barrier-free uplands adjacent to breeding ponds (within 0.7 mi 
(1.1 km)) that contain small mammal burrows. Small mammals are 
essential in creating the underground habitat that adult California 
tiger salamanders depend upon for food, shelter, and protection from 
the elements and predation; and
    (3) Accessible upland areas between breeding locations (PCE 1) and 
areas with small mammal burrows (PCE 2) that allow for dispersal among 
such sites.

Criteria Used To Identify Critical Habitat

    In determining the areas we would consider as critical habitat, we 
first looked at those breeding locations identified as being occupied 
at the time of listing and which contain the habitat features (primary 
constituent elements, PCEs) essential for the conservation of the 
species. We then looked at those additional areas found to be occupied 
subsequent to listing which also contained those essential habitat 
features determined to provide for the conservation of the Sonoma 
County distinct population segment of the California tiger salamander.
    In our determination of critical habitat for the Sonoma County 
distinct population segment of the California tiger salamander, we 
selected areas that possess the physical and biological features that 
are essential to the conservation of the species and that may require 
special management considerations or protection. After identifying the 
PCEs that are essential to the conservation of the California tiger 
salamander, we used the PCEs in combination with occurrence data; 
confirmed breeding information, geographic distribution; GIS data 
layers for habitat mapping; vegetation, topography, watersheds, and 
current land uses; scientific information on the biology and ecology of 
the California tiger salamander; and accepted conservation principles 
for threatened or endangered species.
    In our proposed designation and in our refinement of that proposal, 
we identified areas that contain those features which are essential to 
the conservation of the California tiger salamander within the occupied 
range of the Sonoma County distinct population segment of the 
California tiger salamander, as was reported and mapped by biologists 
who had conducted California tiger salamander surveys throughout the 
range of the species. The range boundaries were developed based on the 
principles of conservation science, genetics of the species, 
topography, geology, soils, vernal pool type distribution, historic 
distribution, and survey information (CNDDB 2005). In the proposed 
designation, we purposefully included a broad area that after further 
review included some areas which were developed and or did not contain 
the essential features or lacked the documented occurrence information.
    In order to map only those areas containing the essential features, 
we refined the proposed designation to just those areas surrounding 
known breeding locations in Sonoma County. In addition, we applied 
parameters for upland dispersal and habitat use similar to those used 
in the critical habitat designations for the Central and Santa Barbara 
populations of California tiger salamander. Our refined designation and 
associated economic impacts were published in the Federal Register on 
November 17, 2005 (70 FR 69717).
    In the development of the final designation, we revised the 
critical habitat boundaries to better identify those areas containing 
the essential features for conservation of species. We focused on areas 
within the range where we had credible records of breeding (reports 
filed by biologists holding section 10(a)(1)(A) recovery permits) 
indicating California tiger salamander presence (CNDDB 2005). Our 
conservation strategy for the Sonoma population focuses on those 
breeding locations that provide sufficient aquatic and upland habitats 
to ensure high enough adult survival to maintain and sustain extant 
occurrences of California tiger salamander within the range of the 
Sonoma County distinct population segment.
    We then identified the amount of upland habitat surrounding these 
breeding occurrences where adult California tiger salamanders live 
during the majority of their life cycle. To determine a general 
guideline for the amount of upland habitat necessary to support an 
occurrence of adult California tiger salamander, we reviewed the 
primary literature regarding California tiger salamander upland habitat 
use, including Trenham (2000), Trenham et al. (2000 and 2001), and 
Trenham and Shaffer (2005).
    The best scientific peer-reviewed data indicate that California 
tiger salamander do not remain primarily in burrows close to aquatic 
habitats and breeding ponds, but instead move some distance out into 
the surrounding upland landscapes. As described in previous rules (69 
FR 68572; 70 FR 49380), California tiger salamander have been found up 
to 1.3 mi (2 km) from occupied occurrences (Sweet 1998). The only known 
study we are aware of that specifically investigated movement of 
California tiger salamanders between breeding ponds projected that 0.70 
mi (1.1 km) would encompass 99 percent of interpond dispersal (Trenham 
et al. 2001; Trenham and Shaffer 2005). As we did for the Santa Barbara 
and Central populations, we used a 0.70 mi (1.1 km) dispersal distance 
(radius) as a guide for the amount of upland habitat around known 
occupied extant occurrences to be mapped as critical habitat for the 
purposes of preserving the Sonoma County distinct population segment of 
the California tiger salamander within small mammal burrows (PCE 2). 
However, we recognize that (as with movements in search of suitable 
underground refugia) upland habitat features influence California tiger 
salamander movements within a particular landscape. As a result, we 
made adjustments to the upland areas to include additional areas 
containing the PCEs. In other cases, the critical habitat was reduced 
so as not to include non-habitat areas (those not exhibiting the PCEs) 
from the designation. Some agricultural and other lands were included 
if they were within the 0.7 mi (1.1 km) distance and the essential 
feature for upland refugia or connectivity between occurrences and were 
not considered a barrier to movement.
    When determining critical habitat boundaries, we made every effort 
to avoid the designation of developed areas such as buildings, paved 
areas, and other structures that lack PCEs for the California tiger 
salamander. Any such structures inadvertently left inside critical 
habitat boundaries are not considered part of the critical habitat 
unit. This also applies to the land on which such structures sit 
directly. Therefore, Federal actions limited to these areas would not 
trigger section 7 consultations, unless activities within these areas 
affect the species and/or primary constituent elements in adjacent 
critical habitat.
    A brief discussion of the area that would have been designated as 
critical habitat had it not been excluded is provided in the unit 
descriptions below. Additional detailed documentation concerning the 
essential nature of this area is contained in our supporting record for 
this rulemaking.

[[Page 74148]]

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and contain the PCEs 
may require special management considerations or protections. Threats 
which may warrant special management within the area being identified 
as critical habitat for the California tiger salamander include 
activities such as: Habitat destruction and fragmentation (e.g. urban 
and agricultural development); sedimentation, introduction of nonnative 
predators such as bullfrogs and fish and non-native salamanders; 
activities that could disturb aquatic breeding habitats and water 
quality, such as heavy equipment operation, ground disturbance, 
maintenance projects (e.g. pipelines, roads, powerlines), off-road 
travel or recreation; activities that would reduce small mammal 
populations to the point that there is insufficient underground refugia 
used by salamanders for foraging, protection from predators, and 
shelter from the elements; activities that create barriers impassable 
for salamanders or increase mortality in upland habitat between extant 
occurrences in breeding habitat; and, activities that disrupt vernal 
pool complexes' ability to support California tiger salamander breeding 
function. A detailed discussion of threats to the Sonoma County 
distinct population segment of the California tiger salamander and its 
habitat can be found in the final listing rule (68 FR 13498, March 19, 
2003) and the proposed critical habitat designation (70 FR 44301, 
August 2, 2005).

Critical Habitat Designation

    In the development of the critical habitat for the Sonoma County 
distinct population segment of the California tiger salamander, we 
determined which lands have features essential to the conservation of 
the species by defining the physical and biological features essential 
to the species' conservation and delineating the specific areas 
containing them. We then evaluated those lands determined to have 
essential features to ascertain if any specific areas are appropriate 
for exemption or exclusion from critical habitat pursuant to either 
sections 3(5)(A), 4(a)(3), or 4(b)(2) of the Act. On the basis of our 
evaluation, we have determined that the benefits of excluding lands 
under appropriate management for the Sonoma County distinct population 
segment of the California tiger salamander outweighs the benefits of 
their inclusion. We also evaluated the economic costs of the 
designation and identified those areas which had disproportionately 
high cost and evaluated whether those high cost areas also warranted 
exclusion. We have subsequently excluded the entire lands from the 
Sonoma County distinct population segment of the California tiger 
salamander critical habitat pursuant to section 4(b)(2) of the Act 
(refer to Exclusions under Section 4(b)(2) of the Act section below) 
based on both the ongoing management being implemented by local 
governing agencies and high economic costs.
    The area which would be designated as critical habitat absent 
exclusions under section 4(b)(2), described below, constitute our best 
assessment of the areas: (1) Within the geographical area occupied by 
the species at the time of listing; (2) that contain the PCEs; and (3) 
that may require special management. Although all of the areas are 
within the geographical area known to be occupied by the species at the 
time of listing, we are not designating all of the areas known to be 
occupied by the Sonoma County distinct population segment of the 
California tiger salamander. We provide separate discussions on: (1) 
The reasons why these areas contain features essential for the 
conservation of the Sonoma County distinct population segment of the 
California tiger salamander and (2) special management considerations 
for these areas. All of the areas containing features determined to be 
essential for the conservation of the Sonoma County distinct population 
segment of the California tiger salamander were known to be occupied at 
the time of listing.
    The tables below show the lands being excluded from critical 
habitat pursuant to section 4(b)(2) of the Act (Table 1), a summary of 
the areas containing the features that are essential to the Sonoma 
County distinct population segment of the California tiger salamander 
(Table 2) and the approximate area that would be designated as critical 
habitat absent exclusion under section 4(b)(2) for the Sonoma County 
distinct population segment of the California tiger salamander by land 
ownership (Table 3).

    Table 1.--Approximate Area Acres (ac)/Hectares (ha) Excluded From
  Critical Habitat for the Sonoma County Distinct Population Segment of
 the California Tiger Salamander Pursuant to Section 4(b)(2) of the Act
------------------------------------------------------------------------
                                                      California
             Excluded area total             ---------------------------
                                                   ac            ha
------------------------------------------------------------------------
Unit 1......................................        17,418         7,049
------------------------------------------------------------------------


     Table 2.--Areas Determined To Contain Features Essential to Conservation of the Sonoma County Distinct
  Population Segment for the California Tiger Salamander and the Area Excluded From the Final Critical Habitat
                                              Designation [ac (ha)]
----------------------------------------------------------------------------------------------------------------
                                             Definitional area         Excluded area               Total
                  Unit                   -----------------------------------------------------------------------
                                              ac          ha          ac          ha          ac          ha
----------------------------------------------------------------------------------------------------------------
1a......................................       1,313         531       1,313         531           0           0
1b......................................      12,887       5,215      12,887       5,215           0           0
1c......................................       2,442         988       2,442         988           0           0
1d......................................         776         314         776         314           0           0
                                         -------------
    Total...............................      17,418       7,049      17,418       7,049           0           0
----------------------------------------------------------------------------------------------------------------


[[Page 74149]]


     Table 3.--Critical Habitat Units Designated But Excluded for the Sonoma County Distinct Population Segment for the California Tiger Salamander
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Federal            State             Local             Other             Total
                             Unit                              -----------------------------------------------------------------------------------------
                                                                   ac       ha       ac       ha       ac       ha       ac       ha       ac       ha
--------------------------------------------------------------------------------------------------------------------------------------------------------
1a............................................................  .......  .......        8        3  .......  .......    1,305      528    1,313      531
1b............................................................  .......  .......      260      105  .......  .......   12,627    5,110   12,887    5,215
1c............................................................  .......  .......  .......  .......  .......  .......    2,442      988    2,442      988
1d............................................................  .......  .......  .......  .......  .......  .......      776      314      776      314
                                                               ----------
    Total.....................................................  .......  .......      268      108  .......  .......   17,150    6,941   17,418    7,049
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Figure 1 below represents the area which would otherwise be 
designated as critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander absent exclusions 
under section 4(b)(2). We have excluded the entire final critical 
habitat for the species based on economic impacts and the conservation 
benefits of implementation of interim and long-term conservation 
measures for the California tiger salamander being adopted and 
implemented by local governing agencies. We present brief descriptions 
of the unit, and reasons why it meets the definition of critical 
habitat for the Sonoma County distinct population segment for the 
California tiger salamander, below.
BILLING CODE 4310-55-U

[[Page 74150]]

[GRAPHIC] [TIFF OMITTED] TR14DE05.000

BILLING CODE 4310-55-C

[[Page 74151]]

 Santa Rosa Plain Unit

    The Santa Rosa Plain unit consists of 17,418 ac (7,049 ha) in four 
subunits distributed in the Santa Rosa Plain south of Mark West Spring 
Creek and north of Pepper Road. The area is located mostly west of the 
developed portions of Santa Rosa, Rohnert Park and Cotati. Each one of 
the subunits represents a breeding center for the species. All four of 
these areas were considered occupied at the time of listing and contain 
the features considered essential for the conservation of the species. 
The special management required for this unit includes management of 
introduction of nonnative predators and other species to ponds; 
management of off-road vehicle use; management of construction, 
installation and maintenance of roads, pipelines, powerlines, and 
telecommunication lines; small mammal populations management; 
management of activities that create barriers impassable for 
salamanders; and management of activities that disrupt vernal pool 
complexes' ability to support California tiger salamanders.

Subunit 1a; (1,313 ac (531 ha))

    This subunit is located in the northern portion of the designation 
near Fulton and Piner Roads. Land ownership within the subunit includes 
approximately 8 ac (3 ha) of CDFG land within the Alton Lane Preserve. 
Land within the remainder of this subunit is privately owned. The 
subunit is determined to be critical habitat because it contains 
features essential to the conservation of the California tiger 
salamander, it is occupied by the species, it represents the 
northernmost distribution of California tiger salamander in Sonoma 
County, and it is one of four breeding centers for the species. This 
subunit contains the essential habitat features of ponded areas which 
stay inundated for the minimum amount of time for the species to 
complete its aquatic lifecycle (PCE 1) and provides a prey base as well 
as space for growth and development; and upland areas which contain 
underground mammal burrows and similar refugia for food and shelter 
(PCE 2), and accessible upland habitats for dispersal (PCE 3). Special 
management for this subunit includes those activities outlined above. 
This subunit has been excluded from the final designation due to both 
the conservation measures being implemented by local governing agencies 
as well as having disproportionately high economic costs (see 
``Exclusion Under Section 4(b)(2) section'' below).

Subunit 1b: (12,887 ac (5,215 ha))

    This subunit is located south of Guerneville Road to Sierra Road in 
the central portion of the designation. Land ownership within the 
subunit includes approximately 260 ac (105 ha) of CDFG land. Land 
within the remainder of this subunit is privately owned. The subunit is 
determined to be critical habitat because it contains features 
essential to the conservation of the California tiger salamander, it is 
occupied by the species, it represents the largest contiguous area, it 
is in the center of the distribution of the Sonoma County distinct 
population segment of the California tiger salamander, contains the 
most known occurrences of breeding, and it is one of four breeding 
centers for the species. This subunit contains the essential habitat 
features of ponded areas which stay inundated for the minimum amount of 
time for the species to complete its aquatic lifecycle (PCE 1) and 
provides a prey base as well as space for growth and development; and 
upland areas which contain underground mammal burrows and similar 
refugia for food and shelter (PCE 2), and accessible upland habitats 
for dispersal (PCE 3). Special management for this subunit includes 
those activities outlined above. This subunit has been excluded from 
the final designation due to both the conservation measures being 
implemented by local governing agencies as well as having 
disproportionately high economic costs (see ``Exclusion Under Section 
4(b)(2) section'' below).

Subunit 1c: (2,442 ac (988 ha))

    This subunit is located in the southern portion of the designation 
near Stoney Point Road near Roblar Road and north of Pepper Road. Land 
within the area is privately owned. The subunit is determined to be 
critical habitat because it contains features essential to the 
conservation of the California tiger salamander, it is occupied by the 
species, it represents the southernmost distribution of the Sonoma 
County distinct population segment of the California tiger salamander, 
and it is one of four breeding centers for the species. This subunit 
contains the essential habitat features of ponded areas which stay 
inundated for the minimum amount of time for the species to complete 
its aquatic lifecycle (PCE 1) and provides a prey base as well as space 
for growth and development; and upland areas which contain underground 
mammal burrows and similar refugia for food and shelter (PCE 2), and 
accessible upland habitats for dispersal (PCE 3). Special management 
for this subunit includes those activities outlined above. This subunit 
has been excluded from the final designation due to both the 
conservation measures being implemented by local governing agencies as 
well as having disproportionately high economic costs (see ``Exclusion 
Under Section 4(b)(2) section'' below).

Subunit 1d: (776 ac (314 ha))

    This subunit is located in the southern portion of the designation 
near Old Redwood Highway south of Cotati. Land within the area is 
privately owned. The subunit is determined to be critical habitat 
because it contains features essential to the conservation of the 
California tiger salamander, it is occupied by the species, it 
represents the southeastern most distribution of California tiger 
salamander in Sonoma County, and it is one of four breeding centers for 
the species. This subunit contains the essential habitat features of 
ponded areas which stay inundated for the minimum amount of time for 
the species to complete its aquatic lifecycle (PCE 1) and provides a 
prey base as well as space for growth and development; and upland areas 
which contain underground mammal burrows and similar refugia for food 
and shelter (PCE 2), and accessible upland habitats for dispersal (PCE 
3). Special management for this unit includes those activities outlined 
above. This subunit has been excluded from the final designation due to 
both the conservation measures being implemented by local governing 
agencies as well as having disproportionately high economic costs (see 
``Exclusion Under Section 4(b)(2)'' section below).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Such 
alterations include, but are not limited to: Alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical. We are currently 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency

[[Page 74152]]

cooperation provision of the Act are codified at 50 CFR Part 402.
    Section 7(a)(4) of the Act 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 may include reasonable 
and prudent alternatives or reasonable and prudent measures to assist 
the agency in eliminating conflicts that may be caused by the proposed 
action. We may issue a formal conference report if requested by a 
Federal agency. Formal conference reports on proposed critical habitat 
contain 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 the 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)). Until such 
time as a proposed designation is finalized, any reasonable and prudent 
alternatives or reasonable and prudent measures included in a 
conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that 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 ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation 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 critical habitat.
    Federal activities that may affect the Sonoma County distinct 
population segment of the California tiger salamander or any critical 
habitat would require section 7 consultation. Activities on private or 
State lands requiring a permit from a Federal agency, such as a permit 
from the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act, a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., Federal Highway Administration 
or Federal Emergency Management Agency funding), will also continue to 
be subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat and actions on non-Federal 
and private 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 briefly evaluate 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. 
Activities that may destroy or adversely modify critical habitat may 
also jeopardize the continued existence of the Sonoma County distinct 
population segment of the California tiger salamander. Federal 
activities that, when carried out, would adversely affect any critical 
habitat for the Sonoma County distinct population segment of the 
California tiger salamander include, but are not limited to:
    (1) Actions that would regulate activities affecting waters of the 
United States by the Army Corps of Engineers under section 404 of the 
Clean Water Act;
    (2) Actions by any Federal agency that change water flow regimes, 
or that dam, divert, or channel water;
    (3) Road construction and maintenance funded or authorized by the 
Federal Highway Administration;
    (4) Conservation measures by private landowners funded by the 
Natural Resources Conservation Service;
    (5) Airport construction regulated by the Federal Aviation 
Administration;
    (6) Construction of communication facilities licensed by the 
Federal Communications Commission; and
    (7) Other activities funded by the U.S. Environmental Protection 
Agency, Department of Energy, Federal Emergency Management Agency, or 
other Federal agency.
    Special management that may be needed for the Sonoma County 
distinct population segment of the California tiger salamander and its 
habitat is briefly summarized below:
    (1) Manage hydrologic functioning of vernal pools and ponds. 
Restore and maintain natural hydrologic regimes to prevent hydrologic 
changes to aquatic habitats to maintain their suitability as California 
tiger salamander breeding habitat and restore such habitats in areas 
where they have become altered or destroyed.
    (2) Manage water quality. Manage actions that significantly and 
detrimentally alter the water chemistry in the aquatic salamander 
habitat. Possible actions requiring such management would include 
intentional or unintentional release of chemical or biological 
pollutants into the surface water or connected groundwater at a point 
source or by dispersed release (non-point).
    (3) Upland Habitat Management. Actions that significantly and 
detrimentally alter the characteristics of the upland habitat 
surrounding aquatic areas may need special management. Possible actions 
which may require special management include vegetation manipulation, 
road construction and maintenance, gravel mining, and urban and 
suburban development and infrastructure. We note that such alteration 
and or destruction of the surrounding upland areas which results in 
alteration of the hydrologic functioning of the aquatic habitat may 
destroy or adversely modify the aquatic habitat associated with the 
upland areas. As a result, these activities could eliminate or reduce 
the habitat necessary for the reproduction, sheltering or growth of the 
Sonoma County distinct population segment of the California tiger 
salamander.
    (4) Manage nonnative aquatic species. Manage the introduction, 
spreading, or augmenting of detrimental nonnative aquatic species into 
salamander aquatic habitat. Possible actions requiring such

[[Page 74153]]

management would include fish stocking for sport, aesthetics, 
biological control, or other purposes; and release of live bait fish 
and nonnative tiger salamanders.
    (5) Manage On- and Off-Road Use. Protect aquatic and upland areas 
from off-road vehicle use. Manage trails, road maintenance, and off-
road vehicle access to prevent habitat degradation in order to 
maintain, protect, and restore California tiger salamander habitat.
    (6) Manage small mammal control activities. Activities that would 
reduce small mammal populations to the point that there is insufficient 
underground refugia used by the Sonoma County distinct population 
segment of the California tiger salamander for foraging, protection 
from predators, and shelter from the elements may ultimately be 
detrimental to salamanders.
    (7) Manage creation of dispersal barriers. Activities that create 
barriers impassable for salamanders, increase mortality in upland 
habitat between extant occurrences, or disrupt dispersal behavior may 
be detrimental to the salamander and may require special management. 
Activities that may require such management include highway and other 
urban infrastructure, building development, and intensively managed 
agricultural development (annual crops).
    We consider the entire area which would be designated as critical 
habitat, absent exclusion under section 4(b)(2), to be occupied by the 
species at the time of listing based on information provided from 
10(a)(1)(A) reports and occurrence data (CNDDB 2005). We consider the 
entire area which would be designated as critical habitat, absent 
exclusion under section 4(b)(2), to contain the features essential to 
the conservation of the Sonoma County distinct population segment of 
the California tiger salamander.

Exclusion Under 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 after taking into consideration the economic impact, national 
security impact, 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 that the benefits of 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.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the species to 
determine which areas to propose and subsequently finalize (i.e. 
designate) as critical habitat. On the basis of our evaluation, we have 
determined that the benefits of excluding certain lands from the 
designation of critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander outweigh the 
benefits of their inclusion, and have subsequently excluded all lands 
within Sonoma County from this designation pursuant to section 4(b)(2) 
of the Act as discussed below.
    Areas excluded pursuant to section 4(b)(2) may include those 
covered by the following types of plans/programs if the plans/programs 
provide assurances that the conservation measures they outline will be 
implemented and effective: (1) Legally operative Habitat Conservation 
Plans (HCPs) that cover the species; (2) draft HCPs that cover the 
species and have undergone public review and comment (i.e., pending 
HCPs); (3) Tribal conservation plans/programs that cover the species; 
(4) State conservation plans/programs that cover the species; (5) 
National Wildlife Refuges with Comprehensive Conservation Plans (CCPs) 
or other applicable programs that provide assurances that the 
conservation measures for the species will be implemented and 
effective, and; (6) Partnerships, conservation plans/easements, or 
other type of formalized relationship/agreement on private lands. The 
relationship of critical habitat to these types of areas is discussed 
in detail in the following paragraphs.
    After consideration under section 4(b)(2), the entire area of 
habitat has been excluded from critical habitat for the Sonoma County 
distinct population segment of the California tiger salamander as a 
result of both conservation measures being implemented and developed by 
local governing agencies and disproportionately high economic costs. A 
detailed analysis of our exclusion of these lands under section 4(b)(2) 
of the Act is provided in the paragraphs that follow.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest regulatory benefit to the 
species of critical habitat is that federally authorized, funded, or 
carried out activities require consultation pursuant to section 7 of 
the Act to ensure that they are not likely to destroy or adversely 
modify critical habitat. There are two limitations to this regulatory 
effect. First, it only applies where there is a Federal nexus--if there 
is no Federal nexus, designation itself does not restrict actions that 
destroy or adversely modify critical habitat. Second, it only limits 
destruction or adverse modification. By its nature, the prohibition on 
adverse modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts may 
occur, then formal consultation would be initiated. Formal consultation 
concludes with a biological opinion issued by the Service on whether 
the proposed Federal action is likely to jeopardize the continued 
existence of a listed species or result in destruction or adverse 
modification of critical habitat, with separate analyses being made 
under both the jeopardy and the adverse modification standards. For 
critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we

[[Page 74154]]

believe the conservation achieved through implementing larger scale 
management plans is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations 
involving consideration of critical habitat. Management plans commit 
resources to implement long-term management and protection to 
particular habitat for at least one, and possibly other, listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to designated critical habitat caused 
by the particular project and they are not committed to provide 
conservation or long-term benefits to areas not affected by the 
proposed project. Thus, any management plan which considers enhancement 
or recovery as the management standard will always provide as much or 
more benefit than a consultation for critical habitat designation 
conducted under the standards required by the Ninth Circuit in the 
Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the Sonoma County distinct population segment of the California 
tiger salamander. In general the educational benefit of a critical 
habitat designation always exists, although in some cases it may be 
redundant with other educational effects. For example, habitat 
conservation plans (or in the case here, the Conservation Strategy) 
have significant public input and may largely duplicate or exceed the 
educational benefit of a critical habitat designation. This benefit is 
closely related to a second, more indirect benefit; in that designation 
of critical habitat would inform State agencies and local governments 
about areas that could or should be conserved under State laws or local 
ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas were 
included in the proposed rule as constituting essential California 
tiger salamander habitat. Consequently, we believe that the 
informational benefits are already provided even though these areas are 
not designated as critical habitat. Additionally, the purpose of 
informing State agencies and local governments about areas which would 
benefit from protection and enhancement of habitat for the California 
tiger salamander normally served by the designation of critical habitat 
is already well established among State and local governments, and 
Federal agencies for those areas which we are excluding in this rule on 
the basis of other implemented conservation measures and the on-going 
development and implementation of the Conservation Strategy.
    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that all habitat in Sonoma County for 
the California tiger salamander (Unit 1) will not be designated as 
critical habitat as a result of this rulemaking process. We have 
reached this determination because we believe the benefits of excluding 
this unit from as critical habitat outweigh the benefits of designating 
the unit as critical habitat.
    After the Sonoma County distinct population segment of the 
California tiger salamander was listed as an endangered species (68 FR 
13498), we as well as other resource and regulatory agencies (U.S. Army 
Corps of Engineers, CDFG, U.S. Environmental Protection Agency) were 
contacted by local governmental officials from Sonoma County and the 
Cities of Windsor, Santa Rosa, Rohnert Park, and Cotati to strategize 
on how best to conserve State and Federally listed species on the Santa 
Rosa Plain. The Conservation Strategy is intended to direct 
conservation efforts for the Sonoma County distinct population segment 
of the California tiger salamander and several other Federally listed 
plant species. Although a recovery plan has not yet been prepared, 
recovery activities for the Sonoma County distinct population segment 
of the California tiger salamander would likely parallel those 
conservation measures identified in the Conservation Strategy. We 
believe that the best way to achieve the objectives outlined in the 
Conservation Strategy will be to use the authorities under section 
4(b)(2) to exclude these lands.

Application of Exclusions Under 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 after taking into consideration the economic impact, national 
security impact, 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 that the benefits of 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.
    The Secretary exercises her discretion under section 4(b)(2) to 
exclude all essential areas from a final critical habitat designation 
for the following reasons: (1) The adverse impacts associated with the 
likely economic costs of the proposed final designation outweigh the 
likely conservation benefits provided by a final designation, and (2) 
it is highly probable that the Santa Rosa Plain Conservation Strategy 
will be implemented, and this strategy would provide conservation 
benefits that are superior to a final critical habitat designation. A 
final designation may also work at cross purposes to the Conservation 
Strategy by discouraging the involvement of local jurisdictions and 
private landowners without providing any counterbalancing, proactive 
conservation benefit.
    The following discussion describes the analysis of the relative 
costs and benefits of a critical habitat designation. Section 4(b)(2) 
of the Act allows the Secretary to exclude areas from critical habitat 
for economic reasons or other relevant impacts if she determines that 
the benefits of such exclusion exceed the benefits of designating the 
area as critical habitat, unless the exclusion will result in the 
extinction of the species concerned. This is a discretionary authority 
Congress has provided to the Secretary with respect to critical 
habitat. Although economic and other impacts may not be considered when 
listing a species, Congress has expressly required their consideration 
when designating critical habitat.

Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act

    In conducting economic analyses, we are guided by the 10th Circuit 
Court of Appeal's ruling in the New Mexico Cattle Growers Association 
case (248 F.3d at 1285), which directed us to consider all impacts, 
``regardless of whether those impacts are attributable co-extensively 
to other causes.'' As explained in the analysis, due to possible 
overlapping regulatory schemes and other reasons, there are also some

[[Page 74155]]

elements of the analysis that may overstate some costs.
    Conversely, the Ninth Circuit has recently ruled (``Gifford 
Pinchot'', 378 F.3d at 1071) that the Service's regulations defining 
``adverse modification'' of critical habitat are invalid because they 
define adverse modification as affecting both survival and recovery of 
a species. The Court directed us to consider that determinations of 
adverse modification should be focused on impacts to recovery. While we 
have not yet proposed a new definition for public review and comment, 
compliance with the Court's direction may result in additional costs 
associated with the designation of critical habitat (depending upon the 
outcome of the rulemaking). In light of the uncertainty concerning the 
regulatory definition of adverse modification, our current 
methodological approach to conducting economic analyses of our critical 
habitat designations is to consider all conservation-related costs. 
This approach would include costs related to sections 4, 7, 9, and 10 
of the Act, and should encompass costs that would be considered and 
evaluated in light of the Gifford Pinchot ruling.
    In addition, we have received several credible comments on the 
economic analysis contending that it underestimates, perhaps 
significantly, the costs associated with this critical habitat 
designation. Both of these factors are a balancing consideration 
against the possibility that some of the costs shown in the economic 
analysis might be attributable to other factors, or are overly high, 
and so would not necessarily be avoided by excluding the area for which 
the costs are predicted from this critical habitat designation.
    We recognize that we have excluded all of the proposed critical 
habitat. Congress expressly contemplated that exclusions under this 
section might result in such situations when it enacted the exclusion 
authority. House Report 95-1625, stated on page 17: ``Factors of 
recognized or potential importance to human activities in an area will 
be considered by the Secretary in deciding whether or not all or part 
of that area should be included in the critical habitat. In some 
situations, no critical habitat would be specified. In such situations, 
the Act would still be in force and prevent any taking or other 
prohibited act * * *'' (emphasis supplied). We accordingly believe that 
these exclusions, and the basis upon which they are made, are fully 
within the parameters for the use of section 4(b)(2) set out by 
Congress.
    We provided notice of availability of a DEA on October 25, 2005 (70 
FR 61591) and requested comment on the potential exclusion of high cost 
areas. We published a subsequent notice on November 17, 2005 (70 FR 
69717) in which we disclosed revised economic impacts based on a 
refinement of the proposed designation on which we solicited public 
comment. The DEA estimated the foreseeable economic impacts of the 
proposed critical habitat designation on government agencies and 
private businesses and individuals. The economic analysis identified 
potential costs over a 20-year period as a result of the proposed 
critical habitat designation, including those costs coextensive with 
listing. The analysis measured lost economic efficiency associated with 
residential and commercial development, and public projects and 
activities, such as economic impacts on transportation projects, the 
energy industry, and Federal lands. However, no Federal lands are 
within the proposed critical habitat boundary. The economic analysis 
considered the potential economic effects of actions relating to the 
conservation of the Sonoma County distinct population segment of the 
California tiger salamander, including costs associated with sections 
4, 7, and 10 of the Act, and including those attributable to 
designating critical habitat. It further considered the economic 
effects of protective measures taken as a result of other Federal, 
State, and local laws that aid habitat conservation for the California 
tiger salamander in essential habitat areas. The economic analysis 
considered both economic efficiency and distributional effects. In the 
case of habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (e.g., lost economic 
opportunities associated with restrictions on land use). This analysis 
also addressed how potential economic impacts are likely to be 
distributed, including an assessment of any local or regional impacts 
of habitat conservation and the potential effects of conservation 
activities on small entities and the energy industry. This information 
can be used by decision makers to assess whether the effects of the 
designation might unduly burden a particular group or economic sector. 
Finally, the analysis looked retrospectively at costs that have been 
incurred since the date the species was listed as an endangered species 
and considers those costs that may occur in the 20 years following a 
designation of critical habitat.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section).
    We have considered, but are excluding from critical habitat for the 
Sonoma County distinct population segment of the California tiger 
salamander all essential habitat in the four highest cost census tracts 
which cumulatively account for approximately 94% of the economic 
impacts of the designation (Table 4).

               Table 4.--Excluded Census Tracts and Costs
------------------------------------------------------------------------
                                             Adjusted welfare  impact in
               Census tract                         final EA ($)
------------------------------------------------------------------------
06097153300...............................  125,612,192
06097153200...............................  30,148,184
                                            (including transportation
                                             costs)
06097151201...............................  18,746,038
06097153005...............................  9,863,633
------------------------------------------------------------------------

(1) Benefits of Inclusion of the 4 Excluded Census Tracts
    The principal benefit of designating critical habitat is that 
Federal activities that may affect such habitat are subject to 
consultation pursuant to section 7 of the Act. Such consultation 
requires every Federal agency to ensure that any action it authorizes, 
funds, or carries out is not likely to result in the destruction or 
adverse modification of critical habitat. The most direct, and 
potentially largest, regulatory benefit of critical habitat is that 
federally authorized, funded, or carried out activities require 
consultation pursuant to section 7 of the Act to ensure that these 
activities are not likely to destroy or adversely modify critical 
habitat.
    There are two limitations to this regulatory effect. First, it only 
applies where there is a Federal nexus--if there is no Federal nexus, 
designation itself does not restrict actions that destroy or adversely 
modify critical habitat. Second, it only limits destruction or adverse 
modification. It does not encourage proactive or ``interventionist'' 
conservation efforts. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are maintained. Critical habitat designation alone, 
however, does not

[[Page 74156]]

require specific steps toward recovery, especially on non-federal 
lands.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that the decision of the Ninth Circuit in Gifford 
Pinchot Task Force v. USFWS must be considered in weighing the effects 
of designation of critical habitat. In that case, the court held the 
Service's regulatory definition of ``destruction or adverse 
modification'' was contrary to the Act because it required an analysis 
of the effect of the proposed Federal action on the survival of the 
species in addition to an analysis of the effect on recovery of the 
species. To the extent compliance with Gifford Pinchot would lead to 
more determinations that Federal actions destroy or adversely modify 
critical habitat than had previously been the case, designation of 
critical habitat would provide greater regulatory protections to the 
species' habitat.
    Significant portions of the lower Santa Rosa Plain within or 
adjacent to the urban growth boundary are documented to be occupied by 
California tiger salamander. Other portions are not surveyed and may or 
may not be occupied. Also, there are large upland areas near breeding 
ponds where California tiger salamander aestivate underground. Any 
Federal activity adversely affecting California tiger salamander in 
these occupied areas will require section 7 consultations with the 
Service, and any non-Federal action that may take a California tiger 
salamander will require a Section 10 permit if the action is not 
already covered under a section 7 consultation.
    In general, regulatory benefits of a critical habitat designation 
would be highest on Federal lands where most actions would be subject 
to section 7 review. There are no Federal lands in the Santa Rosa 
Plain. However, section 7 consultation likely will have a regulatory 
effect on many proposed actions that directly affect California tiger 
salamander breeding habitat due to a Federal nexus with the Clean Water 
Act and consultation with the Army Corps of Engineers. As described 
above, these consultations are likely to result in determinations of 
``no jeopardy'' to the species and ``no destruction or adverse 
modification'' of critical habitat under the Gifford Pinchot standard. 
Upland areas or private lands where California tiger salamander have 
not been surveyed or observed will be subject to less and sometimes no 
regulation under the Act. This outcome depends on whether local 
jurisdictions require California tiger salamander surveys on private 
lands and, if so, whether California tiger salamanders are actually 
found on the property. If California tiger salamander are found on 
these upland areas, and the proposed action may take California tiger 
salamander, then a section 10 permit is required and consultation on 
critical habitat will also occur. In contrast, if California tiger 
salamander are not found or the landowner declines to survey for 
California tiger salamander, then the proposed action may occur without 
a section 7 or section 10 permit and there is no consultation under the 
Act. Under this process, it is likely that a significant amount of 
potential upland aestivation habitat will not be regulated under the 
Act because of a lack of a Federal nexus and the low likelihood that 
portions of these areas are currently occupied by the species. It is in 
cases such as this where a critical habitat designation provides little 
positive regulatory benefit.
    Designation of critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander would confer some 
limited additional regulatory benefits beyond the status quo because 
the Service would apply the Gifford Pinchot recovery standard to 
section 7 consultations on proposed Federal activities. This standard 
would ensure that the Service looks beyond the jeopardy standard when 
assessing a project's impact on a species' critical habitat. We 
determined in the economic analysis that designation of critical 
habitat could result in approximately $184 million in costs in these 
four census tracts, the majority of which are directly related to 
residential development impacts. We believe that the potential decrease 
in residential housing development that could be caused by this 
designation of critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander would minimize 
impacts to and potentially provide some additional protection to the 
species, the vernal pool complexes and ponds where they reside, and the 
physical and biological features essential to the species' conservation 
(i.e., the primary constituent elements). Thus, this decrease in 
residential housing development would directly translate into a 
potential benefit to the species that would result from this 
designation.
    However, these benefits are likely to be quite limited in relation 
to what the California tiger salamander requires for successful 
conservation on the Santa Rosa Plain. This consultation benefit would 
not apply to all critical habitat lands because of a lack of a Federal 
nexus for large portions of unsurveyed private uplands that are not 
immediately adjacent to breeding ponds. It would also be applied in a 
piecemeal, project-by-project fashion. Application of section 7 on 
these private lands would depend on an unpredictable combination of 
several factors, including the presence of a section 7 Federal nexus, 
the likelihood or certainty of California tiger salamander occupancy on 
the project site, the willingness of the landowner to survey for 
California tiger salamander if occupancy is unknown, the legal ability 
and political desire of local jurisdictions to require surveys and/or 
some form of consultation with the Service, and the ability to require 
compensatory mitigation if impacts to California tiger salamander are 
anticipated.
    Therefore, it is reasonable to conclude that only a portion of the 
area that otherwise would be designated as critical habitat will likely 
be regulated or conserved. Some areas of potential critical habitat 
would be conserved through the direct regulation of Federal actions and 
associated private activities (e.g., a Clean Water Act permit 
concerning a proposed development that would fill wetlands). On the 
other hand, large portions of critical habitat on private lands will 
not be regulated under section 7 or section 10 of the Act where direct 
take is not likely to occur or is undeterminable, and no other Federal 
nexus exists. We are unable to calculate at this time the relative

[[Page 74157]]

amounts of land in these two respective categories. At best, a critical 
habitat designation, in conjunction with section 9 take prohibitions, 
is most likely to protect known occupied breeding sites or occupied 
upland areas. A critical habitat designation is least likely to protect 
unoccupied habitat and unsurveyed private lands with no Federal nexus 
and, as we discuss below, may serve to discourage California tiger 
salamander conservation on these areas.
    Another potential benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area and thereby focus and contribute to 
conservation efforts by clearly delineating areas of high conservation 
value for certain species. Such a benefit could be substantial in 
geographic areas where the presence of the California tiger salamander 
was a relatively new or unknown phenomenon, and there was a need to 
educate the local community to the species' presence and conservation 
needs. However, such a situation does not exist anywhere in the Santa 
Rosa Plain. Due in large part to the extensive media attention applied 
to the high-profile conflicts that accompanied the listing of the 
species and the critical habitat proposal, there is widespread 
knowledge of the species' local status and conservation needs. 
Therefore, it is unlikely that a final critical habitat designation 
would provide any significant new or additional educational benefit 
beyond the status quo.
    In sum, a final critical habitat designation would confer some 
additional, but limited, regulatory benefits on portions of the 
critical habitat above and beyond those already provided through the 
listing of the species. Most of these limited additional benefits would 
be a consequence of section 7 consultation on critical habitat to the 
Gifford Pinchot standard.
(2) Benefits of Exclusion of the Four Census Tracts
    The economic analysis conducted for the refined proposal estimates 
that the costs associated with designating these four census tracts 
would be approximately $184 million. By excluding these census tracts, 
some of these costs will be avoided. Additionally, important public 
sector transportation projects will avoid the costs associated with 
critical habitat designation.
    We believe that the required future recovery planning process would 
provide at least equivalent educational value to the public, State and 
local governments, scientific organizations, and Federal agencies by 
providing information about habitat that contains features considered 
essential to the conservation of the Sonoma County distinct population 
segment of the California tiger salamander, and in facilitating 
conservation efforts through heightened public awareness of the plight 
of the listed species. Recovery plans would contain explicit objectives 
for ongoing public education, outreach, and collaboration at local, 
State, and Federal levels, and between the private and public sectors 
to guide recovery of the Sonoma County distinct population segment of 
the California tiger salamander.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits from excluding these four census 
tracts from the designation of critical habitat--avoiding the potential 
economic and human costs, both in dollars and jobs, predicted in the 
economic analysis-- exceed the educational and regulatory benefits 
which could result from including those lands in this designation of 
critical habitat.
    We have evaluated and considered the potential economic costs on 
the residential development industry and public sector transportation 
projects relative to the potential benefit for the Sonoma County 
distinct population segment of the California tiger salamander and its 
primary constituent elements derived from the designation of critical 
habitat. We believe that avoiding the potential economic impact of up 
to approximately $184 million on the development industry and public 
sector projects significantly outweighs the potential conservation and 
protective benefits for the species and the primary constituent 
elements that would be derived from the designation of these four 
census tracts as critical habitat.
    Additionally, we believe that the recovery planning process 
provides equivalent educational value to the public, State and local 
governments, scientific organizations, and Federal agencies in 
providing information about habitat that contains those features 
considered essential to the conservation of the Sonoma County distinct 
population segment of the California tiger salamander, and in 
facilitating conservation efforts through heightened public awareness 
of the plight of the listed species. Recovery plans would contain 
explicit objectives for ongoing public education, outreach, and 
collaboration at local, State, and Federal levels, and between the 
private and public sectors to guide recovery efforts for the Sonoma 
County distinct population segment of the California tiger salamander 
and would bring funding for these efforts. We therefore find that the 
benefits of excluding the four census tracts from this designation of 
critical habitat outweigh the benefits of including them in the 
designation.

Relationship of Critical Habitat to Current and Proposed Conservation 
Efforts--Application of Section 4(b)(2)

    We have considered, but are excluding, lands within the refined 
designation that fall within the boundaries of the draft Conservation 
Strategy. We believe the benefits of excluding lands within this draft 
Conservation Strategy outweigh the benefits of including them. The 
following represents our rationale for excluding these areas. Taken 
together with the four census tracts excluded above for economic 
reasons, the result is that we are not designating any critical habitat 
for the Sonoma County distinct population segment of the California 
tiger salamander at this time on the basis of both economics and the 
proactive conservation benefits conferred by the locally developed 
conservation strategy.
    Since the listing of the Sonoma County distinct population segment 
of the California tiger salamander, Federal, State, and local officials 
have struggled with how best to manage the unique conservation 
challenge posed by this species. The salamander occurs almost 
exclusively on undeveloped, privately owned lands within an approved 
urban growth boundary (UGB) or within areas adjacent to the UGB. Prior 
to the listing, significant local planning efforts had been completed, 
and much of the remaining salamander habitat within or adjacent to the 
UGB had been designated for various types of development.
    Pursuant to section 4(b)(2), we analyzed whether the benefits of 
designating these lands as critical habitat were outweighed by the 
benefits of excluding these lands from a final designation. In the 
following section, we evaluate a ``without critical habitat'' scenario 
and compare it to a ``with critical habitat'' scenario. The difference 
between the two scenarios measured the net negative or positive impacts 
attributable to the designation of critical habitat. We paid particular 
attention to the following issues:
     The degree to which a critical habitat designation would 
confer regulatory conservation benefits on these species (e.g. high, 
medium, low);

[[Page 74158]]

     Whether the designation would educate members of the 
public such that conservation efforts would be enhanced;
     Whether a critical habitat designation would have a 
positive, neutral, or negative impact on local support for salamander 
conservation, including the finalization and implementation of the 
Conservation Strategy;
     To what extent a critical habitat designation is likely to 
encourage or discourage future cooperative efforts with local 
landowners and officials; and,
     The degree to which the Conservation Strategy provides a 
better conservation alternative to critical habitat and the likelihood 
it will be implemented.
    If a critical habitat designation results in a quantifiable 
reduction in the likelihood that existing or future voluntary, 
cooperative conservation activities will be carried out on non-federal 
lands, and at the same time fails to confer a counter-balancing 
positive regulatory or educational benefit to the conservation of the 
species, then the benefits of excluding such areas from critical 
habitat outweigh the benefits of including them.
    The designation of critical habitat on non-federal lands can have 
both negative and positive impacts on the conservation of listed 
species (Bean 2002). There is a growing body of documentation that some 
regulatory actions by the Federal government, while well-intentioned 
and required by law, can under certain circumstances have unintended 
negative consequences for the conservation of species on non-federal 
lands (Bean 2002; Brook et al. 2003; James 2002; Koch 2002; Wilcove et 
al. 1996). Some landowners fear a decline in value of their properties 
because of their belief that the Act may restrict future land-use 
options where threatened or endangered species are found. Consequently, 
endangered species are perceived by many landowners as a financial 
liability, which sometimes results in anti-conservation incentives to 
these landowners (Brook et al. 2003, Main et al. 1999).
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that many 
landowners will support and carry out conservation actions (Bean 2002; 
Brook et al. 2003; Main et al. 1999). The magnitude of this negative 
outcome is greatly amplified in conservation situations, such as on 
privately-owned lands, where it is insufficient simply to prohibit 
harmful activities. Instead, it is necessary in most cases to encourage 
and carry out active management measures to prevent extinctions and 
promote recovery (Bean 2002). Consideration of this concern is 
especially important in areas where recovery efforts require access and 
landowner permission for survey and restoration efforts. Simply 
preventing ``harmful activities'' will not slow the extinction of 
listed species or promote their recovery. Proactive, voluntary 
conservation efforts are necessary to prevent the extinction and 
promote the recovery of these species (Wilcove and Lee 2004, Shogren et 
al. 1999). It is widely acknowledged that conservation of the Sonoma 
County distinct population segment of the California tiger salamander 
will require proactive restoration efforts.

(1) Benefits of Inclusion of the Excluded Areas

    The benefits of inclusion of the excluded areas as critical habitat 
were described in the preceding section.

(2) Benefits of Exclusion of the Excluded Areas--Other Relevant Impacts

    The salamander occurs almost exclusively on undeveloped, privately 
owned lands within an approved urban growth boundary in Sonoma County. 
Prior to the listing, significant local planning efforts had been 
completed, and much of the remaining salamander habitat within the 
growth boundary had been designated for various types of development. 
Because of the salamander's occurrence on private lands mostly 
designated for development, the primary challenge facing Federal, 
State, and local officials is how best to reconcile the goals and 
requirements of the Federal Endangered Species Act with the economic 
and social needs of the local communities in Sonoma County.
    Approximately two years ago, a group of Federal, State, and local 
officials and stakeholders initiated an effort to address this 
challenge. Local biologists with the Service, the U.S. Army Corps of 
Engineers, the U.S. Environmental Protection Agency, and the California 
Department of Fish and Game joined with local representatives of the 
cities of Santa Rosa, Cotati, Rohnert Park, Sonoma County, the North 
Coast Regional Water Quality Control Board, and the environmental and 
development communities. All parties recognized that a court-ordered 
Federal designation of critical habitat would likely further polarize 
local conservation efforts, and that a regional scientific effort with 
broad local support of private landowners had the highest likelihood of 
achieving conservation of the California tiger salamander and other 
listed species on the Santa Rosa Plain.
    This group developed the Conservation Strategy, a comprehensive 
plan to provide for California tiger salamander conservation while also 
identifying a predictable process whereby certain public and private 
development projects can proceed. The Conservation Strategy was 
published in draft form and provided to the public for review and 
comment earlier in 2005. The Conservation Strategy also received 
extensive peer review from knowledgeable scientists. For the sake of 
brevity, the Conservation Strategy document (August 3, 2005) is 
incorporated herein by reference, while the main objectives of the 
Conservation Strategy are described below:
    (1) Provide for the long-term survival and recovery of the 
California tiger salamander and listed plant species by establishing 
and supporting a system of preserves, mitigation banks, and restoration 
areas.
    (2) Ensure that projects impacting extant California tiger 
salamander subpopulations are minimized and mitigated to the maximum 
extent possible.
    (3) Identify and maximize the potential for restoration of degraded 
habitat areas, and add these to the preserve system.
    (4) Fund monitoring efforts to make sure that California tiger 
salamander conservation areas are adaptively managed to account for 
changing conditions and new information.
    (5) Fund monitoring efforts to make sure that the provisions of the 
Conservation Strategy are properly implemented and that its terms are 
enforced.
    (6) Provide for a cost effective, predictable, and streamlined 
process for private and public development projects under the Act, and;
    (7) Ensure that the Conservation Strategy for California tiger 
salamander is compatible with local urban planning efforts and, 
likewise, ensure that changes to local planning efforts are compatible 
with ongoing California tiger salamander conservation.
    Final completion and implementation of the Conservation Strategy 
will require several more steps to comply with State and local 
government approval processes. We have some concern that the strategy 
is not yet completed and under implementation, but these concerns are 
alleviated by the passage of resolutions by the local jurisdictions 
(November 9, 2005) and subsequent approval of a planning agreement 
committing them to complete and

[[Page 74159]]

implement the strategy within the next 18-24 months as these approval 
processes are completed. In addition, these jurisdictions have agreed 
to implement interim conservation measures until the Conservation 
Strategy is implemented to ensure that current or initiated actions 
proceed consistent with the biological objectives of the Conservation 
Strategy. These interim measures subject actions affecting California 
tiger salamander and its habitat to Service and CDFG review, and they 
provide mitigation for unavoidable impacts to California tiger 
salamander. These measures are described in greater detail later in 
this section.
    Implementation of the Conservation Strategy offers the best 
possible opportunity to reconcile the goals of the Federal Endangered 
Species Act with the economic and social planning goals of the local 
communities. We are encouraged by the passage of the resolutions and 
the approval of the planning agreement by all of the affected local 
jurisdictions and believe that final implementation of the Conservation 
Strategy is very likely. We are also encouraged by the tremendous show 
of good faith by all of the agencies and local entities that have 
participated in this process as part of the Conservation Strategy team, 
and the generous commitment of their time and effort over the last two 
years. This large investment of personnel resources by these many 
entities reflects a serious commitment and implies a high likelihood 
that the strategy will be finalized and implemented.
    Further, it is likely that a designation of critical habitat in the 
face of this planning effort would have a chilling effect on the 
participation of at least some of these local entities and 
stakeholders. Several comments received from various jurisdictions 
expected that a critical habitat designation would encourage 
participants to leave the cooperative process that has been established 
and may cause the breakdown of the Conservation Strategy. Likewise, it 
is probable that local landowners affected by a final critical habitat 
designation process would revert to the more traditional ``permit-by-
permit'' approval process, which would make planning for long-term 
California tiger salamander conservation much more difficult on a 
landscape scale, as described earlier.
    In summary, we conclude that the designation of critical habitat 
for the Sonoma County distinct population segment of the California 
tiger salamander would have negative impacts on the finalization and 
implementation of the Santa Rosa Plain Conservation Strategy. Avoiding 
these negative impacts is a benefit of excluding these lands from the 
final critical habitat designation.

(3) Benefits of Exclusion Outweigh the Benefits of Inclusion for 
Proposed Critical Habitat

    As discussed in the overview to this section, we analyzed whether 
the benefits of designating these lands as critical habitat were 
outweighed by the benefits of excluding these lands from a final 
designation. We evaluated a ``without critical habitat'' scenario and 
compared it to a ``with critical habitat'' scenario. The difference 
between the two scenarios measured the net negative or positive impacts 
attributable to the designation of critical habitat.
    In general, we believe the conservation achieved through 
implementing habitat conservation plans (HCPs), approved conservation 
agreements, or other applied habitat management strategies such as the 
Conservation Strategy is typically greater than would be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat. Management 
plans commit resources to implement long-term management and protection 
to particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed, site-
specific project. Thus, any HCP or conservation strategy which 
establishes long-term enhancement or recovery as the management 
standard, and that ensures implementation of compensatory mitigation 
where appropriate, will always provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision.
    Therefore, we assign relatively little weight to the benefits of 
designating this area as critical habitat when compared to the approach 
embodied by the Conservation Strategy. This strategy provides the 
highest likelihood of conserving habitat for California tiger 
salamander and listed plants in Sonoma County. The need to maintain and 
expand recent gains in cooperative conservation efforts in Sonoma 
County for the California tiger salamander and listed plants is crucial 
to the long-term effectiveness of California tiger salamander recovery. 
Under the best of circumstances, a critical habitat designation would 
only provide piecemeal, project-by-project conservation benefits to 
California tiger salamander by prohibiting adverse modification of 
designated critical habitat. It would not provide a proactive or 
distinct population segment-wide recovery benefit to the species 
achievable under larger-scale conservation plans, which benefit from 
economies of scale through participation of multiple landowners and 
project proponents in partnership with one or more local jurisdictions 
in a relatively large geographic area. Such larger-scale plans are more 
effective at protecting and managing strategically situated habitat 
areas of a size that can achieve long-term conservation for the species 
than a project-by-project approach. The most important benefits 
provided by the Conservation Strategy, in comparison to a designation 
of critical habitat, can be summarized as follows:
    (1) The Conservation Strategy reconciles local growth plans (e.g., 
an approved urban growth boundary) with the conservation goals of the 
Federal Endangered Species Act. A critical habitat designation has not 
been reconciled with local plans, and according to multiple public 
comments by knowledgeable officials is likely to not be supported by 
local landowners and government officials. Therefore, the Conservation 
Strategy has a higher likelihood of successfully providing for the 
conservation of California tiger salamander because it has been 
embraced by the local community through their elected officials.
    (2) A tremendous amount of local planning resources and public 
participation has already been expended in completing the most recent 
round of urban growth planning in Sonoma County. A decision such as a 
Federal critical habitat designation could dramatically affect these 
boundaries and should, wherever possible and appropriate, be flexible 
to accommodate locally developed and approved planning processes. This 
flexibility makes economic, social, and conservation sense.
    (3) The Conservation Strategy has created an atmosphere of 
partnership by bringing together a broad coalition of government 
officials, local developers, environmentalists, and landowners. A 
critical habitat designation will likely polarize many of these 
stakeholders and decrease the likelihood that meaningful cooperative 
conservation will be

[[Page 74160]]

achieved for the California tiger salamander.
    (4) The Conservation Strategy provides a ``proactive'' conservation 
strategy that actively encourages California tiger salamander 
conservation for all types of California tiger salamander lands, 
including unoccupied or unsurveyed lands and agricultural lands. 
Critical habitat provides ``prohibitive'' protections in portions of 
the species'' range, but it does not encourage proactive activities. 
Therefore, the Conservation Strategy has a higher likelihood of 
achieving conservation of California tiger salamander on private lands, 
and it has a higher likelihood of helping re-establish California tiger 
salamander on unoccupied lands.
    (5) The Conservation Strategy has a higher likelihood of achieving 
broader landscape-level conservation for the California tiger 
salamander and listed plants. The critical habitat designation, in 
contrast, would likely result in piecemeal conservation efforts that 
would be influenced by the order in which permit requests are submitted 
to Federal and other agencies.
    (6) The Conservation Strategy will identify funding mechanisms to 
provide for California tiger salamander mitigation and conservation. 
Critical habitat has no funding mechanisms for California tiger 
salamander mitigation costs and proactive conservation activities.
    (7) The Conservation Strategy provides ongoing educational benefits 
that surpass any of those that would be provided by a final critical 
habitat designation.
    For the reasons described above, we have determined that the 
benefits of designating critical habitat for the Sonoma County distinct 
population segment of the California tiger salamander are relatively 
small, while the benefits of not designating proposed critical habitat 
and proceeding with the Conservation Strategy are more significant.

(4) Exclusion Will Not Result in Extinction of the Species

    We believe that exclusion of these lands will not result in the 
extinction of the Sonoma County distinct population segment of the 
California tiger salamander. Many of these areas are considered 
occupied habitat. Actions which might adversely affect the species are 
expected to have a Federal nexus, and would thus undergo a section 7 
consultation with the Service. The jeopardy standard of section 7, and 
routine implementation of habitat preservation through the section 7 
process, as discussed in the economic analysis, provide assurance that 
the species will not go extinct. In addition, the species is protected 
from take under section 9 of the Act. The exclusion leaves these 
protections unchanged from those that would exist if the excluded areas 
were designated as critical habitat.
    In fact, we believe the exclusion of these areas from a critical 
habitat designation will actually improve both its short term and long 
term conservation opportunities and will reduce its likelihood of 
extinction. Implementation of the ``interim measures'' and the 
Conservation Strategy will provide an opportunity for maintaining and 
increasing salamanders in certain portions of the Santa Rosa Plain, 
while a critical habitat designation will likely not prevent the 
continued slow demise of the population as unmanaged fragmentation 
occurs due to piecemeal development.

(5) Reconsideration of This Decision

    Necessarily, in balancing the benefits of inclusion against the 
benefits of exclusion, we must make forecast about future occurrences. 
Our forecasts are based on the best information currently available. We 
recognize that our information is imperfect, and therefore our 
forecasts may be imperfect. To the extent that our analysis is not 
borne out, we will consider further rulemaking in the future. For 
example, if the Conservation Strategy is not finalized or implemented 
in a reasonable amount of time, or the interim measures prove to be 
less effective at conserving the California tiger salamander than 
expected, our current analysis will likely prove to have significantly 
understated the benefits of inclusion. Therefore, if we subsequently 
determine, based on new information, that the benefits of including a 
particular area are not outweighed by the benefits of excluding it, we 
will promptly publish a proposed rule to revise the critical habitat to 
add that area, and after public comment, add that area to the 
designation, if appropriate.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on October 25, 2005 (70 FR 61591), and 
we accepted comments on the draft economic analysis until November 14, 
2005. We reopened the comment period on November 17, 2005 to allow all 
interested parties an opportunity to comment simultaneously on the 
proposed rule and a refinement of the original which we were 
considering (70 FR 69717). We accepted comments until November 28, 
2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Sonoma County distinct population segment of the 
California tiger salamander. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities, the energy industry, transportation projects, and Federal 
lands. This information can be used by the Secretary to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    We received comments on the draft economic analysis of the proposed 
designation. Following the close of the comment period, we considered 
those comments and prepared responses to comments (see Responses to 
Comments section above).

[[Page 74161]]

    The November 17, 2005, notice (70 FR 69717) reopening the comment 
period provides a detailed economics section that shows an economic 
impact on land development of $195,863,729. The revised impact on 
transportation projects is $426,000. The total revised cost of 
designation is thus $196,289,729, or $17,316,226 annualized over 20 
years. In the event that portions of critical habitat with the urban 
growth boundaries are excluded, the cost drops to $128,008,620.
    We are not designating any critical habitat for the Sonoma County 
distinct population segment of the California tiger salamander. We are 
excluding all areas under 4(b)(2) (see Exclusions section) so there are 
no costs associated with this rulemaking process.
    A copy of the economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section) or for downloading from the Internet at http://www.fws.gov/sacramento.

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 will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species.

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

    Under the Regulatory Flexibility Act (RFA) (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 RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. 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 consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the 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 the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the California tiger salamander. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities.
    Had we designated critical habitat, it would not have been expected 
to result in significant small business impacts since revenue losses 
would have been less than one percent of total small business revenues 
in affected areas. Large businesses greatly dominate greenfield 
development, and it was estimated that no more than a single small 
business would be affected annually as a consequence of designation.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the single small 
business, on average, that may be required to consult with us each year 
regarding their project's impact on California tiger salamander and its 
habitat. First, if we conclude, in a biological opinion, that a 
proposed action is likely to jeopardize the continued existence of a 
species or adversely modify its critical habitat, we can offer 
``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of

[[Page 74162]]

critical habitat. An agency or applicant could alternatively choose to 
seek an exemption from the requirements of the Act or proceed without 
implementing the reasonable and prudent alternative. However, unless an 
exemption were obtained, the Federal agency or applicant would be at 
risk of violating section 7(a)(2) of the Act if it chose to proceed 
without implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this notice of rulemaking. The types of Federal 
actions or authorized activities that we have identified as potential 
concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps of Engineers under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (4) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (5) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect California tiger 
salamander. The kinds of actions that may be included if future 
reasonable and prudent alternatives become necessary include 
conservation set-asides, management of competing nonnative species, 
restoration of degraded habitat, and regular monitoring. These are 
based on our understanding of the needs of the species and the threats 
it faces, as described in the final listing rule and proposed critical 
habitat designation. These measures are not likely to result in a 
significant economic impact to project proponents.
    In summary, we have considered whether this action would result in 
a significant economic effect on a substantial number of small 
entities. We have determined that it would not affect a substantial 
number of small entities because we are excluding areas which otherwise 
would be designated. A regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et 
seq.)

    Under SBREFA, this action is not a major rule. We are excluding all 
areas from critical habitat, so there are no economic impacts 
attributable to a critical habitat designation.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (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 final rule does not 
designate critical habitat for the California tiger salamander and is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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.), we make the following findings:
    (a) This action will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this action will significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $100

[[Page 74163]]

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. As such, a Small Government Agency Plan is not 
required.

Federalism

    In accordance with Executive Order 13132, the action does not have 
significant Federalism effects. The rule does not designate any 
critical habitat, and a Federalism assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the action does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are not designating any critical habitat with this 
action.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

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, and the Department 
of Interior's Manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We are not designating any 
critical habitat in this rule, and no Tribal lands are involved.

References Cited

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

Author(s)

    The primary author of this package is the staff of the Sacramento 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend Part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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


0
2. In Sec.  17.95, amend paragraph (d) by adding an entry for 
California tiger salamander (Ambystoma californiense) in Sonoma County 
following the entries for ``California tiger salamander in Santa 
Barbara County'' and ``Central Population of California tiger 
salamander'' read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
California Tiger Salamander (Ambystoma californiense)
* * * * *
California Tiger Salamander in Sonoma County
    Pursuant to section 4(b)(2) of the Act, we have excluded all areas 
determined to meet the definition of critical habitat under section 
4(b)(2) of the Act for California tiger salamander in Sonoma County. 
Therefore, no specific areas are designated as critical habitat for 
this species.
* * * * *

    Dated: December 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23701 Filed 12-13-05; 8:45 am]
BILLING CODE 4310-55-P