[Federal Register Volume 81, Number 91 (Wednesday, May 11, 2016)]
[Rules and Regulations]
[Pages 29336-29396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10712]



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Vol. 81

Wednesday,

No. 91

May 11, 2016

Part II





 Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Oregon Spotted Frog; Final Rule

  Federal Register / Vol. 81 , No. 91 / Wednesday, May 11, 2016 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2013-0088; 4500030114]
RIN 1018-AZ56


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Oregon Spotted Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Oregon spotted frog (Rana pretiosa) under the 
Endangered Species Act. In total, approximately 65,038 acres (26,320 
hectares) and 20.3 river miles (32.7 river kilometers) in Whatcom, 
Skagit, Thurston, Skamania, and Klickitat Counties in Washington, and 
Wasco, Deschutes, Klamath, Lane, and Jackson Counties in Oregon, fall 
within the boundaries of the critical habitat designation. The effect 
of this regulation is to designate critical habitat for the Oregon 
spotted frog under the Endangered Species Act.

DATES: This rule becomes effective on June 10, 2016.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/wafwo. Comments and 
materials we received, as well as some supporting documentation we used 
in preparing this final rule, are available for public inspection at 
http://www.regulations.gov. All of the comments, materials, and 
documentation that we considered in this rulemaking are available by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Washington Fish and Wildlife Office, 510 Desmond Drive SE., 
Suite 102, Lacey, WA 98503, by telephone 360-753-9440 or by facsimile 
360-753-9445.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R1-ES-2013-0088, and at the Washington Fish and Wildlife 
Office (http://www.fws.gov/wafwo) (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we 
developed for this critical habitat designation will also be available 
at the Fish and Wildlife Service Web site and Field Office set out 
above, and may also be included in the preamble and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric V. Rickerson, State Supervisor, 
U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office, 
510 Desmond Drive SE., Suite 102, Lacey, WA 98503, by telephone 360-
753-9440, or by facsimile 360-753-9445. If you use a telecommunications 
device for the deaf (TDD), call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the Oregon spotted frog. Under the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA or Act), 
any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule.
    We, the U.S. Fish and Wildlife Service (Service), listed the Oregon 
spotted frog as a threatened species on August 29, 2014 (79 FR 51658). 
On August 29, 2013, we published in the Federal Register a proposed 
critical habitat designation for the Oregon spotted frog (78 FR 53538). 
On June 18, 2014, we published in the Federal Register a proposed 
refinement to the August 29, 2013, proposal (79 FR 34685). Section 
4(b)(2) of the Act states that the Secretary shall designate critical 
habitat 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.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for the Oregon spotted frog. Here we are 
designating approximately 65,038 acres (ac) (26,320 hectares) (ha)) and 
20.3 river miles (mi) (32.7 river kilometers (km)) in 14 units as 
critical habitat in Washington and Oregon for the Oregon spotted frog.
    This rule consists of: A final rule for designation of critical 
habitat for the Oregon spotted frog. The Oregon spotted frog was listed 
as threatened under the Act. This rule designates critical habitat 
necessary for the conservation of the species. We have prepared an 
economic analysis of the designation of critical habitat. In order to 
consider economic impacts, we prepared an incremental effects 
memorandum and a screening analysis, which together with our narrative 
and interpretation of effects we consider our draft economic analysis 
(DEA) of the proposed critical habitat designation and related factors. 
The analysis, dated April 30, 2014, was made available for public 
review from June 18, 2014, through July 18, 2014 (79 FR 34685). The 
analysis was made available for review a second time when we reopened 
the comment period from September 9, 2014, through September 23, 2014 
(79 FR 53384). The DEA addressed probable economic impacts of critical 
habitat designation for the Oregon spotted frog. Following the close of 
the comment period, we reviewed and evaluated all information submitted 
during the comment period that may pertain to our consideration of the 
probable incremental economic impacts of this critical habitat 
designation. We have incorporated the comments into this final 
determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We solicited opinions from nine knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we used the best available 
information. Five individuals provided comments. These peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve this 
final rule. Information we received from peer review is incorporated in 
this final designation. We also considered all comments and information 
received from the public during the comment period.

Previous Federal Actions

    The Service listed the Oregon spotted frog as a threatened species 
on August 29, 2014 (79 FR 51658). A list of the previous Federal 
actions can be found in the final listing rule and in the proposal to 
designate critical habitat (78 FR 53538, August 29, 2013).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Oregon spotted frog during 
three comment periods. The first comment period associated with the 
publication of the proposed rule (78 FR 53538) opened on August 29, 
2013, and closed on November 12, 2013. We

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opened a second comment period on June 18, 2014, to allow for comment 
on the DEA and associated perceptional effects memorandum, as well as a 
revised proposed rule with changes to the critical habitat designation; 
this period closed on July 18, 2014 (79 FR 34685). A third comment 
period opened September 9, 2014, to allow for additional comment on the 
DEA and associated perceptional effects memorandum, and on the changes 
to proposed critical habitat we announced on June 18, 2014; it closed 
on September 23, 2014 (79 FR 53384). We received one request for a 
public hearing; however, the request was from a county in California 
where the species is not known to currently occur (see Response to 
Comment 22). However, we did hold a public hearing on October 21, 2013, 
in Lacey, Washington. In addition, multiple informal public meetings 
were held in the Bend and Klamath Falls areas in Oregon. We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule and DEA during these comment periods.
    During the three comment periods, we received comments from 114 
commenters directly addressing the August 29, 2013, proposed critical 
habitat designation and the June 18, 2014, revision to proposed 
critical habitat. During the October 21, 2013, public hearing, four 
individuals or organizations made statements on the designation of 
critical habitat for the Oregon spotted frog. All substantive 
information provided during comment periods has either been 
incorporated directly into this final determination or addressed below. 
Comments received were grouped into six general issues specifically 
relating to the proposed critical habitat designation for the Oregon 
spotted frog and the June 18, 2014, proposed revision to the 
designation, and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from nine 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 responses pertinent to the 
proposed critical habitat rule from five peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Oregon spotted frog. Two of the peer reviewers provided additional 
information, clarifications, and suggestions to improve the final 
critical habitat rule. We evaluated and incorporated this information 
into this final rule when and where appropriate to clarify this final 
designation. Two peer reviewers provided substantive comments on the 
proposed designation of critical habitat for the Oregon spotted frog, 
which we address below. Peer reviewer comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer expressed concern that Unit 7 does 
not sufficiently delineate the habitat currently used by the population 
of Oregon spotted frogs in that area, specifically Camas Prairie. The 
western boundary was drawn around what appear to be wetlands on aerial 
photographs, but does not account for the primary wintering sites, such 
as springs, small streams, and immediately adjacent streambanks.
    Our response: This comment was received during the comment period 
for our original proposed critical habitat, published in the Federal 
Register on August 29, 2013 (78 FR 53538). We subsequently modified the 
boundaries of Unit 7 to include overwintering habitat and included this 
boundary refinement in the revised critical habitat proposed in the 
Federal Register on June 18, 2014 (79 FR 34685). We did not receive 
comments that disagreed with the Unit 7 boundary refinements; 
therefore, the final designation for this unit includes, according to 
the best available scientific information, the known habitats that meet 
the year-round needs of the species in this unit.
    (2) Comment: One peer reviewer stated that, in his experience, egg-
laying sites are depressions that hold shallow water in a nearly flat 
topography and frequently do not sustain water for the entire 4-month 
larval rearing period. The reviewer stated that it is only critical 
that these depressions maintain water during the embryonic development 
and early larval periods to allow tadpoles to move to more permanent 
waters to complete their development. The success of these breeding 
pools is based on the ability of free-swimming tadpoles to move out to 
more permanent waters sometime after hatching, usually within about 2 
weeks. Therefore, the total period of time that these areas must retain 
water, from egg-laying to out-migration, is closer to 6 weeks.
    Our response: The primary constituent element (PCE) characteristic 
of inundation for a minimum of 4 months per year is applied to both the 
breeding and rearing habitats. This is not counter to the information 
discussed by the peer reviewer. However, throughout the range of the 
species, not all breeding areas are shallow, seasonally inundated areas 
that cannot support rearing, such that tadpoles must out-migrate. For 
example, some breeding areas in Oregon and Washington retain water 
throughout the rearing phase. Due to the variations across the range, 
we believe the characteristic of inundation for a minimum of 4 months 
is appropriate.

Comments From Federal Agencies

    (3) Comment: One commenter from the U.S. Environmental Protection 
Agency, two State commenters (one from Washington Department of Ecology 
(WDOE) and one from Washington Department of Fish and Wildlife (WDFW), 
Whatcom County, and one member of the public expressed the opinion that 
the portion of Swift Creek included in the proposed critical habitat 
may not be capable of supporting a healthy Oregon spotted frog 
population due to the environmental conditions caused by the Sumas 
Mountain landslide.
    Our response: We concur that Swift Creek and the segments of the 
Sumas River downstream of its confluence with Swift Creek likely lack 
the PCEs and may not be capable of providing habitat in the future. 
Therefore, based on the information provided by the commenters, we have 
revised Unit 1 to remove these areas from critical habitat.
    (4) Comment: A commenter with the U.S. Forest Service (USFS) and 
three public commenters suggested expanding the proposed critical 
habitat designation in Unit 12 to include newly identified occupied 
habitat at the headwaters of Jack Creek (Yellow Jacket Spring area) and 
extend the downstream extent to Lily Camp. One commenter asked that all 
wet meadow habitat adjacent to Jack Creek be explicitly mentioned in 
the text as critical habitat. The public commenters also recommended 
expanding proposed critical habitat to include Round Meadow, an 
unoccupied but apparently suitable site that was not proposed as 
critical habitat.
    Our response: Critical habitat in Unit 12 was proposed for 
expansion on June 18, 2014 (79 FR 34685), extending critical habitat 
approximately 3.1 mi (5 km) downstream along Jack Creek to O'Connor 
Meadow. This expansion includes the location described as Yellow Jacket 
Spring by the

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commenters. However, we did not include the area beyond O'Connor Meadow 
as far south as Lily Camp due to the lack of detections south of Yellow 
Jacket Spring. This is in compliance with the 3.1-mi (5-km) rule set, 
as defined in our description of critical habitat (78 FR 53546). To the 
best of our ability, we believe that the entire wet meadow habitat 
associated with Jack Creek has been included in critical habitat in 
Unit 12. We have no information in our files to suggest that Round 
Meadow is currently occupied by Oregon spotted frogs. Technically, 
Round Meadow is part of the Deschutes Basin; however, it is not 
hydrologically connected via surface water to any other Oregon spotted 
frog location in the Deschutes Basin nor the Klamath Basin, including 
Jack Creek. Thus Round Meadow does not fit the criteria for designating 
unoccupied critical habitat.
    (5) Comment: A commenter from the USFS observed that the National 
Wetlands Inventory (NWI) data used, in part, to map critical habitat 
for the Oregon spotted frog does not capture all potential wet habitats 
along rivers, streams, lakes, and ponds and concluded that the proposed 
critical habitat does not accurately encompass all potential habitat. 
The commenter then recommended adding language to the rule to address 
areas of potential habitat outside mapped critical habitat in order to 
be clear as to whether these lands will be treated as critical habitat.
    Our response: We are aware that the NWI does not map all potential 
wet habitats that are consistent with our PCEs. Where we knew the data 
was incomplete, we employed National Agriculture Imagery Program (NAIP) 
digital imagery, hydrologic and slope data, and our best professional 
judgment to identify and map the areas containing the PCEs. Critical 
habitat, as defined and used in the Act, is the specific areas within 
the geographical area occupied by the species at the time it is listed 
on which are found those physical or biological features essential for 
the conservation of the species and which may require special 
management considerations or protection, and specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species. All the areas designated as critical 
habitat for the Oregon spotted frog meet the definition of critical 
habitat and contain the PCEs for the species' habitat; conversely, 
areas of potential habitat outside of the designated critical habitat 
boundaries could not be determined to meet the definition of critical 
habitat or contain the PCEs and are, therefore, not included in this 
final designation. However, the lateral extent of critical habitat 
along river corridors will vary because of their dynamic nature.
    Critical habitat along river corridors in Units 1 through 5 is 
intended to encompass rivers/streams/creeks and all areas within the 
associated hydrologic floodplain, including adjacent seasonally wetted 
areas that contain any components of the PCEs. The text within the 
criteria section and unit descriptions has been revised to better 
define the features included in this final designation. The commenter 
did not provide specific details of areas believed to be incorrectly 
mapped; therefore, no additional changes beyond the revised 
descriptions have been made to critical habitat boundaries.
    (6) Comment: A commenter from USFS raised a concern about the scale 
of critical habitat mapping in an area of proposed Unit 10. The area of 
concern is in the Willamette National Forest on the south fork of the 
McKenzie River between two unnamed marshes. The width of the stream, as 
mapped for the purposes of critical habitat, is 2 meters wide at some 
points, and the stream channel itself may shift depending on seasonal 
flow. Considering this scenario, the commenter suggested a 100-foot 
(ft) buffer on each side of the segment of stream in question, stating 
that such an amendment would not only accommodate future changes in the 
location of the stream, but would also protect habitat immediately 
adjacent to the stream, which the USFS indicated should be considered 
as important for protecting the physical and biological features that 
are essential to the conservation of the Oregon spotted frog. 
Similarly, a commenter from WDFW suggested that proposed critical 
habitat along streams would be improved by making allowances for 
natural disturbance processes, such as flooding and American beaver 
(Castor canadensis) activity, which might affect the size and location 
of the wetted areas along streams.
    Our response: Regarding the McKenzie River polygon width, we 
recognize that there are areas within the critical habitat designation 
where our mapped polygons may not precisely delineate all of the 
habitat features that constitute critical habitat for the spotted frog 
due to limitations of the data used to delineate the boundaries. We 
also recognize that the characteristics of the area designated as 
critical habitat may fluctuate over time as water is impounded by 
beavers or natural disturbances affect the riverine hydrology. We 
mapped critical habitat using NAIP imagery, NWI information, and other 
resources at a scale of 1:24,000, which has inherent limitations that 
preclude the specificity the commenters desire. While we acknowledge 
the data limitations implicit in our data source, the addition of a 
100-ft buffer along all rivers would encompass an area beyond what is 
necessary for the survival and recovery of the Oregon spotted frog. 
However, see the Criteria Used To Identify Critical Habitat section and 
our response to Comment 5 pertaining to the in-text description of 
areas that are considered to be critical habitat along designated river 
miles (see Table 2 for a summary of approximate river mileage and 
ownership within proposed critical habitat units, and also descriptions 
of Units 1 through 5).

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the Oregon spotted frog are addressed below.
    (7) Comment: A commenter from the WDOE suggested that text in the 
proposed rule appears to confuse the Sumas River in Whatcom County, 
Washington, with the Chilliwack River in British Columbia, Canada. The 
commenter asserted that in one part of the rule the Sumas River is 
described as a tributary to the Lower Chilliwack River watershed, which 
the commenter believed to be correct, but pointed out that elsewhere in 
the rule the Sumas River was used interchangeably with the Chilliwack 
River and/or the Lower Chilliwack River, which the commenter felt was 
incorrect.
    Our response: The commenter's confusion arises from the multiple 
geographic scales that could be used to describe the distribution of 
the Oregon spotted frog. Because we are considering the species across 
its range, we attempted to use a consistent naming convention across 
the range, specifically we chose to use the hydrological unit code 
(HUC) 8 (4th field or sub-basin) or HUC 10 (5th field or watershed) 
delineation. In this case, the Sumas River is a tributary to the Lower 
Chilliwack River watershed (HUC 10) and to the Fraser River sub-basin 
(HUC 8), and we chose to use the HUC 10 name to delineate Unit 1 
consistent with the convention used for the other critical habitat 
units.
    (8) Comment: The WDFW questioned why some areas were not included 
in

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Critical Habitat Unit 4: Black River. The agency stated that we did not 
clearly identify whether the wetlands (including seasonally flooded 
wetlands and pastures) associated with Upper Dempsey Creek, Upper 
Salmon Creek, and lower Beaver Creek were included. The agency further 
commented that these segments have not been well-surveyed, and the 
possibility remains that Oregon spotted frogs occur in the wetlands 
associated with these segments. In addition, the agency noted that 
Allen Creek between Tilly Road and Interstate 5 (through Deep Lake and 
Scott Lake) is not mapped as critical habitat and that, although Oregon 
spotted frogs are not currently known to occur in this area, there are 
many unsurveyed wetlands and the possibility remains that Oregon 
spotted frogs may occur here.
    Our response: Critical habitat, as defined and used in the Act, is 
the specific areas within the geographical area occupied by the species 
at the time it is listed on which are found those physical or 
biological features essential for the conservation of the species and 
which may require special management considerations or protection, and 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. We agree that, 
throughout the range, there are many areas that may provide the types 
of habitat needed by the Oregon spotted frog but have yet to be 
surveyed; however, the available information is not sufficient to 
support a conclusion that all of these areas are essential for the 
conservation of the species.
    To the best of our ability, we have included the seasonally flooded 
wetlands and pastures associated with Upper Dempsey Creek, Upper Salmon 
Creek, and lower Beaver Creek when they were within 3.1 mi (5 km) of 
currently known occupied areas. Please see response to Comment 5 for 
further clarification of areas included in the river mile segments. 
Areas beyond 3.1 mi (5 km) of currently known occupied areas were 
outside of our mapping criteria. As noted by WDFW, the areas of Allen 
Creek between Tilly Road and Interstate 5 are not occupied, there have 
been no indications that Oregon spotted frogs are or will be able to 
use Deep Lake and Scott Lake, nor did WDFW provide information to 
support our finding that these areas are essential for the conservation 
of the species; therefore, we were unable to adequately justify 
revising the boundaries of Unit 4 to include these areas.
    (9) Comment: The WDFW wanted to highlight the preparation of a 
Habitat Conservation Plan (HCP) that will cover multiple species across 
Washington State where they occur on WDFW-owned Wildlife Areas and 
requested that the Service provide the same consideration for exclusion 
of West Rocky Prairie Wildlife Area under section 4(b)(2) of the Act as 
the Service is providing to the Deschutes Basin Multispecies HCP.
    Our response: The Service acknowledges the valuable effort on the 
part of WDFW to prepare the state-wide Wildlife Areas HCP. The 
protective provisions provided by completed HCPs are an important part 
of balancing species conservation with the needs of entities to manage 
their lands for public and private good. In the absence of an approved 
HCP, there are no concrete assurances of funding or implementation of 
the measures included in such a plan. Because there is no approved HCP 
for either the West Rocky Prairie Wildlife Area or the Deschutes Basin 
Multispecies area, we are unable to exclude either of these areas from 
the proposed designation of critical habitat.
    (10) Comment: The Washington Department of Natural Resources (WDNR) 
expressed support for the designation of critical habitat on the Trout 
Lake Natural Area Preserve (NAP) in the absence of a completed 
Management Plan, stating that designation of critical habitat would be 
appropriate and may help strengthen conservation support at the site.
    Our response: In our proposed designation of critical habitat for 
the Oregon spotted frog (78 FR 53538), we stated that we were 
considering the exclusion of the Trout Lake NAP if conservation efforts 
identified in a revised and finalized NAP management plan would provide 
a conservation benefit to the Oregon spotted frog. Based on comments 
from WDNR, we understand that the management plan for this area cannot 
be updated and finalized before final designation of critical habitat. 
Therefore, with WDNR's support, Trout Lake NAP was not excluded from 
critical habitat. We appreciate the WDNR's commitment to managing the 
Trout Lake NAP for the benefit of the Oregon spotted frog.
    (11) Comment: The WDNR stated that the proposed critical habitat in 
areas regulated by WDNR presents a potential conflict between the long-
term Washington State Forest Practices Rules and their associated HCP, 
citing a misalignment between management strategies for wetlands and 
riparian areas and the habitat maintenance and enhancement needs for 
the Oregon spotted frog. Because the Oregon spotted frog is not a 
covered species under the Forest Practices HCP and the proposed listing 
decision does not draw a specific determination regarding the 
``potential for incidental take of the species while conducting forest 
management activities covered by the Forest Practices HCP,'' the 
regulating State agency expressed its desire to ``avoid a circumstance 
where actions approved to benefit one set of listed species may 
potentially adversely impact another listed species.''
    Our response: The Oregon spotted frog, as a species, is not 
generally dependent on a forested landscape; therefore, there is a 
lower likelihood that Oregon spotted frogs or their habitat will be 
negatively affected by forest management activities. That said, Oregon 
spotted frogs may occur in areas delineated as forested wetlands (e.g., 
along Trout Lake Creek) or located downstream or downslope from forest 
management activities, and management agencies should be aware of the 
activities that may negatively impact them. An example of such activity 
may include upslope management actions that alter the hydrology of 
streams, springs, or wetlands upon which Oregon spotted frogs depend. 
Activities that are currently allowed under the Forest Practices HCP do 
have the potential to impact Oregon spotted frogs or their habitat. 
Conversely, disallowing management actions that could improve habitat 
for Oregon spotted frogs could hinder or prolong their recovery. For 
example, a lack of options to manage trees and/or shrubs that encroach 
into the wetlands could reduce the availability of suitable egg-laying 
habitat. We note that areas of concern are limited to a very small 
subset of lands included or covered under the Forest Practices HCP. If 
there is a process for landowners to obtain a variance from WDNR in 
order to reestablish or enhance Oregon spotted frog habitat, the 
Service recommends that WDNR make that process available to willing 
landowners.

Comments From Tribes

    (12) Comment: The Yakama Nation asserted that Critical Habitat Unit 
6 lies entirely within the boundaries of the Yakama Reservation, 
despite the statement in the proposed rule that the Service 
``determined that the proposed designation does not include any tribal 
lands'' (78 FR 53553). The Yakama Nation further stated that Critical 
Habitat Unit 6 is within the Tract D Area and explained that this area 
was included in the Yakama Nation's

[[Page 29340]]

homelands, which was expressly reserved by the Treaty of 1855 ``for the 
exclusive use and benefit'' of the Confederated Tribes and Bands of the 
Yakama Nation. The Yakama Nation contends that Tract D was erroneously 
excluded from the Yakama Reservation's original boundaries and directed 
the attention of the Service to the correction of this mistake through 
the return of Tract D to the Yakama Nation in 1972 under Executive 
Order 11670. The Yakama Nation requested that the critical habitat 
designation be amended to reflect consideration of the Yakama Nation's 
concerns regarding long-term management implications and objected to 
the proposed Oregon spotted frog critical habitat designation for the 
area entitled, Critical Habitat Unit 6: Middle Klickitat River.
    Our response: While we understand that the Yakama Nation disputes 
the ownership in this area, it is our current understanding that the 
Federal lands are under ownership of the U.S. Fish and Wildlife 
Service's Conboy Lake National Wildlife Refuge. Based upon consultation 
with the Yakama Nation, it is our understanding that the Nation would 
like assurances that designation of critical habitat will not infringe 
on tribal treaty rights that may be exercised on the lands that fall 
within Unit 6. FWS sought information from NWR staff and Yakama Nation 
representatives regarding exercising tribal treaty rights on the lands 
included in the critical habitat designation. Whether or not treaty 
rights have been exercised on these lands is unclear; however, it is 
our opinion that designation of critical habitat for the Oregon spotted 
frog on lands owned by the Conboy Lake NWR will not affect the exercise 
of treaty rights by the Yakama Nation.

Public Comments

Service Authorities and Policy Compliance
    (13) Comment: One commenter observed that the annual water 
regulation of the Deschutes River for the purpose of irrigation has had 
negative impacts on the populations of fish and other wildlife for 
which the river provides habitat. The commenter expressed frustration 
about mortality to wildlife and questioned the utility of a Federal 
agency listing another species and designating associated critical 
habitat under the Act to address these impacts.
    Our response: The Act requires the Service to designate critical 
habitat for listed species to the maximum extent prudent and 
determinable. This designation will not, standing alone, suffice to 
address impacts to Oregon spotted frogs that result from water 
management, which is governed primarily by Oregon law. The Service is 
working with irrigation districts and other entities in the Deschutes 
River Basin to develop a habitat conservation plan aimed at minimizing 
the impacts of irrigation diversions on Oregon spotted frogs and listed 
fish species.
    (14) Comment: One commenter expressed concern about the lack of 
regulatory oversight for federally permitted grazing where it may 
overlap with critical habitat on USFS land.
    Our response: The Service coordinates and provides technical 
assistance to other Federal agencies, including the USFS, on a broad 
scope of work. The USFS has been proactive in developing site 
management plans specific to Oregon spotted frogs. However, development 
of their Forest Plans, land use classifications, standards and 
guidelines, and project planning remains under the purview of the 
Federal agencies developing such products. Additionally, if a federally 
authorized, funded, or conducted action could affect a listed species 
or its critical habitat, the responsible Federal agency is then 
required to enter into consultation with the Service under section 7 of 
the Act.
    (15) Comment: One commenter expressed concern that groundwater 
pumping conveyed as surface water for long distances or across lands 
that may be considered critical habitat will be regulated and 
ultimately result in less water available for irrigation. Currently 
groundwater pumping and use is monitored and regulated by the Oregon 
Water Resources Department in accordance with State law. The commenter 
is concerned that additional regulation could ultimately result in less 
water available for irrigation. In addition, the commenter expressed 
the opinion that groundwater pumping practices should not be identified 
as an action that could negatively affect Oregon spotted frog habitat 
because such a connection is not supported by science.
    Our response: The critical habitat designation will have no effect 
on pumping or conveyance of groundwater where there is no Federal nexus 
to that action. On actions where there is a Federal nexus the Service 
will analyze groundwater pumping effects to Oregon spotted frog 
critical habitat on a case-by-case basis. Our current understanding of 
the sources of surface water within the designated critical habitat is 
that the seasonally flooded areas are fed by winter rains or snowmelt, 
not groundwater pumping. Pumping of groundwater can result in lower 
water levels in groundwater systems, diminished flow of springs, and 
reduced streamflow (Gannett et al. 2007, pp. 59-60, 65), and could 
adversely affect wetland habitats occupied by Oregon spotted frog that 
are supported by springs. Therefore, the Service appropriately 
identified groundwater pumping as a potential threat to Oregon spotted 
frog. A determination of whether such pumping poses a threat to the 
frog's habitat at any particular site will depend on site-specific 
analysis. The Service assesses impacts on critical habitat only in the 
context of consultation with Federal agencies on the effects of their 
actions. Hence, if groundwater pumping in a particular instance does 
not involve a nexus with a Federal agency action, designation of 
critical habitat for the Oregon spotted frog will have no impact on 
such pumping.
    (16) Comment: One commenter stated that the Service's Director 
should not be able to certify whether the critical habitat rule will 
have a significant economic impact. The commenter speculated that the 
decisionmaking process represents a conflict of interest and does not 
allow any protections for the private landowners.
    Our response: We assume the commenter is referring to our 
determination under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 
et seq.) that this final critical habitat designation will not have a 
significant economic impact. Under section 605 of the RFA, ``the head 
of the agency'' can make a certification ``that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The Director of the Service is in the approval 
chain for Service designations of critical habitat. However, the 
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks 
within the Department of the Interior has the ultimate signature 
authority for Service designations of critical habitat.
    As described in our response to Comment 17 and later in this 
document under Required Determinations, under section 7 of the Act only 
Federal action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Consequently, our position is that only 
Federal action agencies will be directly regulated by this designation, 
and Federal agencies are not small entities. Therefore, because no 
small entities are directly regulated by this rulemaking, we certify 
that, if promulgated, the final critical

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habitat designation will not have a significant economic impact on a 
substantial number of small entities.
    (17) Comment: A representative of Modoc County, California, 
expressed the opinion that the Service had not complied with the 
Regulatory Flexibility Act (RFA) when proposing critical habitat.
    Our response: Oregon spotted frogs are not known to occur in Modoc 
County, and we did not propose to designate critical habitat in that 
county. When publishing a proposed or final rule that may have a 
significant economic impact on a substantial number of small entities, 
a Federal agency is required by the RFA to prepare and make available 
for public comment a regulatory flexibility analysis describing the 
effects of the rule on the small entities (i.e., small businesses, 
small organizations, and small government jurisdictions) directly 
regulated by the rulemaking itself, and the potential impacts to 
indirectly affected entities. This designation of critical habitat will 
directly regulate only Federal agencies, which are not by definition 
small entities. And as such, this designation of critical habitat would 
not have a significant economic impact on a substantial number of small 
entities. Therefore, an initial regulatory flexibility analysis was not 
required.
    However, because we acknowledge that, in some cases, third-party 
proponents of actions subject to Federal agency permitting or funding 
may participate in a section 7 consultation, our DEA considered the 
potential effects to these third-party project proponents. The DEA was 
made available for a 30-day comment period beginning on June 18, 2014, 
and for another 14 days beginning September 9, 2014. The economic 
analysis determined that the designation has the potential to cause 
ranchers and landowners to perceive that private lands will be subject 
to use restrictions. However, the designation of critical habitat for 
the Oregon spotted frog is not expected to trigger additional 
requirements under State or local regulations that would restrict 
private land use.
    (18) Comment: One commenter stated that the Service is required to 
conduct a National Environmental Policy Act (NEPA) compliance analysis 
before finalizing the designation of proposed critical habitat in 
Washington, Oregon, and California.
    Our response: It is the position of the Service that preparation of 
environmental analysis pursuant to NEPA is not required prior to 
designation of critical habitat outside of the jurisdiction of the U.S. 
Court of Appeals for the Tenth Circuit. We published a notice in the 
Federal Register outlining our reasoning for this determination on 
October 25, 1983 (48 FR 49244), and our position has been upheld by the 
U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 
48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
    (19) Comment: One commenter requested an extension of the public 
comment period for the proposed critical habitat designation due to the 
Federal Government shutdown that occurred from October 1-16, 2013. The 
commenter stated that the shutdown effectively truncated the initial 
public comment period by 16 days. During the comment period opened for 
the DEA and proposed critical habitat designation on June 18, 2014, 
another commenter requested a reopening of the comment period to give 
the public additional time to review the DEA, including the 
perceptional effects memo.
    Our response: The Service is committed to receiving and evaluating 
feedback from all interested parties. We regret any difficulties 
experienced during the government shutdown. The comment period for the 
proposed critical habitat rule was extended an extra 15 days from 
October 28, 2013, until November 12, 2013. In addition, another comment 
period of 30 days was available from June 18, 2014, to July 18, 2014. 
We also reopened the comment period for an additional 14 days from 
September 9, 2014, to September 23, 2014.
    (20) Comment: A representative of Modoc County, California, 
asserted that the Service failed to follow Federal procedures when 
publishing the proposal to designate critical habitat for the Oregon 
spotted frog. The commenter cited case law holding that the Service is 
required to give actual notice to local governments of its intent to 
propose a species for listing.
    Our response: The ESA at 16 U.S.C. 1533(b)(5)(A)(ii) requires the 
Secretary to provide actual notice of a proposed critical habitat 
designation only to each county in which the species at issue is 
believed to occur. The Oregon spotted frog is not currently known or 
believed to occur in either Modoc or Siskiyou Counties in California; 
therefore, the Service did not provide notification of proposed 
critical habitat for the species to these counties. Notice was 
provided, however, to the counties where Oregon spotted frog does 
occur; these include Klickitat, Skagit, Skamania, Thurston, and Whatcom 
in Washington, and Deschutes, Jackson, Klamath, Lane, and Wasco 
Counties in Oregon.
    (21) Comment: One commenter stated that the Service failed to 
release viewable maps of the proposed designated habitat in the La 
Pine, Oregon, basin, and that residents and other stakeholders need to 
see in sufficient detail the areas that the Service proposes to 
designate.
    Our response: The Service provided the required maps in the 
proposal to designate critical habitat (78 FR 53538). In addition, the 
Service made maps with aerial photos and finer scale critical habitat 
unit boundaries available at http://www.regulations.gov and http://www.fws.gov/wfwo. The geographic information system shapefiles were 
also available for download at http://www.fws.gov/wfwo. In addition, 
the Service convened a public meeting in the La Pine, Oregon, area 
where larger scale maps were available for viewing. Therefore, the 
Service believes we have provided clear maps to inform the general 
public about the critical habitat designation.
    (22) Comment: One commenter requested both a public meeting and a 
public hearing and specifically requested that they be held in Siskiyou 
County, California.
    Our response: The Service held a public hearing in Lacey, 
Washington, on October 21, 2013. Public meetings were conducted in 
Deschutes County, Oregon, in December 2013 and Klamath County, Oregon, 
in September 2013. The Service did not accommodate the request to hold 
a public meeting or a public hearing in Siskiyou County, California, 
because we did not propose to designate any critical habitat in 
Siskiyou County, California, and as such, there are no affected parties 
in that county.
    (23) Comment: One commenter expressed concern that the designation 
of critical habitat would preclude small mining activities in southern 
Oregon and northern California and suggested that the designation of 
critical habitat would convert land from other ownership or designation 
to ownership by the Service as part of the wildlife refuge system.
    Our response: The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Critical habitat receives protection under 
section 7 of the Act through the requirement that Federal agencies 
ensure, through consultation with the Service, that any action they 
authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of critical habitat. Where a 
landowner requests Federal agency funding or authorization

[[Page 29342]]

for an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) of the Act would apply. If 
a consultation were to find that actions would result in the 
destruction or adverse modification of affected habitat, the obligation 
of the Federal action agency and the landowner in this case is not to 
restore or to recover the species, but to implement reasonable and 
prudent alternatives to avoid destruction or adverse modification of 
critical habitat. In light of this provision of the law, the Service 
does not agree that the designation of critical habitat will have the 
effects suggested by the commenter as implementation of any reasonable 
and prudent alternatives would not result in a change in land 
ownership.
Critical Habitat Delineation Criteria
    (24) Comment: Several commenters were unclear about the criteria 
used to designate critical habitat. Several commenters requested that 
unoccupied and currently unsuitable habitat be designated as critical 
habitat. Other commenters stated that areas included in the proposed 
designation of critical habitat should be removed for various reasons 
(e.g., fluctuating water levels and property boundaries) or that 
boundaries should be adjusted.
    Our response: We mapped critical habitat at a large spatial scale 
(1:24,000) using NWI and NAIP imagery, per parameters for publication 
within the Code of Federal Regulations. Because of the scale of 
mapping, there may be areas where the delineation of critical habitat 
in populated areas may not precisely include all of the habitat with 
PCEs, or may include some areas that do not have the PCEs. Based upon 
comments received, we refined the boundaries of the critical habitat 
delineation to align more closely with the areas containing the PCEs, 
in particular along the Deschutes River. However, due to the scale of 
mapping, the final critical habitat designation may still include 
developed areas such as lands covered by buildings, pavement, and other 
structures. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text and are not designated as critical habitat (See paragraph (3) in 
the rule portion of this document.).
    We acknowledge there may be portions of critical habitat units that 
are not known to be used, may not be consistently used, or may be 
currently unsuitable (see Criteria Used To Identify Critical Habitat). 
However, we have determined that all of the critical habitat units meet 
our definition of occupied at the time of listing and contain 
sufficient elements of physical or biological features to support 
Oregon spotted frog life-history processes. In addition, there are 
areas within these critical habitat units that are considered to be 
essential for the conservation of the species (and are, therefore, 
designated as critical habitat) even though Oregon spotted frog use or 
the presence of the physical or biological features may be uncertain, 
seasonal, or sporadic. Both areas outside the geographical area 
occupied by the species at the time of listing, as well as unsuitable 
areas located greater than 3.1 mi (5 km) upstream of habitat currently 
known to be used by Oregon spotted frog, are not likely to support 
Oregon spotted frogs without human intervention (i.e., translocation), 
and we have not determined that reestablishment in these unoccupied or 
unsuitable areas is essential for the conservation of the species. 
Therefore, there is no Oregon spotted frog critical habitat designated 
in unoccupied or unsuitable areas outside of currently known occupied 
sub-basins or farther than 3.1 mi (5 km) from habitat known to be used 
at the time of listing.
    One commenter suggested that Tumalo Creek in the Upper Deschutes 
River sub-basin be considered as critical habitat for Oregon spotted 
frog. Although Tumalo Creek contains wetland habitats similar to those 
that support Oregon spotted frog, there are no historical or current 
records that indicate that spotted frogs inhabit the Tumalo Creek 
watershed. Furthermore, Tumalo Creek is greater than a 3.1-mi (5-km) 
distance from occupied habitat. Therefore, Tumalo Creek does not meet 
our criteria for critical habitat designation.
    Reservoirs in the Upper Deschutes River sub-basin are used by 
Oregon spotted frogs. Although the current system of reservoir 
management results in significant fluctuations in water levels within 
the reservoirs, the increasing water depth from November to March 
provides overwintering habitat, and inundation of wetland areas along 
the reservoir margins allows for breeding to occur in the spring. The 
Service determined that PCEs are present in the reservoirs and that 
these PCEs vary spatially and temporally with reservoir storage and 
release operations. For example, Oregon spotted frog breeding habitat 
shifts depending on water elevation in the reservoirs. When water 
levels are too high for frogs to access breeding habitat, they move to 
shallow margins where habitat may be available. The Deschutes River and 
associated wetlands downstream of Wickiup Dam experience reduced water 
levels during the reservoir storage season (October through mid April), 
such that PCEs shift seasonally depending on water elevations in the 
areas downstream of the dam. Therefore, all of these geographic areas 
are included in the critical habitat designation.
    (25) Comment: Two commenters expressed confusion regarding the 
exclusion of deep water in our description of Critical Habitat Subunit 
8B in the preamble to the proposed rule and how the buffers were 
developed for the proposed critical habitat. One commenter questioned 
the application of buffers around waters that connect occupied habitat.
    Our response: See the responses to Comments 5 and 6 regarding our 
revised text description of areas along designated river miles that are 
considered to be critical habitat. We have removed language referring 
to the exclusion of deep water in the description of Critical Habitat 
Subunit 8B in the preamble to the final rule.
    (26) Comment: A few commenters were unclear about why the Service 
proposed critical habitat in wetlands and areas that have been 
extensively farmed in the past because most of these areas already 
receive protection under existing regulations and conservation 
programs, making additional regulation unnecessary. Two commenters 
stated that residential properties should be excluded from critical 
habitat because the existing regulatory mechanisms are adequate to 
protect the species and the designation of critical habitat would not 
provide additional regulatory benefits.
    Our response: We acknowledge that there are multiple regulatory 
mechanisms in both Washington and Oregon that afford some conservation 
benefits to the Oregon spotted frog. However, as determined in our 
final listing determination (79 FR 51658, August 29, 2014), current 
regulatory mechanisms are not adequate to reduce or remove threats to 
Oregon spotted frog habitat, particularly the threat of habitat loss 
and degradation. While some setbacks are required, not all ``wetlands'' 
are equivalent, and not all counties or States have equivalent 
regulations. Additionally, not all Oregon spotted frog habitat is 
classified as ``wetland'' under county or State regulations. In any 
case, while existing regulatory mechanisms are considered when listing 
a species, current regulatory protection is not a consideration in the 
determination of whether an area meets the definition of critical 
habitat. We are designating critical habitat within areas that we

[[Page 29343]]

identified as occupied by the species at the time of listing that 
contain the physical or biological features essential to the 
conservation of the species, and which may require special management 
consideration or protection.
    We are especially concerned about ongoing loss of wetlands due to 
both development (including urban and agricultural) and wetland 
modification from restoration and conservation programs that are 
actively planting willows and other riparian shrubs in wetland and 
riparian areas that currently provide egg-laying habitat. In the 
absence of a Federal nexus, designation of critical habitat does not 
impose an additional regulatory burden on private lands, but does serve 
to educate private landowners, as well as State and county regulators, 
of the importance of the area for the species.
    (27) Comment: One commenter expressed concern that no tribal lands 
were proposed as critical habitat despite appearing to have wetland 
habitat of similar quality to the wetlands proposed as critical 
habitat.
    Our response: The identification of critical habitat followed a 
specified protocol as set out in the proposed critical habitat rule and 
does not take land ownership into consideration. There are no areas 
currently known to be occupied by Oregon spotted frogs on tribally 
owned lands, nor are there areas not currently occupied that we 
determined to be essential for the conservation of the species. 
Therefore, Tribal lands have not been designated as critical habitat.
    (28) Comment: One commenter stated an opinion that the distribution 
of proposed critical habitat was strategically spread across the range 
of assumed historical Oregon spotted frog habitat and asked, if frogs 
were found in these areas, why would it not be possible that more 
populations of Oregon spotted frogs may be discovered to exist in other 
similar habitats?
    Our response: The distribution of critical habitat includes all 
sub-basins/watersheds that are currently known to be occupied. This 
distribution does not encompass the historical range. Sixteen sub-
basins in Puget Sound, Willamette Valley, and northern California, 
within which Oregon spotted frogs were historically documented, have 
not been included in the designation. While it is possible that other 
populations of Oregon spotted frogs may be located in the future, 
critical habitat units were established in sub-basins with positive 
detections no older than 2000.
    (29) Comment: Several commenters highlighted the value of beaver 
activity in maintaining suitable Oregon spotted frog habitat, pointing 
out that some areas adjacent to proposed critical habitat units 
currently have suitable habitat that was not included in the proposed 
designation. Two of these commenters suggested additional areas that 
they believed met the criteria for critical habitat due to beaver 
activity.
    Our response: As stated above, we propose critical habitat in the 
specific areas within the geographical area occupied by a species at 
the time it is listed on which are found those physical or biological 
features essential for the conservation of the species and which may 
require special management considerations or protection. In addition, 
if such areas are not adequate to provide for the conservation of the 
species, we may propose critical habitat in specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species. For more information on how we 
determined what areas to include in the final designation for the 
Oregon spotted frog, see our discussion in the section Criteria Used To 
Identify Critical Habitat.
    Based on information received, we proposed a refinement of unit 14 
in the Federal Register on June 18, 2014 (79 FR 34685). The refinement 
included an additional portion of the Buck Lake drainage system of 
canals, as well as a portion of Spencer Creek. Not all of the 
inclusions suggested by the commenters were included in the proposed 
refinements because, based on our delineation process, the refinements 
were limited to 3.1 mi (5 km) from the last known location occupied by 
Oregon spotted frog. We did not receive comments that disagreed with 
our refinements, therefore, the final designation includes the areas 
added through the refinement process.
    (30) Comment: A commenter from Jackson County, Oregon, argued that 
critical habitat should not be designated in Jackson County because 
only 245 ac (99 ha) of land in the county were proposed as critical 
habitat, which represents a very small proportion of the overall 
proposed acreage and is not essential to the recovery of the species. 
In addition, the commenter was concerned that the critical habitat 
proposed in this county would have a negative economic impact due to 
the current regulations governing the proposed acreage under the Oregon 
and California Railroad Revested Lands (O&C Lands) Act of 1937, which 
is administered by the Bureau of Land Management (BLM).
    Our response: The criteria for the designation of critical habitat 
can be found in the proposed rule, this final rule, and in the 
responses to Comments 8, 24, and 29. As required under the Act, the 
Service delineated the specific areas within the geographical area 
occupied by the species at the time of listing on which are found those 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. Regardless of the small amount of critical habitat in 
Jackson County, Oregon, these areas meet the definition of critical 
habitat for the species.
    The O&C Lands Act mandates the protection of watersheds as part of 
its regulatory function. The Oregon spotted frog population at Parsnips 
Lakes occurs entirely within the boundary of the Cascade-Siskiyou 
National Monument (CSNM). The presidential proclamation that 
established the monument reserved the CSNM in recognition of its 
remarkable ecology and to protect a diverse range of biological, 
geological, aquatic, archeological, and historic objects. The CSNM 
Management Plan (BLM 2008) promotes the protection, maintenance, 
restoration, or enhancement of monument resources as required by the 
proclamation. Because Oregon spotted frog conservation falls in line 
with the purpose and priorities of the CSNM, the critical habitat 
designation is not anticipated to add additional restrictions in this 
area.
    (31) Comment: One commenter requested that the Service clarify, and 
amend where necessary, the rule to omit manmade features such as golf 
courses, fairways, greens, cart paths, mowed rough areas, lawns, turf 
grass, landscaped areas, open meadows, pastures, walking paths, and 
other areas of nonnative vegetation. The rationale provided was that 
such areas have been excluded from other critical habitat designations 
because these manmade features are actively managed and no longer 
resemble native habitat.
    Our response: The Service determined in the final listing document 
(79 FR 51658, August 29, 2014) that the vegetated areas supporting 
Oregon spotted frogs are largely management-dependent and in many cases 
no longer contain native vegetation. Most of the known breeding areas, 
particularly in Washington, are located on lands that could be termed 
mowed rough areas, open meadows, pastures, and other areas of nonnative 
vegetation. The areas in Unit 8, specifically concerning to the 
commenter, are being excluded from critical habitat because the lands 
are being managed under a management

[[Page 29344]]

plan in such a way that the benefits of excluding outweigh the benefits 
of including these areas in critical habitat.
    The final critical habitat designation may still include developed 
areas such as lands covered by buildings, pavement, and other 
structures. Manmade structures (such as buildings, aqueducts, runways, 
roads, and other paved areas) and the land on which they are located 
that fall inside critical habitat boundaries shown on the maps of this 
final rule have been excluded by text and are not designated as 
critical habitat. See Criteria Used To Identify Critical Habitat and 
the responses to Comments 5, 6, and 24 for further information.
Occupancy
    (32) Comment: Two commenters questioned the Service's conclusion 
that the upper Klamath basin is occupied and argued that surveys 
conducted as recently as 2011 confirm that no Oregon spotted frogs 
occur in the areas where critical habitat has been proposed.
    Our response: We provided citations in both our proposed listing 
(78 FR 53582, August 29, 2013) and proposed critical habitat (78 FR 
53538, August 29, 2013) rules for the sources we relied upon for 
evidence that all three critical habitat units (Units 12, 13, and 14) 
in the Klamath basin are occupied by the Oregon spotted frog. These 
sources include data provided by the USFS, U.S. Geological Survey 
(USGS), BLM, and the Klamath Marsh National Wildlife Refuge (NWR). All 
of these sources document occupancy as recently as 2012, and we have 
received additional information further documenting occupancy in 2013. 
Therefore, we believe there is sufficient evidence supporting our 
determination of occupancy in the Klamath basin, specifically, within 
critical habitat Units 12, 13, and 14.
    (33) Comment: One commenter stated that the Service lacks 
population trend data for 90 percent of the known Oregon spotted frog 
populations and, without this information, the Service cannot determine 
how designating particular areas as critical habitat will affect those 
populations.
    Our response: A listing determination is an assessment of the best 
scientific and commercial information available regarding the past, 
present, and future threats to the Oregon spotted frog. While the loss 
of Oregon spotted frogs across the historical distribution and the 
status of the species within the current range is considered in the 
listing decision, the designation of critical habitat is focused on the 
ongoing and future threats to the PCEs and the special management 
necessary for the conservation of the species. All of the designated 
critical habitat units were known to be occupied by the species at the 
time of listing and contain the physical or biological features 
essential to the conservation of the Oregon spotted frog and require 
special management considerations or protection.
Primary Constituent Elements
    (34) Comment: One commenter expressed the opinion that wetted 
corridors alone do not necessarily provide Oregon spotted frog habitat 
and we should consider rephrasing PCE 2 to define aquatic movement 
corridors as those that contain slow-moving water, gradual topographic 
gradient, and emergent vegetation with a minimum summer water 
temperature (not provided by the commenter), and the presence of 
connectivity to other suitable habitats. The commenter stated that 
corridors that may be cold, high-velocity streams with no aquatic 
vegetation should not be considered critical habitat because frogs 
would avoid these areas. In addition, the commenter opined that 
movement corridors that do not connect occupied or suitable habitats 
(e.g., no suitable habitat downstream) should be removed from critical 
habitat.
    Our response: While we acknowledge that Oregon spotted frogs likely 
prefer slow-moving water, PCE 2 is intended to represent both movement 
corridors that are necessary for year-round movements between breeding, 
rearing, dry season, and overwintering habitat, as well as corridors 
that facilitate dispersal between occupied areas or into new areas. In 
addition, in many cases, streams may not maintain high velocity 
throughout the year. Therefore, these areas may also be defined with 
characteristics consistent with PCE 1 in addition to PCE 2.
    (35) Comment: One commenter questioned our lack of information 
regarding the presence and impacts of warm-water fishes in Oregon 
spotted frog areas because the information was extrapolated from 
impacts on other amphibian species.
    Our response: The microhabitat requirement of the Oregon spotted 
frog, unique among native ranids of the Pacific Northwest, exposes it 
to a number of introduced fish species (Hayes 1994, p. 25), such as 
smallmouth bass (Micropterus dolomieu), largemouth bass (Micropterus 
salmoides), pumpkinseed (Lepomis gibbosus), yellow perch (Perca 
flavescens), bluegill (Lepomis macrochirus), brown bullhead (Ameriurus 
nebulosus), black crappie (Pomoxis nigromaculatus), warmouth (Lepomis 
gulosus), and fathead minnow (Pimephales promelas) (Hayes and Jennings 
1986, pp. 494-496; Hayes 1997, pp. 42-43; Hayes et al. 1997; McAllister 
and Leonard 1997, p. 14; Engler 1999, pers. comm.) and mosquitofish 
(Gambusia affinis) (Wydoski and Whitney 2003, p. 163; Johnson 2008, p. 
5). Information presented in the Physical or Biological Features 
discussion is directly derived from Oregon spotted frog-specific 
studies. Factor C (Disease or Predation) in our final listing document 
(79 FR 51658, August 29, 2014) includes a more thorough discussion of 
the impacts resulting from the presence of nonnative fish species. Some 
of these references involve other western amphibians and closely 
related frog species. We often find it informative to consider 
appropriate research on closely related species, particularly when 
species-specific research is lacking. In this case, there is both 
direct Oregon spotted frog evidence, as well as evidence derived from 
closely related frog species. Further information on the sub-basins 
within which warm-water fish are known to occur is available in the 
Threats Synthesis document available at www.regulations.gov (docket 
#FWS-R1-ES-2013-0013). Accordingly, we maintain that the presence of 
warm-water fishes requires special management considerations, and, 
therefore, changes to the Physical or Biological Features section are 
unnecessary.
    (36) Comment: One commenter had questions about the definition of 
``barriers to movement'' and requested clarification on the parameters 
of the environment that constitute barriers.
    Our response: Impediments to upstream movement may include, but are 
not limited to, hard barriers such as dams, impassable culverts, and 
lack of water, or biological barriers, such as lakes or rivers/creeks 
without refugia from predators. Additional text clarifying this 
definition has been added to the Physical or Biological Features 
section of the preamble to this rule and the actual rule text.
    (37) Comment: One commenter disagreed with the Service's conclusion 
that PCEs are present and require special management on privately owned 
lands in Unit 6. The commenter further stated that Oregon spotted frogs 
are found in the unit because of the existing management on the private 
lands.
    Our response: Unit 6 is currently occupied by the Oregon spotted 
frog. The species carries out all life stages (egg laying, rearing, and 
over-wintering) in this unit, on all land ownerships. All

[[Page 29345]]

of the PCEs are present in this unit; however, it is not a requirement 
of critical habitat designation that all of the acres within each unit 
contain all of the PCEs. As the commenter points out, land managers are 
``managing'' the lands, such that Oregon spotted frogs remain present, 
which demonstrates that special management is required. Thus, the lands 
included in the designation for Unit 6 meet all of the criteria 
required to be designated as critical habitat. However, a number of 
these private lands that were proposed for critical habitat in Unit 6 
have been excluded from the final designation under section 4(b)(2) of 
the Act (see Comment 42 below and Exclusions Based on Other Relevant 
Impacts section).
Exclusions
    (38) Comment: Several commenters questioned the benefits of 
including private lands in the proposed designation of critical habitat 
and argued that the designation of critical habitat on private lands 
would discourage the kind of land stewardship that is beneficial to the 
Oregon spotted frog and its habitat. These commenters further argued 
that designation of critical habitat on private property could 
potentially limit future partnerships between the Service and private 
land holders. Some of these commenters requested that all private lands 
be excluded from critical habitat, stating that the exclusion of 
private lands would provide a greater conservation benefit than 
inclusion.
    Our response: Under the Act, critical habitat is defined as those 
specific areas within the geographical area occupied by the species at 
the time it is listed on which are found the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection; and specific 
areas outside of the geographical area occupied by the species at the 
time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. All of the 
critical habitat units designated for Oregon spotted frog were known to 
be occupied at the time the species was listed (79 FR 51658, August 29, 
2014). The Act does not provide for any distinction between land 
ownerships in those areas that meet the definition of critical habitat. 
However, the Act does allow the Secretary to consider whether certain 
areas may be excluded from final critical habitat. An area may be 
excluded under section 4(b)(2) of the Act if the benefits of excluding 
it outweigh the benefits of including it in critical habitat, unless 
that exclusion would result in the extinction of the species. With 
respect to private landowners, the Secretary has excluded private lands 
from the final designation of critical habitat in cases where 
conservation agreements or other partnerships resulted in a conclusion 
that the benefits of excluding those areas outweigh the benefits of 
including them in critical habitat (see Exclusions Based on Other 
Relevant Impacts section of this document). Unless a private landowner 
has an existing conservation agreement or an established partnership 
with the Service before the finalization of critical habitat (that 
provides a demonstrable conservation benefit to the Oregon spotted frog 
and its habitat), it is unlikely that there is a basis for concluding 
that the benefit of exclusion outweighs the benefit of inclusion.
    In areas occupied by a federally listed species and designated as 
critical habitat, Federal agencies are obligated under section 7 of the 
Act to consult with us on actions that may affect that species to 
ensure that such actions do not jeopardize the species' continued 
existence or adversely modify critical habitat. However, in the case of 
privately owned lands, there is a low likelihood of a Federal 
consultation responsibility (nexus) because Federal agencies rarely 
carry out discretionary actions on private land, and future Federal 
actions that might trigger such a Federal nexus are limited. Therefore, 
the regulatory benefit of including these lands in critical habitat is 
reduced.
    We encourage any landowner concerned about potential take of listed 
species on their property to contact the Service (see FOR FURTHER 
INFORMATION CONTACT) to explore options for developing a safe harbor 
agreement or HCP that can provide for the conservation of the species 
and offer management options to landowners associated with a permit to 
protect the party from violations under section 9 of the Act.
    (39) Comment: One commenter requested that the Service consider 
exclusion of all areas that would be covered under the proposed Upper 
Deschutes Basin Multispecies HCP. Alternately, the commenter requested 
that if these areas are not excluded from the designation of critical 
habitat, that these areas be removed from critical habitat upon 
completion of the HCP. Conversely, one commenter stated the Service 
should not exclude these areas because of the uncertainty regarding the 
final agreed-upon conservation measures applicable to the Oregon 
spotted frog.
    Our response: When deciding whether to exclude an area from 
designation of critical habitat under section 4(b)(2) of the Act, the 
Service assesses the level of assurance an entity can provide that it 
will actually fund and implement the conservation measures identified 
within the plan. The same process would hold true when evaluating the 
Upper Deschutes Basin Multispecies HCP. Because we have not received a 
complete draft of the HCP document to review in order to make an 
assessment and would require a final approved HCP, the Service declined 
to exclude these areas at this time. Removal of designated critical 
habitat upon future completion of an HCP would require an evaluation of 
the HCP through a separate rulemaking process to revise critical 
habitat.
    (40) Comment: One commenter stated that it is important for the 
Service to understand that the private landowners in Klickitat County, 
Washington, utilize irrigation water via their Washington State 
recorded and recognized water rights. The commenter further asserted 
that in Washington water rights are considered property rights and any 
regulatory actions that the Service might implement that limits or 
impairs those rights could be viewed as a taking and may be grounds for 
litigation from the private landowners. Finally, the commenter 
suggested that potential litigation could be avoided by not designating 
critical habitat on private property in Klickitat County.
    Our response: Though private lands may be subject to State or local 
governmental regulatory mechanisms, the designation of critical habitat 
on private lands has no Federal regulatory impact on the owner of such 
lands unless a Federal nexus is present. Where a landowner requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) of the Act would apply. If a consultation were to find 
that actions would result in the destruction or adverse modification of 
affected habitat, the obligation of the Federal action agency and the 
landowner is not to restore or to recover the species, but to implement 
reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat. In the Service's experience with 
other species, it is generally possible to devise such alternatives in 
a way that permits continued economic use of designated lands (also see 
response to comment 53).

[[Page 29346]]

    (41) Comment: One commenter requested the Service to consider 
excluding private lands within the Crosswater Resort that are managed 
according to the Crosswater Environmental Plan and private lands within 
the Sunriver Community that are managed according to the Sunriver Great 
Meadow Management Plan.
    Our response: Based on our analysis of these Plans and our 
determinations that the benefits of excluding lands covered by these 
plans outweigh the benefits of including them, we are excluding private 
lands within the Crosswater Resort and Sunriver Community from critical 
habitat. See Exclusions Based on Other Relevant Impacts for the 
complete analyses.
    (42) Comment: Three commenters requested that the Service consider 
excluding private lands within Unit 6 that will be operated under the 
Coordinated Resource Management Plan and Conservation Agreement between 
Glenwood Valley Ranchers and the Service.
    Our response: Based on our analysis of this Agreement and our 
determinations that the benefits of excluding lands covered by these 
plans outweigh the benefits of including them, we are excluding those 
private lands covered under the Agreement from critical habitat. See 
Exclusions Based on Other Relevant Impacts for the complete analyses.
    (43) Comment: One commenter requested that the Service consider 
excluding private lands within Unit 3 that will be operated under the 
Coordinated Resource Management Plan and Conservation Agreement between 
Skagit Valley Ranchers and the Service.
    Our response: Upon further coordination between the commenter and 
the Service, this request for exclusion was withdrawn.
Economic Analysis
    (44) Comment: Two commenters expressed concern that critical 
habitat would be designated before an economic analysis of the effects 
of critical habitat would be completed. Both commenters stated that 
their preferred timing of events would have included the availability 
of the completed economic analysis before the publication of the 
proposed critical habitat.
    Our response: Under the Act, the Service is required to consider 
economic impacts prior to finalizing the proposed designation of 
critical habitat, but not prior to the proposal of critical habitat. 
The DEA was made available for public review and comment on June 18, 
2014, in the Federal Register (79 FR 34685) and in a separate comment 
period that opened September 9, 2014 (79 FR 53384). We have considered 
all comments received on the DEA and proposed critical habitat 
designation in this final designation.
    (45) Comment: One commenter pointed out what appears to be an 
inconsistency within our Incremental Effects Memorandum (IEM) regarding 
how we expect private landowners in Washington to behave (i.e., fence-
off lands and discontinue management) versus private landowners in 
Oregon to behave (i.e., designing projects to be compatible with Oregon 
spotted frog needs) in response to a critical habitat designation. The 
commenter believes there is a lack of data to support this distinction 
and that Oregon landowners are ``almost certain'' to respond similarly 
to landowners in Washington.
    Our response: Even though the designation of critical habitat for 
Oregon spotted frog will not put any additional regulatory burden on 
private landowners in either Oregon or Washington, the reaction of 
landowners in Washington to the designation may be influenced by their 
previous experience working to comply with Washington State's stream 
management guidelines.
    The State of Washington developed water quality standards for 
temperature and intergravel dissolved oxygen that were approved by the 
Environmental Protection Agency in February 2008. The temperature 
standards are intended to restore thermal regimes necessary to protect 
native salmonids and sustain viable salmon populations. Water quality 
management plans developed by Washington State recommend planting trees 
and shrubs and excluding cattle from riparian areas to improve thermal 
conditions for salmonids. Some Washington landowners find it more 
expedient to fence off the riparian areas and reduce the perceived 
conflict between a State water quality regulation and the habitat 
necessary to support a listed species. The IEM anticipates that some 
landowners in Washington may respond to the designation of Oregon 
spotted frog critical habitat by installing fencing because that action 
is already a preferred option for these landowners in dealing with the 
proximity of their land to the habitat of listed salmonid species.
    The areas within proposed critical habitat in Oregon do not support 
ESA-listed salmonid species and, therefore, fencing of the riparian 
areas along the Little Deschutes River, where most of the private 
grazing lands occur, is not a common practice nor is it regulated by 
the implementation of water quality management plans. The Service held 
public meetings in Sunriver and La Pine, Oregon, in December 2013 for 
private landowners within the proposed critical habitat designation. 
During the meetings, the Service explained that grazing does not always 
result in a negative impact to critical habitat for the Oregon spotted 
frog. Rather, low-intensity grazing could be used to maintain breeding 
habitat for spotted frogs by improving ground-level solar exposure and 
maintaining early seral emergent vegetation within wetlands. The 
Service does not anticipate that private lands in Oregon will be fenced 
as they are in Washington State where water quality standards are 
designed to support salmon. The Service is already working with local 
Soil and Water Conservation Districts in Oregon to implement 
appropriate conservation practices for Oregon spotted frogs within the 
proposed critical habitat designation.
    (46) Comment: Several commenters assert that the Economic Screening 
Analysis does not adequately consider impacts to private landowners and 
local communities. One commenter states that the Economic Screening 
Analysis should include impacts associated with reductions in land 
value and income of landowners.
    Our response: As stated in the analysis, the quality of Oregon 
spotted frog habitat is closely linked to species survival. 
Specifically, the Service states that ``in occupied critical habitat, 
it is unlikely that an analysis would identify a difference between 
measures needed to avoid the destruction or adverse modification of 
critical habitat from measures needed to avoid jeopardizing the 
species.'' As such, section 7 impacts in occupied areas are anticipated 
to be limited to administrative costs. These costs include costs to 
private landowners, where applicable.
    In addition to these costs, the analysis discusses potential 
perceptional impacts that the critical habitat designation could have 
on the value of private land. The analysis recognizes that a property 
that is inhabited by a threatened or endangered species, or that lies 
within a critical habitat designation, could have a lower market value 
than an identical property that is not inhabited by the species or that 
lies outside of critical habitat. This lower value, if any, would 
result from a perception that critical habitat will preclude, limit, or 
slow development, or somehow alter the highest and best use of the 
property (e.g., grazing). Public attitudes about the restrictions and 
costs that the Act can impose can cause real economic effects to the 
owners of property, regardless of whether such restrictions are 
actually

[[Page 29347]]

imposed. Over time, as public understanding of the actual regulatory 
burden placed on designated lands grows, particularly where no Federal 
nexus compelling section 7 consultation exists, the perceptional effect 
of critical habitat designation on private properties may subside.
    (47) Comment: One commenter stated that extensive Federal funding 
for restoration activities in the Klamath Basin that is stipulated by 
various settlement agreements through the Klamath Basin Adjudication 
process will create a Federal nexus that is unaccounted for in the DEA.
    Our response: Our forecast of future actions likely to result in 
section 7 consultations include consultations associated with 
participation in Natural Resource Conservation Service and Farm Service 
Agency programs such as the Wetland Reserve Enhancement Program, the 
Conservation Reserve Enhancement Program, and the Environmental Quality 
Incentives Program in the critical habitat area. As such, our analysis 
does include a Federal nexus and includes administrative cost estimates 
related to section 7 consultations for the restoration projects in 
these areas.
    (48) Comment: One commenter asked if the Economic Screening 
Analysis surveyed private landowners in order to detail types of land 
use.
    Our response: A survey of private landowners was not conducted as 
part of the Economic Screening Analysis. However, based on information 
in the proposed rule, the Incremental Effects Memorandum, as well as 
visual examination of satellite imagery of the designation, we 
determined that the proposed critical habitat for the Oregon spotted 
frog on privately owned lands is located mainly in areas that are 
seasonally flooded, protected from development by county restrictions, 
and/or are used for grazing or crop agriculture; the primary use of 
land within the designation is for livestock grazing.
    (49) Comment: Two commenters took issue with the Service's 
assumption that Federal agencies will treat unoccupied areas as if they 
were occupied for purposes of section 7 consultation, stating that 
relying on this assumption causes the Economic Screening Analysis to 
underestimate the economic impacts of critical habitat designation for 
the Oregon spotted frog. In unoccupied areas, the commenters believe 
that incremental economic impacts should include costs associated with 
project modifications, delay, and restrictions on land use.
    Our response: In the proposed critical habitat rule (78 FR 53538, 
August 29, 2013), the Service proposed to designate areas that were 
currently ``not known to be occupied.'' The Service has since 
reclassified these areas as ``occupied'' based on the fact that these 
areas are within occupied sub-basins, contain habitat features similar 
to known occupied areas, are hydrologically connected (via surface 
waters) to occupied areas, and do not contain barriers that would 
inhibit Oregon spotted frog movement between occupied areas. The 
Service recognizes that the physical or biological features may only be 
present seasonally in some areas because aquatic systems are not 
static; water levels fluctuate between seasons, severe flood events 
occur, and beavers abandon and recolonize sites. As a result of these 
changing habitat conditions, some areas may only be occupied 
intermittently or seasonally; however, we consider the entire critical 
habitat unit to be occupied. Therefore, impacts in these areas are 
anticipated to be limited to administrative costs.
    (50) Comment: One commenter stated that some of the private lands 
considered in the perceptional effects analysis are used for hay 
production rather than grazing and the value of irrigated land is 
considerably higher than non-irrigated rangeland.
    Our response: The analysis recognizes that the proposed critical 
habitat for the Oregon spotted frog on privately owned lands is located 
primarily in areas that are seasonally flooded, protected from 
development by county restrictions, and/or are used for grazing or crop 
agriculture. It also recognizes that public perception of critical 
habitat impacts may diminish land values by some percent of these total 
values, though it is unlikely that total land values would be lost due 
to these perceived economic impacts. However, because data limitations 
prevent us from estimating the size of this percent reduction or its 
attenuation rate, the analysis used USDA National Agricultural 
Statistics Service pasture-land-per-acre values data to estimate the 
per-acre value for agricultural lands. We applied this value to all 
private acres other than those considered to be developable for 
residential use. To the extent that the value of some of these acres 
is, in fact, higher, this total value would be underestimated. However, 
we reiterate that perceived economic effects are likely to represent 
only a portion of the total value of the properties. Hence, it is 
uncertain to what extent this effect would be understated by figures 
reported.
    (51) Comment: One commenter asserted that the Service has the 
ability to sue or threaten to sue private landowners if the Service 
deems take or potential harm to the species or if the Service deems 
that modification of critical habitat has occurred.
    Our response: Designation of critical habitat has no effect on the 
liability of non-Federal parties for actions that may affect listed 
species. While private landowners may be liable for civil or criminal 
penalties under section 9(a)(1) of the Act for actions that harm the 
Oregon spotted frog, any such liability would arise from the listing of 
the species, and not from the designation of critical habitat. Absent 
evidence of harm to Oregon spotted frogs, the Act does not give the 
Service authority to institute an enforcement action for modification 
of critical habitat on private lands.
    (52) Comment: One commenter stated that the Economic Screening 
Analysis fails to consider costs associated with ``potentially modified 
management of storage levels and releases from Wickiup, Crane Prairie, 
and Crescent Lake Reservoirs.'' The commenter included an Economic 
Review conducted by Highland Economics, which concludes that a 10 
percent reduction in water to Deschutes River water districts would 
result in total direct economic losses of approximately $4.3 million 
related to farm income and hydroelectric generation losses, and 
additional indirect and induced regional losses of approximately $3.5 
million. The Economic Review also suggests that reduction in water 
supplies could have adverse impacts on recreation and tourism in the 
area.
    Our response: As stated in Section 2, the Economic Screening 
Analysis considers effects of the designation of critical habitat that 
are incremental to the baseline for the analysis. The baseline includes 
the economic impacts of listing the species under the Act, even if the 
listing occurs concurrently with critical habitat designation. Wickiup, 
Crane Prairie, and Crescent Lake Reservoirs are occupied by the Oregon 
spotted frog (see the responses to comments 24 and 46). Because the 
quality of Oregon spotted frog habitat is closely linked to species 
survival, the Service states that ``in occupied critical habitat, it is 
unlikely that an analysis would identify a difference between measures 
needed to avoid the destruction or adverse modification of critical 
habitat from measures needed to avoid jeopardizing the species.'' 
Therefore, most costs associated with section 7 impacts to Oregon 
spotted frog habitat at these reservoirs would be

[[Page 29348]]

included in the baseline, and any incremental section 7 costs 
associated with the critical habitat designation are anticipated to be 
limited to administrative costs.
    (53) Comment: One commenter stated that the Economic Screening 
Analysis should take into account beneficial uses of water rights. The 
commenter further stated that there are numerous privately held water 
rights for diversion and use of water totaling tens of thousands of 
acre-feet within Unit 6, Middle Klickitat River. The commenter 
mentioned one specific water right claim within Unit 6 of 33,500 acre 
feet, which the commenter estimated could be valued at $25 million to 
$122 million. The commenter also stated that the issue of takings is 
addressed in the supplemental proposed rule (79 FR 34685, June 18, 
2014) where it states that it is not likely that economic impacts on a 
property owner would be of a sufficient magnitude to support takings 
action. The commenter questioned whether the Service considered the 
value of water rights and the economic impacts associated with 
restricting the beneficial use of these rights when it made this 
determination regarding the likelihood of takings.
    Our response: The issue that the commenter raises rests on an 
assumption that the presence of critical habitat designation would 
restrict use of the water rights held by private landowners whose lands 
fall within the critical habitat designation. However, the rationale 
for this assumption is not explained. Indeed, it is unlikely that any 
restrictions on the beneficial use of water rights would occur as a 
result of critical habitat designation for two primary reasons. First, 
many actions that involve the beneficial use of water rights do not 
involve a Federal nexus; hence, critical habitat could have no direct 
effect. Second, as noted previously in this document, we consider the 
proposed critical habitat areas to be occupied by the species. Thus, we 
would expect that, even if water rights are held on a system that 
involved a Federal nexus, and a consultation occurred that resulted in 
a change in the availability of water in the system for beneficial use, 
this action would occur even without critical habitat designation and, 
hence, is not appropriately characterized as an incremental impact of 
critical habitat designation.
    (54) Comment: Multiple commenters expressed concern about the 
economic impact of the designation of critical habitat on grazing and 
associated activities. One commenter stated that the Economic Screening 
Analysis does not provide a complete analysis of impacts to grazing 
conducted on Federal lands because grazing on Federal lands could be 
restricted, removed, or modified. Specifically, the commenter feared 
that critical habitat designation could delay turn-out dates for cattle 
grazing or result in other seasonal restrictions. One commenter stated 
that the Economic Screening Analysis should include costs per animal 
unit months (AUM) associated with the feeding of hay to cattle and use 
of alternative pastures during non-use periods. One commenter also 
stated that the Service should consider impacts to haying including 
those related to altered planting and harvest dates, or irrigation 
schedules.
    Our response: See the response to Comment 52. Consultations for 
grazing activities on Federal lands are anticipated in areas proposed 
as critical habitat for the Oregon spotted frog. However, economic 
impacts of critical habitat designation are expected to be limited to 
additional administrative effort to consider adverse modification in 
section 7 consultations. This finding is based on the following 
factors: (1) In occupied areas, activities with a Federal nexus will be 
subject to section 7 consultation requirements regardless of critical 
habitat designation, due to the presence of the listed species; (2) in 
areas not known to be occupied, agencies are in most cases likely to 
treat areas as potentially occupied due to their proximity to occupied 
areas; and (3) project modifications requested to avoid adverse 
modification are likely to be the same as those needed to avoid 
jeopardy.
    (55) Comment: One commenter stated that the Economic Screening 
Analysis is inconsistent in how it presents incremental costs. The 
commenter noted that the Economic Screening Analysis presents 
incremental costs as costs associated with all known future actions at 
one point, and as costs in a typical year at another point.
    Our response: The Economic Screening Analysis includes all known 
probable projects that may affect the critical habitat designation 
which may require consultation under section 7 of the Act. Timing of 
many of these projects is unknown, thus the analysis conservatively 
assumes that all projects would occur in the first year following 
designation (approximately a total of $190,000 in administrative 
costs), even though it is likely some projects will not be implemented 
that quickly. In the summary of the Screening Analysis (p. 15), we say, 
``The economic impacts of implementing the rule through section 7 of 
the Act are expected to be limited to additional administrative effort 
to consider adverse modification in section 7 consultations, which are 
not expected to exceed $200,000 in a typical year.'' If $190,000 is 
anticipated to be the maximum (most conservative) total administrative 
cost of the critical habitat designation incurred in a year, then a 
typical year would not have greater administrative costs than $200,000.
    (56) Comment: Two commenters stated that the Service does not show 
costs of section 7 consultation to a private landowner.
    Our response: Private landowners are not involved in section 7 
consultation unless there is a nexus with a Federal agency action, such 
as issuance of a permit to a private landowner. Exhibit 3 of the 
Economic Screening Analysis presents average consultation costs applied 
in the analysis. The costs estimates are based on data from Federal 
Government Schedule Rates and a review of consultation records from 
several Service field offices across the country conducted in 2002. 
Exhibit 3 separates costs specific to third parties, which includes 
private landowners involved in section 7 consultations. Third party 
costs range from between $260 and $880 per consultation. For further 
clarification, see response to Comment 54.
    (57) Comment: One commenter stated that the Economic Screening 
Analysis is inadequate in its consideration of perceptional costs. The 
commenter questioned the use of a bounding analysis and states that the 
Economic Screening Analysis should quantify specific perceptional 
impacts rather than simply concluding that these impacts are more than 
zero but less than $100 million. The commenter also states that the 
analysis' consideration of perception costs is flawed because it 
defines the incremental perceptional costs too narrowly. Another 
commenter suggested that the Service show the reduction in private land 
values by multiplying per-acre values by critical habitat acres across 
the range of the Oregon spotted frog.
    Our response: The findings on perceptional impacts presented in the 
Economic Screening Analysis are supported by the memorandum on 
Supplemental Information on Perceptional Effects on Land Values. In 
this memorandum, we estimate the total land value for developable acres 
in Unit 9 of the designation to be approximately $42 million. In 
addition, we estimate the total value of private acreage used for 
grazing in other units to be approximately $12 million by applying U.S. 
Department of Agriculture (USDA) National Agricultural Statistics 
Service

[[Page 29349]]

pasture land per-acre values. Because data availability limits our 
ability to estimate what percentage of these values would be lost as a 
result of perceptional effects, we conservatively estimate that the 
full value is lost. Therefore, we conclude that the critical habitat 
designation for the Oregon spotted frog is unlikely to generate costs 
exceeding $100 million in a single year.
    (58) Comment: One commenter stated that the Economic Screening 
Analysis should consider the loss of Federal lands intermingled with 
private lands and entire pastures adjacent to critical habitat. The 
commenter stated that the closing off of proximate riparian areas may 
result in negative impacts to the value and income utility of large 
swaths of pastureland. The commenter went on to state that the benefits 
from these pasture lands are often higher than the value of the land, 
and suggested that the Economic Screening Analysis consider the annual 
loss of reduced benefits of the land rather than the one-time value. 
The commenter further suggested quantifying the costs of fencing and 
developing alternative water sources.
    Our response: Grazing activities on private lands typically do not 
have a Federal nexus and, therefore, would not be directly affected by 
section 7 consultation. In a section 7 consultation with a Federal 
agency, the Service may recommend excluding grazing from certain 
riparian areas; however, we anticipate that we would do so because of 
the presence of the listed frog, and not solely because the areas are 
critical habitat. Therefore, other than some additional administrative 
costs, potential economic impacts associated with these actions, 
including the cost of fencing and water source development, as well as 
any quantifable loss in benefit of the land, are anticipated to occur 
even absent critical habitat designation and are, therefore, considered 
part of the baseline for the economic analysis. Any measures to avoid 
adverse modification of critical habitat would be the same as those 
required by the Service to avoid jeopardy to the species.
    In addition to administrative costs, the Economic Screening 
Analysis recognizes potential perceptional impacts that the critical 
habitat designation could have on private land value. Public attitudes 
about the limits and costs that the Act may impose can cause real 
economic effects to the owners of property, regardless of whether such 
limits are actually imposed. Over time, the perceptional effect of 
critical habitat designation on properties may subside as the public 
gains a better understanding of the regulatory burden, or lack thereof, 
placed on designated lands (particularly where no Federal nexus 
compelling section 7 consultation exists). Economic benefits of grazing 
lands are captured by the one-time land values used in our analysis.
    (59) Comment: Multiple commenters stated that the screening 
analysis only focuses on costs and ignores benefits of the designation. 
Several commenters suggested that tourism and recreation would benefit 
from the designation of critical habitat for the Oregon spotted frog, 
highlighting the contributions that protected riverine ecosystems bring 
to the local economy. Two commenters requested that the economic 
analysis specifically take into consideration the economic benefits 
that the designation of critical habitat could impart to Oregon in 
tourism and recreation dollars based on the preservation of healthy 
riverine ecosystems. One commenter specifically identified benefits to 
fisheries as being excluded from the analysis. One commenter suggested 
that the economic analysis be conducted by an independent third party 
in order to examine the true economics, including the benefits of a 
healthier river.
    Our response: Portions of the economic analysis were conducted by 
an independent third party. As stated in Section 5 of the screening 
analysis, the primary intended benefit of critical habitat designation 
for the Oregon spotted frog is to support the species' long-term 
conservation. Critical habitat designation may also generate ancillary 
benefits, which are defined as favorable impacts of a rulemaking that 
are typically unrelated, or secondary, to the statutory purpose of the 
rulemaking. Critical habitat aids in the conservation of species by 
protecting the PCEs on which the species depends. To this end, 
management actions undertaken to conserve a species or habitat may have 
coincident, positive social welfare implications, such as increased 
recreational opportunities in a region or improved property values on 
nearby parcels. Quantification and monetization of species conservation 
benefits requires information on: (1) The incremental change in the 
probability of frog conservation that is expected to result from the 
designation; and (2) the public's willingness to pay for such 
beneficial changes. If water management activities change as a result 
of the critical habitat designation, various benefits could occur 
within aquatic ecosystems, including improvements in the quality of 
recreational activities. If perceptional effects cause changes in 
future land use, benefits to the species and environmental quality may 
also occur. However, due to existing data limitations, we are unable to 
assess the magnitude of such potential benefits.
    (60) Comment: One commenter stated that the Screening Analysis 
should consider whether the benefits of exclusion of a particular area 
outweigh the benefits of specifying that area as critical habitat. One 
commenter stated that the Screening Analysis overstates the 
conservation benefits that may result from the proposed designation. 
The commenter stated that the Screening Analysis discusses benefits in 
only a very general way, which results in an overstatement of the 
conservation benefits of the proposed designation.
    Our response: The lack of quantification of benefits is not 
intended to suggest that the proposed designation will not result in 
benefits. As stated in Section 5 of the Screening Analysis, 
quantification and monetization of species conservation benefits 
requires information on the incremental change in the probability of 
Oregon spotted frog conservation that is expected to result from the 
designation and the public's willingness to pay for such beneficial 
changes. These sorts of data are unavailable for the frog, thus 
precluding quantification of benefits.
    (61) Comment: One commenter stated that the Screening Analysis 
should consider small business impacts. The commenter also disagreed 
with the statement that, because no small entities are directly 
regulated by the rulemaking, the proposed critical habitat designation 
will not have a significant economic impact on a substantial number of 
small entities.
    Our response: Under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), Federal agencies are only required to evaluate the potential 
incremental impacts of a rulemaking on directly regulated entities. The 
regulatory mechanism through which critical habitat protections are 
realized is section 7 of the Act, which requires Federal agencies, in 
consultation with the Service, to ensure that any action authorized, 
funded, or carried out by the Agency is not likely to adversely modify 
critical habitat. Therefore, only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction or 
adverse modification of critical habitat) imposed by critical habitat 
designation. Under these circumstances, it is the Service's position 
that only Federal action agencies will be directly regulated by this 
designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the critical habitat rule will 
not have a significant economic impact on a substantial

[[Page 29350]]

number of small entities. Because certification is possible, no 
regulatory flexibility analysis is required.

Summary of Changes From Proposed Rule

    We are designating a total of 65,038 ac (26,320 ha) and 20.3 river 
mi (32.7 km) of critical habitat for the Oregon spotted frog. We 
received a number of site-specific comments related to critical habitat 
for the species, completed our analysis of areas considered for 
exclusion under section 4(b)(2) of the Act or for exemption under 
section 4(a)(3) of the Act, reviewed the application of our criteria 
for identifying critical habitat across the range of these species to 
refine our designations, and completed the final economic analysis of 
the designation as proposed. We fully considered all comments from the 
public and peer reviewers on the proposed rule and the associated 
economic analysis to develop this final designation of critical habitat 
for Oregon spotted frog. This final rule incorporates changes to our 
proposed critical habitat based on the comments that we received and 
have responded to in this document.
    Some technical corrections to the document including our final 
designation of critical habitat reflect the following changes from the 
proposed rule as summarized here:
    (1) Based on comments received from Whatcom County, WDOE, WDFW, and 
the Environmental Protection Agency, we have revised Unit 1 by removing 
Swift Creek and the Sumas River downstream from the confluence with 
Swift Creek. The final critical habitat designation is reduced by 137 
acres (55 hectares) and 3.2 river mi (5.1 river km) from the proposed 
rule.
    (2) In the proposed rule, we did not identify the scale at which 
occupancy was to be determined. Therefore, the proposed rule included 
occupied and ``not known to be occupied'' segments within a single 
critical habitat unit. In this final rule, we have clarified the scale 
of occupancy to be a sub-basin (hydrologic unit code 8, 4th field 
watershed) or 5th field watershed when more appropriate (hydrologic 
unit code 10). Therefore, all designated critical habitat units are 
known to be occupied at the time the species was listed in 2014, and 
language pertaining to ``not known to be occupied'' critical habitat 
has been removed. For further information, see Criteria Used To 
Identify Critical Habitat.
    (3) Trout Lake Natural Area Preserve was not excluded, based on 
comments received from WDNR.
    (4) Based on comments received regarding the complexity with 
implementing the textual exclusion of the deep-water areas, we have 
removed language referring to the exclusion of deep water from the unit 
description of Critical Habitat Subunit 8B in the preamble to this 
final rule.
    (5) Based on comments received, we have revised the boundaries of 
the critical habitat delineation within Units 8 and 9 using NAIP 
imagery to align more closely with the areas containing the PCEs. The 
areas where boundaries were refined are primarily along the Deschutes 
and Little Deschutes Rivers where developed areas do not provide PCEs. 
These refinements resulted in a net removal of approximately 45 ac (18 
ha) in Subunit 8a and 207 ac (84 ha) in Unit 9. In Subunit 8A, a 
segment of the Deschutes River was removed from final critical habitat 
designation because it did not contain the PCEs nor could it contain 
PCEs in the future due to the geometry of the river channel (narrow and 
steep gradient) and distance (i.e., greater than 3.1 mi (5 km)) from 
known populations of Oregon spotted frogs. This segment of the 
Deschutes River (approximately 88 ac (36 ha) of proposed critical 
habitat was also ground-verified for presence of PCEs, and the Service 
determined that the PCEs were not present.
    (6) Minor corrections in acres and river miles were made to correct 
errors made in the area calculations found between proposed and final. 
Updated ownership layers were used to calculate final acres/river 
miles, resulting in increased acres/river miles for some land 
ownerships (Units 4, 6, and 13) and decreased acres/river miles for 
others (Units 4 and 12), even though no other changes were made. In 
Unit 7, 6 ac (2 ha), were incorrectly double-counted in the proposed 
refinement (79 FR 34685, June 18, 2014), and the final critical habitat 
acres have been adjusted accordingly.
    (7) A total of 3,083 ac (1,248 ha) has been excluded under section 
4(b)(2) in three units: 2,627 ac (1,062 ha) in Unit 6; 335 ac (136 ha) 
in Subunit 8a; and 121 ac (49 ha) in Unit 9.
    Due to these changes in our final critical habitat designation, we 
have updated unit descriptions and critical habitat maps, all of which 
can be found later in this document. This final designation of critical 
habitat represents a reduction of 3,463 ac (1,401 ha) and 3.2 river mi 
(5.1 river km) from our proposed critical habitat for Oregon spotted 
frog for the reasons detailed above.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement

[[Page 29351]]

reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (PCEs such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. PCEs 
are those specific elements of the physical or biological features that 
provide for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may 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, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. 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, HCPs, or 
other species conservation planning efforts if new information 
available at the time of these planning efforts calls for a different 
outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Oregon spotted frog from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on August 29, 2013 (78 FR 53538), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on August 29, 2014 
(79 FR 51658). We have determined that the Oregon spotted frog requires 
the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

    The Oregon spotted frog is the most aquatic native frog species in 
the Pacific Northwest, as it is the only frog species that does not 
have a terrestrial life stage. It is found in or near perennial bodies 
of water, such as springs, ponds, lakes, sluggish streams, irrigation 
canals, and roadside ditches. For completion of their life cycle, 
Oregon spotted frogs require shallow, stable water areas for egg and 
tadpole survival and development; perennial, deep, moderately vegetated 
pools for adult and juvenile survival in the dry season; and perennial 
water overlying emergent vegetation for protecting all age classes 
during cold wet weather (Watson et al. 2003, p. 298; Pearl and Hayes 
2004, p. 18). This scenario essentially equates to ``an expansive 
meadow/wetland with a continuum of vegetation densities along edges and 
in pools and an absence of introduced predators'' (Watson et al. 2003, 
p. 298).
    Oregon spotted frogs exhibit fidelity to seasonal pools throughout 
all seasons (breeding, dry, and wet) (Watson et al.

[[Page 29352]]

2003, p. 295), and these seasonal pools need to be connected by water, 
at least through the spring and again in the fall, for frogs to access 
them. Subadult and adult frogs may be able to make short terrestrial 
movements, but wetted movement corridors are preferred. A wetted 
movement corridor with a gradual topographic gradient (less than or 
equal to three percent) is necessary to enable tadpole movement out of 
shallow egg-laying sites into deeper, more permanent water, as water 
levels recede during the dry season (Watson et al. 2003, p. 298; Pearl 
and Hayes 2004, p. 20). Impediments to upstream movement may include, 
but are not limited to, hard barriers such as dams, impassable 
culverts, lack of water, and biological barriers, such as lakes or 
rivers/creeks without refugia from predators.
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide space for their individual and population growth and 
for normal behavior: (1) Perennial bodies of water (such as, but not 
limited to springs, ponds, lakes, and sluggish streams) or other water 
bodies that retain water year round (such as irrigation canals or 
roadside ditches) with a continuum of vegetation densities along edges; 
(2) a gradual topographic gradient that enables movement out of shallow 
oviposition (egg-laying) sites into deeper, more permanent water; and, 
(3) barrier-free movement corridors.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    The ecosystems utilized by Oregon spotted frogs have inherent 
community dynamics that sustain the food web. Habitats, therefore, must 
maintain sufficient water quality to sustain all life stages, as well 
as acceptable ranges for maintaining the underlying ecological 
community. These key physical parameters include pH, dissolved oxygen, 
temperature, nutrients, and uncontaminated water (see Water Quality and 
Contamination is the Final Listing Document (79 FR 51688-51690).
    For tadpoles and frogs living in productive wetland habitats, food 
is not usually a limiting factor. Post-metamorphic Oregon spotted frogs 
are opportunistic predators feeding on live animals found in or near 
water (important prey species information is provided in the life-
history section of our final listing rule published in the Federal 
Register on August 29, 2014 (79 FR 51658)). Tadpoles are grazers, 
having rough tooth rows for scraping plant surfaces and ingesting plant 
tissue and bacteria, algae, detritus, and probably carrion (Licht 1974, 
p. 624; McAllister and Leonard 1997, p. 13). Competitors for food 
resources include nonnative fish species, bullfrogs, and green frogs.
    Pearl and Hayes (2004, pp. 8-9) posit that Oregon spotted frogs are 
limited by both latitude and elevation to areas that provide warm-water 
marsh conditions (summer shallow water exceeding 68 degrees Fahrenheit 
(F) (20 degrees Celsius (C)) based on the observed temperatures and 
slow developmental rates in egg stages (compared to other pond-breeding 
ranid frogs) and increased surface activity in adult frogs as water 
temperatures exceed 68 degrees F (20 degrees C) and when the 
differentiation between surface and subsurface is greater than 37 
degrees F (3 degrees C) (Watson et al. 2003, p. 299). Warmer water is 
important for embryonic development and plant food production for 
larval rearing (Watson et al. 2003, p. 299) and to allow subadults and 
adults to bask.
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for their nutritional and physiological requirements: 
(1) Sufficient quality of water to support habitat used by Oregon 
spotted frogs (including providing for a sufficient prey base); (2) 
absence of competition from introduced fish and bullfrogs; and (3) 
shallow (warmer) water.

Cover or Shelter

    During the dry season, Oregon spotted frogs move to deeper, 
permanent pools or creeks and show a preference for areas with greater 
than 50 percent surface water and/or less than 50 percent vegetation 
closure (Watson et al. 2003, pp. 295, 297), avoiding dense stands of 
grasses with greater than 75 percent closure. They are often observed 
near the water surface basking and feeding in beds of floating and 
shallow subsurface vegetation (Watson et al. 2003, pp. 291-298; Pearl 
et al. 2005a, pp. 36-37) that appears to allow them to effectively use 
ambush behaviors in habitats with high prey availability. The off-shore 
vegetation mats also offer basking habitat that is less accessible to 
some terrestrial predators (Pearl et al. 2005a, p. 37). Proximity to 
escape cover such as aggregated organic substrates also may be 
particularly important for Oregon spotted frogs to successfully evade 
avian, terrestrial, and amphibian predators (Licht 1986b, p. 241; 
Hallock and Pearson 2001, pp. 14-15; Pearl & Hayes 2004, p. 26).
    Oregon spotted frogs, which are palatable to fish and bullfrogs 
(see Factor C. Disease or Predation in our final listing rule published 
in the Federal Register on August 29, 2014 (79 FR 51658)), did not 
evolve with introduced species and, in some areas, such as high-
elevation lakes, did not evolve with native fish. Therefore, Oregon 
spotted frogs may not have the mechanisms to avoid the fish that prey 
on the tadpoles. The warm-water microhabitat requirement of the Oregon 
spotted frog, unique among native ranids of the Pacific Northwest, 
exposes it to a number of introduced fish species (Hayes 1994, p. 25), 
the most common being brook trout (Salvelinus fontinalis). During 
drought years, as dropping water levels reduce wetland refuges, Oregon 
spotted frog larvae become concentrated and are exposed to brook trout 
predation (Hayes et al. 1997, p. 5; Hayes 1998a, p. 15), resulting in 
lower Oregon spotted frog recruitment (Pearl 1999, p. 18). Demographic 
data suggest introduced fish have a negative effect on Oregon spotted 
frogs because sites with significant numbers of brook trout and/or 
fathead minnow have a disproportionate ratio of older spotted frogs to 
juvenile frogs (i.e., poor recruitment) (Hayes 1997, pp. 42-43). Winter 
survival rates of Oregon spotted frog males and females are higher in 
overwintering locations where nonnative fish have limited or no access 
(Chelgren et al. 2008, p. 749), and the associated breeding areas have 
a significantly higher (0.89 times) number of egg masses (Pearl et al. 
2009a, p. 142). Predation is believed to be more pronounced in 
spatially constrained overwintering habitats where frogs and fish both 
seek flowing water with dissolved oxygen; however, these negative 
effects can be mediated by habitat complexity and the seasonal use of 
microhabitats, and Oregon spotted frogs can benefit from fish-free 
overwintering sites, even if fish are present in other local habitats 
(Pearl et al. 2009a, p. 143). In addition, nonnative fish (in 
particular wide-gape fish like bluegill sunfish) may be facilitating 
the distribution and abundance of bullfrogs by preying upon 
macroinvertebrates that would otherwise consume bullfrog tadpoles 
(Adams et al. 2003, p. 349).
    Bullfrogs share similar habitat and temperature requirements with 
the Oregon spotted frog, but adult bullfrogs achieve larger body size 
than native western ranids and even juvenile bullfrogs can consume 
post-metamorphic native frogs (Hayes and Jennings 1986, p. 492; Pearl 
et al. 2004,

[[Page 29353]]

p. 16). In addition, bullfrog larvae can outcompete or displace native 
larvae from their habitat or optimal conditions by harassing native 
larvae at feeding stations or inhibiting native larvae feeding patterns 
(Kupferberg 1997, pp. 1741-1746, Kiesecker and Blaustein 1998, pp. 783-
784, Kiesecker et al. 2001b, pp. 1966-1967). Therefore, Oregon spotted 
frogs require areas that are sheltered from competition with, or 
predation by, bullfrogs.
    Within the current range of the Oregon spotted frog are two 
different winter regimes. In British Columbia and Washington, the Puget 
Trough climate is maritime with mild summer and winter temperatures. 
Subfreezing conditions occur only for short periods in November through 
March, but ice rarely persists for more than a week. The Cascades 
winter conditions are cold enough to produce ice-capped water bodies 
from December to February, and temperatures regularly extend below 
freezing between mid-October and early April. Known overwintering sites 
are associated with flowing systems, such as springs and creeks, that 
provide well-oxygenated water (Hallock and Pearson 2001, p. 15; Hayes 
et al. 2001, pp. 20-23; Tattersall and Ultsch 2008, pp. 123, 129, 136) 
and sheltering locations protected from predators and freezing 
conditions (Risenhoover et al. 2001b, pp. 13-26; Watson et al. 2003, p. 
295; Pearl and Hayes 2004, pp. 32-33). Oregon spotted frogs may burrow 
in mud, silty substrate, or clumps of emergent vegetation during 
periods of prolonged or severe cold (Watson et al. 2003, p. 295; 
McAllister and Leonard 1997, p. 17) but may remain active throughout 
most of the winter (Hallock and Pearson 2001, p. 17). Therefore, 
overwintering habitat needs to retain water during the winter (October 
through March or early April), and, to facilitate movement, these areas 
need to be hydrologically connected via surface water breeding and 
rearing habitat.
    In the areas of the range where water bodies become capped by ice 
and snow for several weeks during the winter, hypoxic water conditions 
can occur due to cessation of photosynthesis combined with oxygen 
consumption by decomposers (Wetzel 1983, pp. 162-170). While lethal 
oxygen levels for Oregon spotted frogs have not been evaluated, other 
ranid species have been found to use overwintering microhabitat with 
well-oxygenated waters (Ultsch et al. 2000, p. 315; Lamoureux and 
Madison 1999, p. 434), and most fish cannot tolerate levels below 2.0 
mg/L (Wetzel 1983, p. 170). However, some evidence indicates that 
Oregon spotted frogs can tolerate levels at, or somewhat below, 2.0 mg/
L and do not purposefully avoid areas with low oxygen levels, at least 
for short periods (Hayes et al. 2001, pp. 20-22; Risenhoover et al. 
2001b, pp. 17-18).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for their cover and shelter requirements: (1) 
Permanent fresh water bodies, including natural and manmade, that have 
greater than 50 percent surface water with floating and shallow 
subsurface vegetation during the summer, and that are hydrologically 
connected via surface water to breeding and rearing habitat; (2) 
permanent fresh water bodies, including natural and manmade, that hold 
water from October to March and are hydrologically connected via 
surface water to breeding and rearing habitat; (3) physical cover from 
avian and terrestrial predators, and lack of predation by introduced 
fish and bullfrogs; and (4) refuge from lethal overwintering conditions 
(freezing and anoxia).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Oregon spotted frog breeding sites are generally temporarily 
inundated (flooded or underwater) shallows (<=12 in (30 cm) deep) that 
are hydrologically connected to permanent waters (Licht 1971, p. 120, 
Hayes et al. 2000 entire, Pearl and Bury 2000, pp. 6-7, Risenhoover et 
al. 2001a, pp. 13-15, Watson et al. 2003, p. 297) and include pools, 
gradually receding shorelines, benches of seasonal lakes and marshes, 
and wet meadows. Egg-laying microhabitats are gradually sloped and 
relatively close to shorelines (Hayes et al. 2000, p. 5; Pearl and Bury 
2000, p. 6; Pearl and Hayes 2004, p. 20) and are usually associated 
with submergent or the previous year's emergent vegetation. 
Characteristic vegetation includes grasses, sedges, and rushes. 
Vegetation coverage beneath egg masses is generally high, and Oregon 
spotted frog egg masses are rarely found over open soil or rock 
substrates (Pearl and Bury 2000, p. 6; Lewis et al. 2001, pp. 9-10). 
Full solar exposure seems to be a significant factor in breeding 
habitat selection and eggs are laid where the vegetation is low or 
sparse, such that vegetation structure does not shade the eggs 
(McAllister and Leonard 1997, pp. 8, 17; McAllister and White 2001, pp. 
10-11; Pearl and Bury 2000, p. 6; Pearl et al. 2009a, pp. 141-142).
    To be considered essential breeding habitat, water must be 
permanent enough to support breeding, tadpole development to 
metamorphosis (approximately 4 months), and survival of frogs. Egg-
laying can begin as early as February in British Columbia and 
Washington, and as late as early June in the higher elevations (Leonard 
et al. 1993, p. 132). In addition, breeding habitat must be 
hydrologically connected to permanent waters. The heaviest losses to 
predation are thought to occur shortly after tadpoles emerge from eggs, 
when they are relatively exposed and poor swimmers (Licht 1974, p. 
624). Significant mortality can also result when tadpoles become 
isolated in breeding pools away from more permanent waters (Licht 1974, 
p. 619; Watson et al. 2003, p. 298). Watson et al. (2000, p. 28) 
reported nearly total reproductive failure in 1998 when the egg-laying 
pools dried due to dry weather following breeding. In addition to being 
vulnerable to desiccation, tadpoles may succumb to low dissolved oxygen 
levels in isolated pools and ponds during summer (Watson et al. 2000, 
p. 28).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for sites for reproduction, or rearing (development) 
of offspring: (1) Standing bodies of fresh water, including natural and 
manmade ponds, slow-moving streams or pools within streams, and other 
ephemeral or permanent water bodies that typically become inundated 
during winter rains and hold water for a minimum of 4 months (from egg-
laying through metamorphosis); (2) shallow (less than or equal to 12 in 
(30 cm)) water areas (shallow water may also occur over vegetation that 
is in deeper water); (3) a hydrological connection to a permanent water 
body; (4) gradual topographic gradient; (5) emergent wetland vegetation 
(or vegetation that can mimic emergent vegetation via manipulation, for 
example reed canarygrass that can be mowed); and (6) full solar 
exposure.

Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species

    Dispersal habitat may consist of ephemeral (water present for only 
a short time), intermittent, or perennial drainages that are generally 
not suitable for breeding but can provide corridors that afford 
movement. This habitat also offers areas for the establishment of home 
ranges by juvenile recruits, maintenance of gene flow through the 
movement of juveniles and adults between populations, and recruitment 
into new breeding habitat or recolonization of breeding habitat after

[[Page 29354]]

local extirpations. Detailed studies of dispersal and population 
dynamics of Oregon spotted frogs are limited. However, home ranges in a 
Washington study averaged 5.4 ac (2.2 ha), and daily movement was 16-23 
feet (5-7 meters) throughout the year (Watson et al. 2003, p. 295). 
Oregon spotted frogs at the Sunriver site in Oregon routinely make 
annual migrations of 0.31-0.81 mi (0.5-1.3 km) between the major egg-
laying complex and an overwintering site (Bowerman 2006, pers. comm.). 
Longer travel distances, while infrequent, have been observed between 
years and within a single year between seasons. The maximum observed 
movement distance in Washington was 1.5 mi (2.4 km) between seasons 
along lower Dempsey Creek to the creek's mouth from the point where the 
frogs were marked (McAllister and Walker 2003, p. 6). In Oregon, the 
maximum observed movement was 1.74 mi (2.8 km) downstream (Cushman and 
Pearl 2007, p. 13). While these movement studies are specific to Oregon 
spotted frogs, the number of studies and size of the study areas are 
limited and studies have not been conducted over multiple seasons or 
years. In addition, the ability to detect frogs is challenging because 
of the difficult terrain in light of the need for the receiver and 
transmitter to be in close proximity. Hammerson (2005) recommends that 
a 3.1-mi (5-km) separation distance for suitable habitat be applied to 
all ranid frog species because the movement data for ranids are 
consistent. Furthermore, despite occasional movements that are longer 
or that may allow some genetic interchange between distant populations 
(for example, the 10-km (6.2-mi) distance noted by Blouin et al. (2010, 
pp. 2186, 2188), the preponderance of data indicates that a separation 
distance of several kilometers may be appropriate and practical for 
delineation of occupancy. Therefore, for the purposes of evaluating the 
connectedness of Oregon spotted frog breeding areas and individual 
frogs' ability to move between areas of suitable habitat, we will 
assume a maximum movement distance of 3.1 mi (5 km). However, this 
distance does not account for high-water events that can transport 
frogs and tadpoles downstream. In addition, these aquatic movement 
corridors should be free of impediments to upstream movement, including 
but not limited to hard barriers such as dams, impassable culverts, 
lack of water, and biological barriers such as lakes or rivers/creeks 
without refugia from predators.
    Maintenance of populations across a diversity of ecological 
landscapes is necessary to provide sufficient protection against 
changing environmental circumstances (such as climate change). This 
diversity of habitat areas provides functional redundancy to safeguard 
against stochastic events (such as droughts) and may also be necessary 
as different regions or microclimates respond to changing climate 
conditions. Establishing or maintaining populations across a broad 
geographic area spreads out the risk to individual populations across 
the range of the species, thereby conferring species resilience. 
Finally, protecting a wide range of habitats across the occupied range 
of the species simultaneously maintains genetic diversity of the 
species, which protects the underlying integrity of the major genetic 
groups (Blouin et al. 2010, pp. 2184-2185) whose persistence is 
important to the ecological fitness of the species as a whole (Blouin 
et al. 2010, p. 2190).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide habitats protected from disturbance and representative 
of the historical, geographic, and ecological distribution: (1) Wetted 
corridors within 3.1 mi (5 km) of breeding habitat that are free of 
barriers to movement, and (2) a diversity of high-quality habitats 
across multiple sub-basins throughout the geographic extent of the 
species' range sufficiently representing the major genetic groups.

Primary Constituent Elements for Oregon Spotted Frog

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Oregon spotted frog in areas occupied at the time 
of listing, focusing on the features' PCEs. PCEs are those specific 
elements of the physical or biological features that provide for a 
species' life-history processes and are essential to the conservation 
of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to the 
Oregon spotted frog are:
    (1) PCE 1--Nonbreeding (N), Breeding (B), Rearing (R), and 
Overwintering Habitat (O). Ephemeral or permanent bodies of fresh 
water, including but not limited to natural or manmade ponds, springs, 
lakes, slow-moving streams, or pools within or oxbows adjacent to 
streams, canals, and ditches, that have one or more of the following 
characteristics:
     Inundated for a minimum of 4 months per year (B, R) 
(timing varies by elevation but may begin as early as February and last 
as long as September);
     Inundated from October through March (O);
     If ephemeral, areas are hydrologically connected by 
surface water flow to a permanent water body (e.g., pools, springs, 
ponds, lakes, streams, canals, or ditches) (B, R);
     Shallow-water areas (less than or equal to 30 centimeters 
(12 inches), or water of this depth over vegetation in deeper water (B, 
R);
     Total surface area with less than 50 percent vegetative 
cover (N);
     Gradual topographic gradient (less than 3 percent slope) 
from shallow water toward deeper, permanent water (B, R);
     Herbaceous wetland vegetation (i.e., emergent, submergent, 
and floating-leaved aquatic plants), or vegetation that can 
structurally mimic emergent wetland vegetation through manipulation (B, 
R);
     Shallow-water areas with high solar exposure or low 
(short) canopy cover (B, R);
     An absence or low density of nonnative predators (B, R, N)
    (2) PCE 2--Aquatic movement corridors. Ephemeral or permanent 
bodies of fresh water that have one or more of the following 
characteristics:
     Less than or equal to 3.1 mi (5 km) linear distance from 
breeding areas;
     Impediment free (including, but not limited to, hard 
barriers such as dams, impassable culverts, lack of water, or 
biological barriers such as abundant predators, or lack of refugia from 
predators).
    (3) PCE 3--Refugia habitat. Nonbreeding, breeding, rearing, or 
overwintering habitat or aquatic movement corridors with habitat 
characteristics (e.g., dense vegetation and/or an abundance of woody 
debris) that provide refugia from predators (e.g., nonnative fish or 
bullfrogs).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. Here we describe the type of special management 
considerations or protection that may be required for the physical or 
biological features identified as essential for the

[[Page 29355]]

Oregon spotted frog. The specific critical habitat units and subunits 
where these management considerations or protection apply for each 
species are identified in Unit Descriptions.
    A detailed discussion of activities influencing the Oregon spotted 
frog and their habitat can be found in the final listing rule (79 FR 
51658). Threats to the physical or biological features that are 
essential to the conservation of this species and that may warrant 
special management considerations or protection include, but are not 
limited to: (1) Habitat modifications brought on by nonnative plant 
invasions or native vegetation encroachment (trees and shrubs); (2) 
loss of habitat from conversion to other uses; (3) hydrologic 
manipulation; (4) removal of beavers and features created by beavers; 
(5) livestock grazing; and (6) predation by invasive fish and 
bullfrogs. These threats also have the potential to affect the PCEs if 
conducted within or adjacent to designated units.
    The physical or biological features essential to the conservation 
of the Oregon spotted frog may require special management 
considerations or protection to ensure the provision of wetland 
conditions and landscape context of sufficient quantity and quality for 
long-term conservation and recovery of the species. Management 
activities that could ameliorate the threats described above include 
(but are not limited to): Treatment or removal of exotic and 
encroaching vegetation (for example mowing, burning, grazing, herbicide 
treatment, shrub/tree removal); modifications to fish stocking and 
beaver removal practices in specific water bodies; nonnative predator 
control; stabilization of extreme water level fluctuations; restoration 
of habitat features; and implementation of appropriate livestock 
grazing practices.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify occupied areas at the time of listing that 
contain the features essential to the conservation of the species. If, 
after identifying currently occupied areas, we determine that those 
areas are inadequate to ensure conservation of the species, in 
accordance with the Act and our implementing regulations at 50 CFR 
424.12(e) we then consider whether designating additional areas--
outside those currently occupied--are essential for the conservation of 
the species.
    We equate the geographical area occupied at the time of listing 
with the current range for the species; see the final listing rule (79 
FR 51658, August 29, 2014; Current Range/Distribution and Table 1) for 
a description of the current range of the Oregon spotted frog, which is 
identified at the scale of sub-basin/5th field watershed. We used 
information from reports and databases prepared by Federal and State 
agencies and private researchers to identify the specific locations 
used by Oregon spotted frogs for egg-laying, rearing, nonbreeding, and 
overwintering. Occurrence data used for determining occupancy includes 
the time period between 2000 and 2013; older occurrence data were not 
considered to be a reliable predictor for current occupancy. In only 
one location (Davis Lake in the Upper Deschutes River) throughout the 
species' range is occurrence data used prior to 2005 (i.e., 2000-2004). 
Therefore, the majority of occupied occurrence data was collected in 
2005 or later.
    To determine whether the specific areas within the occupied sub-
basins/watersheds contain the PCEs, we plotted all occurrence records 
in ArcGIS, version 9 or 10 (Environmental Systems Research Institute, 
Inc.), a computer geographic information system program, and overlaid 
them on NAIP digital imagery, NWI data, National Hydrologic Data (NHD), 
and slope data. Where NWI data were available and appeared to well-
represent the potential habitat as seen on the NAIP imagery, the NWI 
data were used to approximate PCEs. These areas are referred to as 
``wetlands'' in the unit descriptions. However, in many cases the NWI 
features were either too expansive or not expansive enough to capture 
the known occurrences and areas of use; in these cases, NAIP imagery, 
slope, and local knowledge were utilized to approximate the areas that 
are most likely to contain the PCEs. These areas are referred to as 
``seasonally wetted'' in the unit descriptions. In order to capture PCE 
2-aquatic movement corridors, we used the NHD to map 3.1 mi (5 km) 
distance up and downstream from the occurrence data. NAIP imagery and 
local knowledge were used to refine NHD line features (for example, 
adjusting alignment with actual water course).
    In Washington, within five of the sub-basins/watersheds, NWI and 
NAIP imagery were not sufficient to map the seasonally flooded areas 
adjacent to rivers/streams. In these areas, we relied on the NHD line 
features (adjusting where needed to reflect the actual water course) to 
delineate river miles. The lateral extent of critical habitat in these 
segments is defined as the stream and the associated hydrologic 
floodplain. The hydrologic floodplain is the relatively flat, 
depositional surface adjacent to the channel, formed by the river under 
its present climate and sediment load, and overflowed during moderate 
peak flow events. The hydrologic floodplain can be distinguished from 
the abutting upland by the presence of soils derived from alluvial 
sediments, wetland soils, and riparian/wetland vegetation.
    Within the geographical area occupied at the time of listing we 
identified specific areas that are known to be occupied by the Oregon 
spotted frog on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. Additionally, in the 
proposed rule (78 FR 53538, August 29, 2013) we proposed to designate 
areas that are currently ``not known to be occupied.'' Although we 
acknowledged in the proposed rule our uncertainty about the occupancy 
status of these areas based on a lack of specific survey data, we 
determined that these areas are occupied under the definition of 
critical habitat based on the following factors: These areas (1) are 
within occupied sub-basins, (2) contain habitat features similar to 
known occupied areas, (3) hydrologically connect (via surface waters) 
to occupied areas, and (4) do not contain barriers that would inhibit 
Oregon spotted frog movement between occupied areas.
    We recognize that the physical or biological features may only be 
present seasonally in some areas because aquatic systems are not 
static; water levels fluctuate between seasons, severe flood events 
occur, and beavers abandon and recolonize sites. As a result of these 
changing habitat conditions, some areas may not have continuous Oregon 
spotted frog presence. Therefore, we also applied the standard for 
unoccupied areas and evaluated whether all areas are essential for the 
conservation of the species. In evaluating this, we considered: (1) The 
importance of the area to the future recovery of the species; (2) 
whether the areas have or are capable of providing the essential 
physical or biological features; and (3) whether the areas provide 
connectivity between upstream and downstream populations, thus 
facilitating gene flow and allowing for recolonization of sites that 
may become lost due to threats or other factors, such as natural 
catastrophic or stochastic

[[Page 29356]]

events that render existing occupied areas nonfunctional. We determined 
that all of the areas included in critical habitat also meet these 
three factors; therefore, we consider all lands and waters included in 
the designation to be essential for the conservation of the species.
    Areas designated as critical habitat for the Oregon spotted frog 
are not representative of the entire known historical geographic 
distribution of the species. We are not designating critical habitat in 
areas where the species may be extirpated, such as in California or the 
Willamette Valley in Oregon. These historical areas do not meet the 
criteria for critical habitat since they are not essential to the 
conservation of the species.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features for the Oregon spotted frog. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands 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. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, on our Internet 
site http://www.fws.gov/wafwo/osf.html, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT 
above).
    In summary, we are designating 14 units of critical habitat that we 
determined were occupied at the time of listing and contain sufficient 
elements of physical or biological features being present to support 
Oregon spotted frog life-history processes. The physical or biological 
features relate to Oregon spotted frog nonbreeding, breeding, rearing, 
and overwintering habitat needs, the specifics of which are discussed 
in greater detail above, see Primary Constituent Elements for Oregon 
spotted frog. In addition, where occupancy or the presence of the 
physical or biological features may be uncertain, seasonal, or 
sporadic, we also consider those areas to be essential for the 
conservation of the species. These units are delineated by the sub-
basins/watersheds where Oregon spotted frogs remain extant, based on 
occurrence data as described above. Within each unit, the physical or 
biological features necessary to support life-history processes require 
special management (see Special Management Considerations or 
Protections above). The threats are relatively consistent across each 
unit, with the exception of one unit where threats are significantly 
different (Unit 8 Upper Deschutes River). This unit is further 
subdivided into two subunits.

Final Critical Habitat Designation

    We are designating 14 units as critical habitat for the Oregon 
spotted frog. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. Those 14 units are: (1) Lower Chilliwack River; (2) 
South Fork Nooksack River; (3) Samish River; (4) Black River; (5) White 
Salmon River; (6) Middle Klickitat River; (7) Lower Deschutes River; 
(8) Upper Deschutes River; (9) Little Deschutes River; (10) McKenzie 
River; (11) Middle Fork Willamette River; (12) Williamson River; (13) 
Upper Klamath Lake; and (14) Upper Klamath. Table 1 shows the critical 
habitat units.

                      Table 1--Approximate Area and Landownership in Designated Critical Habitat Units for the Oregon Spotted Frog
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Private/local
                  Critical habitat unit                     Federal Ac (Ha)     State Ac (Ha)      County Ac (Ha)   municipalities Ac        Total
                                                                                                                           (Ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington
    1. Lower Chilliwack River............................                  0                  0                  0           143 (58)           143 (58)
    2. South Fork Nooksack River.........................                  0                  0                  0           111 (45)           111 (45)
    3. Samish River......................................                  0             1 (<1)              7 (3)          976 (395)          984 (398)
    4. Black River.......................................          877 (355)          375 (152)          485 (196)      3,143 (1,272)      4,880 (1,975)
    5. White Salmon River................................           108 (44)        1,084 (439)                  0            33 (13)        1,225 (496)
    6. Middle Klickitat River............................      4,069 (1,647)                  0                  0           151 (61)      4,220 (1,708)
Oregon
    7. Lower Deschutes River.............................            90 (36)                  0                  0                  0            90 (36)
    8. Upper Deschutes River.............................     23,213 (9,395)           185 (75)            45 (18)          589 (238)     24,032 (9,726)
        8A. Upper Deschutes River, Below Wickiup Dam.....        1,182 (479)           185 (75)            45 (18)          589 (238)        2,001 (810)
        8B. Upper Deschutes River, Above Wickiup Dam.....     22,031 (8,916)                  0                  0             0 (<1)     22,031 (8,916)
    9. Little Deschutes River............................      5,288 (2,140)             14 (6)            80 (32)      5,651 (2,287)     11,033 (4,465)
    10. McKenzie River...................................            98 (40)                  0                  0                  0            98 (40)
    11. Middle Fork Willamette River.....................          292 (118)                  0                  0                  0          292 (118)
    12. Williamson River.................................     10,418 (4,216)                  0                  0      4,913 (1,988)     15,331 (6,204)
    13. Upper Klamath Lake...............................        1,259 (510)              9 (4)             1 (<1)        1,068 (432)        2,337 (946)
    14. Upper Klamath....................................           103 (42)                  0                  0           159 (64)          262 (106)
                                                          ----------------------------------------------------------------------------------------------
        Total............................................    45,815 (18,541)        1,668 (675)          618 (250)     16,937 (6,854)    65,038 (26,320)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and stream miles within critical habitat unit boundaries, except those
  stream miles included in Table 2.


[[Page 29357]]


                   Table 2--Approximate River Mileage and Ownership Within Proposed Critical Habitat Units for the Oregon Spotted Frog
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Federal/                     State/                      County/     Private/local
                                           Federal      private *    State river     private    County river     private    municipalities
         Critical habitat unit           river mile    river mile     mile (km)    river mile     mile (km)    river mile     river mile        Total
                                            (km)          (km)                        (km)                        (km)           (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Lower Chilliwack River.............             0             0             0             0             0             0    4.38 (7.05)    4.38 (7.05)
2. South Fork Nooksack River..........             0             0             0             0             0             0    3.56 (5.73)    3.56 (5.73)
3. Samish River.......................             0             0             0             0             0             0    1.73 (2.78)    1.73 (2.78)
4. Black River........................   0.06 (0.10)   0.06 (0.10)   0.49 (0.79)   0.05 (0.07)   0.64 (1.02)   0.26 (0.42)    5.90 (9.49)   7.46 (11.98)
5. White Salmon River.................   0.91 (1.46)             0             0             0             0             0    2.30 (3.70)    3.21 (5.16)
                                       -----------------------------------------------------------------------------------------------------------------
    Total.............................   0.97 (1.56)   0.06 (0.09)   0.49 (0.79)   0.05 (0.07)   0.64 (1.02)   0.26 (0.42)  17.87 (28.75)   20.34 (32.7)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Ownership--multi-ownership (such as Federal/Private) indicate different ownership on each side of the river/stream/creek.
Note: River miles (km) may not sum due to rounding. Mileage estimates reflect stream miles within critical habitat unit boundaries that are not included
  in area estimates in Table 1.

    We present brief descriptions of all critical habitat units and 
subunits and reasons why they meet the definition of critical habitat 
for the Oregon spotted frog, below. All critical habitat units are 
occupied by the species at the time of listing (see the final listing 
rule published August 29, 2014 (79 FR 51658)). All of the critical 
habitat units contain the physical or biological features essential to 
the conservation of the species, which may require special management 
considerations or protection. All units are subject to some or all of 
the following threats: Habitat modifications brought on by nonnative 
plant invasions or native vegetation encroachment (trees and shrubs); 
loss or modification of habitat from conversion to other uses; 
hydrologic manipulation; removal of beavers and their structures; 
livestock grazing; and predation by invasive fish and bullfrogs. In all 
units, the physical or biological features essential to the 
conservation of the species may require special management 
considerations or protection to restore, protect, and maintain the 
essential features found there. Special management considerations or 
protection may be required to address the threats listed above.
    All of the critical habitat units provide habitat needed by Oregon 
spotted frogs for year-round survival and contain the full extent of 
the distribution known at the time the species was listed. Each of the 
critical habitat units contributes to maintaining the geographic 
distribution (latitude, longitude, and elevation) of the species 
necessary to provide sufficient protection against changing 
environmental circumstances, thus providing resiliency and redundancy 
to safeguard against stochastic events, as well as providing 
representation of the genetic groups.
Critical Habitat Unit 1: Lower Chilliwack River
    The Lower Chilliwack River unit consists of 143 ac (58 ha) and 4.4 
river mi (7 river km) in Whatcom County, Washington. This unit includes 
the Sumas River and adjacent seasonally wetted areas from approximately 
the intersection with Hopewell Road downstream to the confluence with 
Swift Creek. This unit also includes portions of an unnamed tributary 
just south of Swift Creek, along with the adjacent seasonally wetted 
areas. Critical habitat in the river segments is defined as the stream 
and the associated hydrologic floodplain. Oregon spotted frogs are 
known to currently occupy this unit (Bohannon et al. 2012). The entire 
area within this unit is under private ownership. All of the essential 
physical or biological features are found within the unit, but are 
impacted by invasive plants (reed canarygrass), woody vegetation 
plantings, and hydrologic modification of river flows. The essential 
features within this unit may require special management considerations 
or protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat, aquatic 
movement corridors, or refugia habitat, as well as to address any 
changes that could affect these features.
Critical Habitat Unit 2: South Fork Nooksack River
    The South Fork Nooksack River unit consists of 111 ac (45 ha) and 
3.5 river mi (5.7 river km) in Whatcom County, Washington. This unit 
includes the Black Slough and adjacent seasonally wetted areas from the 
headwaters to the confluence with South Fork Nooksack River. This unit 
also includes wetlands and seasonally wetted areas along Tinling Creek 
and the unnamed tributary to the Black Slough. Critical habitat in the 
river segments is defined as the stream and the associated hydrologic 
floodplain. Oregon spotted frogs are known to currently occupy this 
unit (Bohannon et al. 2012; Danilson et al. 2013). The entire area 
within this unit is under private ownership, including one nonprofit 
conservation organization. All of the essential physical or biological 
features are found within the unit, but are impacted by invasive plants 
(reed canarygrass), woody vegetation plantings and succession, and 
beaver removal efforts. The essential features within this unit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat, aquatic movement corridors, or 
refugia habitat, as well as to address any changes that could affect 
these features.
Critical Habitat Unit 3: Samish River
    The Samish River unit consists of 984 ac (398 ha) and 1.7 river mi 
(2.8 river km) in Whatcom and Skagit Counties, Washington. This unit 
includes the Samish River and adjacent seasonally wetted areas from the 
headwaters downstream to the confluence with Dry Creek. Critical 
habitat in the river segments is defined as the stream and the 
associated hydrologic floodplain. Oregon spotted frogs are known to 
currently occupy this unit (Bohannon et al. 2012; Danilson et al. 
2013). Within this unit, currently less than 1 ac (less than 1 ha) is 
managed by WDNR, 7 ac (3 ha) is managed by Skagit County, and 976 ac 
(395 ha) and 2 river mi (3 river km) are privately owned, including 
three nonprofit conservation organizations. All of the essential 
physical or biological features are found within the unit, but are 
impacted by invasive plants (reed canarygrass), woody vegetation 
plantings and succession, and beaver removal efforts. The essential 
features within this unit may require special management considerations 
or protection to ensure maintenance or improvement of the

[[Page 29358]]

existing nonbreeding, breeding, rearing, and overwintering habitat, 
aquatic movement corridors, or refugia habitat, as well as to address 
any changes that could affect these features.
Critical Habitat Unit 4: Black River
    The Black River unit consists of 4,880 ac (1,975 ha) and 7.5 river 
mi (12 river km) in Thurston County, Washington. This unit includes the 
Black River and adjacent seasonally wetted areas from Black Lake 
downstream to approximately 3 mi (5 km) south of the confluence with 
Mima Creek. This unit also includes six tributaries to the Black River 
(Dempsey Creek, Salmon Creek, Blooms Ditch, Allen Creek, Beaver Creek, 
and Mima Creek), one tributary to Black Lake (Fish Pond Creek), and 
their adjacent seasonally wetted areas. Critical habitat in the river 
segments is defined as the stream and the associated hydrologic 
floodplain. Oregon spotted frogs are known to currently occupy this 
unit (Hallock 2013; WDFW and USFWS multiple data sources). Within this 
unit, currently 877 ac (355 ha) are federally managed by the Nisqually 
NWR (873 ac (353 ha)) and the Department of Energy (4 ac (2 ha)); 375 
ac (152 ha) are managed by State agencies, including the Washington 
Department of Fish and Wildlife and Department of Natural Resources; 
485 ac (196 ha) are County managed; and 3,143 ac (1,272 ha) are 
privately owned, including three nonprofit conservation organizations. 
Within this unit, currently 5.9 river mi (9.49 river km) are privately 
owned; less than 1 river mi (less than 1 river km) is dually managed/
owned (i.e., different owners on opposite sides of the river); and less 
than 1 river mi (less than 1 river km) each is managed by Nisqually 
NWR, State agencies, and Thurston County. All of the essential physical 
or biological features are found within the unit, but are impacted by 
invasive plants (reed canarygrass), woody vegetation plantings and 
succession, and beaver removal efforts. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat, aquatic movement 
corridors, or refugia habitat, as well as to address any changes that 
could affect these features.
Critical Habitat Unit 5: White Salmon River
    The White Salmon River unit consists of 1,225 ac (496 ha) and 3.2 
river mi (5.2 river km) in Skamania and Klickitat Counties, Washington. 
This unit includes the Trout Lake Creek from the confluence with Little 
Goose Creek downstream to the confluence with White Salmon River, Trout 
Lake, and the adjacent seasonally wetted areas. Critical habitat in the 
river segments is defined as the stream and the associated hydrologic 
floodplain. Oregon spotted frogs are known to currently occupy this 
unit (Hallock 2011 and Hallock 2012). Within this unit, currently 108 
ac (44 ha) and 1 river mi (2 river km) are managed by the USFS Gifford-
Pinchot National Forest, 1,084 ac (439 ha) are managed by WDNR as the 
Trout Lake NAP, and 33 ac (13 ha) and 2 river mi (4 river km) are 
privately owned. All of the essential physical or biological features 
are found within the unit, but are impacted by invasive plants and 
nonnative predaceous fish. The essential features within this unit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat, aquatic movement corridors, or 
refugia habitat, as well as to address any changes that could affect 
these features.
Critical Habitat Unit 6: Middle Klickitat River
    The Middle Klickitat River unit consists of 4,220 ac (1,708 ha) in 
Klickitat County, Washington. This unit encompasses Conboy Lake, Camas 
Prairie, and all water bodies therein, and extends to the northeast 
along Outlet Creek to Mill Pond. The southwestern edge is approximately 
Laurel Road, the southern edge is approximately BZ Glenwood Highway, 
and the northern edge follows the edge of Camas Prairie to 
approximately Willard Spring. Oregon spotted frogs are known to 
currently occupy this unit (Hayes and Hicks 2011). Within this unit, 
currently 4,069 ac (1,647 ha) are managed by the Conboy Lake NWR, and 
151 ac (61 ha) are privately owned. All of the essential physical or 
biological features are found within the unit, but are impacted by 
water management, exotic plant invasion, native tree encroachment, and 
nonnative predaceous fish and bullfrogs. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat, aquatic movement 
corridors, or refugia habitat, as well as to address any changes that 
could affect these features. Within this unit, we are excluding lands 
managed under the Glenwood Valley Coordinated Resource Management Plan 
and Conservation Agreement. See Exclusions Based on Other Relevant 
Impacts for further details.
Critical Habitat Unit 7: Lower Deschutes River
    The Lower Deschutes River unit consists of 90 ac (36 ha) in Wasco 
County, Oregon. This unit includes Camas Prairie and Camas Creek, a 
tributary to the White River, and occur entirely on the Mt. Hood 
National Forest. Oregon spotted frogs are known to currently occupy 
this unit (C. Corkran, pers. comm. October 2012). All of the essential 
physical or biological features are found within the unit but are 
impacted by vegetation succession (conifer encroachment). The essential 
features within this unit may require special management considerations 
or protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat, aquatic 
movement corridors, or refugia habitat, as well as to address any 
changes that could affect these features.
Critical Habitat Unit 8: Upper Deschutes River
    The Upper Deschutes River unit includes 24,032 ac (9,726 ha) in 
Deschutes and Klamath Counties, Oregon, in the Upper Deschutes River 
sub-basin. The Upper Deschutes River unit extends from headwater 
streams and wetlands draining to Crane Prairie and Wickiup Reservoirs 
to the Deschutes River downstream to Bend, Oregon. This unit also 
includes Odell Creek and Davis Lake. Within this unit, currently 23,213 
ac (9,394 ha) are managed by the USFS Deschutes National Forest, 185 ac 
(75 ha) are managed by Oregon Parks and Recreation Department, 45 ac 
(18 ha) are owned by the counties, and 589 ac (238 ha) are privately 
owned. A subset of the acreage managed by the Deschutes National Forest 
occurs within Wickiup and Crane Prairie reservoirs, which are operated 
by the Bureau of Reclamation. The Upper Deschutes River unit consists 
of two subunits: Below Wickiup Dam (Subunit 8A) and Above Wickiup Dam 
(Subunit 8B). Oregon spotted frogs are known to currently occupy this 
unit (USGS 2006 and 2012 datasets; Sunriver Nature Center; and USFS 
multiple data sources). The essential features within this unit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat, aquatic movement corridors, or 
refugia habitat, as well as to address any changes that could affect 
these features. Storage and

[[Page 29359]]

release of water from the reservoir system influences the physical and 
biological features between the subunits. Within this unit, we are 
excluding lands managed under the Sunriver Great Meadow Management 
Plan, the Crosswater Environmental Plan, and the Old Mill Pond Oregon 
Spotted Frog Candidate Conservation Agreement with Assurances (CCAA). 
See Exclusions Based on Other Relevant Impacts for further details.
Subunit 8A: Below Wickiup Dam
    This subunit includes 2,001 ac (810 ha). This subunit consists of 
the Deschutes River and associated wetlands downstream of Wickiup Dam 
to Bend, Oregon, beginning at the outlet of an unnamed tributary 
draining Dilman Meadow. Within this subunit, currently 1,182 ac (479 
ha) are managed by the USFS Deschutes National Forest, 185 ac (75 ha) 
are managed by Oregon Parks and Recreation Department, 45 ac (18 ha) 
are managed by Deschutes County, and 589 ac (238 ha) are privately 
owned. All of the essential physical or biological features are found 
within the subunit but are impacted by hydrologic modification of river 
flows, reed canarygrass, nonnative predaceous fish, and bullfrogs. The 
essential features within occupied habitat within this subunit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat, aquatic movement corridors, or 
refugia habitat, as well as to address any changes that could affect 
these features.
Subunit 8B: Above Wickiup Dam
    This subunit includes 22,031 ac (8,916 ha). This subunit includes 
the following lakes, including associated wetlands, in the upper 
watersheds that flow into the Crane Prairie/Wickiup Reservoir system: 
Hosmer Lake, Lava Lake, Little Lava Lake, Winopee Lake, Muskrat Lake, 
and Little Cultus Lake, Crane Prairie and Wickiup Reservoirs, and Davis 
Lake. The following riverine waterbodies and associated wetlands are 
critical habitat: Deschutes River from Lava Lake to Wickiup Reservoir, 
Cultus Creek downstream of Cultus Lake, Deer Creek downstream of Little 
Cultus Lake, and Odell Creek from an occupied unnamed tributary to the 
outlet in Davis Lake. The land within this subunit is primarily under 
USFS ownership. However, the Bureau of Reclamation manages the 
operation of Crane Prairie and Wickiup reservoirs. Within this subunit, 
currently 22,031 ac (8,916 ha) are managed by the USFS Deschutes 
National Forest and less than 1.0 ac (0.14 ha) is in private ownership. 
All of the essential physical or biological features are found within 
the subunit but are impacted by vegetation succession and nonnative 
predaceous fish. Physical and biological features found within the 
reservoirs in this unit are affected by the storage and release of 
water for irrigation. The essential features within this subunit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat, aquatic movement corridors, or 
refugia habitat, as well as to address any changes that could affect 
these features.
Critical Habitat Unit 9: Little Deschutes River
    The Little Deschutes River unit consists of 11,033 ac (4,465 ha) in 
Klamath and Deschutes Counties, Oregon. The Little Deschutes River unit 
includes the extent of the Little Deschutes River and associated 
wetlands from the headwaters to the confluence with the Deschutes 
River, 1 mi (1.6 km) south of Sunriver and approximately 20 mi (32.2 
km) south of Bend, Oregon. This unit includes the following 
tributaries, including adjacent wetlands: Big Marsh Creek, Crescent 
Creek, and Long Prairie Creek. Oregon spotted frogs are known to 
currently occupy this unit (USGS, Sunriver Nature Center, and USFS 
multiple data sources). Within this unit, currently 5,288 ac (2,140 ha) 
are managed by the USFS Deschutes National Forest and Prineville BLM, 
14 ac (6 ha) are managed by the State of Oregon, 80 ac (32 ha) are 
managed by Deschutes and Klamath Counties, and 5,651 ac (2,287 ha) are 
privately owned. Additionally, the essential physical or biological 
features are found within the unit but are impacted by hydrologic 
manipulation of water levels for irrigation, nonnative predaceous fish, 
reed canarygrass, and bullfrogs. The essential features within occupied 
areas within this unit may require special management considerations or 
protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat, aquatic 
movement corridors, or refugia habitat, as well as to address any 
changes that could affect these features. Within this unit, we are 
excluding lands managed under the Crosswater Environmental Plan. See 
Exclusions Based on Other Relevant Impacts for further details.
Critical Habitat Unit 10: McKenzie River Sub-Basin
    The McKenzie River unit consists of 98 ac (40 ha) in Lane County, 
Oregon. This critical habitat unit occurs in the Mink Lake Basin, 
located in the headwaters of the main South Fork of the McKenzie River 
on the McKenzie River Ranger District of the USFS Willamette National 
Forest. The McKenzie River unit includes seven wilderness lakes, 
marshes, and ponds: Penn Lake, Corner Lake, Boat Lake, Cabin Meadows, 
two unnamed marshes, and a pond northeast of Penn Lake. A small segment 
of the South Fork McKenzie River between the two unnamed marshes also 
is included within this critical habitat unit. The entire area within 
this unit is under USFS ownership. Oregon spotted frogs are known to 
currently occupy this unit (Adams et al. 2011). All of the essential 
physical or biological features are found within the unit, but are 
impacted by nonnative predaceous fish, isolation, and vegetation 
encroachment. The essential features within this unit may require 
special management considerations or protection to ensure maintenance 
or improvement of the existing nonbreeding, breeding, rearing, and 
overwintering habitat, aquatic movement corridors, or refugia habitat, 
as well as to address any changes that could affect these features.
Critical Habitat Unit 11: Middle Fork Willamette River
    The Middle Fork Willamette River unit consists of 292 ac (118 ha) 
in Lane County, Oregon. This unit includes Gold Lake and bog, which are 
located in the 465-ac (188-ha) Gold Lake Bog Research Natural Area on 
the upstream end of Gold Lake on the USFS Willamette National Forest. 
The entire area within this unit is under USFS ownership. Oregon 
spotted frogs are known to currently occupy this unit (USFS data 
sources). All of the essential physical or biological features are 
found within the unit, but are impacted by nonnative predaceous fish, 
isolation, and vegetation encroachment. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat, aquatic movement 
corridors, or refugia habitat, as well as to address any changes that 
could affect these features.

[[Page 29360]]

Critical Habitat Unit 12: Williamson River
    The Williamson River unit consists of 15,331 ac (6,204 ha) in 
Klamath County, Oregon. This unit includes the Williamson River and 
adjacent, seasonally wetted areas in Klamath Marsh NWR 4.89 mi (7.87 
km) east of Silver Lake Highway, north to 0.998 mi (1.61 km) southeast 
of Big Springs, north through the Refuge to 0.24 mi (0.36 km) southeast 
of Three Creek spring, and upstream to 2.14 mi (3.44 km) north of the 
confluence with Aspen Creek. This unit also includes a portion of one 
tributary to the Williamson River (Jack Creek) and its adjacent 
seasonally wetted areas from National Forest Road 94, south of National 
Forest Road 88 through 1.32 mi (2.12 km) of O'Connor Meadow. Oregon 
spotted frogs are known to currently occupy this unit (USGS, USFS, and 
USFWS multiple data sources). Within this unit, 10,418 ac (4,216 ha) 
are federally managed by the Klamath Marsh NWR and the USFS Fremont-
Winema National Forest, and 4,913 ac (1,988 ha) are privately owned. 
Additionally, the essential physical or biological features are found 
within the unit, but are impacted by invasive plants (reed 
canarygrass), woody vegetation succession, absence of beaver, and 
nonnative predators. The essential features within occupied areas 
within this unit may require special management considerations or 
protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat, aquatic 
movement corridors, or refugia habitat, as well as to address any 
changes that could affect these features.
Critical Habitat Unit 13: Upper Klamath Lake
    The Upper Klamath Lake unit consists of 2,337 ac (946 ha) in 
Klamath County, Oregon. This unit includes the Wood River and its 
adjacent seasonally wetted areas from its headwaters downstream to the 
BLM south levee road just north of the confluence with Agency Lake as 
well as the complete length of the Wood River Canal (west of the Wood 
River) and its adjacent seasonally wetted areas starting 1.80 mi (2.90 
km) south of Weed Road and continuing south. This unit also includes 
two tributaries to the Wood River (Fort Creek and Annie Creek) and 
their adjacent seasonally wetted areas: Fort Creek in its entirety from 
its headwaters to the junction of the Wood River and Annie Creek 0.75 
mi (1.2 km) downstream from the Annie Creek Sno-Park to its junction 
with the Wood River. In addition, this unit includes three creeks 
(Sevenmile, Crane, and Fourmile) that flow into Sevenmile Canal and 
then into Agency Lake and their adjacent seasonally wetted areas.
    Sevenmile Creek includes 1.40 mi (2.25 km) beginning north of 
Nicholson Road, south to the confluence of Crane Creek as well as the 
entire length of two connected tributaries (Blue Spring and Short 
Creek) and the associated, adjacent seasonally wetted areas. Crane 
Creek includes adjacent seasonally wetted areas 0.28 mi (0.44 km) from 
its headwaters south to the confluence with Sevenmile Creek as well as 
two tributaries (Mares Egg spring and a portion of an unnamed spring to 
the west of Crane Creek 0.16 mi (0.30 km) south of three unnamed 
springs near Sevenmile Road). Fourmile Creek includes the adjacent 
seasonally wetted areas associated with the historical Crane Creek 
channel, Threemile Creek, Cherry Creek, Jack springs, Fourmile springs, 
the confluence of Nannie Creek, and the north-south canals that connect 
Fourmile Creek to Crane Creek.
    Oregon spotted frogs are known to currently occupy this unit (BLM, 
USFS, USGS, and USFWS multiple data sources). Within this unit, 1,259 
ac (510 ha) are managed by the BLM, USFS Fremont-Winema National 
Forest, and Bureau of Reclamation; 9 ac (4 ha) are managed by Oregon 
State Parks; less than 1 ac (<1 ha) are owned by Klamath County; and 
1,068 ac (432 ha) are privately owned. All of the essential physical or 
biological features are found within the unit, but are impacted by 
invasive plants (reed canarygrass), woody vegetation plantings and 
succession, hydrological changes, and nonnative predators. The 
essential features within this unit may require special management 
considerations or protection to ensure maintenance or improvement of 
the existing nonbreeding, breeding, rearing, and overwintering habitat, 
aquatic movement corridors, or refugia habitat, as well as to address 
any changes that could affect these features.
Critical Habitat Unit 14: Upper Klamath
    The Upper Klamath unit consists of 262 ac (106 ha) of lakes and 
creeks in Klamath and Jackson Counties, Oregon. In Klamath County, Buck 
Lake critical habitat includes seasonally wetted areas adjacent to the 
western edge of Buck Lake encompassing Spencer Creek downstream due 
west of Forest Service Road 46, three unnamed springs, and Tunnel 
Creek. Parsnip Lakes, in Jackson County, includes seasonally wetted 
areas associated with Keene Creek from the Keene Creek dam to 0.55 mi 
(0.88 km) east from the confluence of Mill Creek as well as four lakes 
associated with the creek. Oregon spotted frogs are known to currently 
occupy this unit (BLM, USFS, USGS, and USFWS multiple data sources). 
Within this unit, 103 ac (42 ha) are managed by the BLM and USFS 
Fremont-Winema National Forest, and 159 ac (64 ha) are privately owned. 
All of the essential physical or biological features are found within 
the unit, but are impacted by woody vegetation succession, nonnative 
predators, lack of beaver, and hydrological changes. The essential 
features within this unit may require special management considerations 
or protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat, aquatic 
movement corridors, or refugia habitat, as well as to address any 
changes that could affect these features.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final regulation with a new definition of 
destruction or adverse modification on February 11, 2016 (81 FR 7214), 
which became effective on March 14, 2016. Destruction or adverse 
modification means a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for the conservation of a 
listed species. Such alterations may include, but are not limited to, 
those that alter the physical or biological features essential to the 
conservation of a species or that preclude or significantly delay 
development of such features.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under

[[Page 29361]]

section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit 
from the Service under section 10 of the Act) or that involve some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the Oregon spotted frog. Such 
alterations may include, but are not limited to, those that alter the 
physical or biological features essential to the conservation of these 
species or that preclude or significantly delay development of such 
features. As discussed above, the role of critical habitat is to 
support life-history needs of the species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Oregon spotted frog. These activities include, but 
are not limited to:
    (1) Actions that would significantly alter the structure and 
function of the wetland, pond, channel, lake, oxbow, spring, or 
seasonally flooded areas morphology, geometry, or water availability/
permanence. Such actions or activities could include, but are not 
limited to:
    a. Filling or excavation; channelization; impoundment;
    b. road and bridge construction; urban, agricultural, or 
recreational development;
    c. mining;
    d. groundwater pumping;
    e. dredging;
    f. construction or destruction of dams or impoundments;
    g. water diversion;
    h. water withdrawal;
    i. hydropower generation;
    j. livestock grazing;
    k. beaver removal;
    l. destruction of riparian or wetland vegetation;
    m. pond construction;
    n. river restoration, including channel reconstruction, placement 
of large woody debris, vegetation planting, reconnecting riverine 
floodplain, or gravel placement; and
    o. reservoir water storage and release.
    These activities may lead to changes in the hydrologic function of 
the aquatic habitat and alter the timing, duration, water flows, and 
water depth. These changes may be designed to benefit the Oregon 
spotted frog and actually increase habitat in the long term, or may 
degrade or eliminate Oregon spotted frog habitat and could lead to the 
reduction in available breeding, rearing, nonbreeding, and 
overwintering habitat necessary for the frog to complete its life 
cycle. If the permanence of an aquatic system declines so that it 
regularly dries up, it may lose its ability to support Oregon spotted 
frogs. If the quantity of water declines, it may reduce the likelihood 
that the site will support a population of frogs that is robust enough 
to be viable over time. Similarly, ephemeral, intermittent, or 
perennial ponds can be important stop-over points for frogs moving 
among breeding areas or between breeding, rearing, dry season, or 
wintering areas. Reducing the permanence of these sites may reduce 
their ability to facilitate frog movements. However, in some cases, 
increasing permanence can be detrimental as well, if it creates 
favorable habitat for predatory fish or bullfrogs that otherwise could 
not exist in the system. Reservoir operations such as the storage and 
release of water could be timed to support breeding, rearing, and 
overwintering habitat within occupied reservoirs and downstream of 
dams.
    (2) Actions that would significantly alter the vegetation structure 
in and around habitat. Such actions or activities could include, but 
are not limited to, removing, cutting, burning, or planting vegetation 
for restoration actions, creation or maintenance of urban or 
recreational developments, agricultural activities, and grazing. The 
alteration of the vegetation structure may change the habitat 
characteristics by changing the microhabitat (e.g., change in 
temperature, water depth, basking opportunities, and cover) and thereby 
negatively affect whether the Oregon spotted frog is able to complete 
all normal behaviors and necessary life

[[Page 29362]]

functions or may allow invasion of competitors or predators.
    (3) Actions that would significantly degrade water quality (for 
example, alter water chemistry or temperature). Such actions or 
activities could include, but are not limited to, release of chemicals 
or biological pollutants into surface water or into connected ground 
water at a point source or by dispersed release (nonpoint source); 
livestock grazing that results in sedimentation, urine, or feces in 
surface water; runoff from agricultural fields; and application of 
pesticides (including aerial overspray). These actions could adversely 
affect the ability of the habitat to support survival and reproduction 
of Oregon spotted frogs. Variances in water chemistry or temperature 
could also affect the frog's ability to survive with chytrid fungus 
(Batrachochytrium dendrobatidis), oomycete water mold Saprolegnia, or 
the trematode Ribeiroia ondatrae.
    (4) Actions that would directly or indirectly result in 
introduction of nonnative predators, increase the abundance of extant 
predators, or introduce disease. Such actions could include, but are 
not limited to: Introduction or stocking of fish or bullfrogs; water 
diversions, canals, or other water conveyance that moves water from one 
place to another and through which inadvertent transport of predators 
into Oregon spotted frog habitat may occur; and movement of water, mud, 
wet equipment, or vehicles from one aquatic site to another, through 
which inadvertent transport of eggs, tadpoles, or pathogens may occur. 
These actions could adversely affect the ability of the habitat to 
support survival and reproduction of Oregon spotted frogs. 
Additionally, the stocking of introduced fishes could prevent or 
preclude recolonization of otherwise available breeding or 
overwintering habitats, which are necessary for the conservation of 
Oregon spotted frogs.
    (5) Actions and structures that would physically block aquatic 
movement corridors. Such actions and structures include, but are not 
limited to: Urban, industrial, or agricultural development; water 
diversions (such as dams, canals, pipes); water bodies stocked with 
predatory fishes or bullfrogs; roads that do not include culverts; or 
other structures that physically block movement. These actions and 
structures could reduce or eliminate immigration and emigration within 
a sub-basin.
    (6) Inclusion of lands in conservation agreements or easements that 
result in any of the actions discussed above. Such easements could 
include, but are not limited to, Natural Resources Conservation Service 
Wetland Reserve Program, USDA Farm Service Agency's Conservation 
Reserve and Conservation Reserve Enhancement Programs, HCPs, Safe 
Harbor Agreements, or CCAAs.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense lands within the critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat 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. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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. In making that determination, the statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the Oregon spotted frog, the benefits of critical 
habitat include promotion of public awareness of the presence of the 
Oregon spotted frog and the importance of habitat protection, and in 
cases where a Federal nexus exists, potentially greater habitat 
protection for the Oregon spotted frog due to the protection from 
adverse modification or destruction of critical habitat.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we evaluated whether 
certain lands in the proposed critical habitat were appropriate for 
exclusion from this final designation pursuant to section 4(b)(2) of 
the Act. We are excluding the areas listed below (table 3) from 
critical habitat designation for the Oregon spotted frog based on the 
following final plans/agreements: Glenwood Valley Coordinated Resource 
Management Plan and Conservation Agreement, Crosswater Environmental 
Plan, Sunriver Management Plans, and Old Mill District Candidate 
Conservation Agreement with Assurances.

[[Page 29363]]



  Table 3--Areas Excluded From Critical Habitat Designation by Critical
                              Habitat Unit
------------------------------------------------------------------------
                                                         Areas excluded
                                                         from critical
   Unit or subunit as proposed       Specific area     habitat, in acres
                                                           (hectares)
------------------------------------------------------------------------
6--Middle Klickitat River.......  Glenwood Valley          2,627 (1,063)
                                   Coordinated
                                   Resource
                                   Management Plan
                                   and Conservation
                                   Agreement.
8A--Upper Deschutes River Below   Crosswater                     86 (35)
 Wickiup Dam.                      Environmental Plan.
9--Little Deschutes River.......  ...................           121 (49)
8A--Upper Deschutes River Below   Sunriver Management           223 (90)
 Wickiup Dam.                      Plans.
8A--Upper Deschutes River Below   Old Mill District              26 (11)
 Wickiup Dam.                      Candidate
                                   Conservation
                                   Agreement with
                                   Assurances.
------------------------------------------------------------------------

Consideration of Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an IEM and screening analysis 
which, together with our narrative and interpretation of effects, we 
consider our DEA of the proposed critical habitat designation and 
related factors (IeC 2014). The analysis, dated April 30, 2014, was 
made available for public review from June 18, 2014, through July 18, 
2014 (79 FR 34685), and from September 9, 2014, through September 23, 
2014 (79 FR 53384). The DEA addressed probable economic impacts of 
critical habitat designation for the Oregon spotted frog. Following the 
close of the comment periods, we reviewed and evaluated all information 
submitted during the comment periods that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the Oregon spotted frog is summarized below and available in the 
screening analysis for the Oregon spotted frog (Iec 2014), available at 
http://www.regulations.gov.
    The economic analysis estimated direct (section 7) and indirect 
costs likely to result from the critical habitat designation for the 
Oregon spotted frog. The economic impacts of implementing the rule 
through section 7 of the Act are expected to be limited to additional 
administrative effort to consider adverse modification in section 7 
consultations, which are not expected to exceed $200,000 in a typical 
year. The critical habitat unit likely to incur the largest incremental 
administrative costs is Unit 9 (Little Deschutes River) due to a 
relatively high number of anticipated consultations to consider grazing 
allotments intersecting the unit.
    In terms of indirect costs, the analysis concluded that the 
designation of critical habitat is unlikely to trigger additional 
requirements under State or local regulations. In addition, the 
analysis was supplemented by a separate memorandum assessing the 
potential perceptional effects on the value of privately owned grazing 
lands. The analysis concluded that the aggregate value of private lands 
is less than $100 million.
    Therefore, the analysis concluded that the critical habitat 
designation for the Oregon spotted frog is unlikely to generate costs 
exceeding $100 million in a single year. The magnitude of benefits is 
highly uncertain, and quantification would require primary research and 
the generation of substantial amounts of new data, which was beyond the 
scope of the analysis and Executive Order 12866.

Exclusions Based on Economic Impacts

    The Service considered the economic impacts of the critical habitat 
designation and the Secretary is not exercising her discretion to 
exclude any areas from this designation of critical habitat for the 
Oregon spotted frog based on economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Washington Fish and Wildlife Office 
(see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
the Oregon spotted frog are owned or managed by the Department of 
Defense or Department of Homeland Security, and, therefore, we 
anticipate no impact on national security or homeland security. 
Consequently, the Secretary is not exercising her discretion to exclude 
any areas from this final designation based on impacts on national 
security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements, or candidate conservation agreements with 
assurances, or whether there are non-permitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of tribal conservation plans and partnerships and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In our proposed critical habitat we extended consideration of 
exclusion to the Trout Lake NAP Draft Management Plan and the Deschutes 
Basin HCP. The Trout Lake NAP is managed by the WDNR. In its comment 
letter on the proposed critical habitat, the WDNR stated that the draft 
management plan would not be finalized prior to final designation of 
critical habitat and the critical habitat designation for the lands 
with the NAP appears appropriate and may help to strengthen 
conservation support at the site. The Deschutes Basin Multispecies HCP 
continues to be in the development stage; therefore, no analysis of the 
conservation benefit can be made for consideration of exclusion. 
Therefore, lands managed under the Trout Lake NAP Draft Management Plan 
and areas that may be covered by the Deschutes Basin Multispecies HCP 
are not excluded from critical habitat.

[[Page 29364]]

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships, in General

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and all items may not apply to every plan or agreement.
    (i) The degree to which the plan or agreement provides for the 
conservation of the species or the essential physical or biological 
features (if present) for the species;
    (ii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented;
    (iii) The demonstrated implementation and success of the chosen 
conservation measures;
    (iv) The degree to which the record of the plan supports a 
conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership;
    (v) The extent of public participation in the development of the 
conservation plan;
    (vi) The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate;
    (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) compliance was required; and
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    We find that the Glenwood Valley Coordinated Resource Management 
Plan and Conservation Agreement, Crosswater Environmental Plan, 
Sunriver Management Plans, and Old Mill District Candidate Conservation 
Agreement with Assurances all fulfill the above criteria. We are 
excluding these lands because the plans adequately provide for the 
long-term conservation of the Oregon spotted frog; such exclusion is 
likely to result in the continuation, strengthening, or encouragement 
of important conservation partnerships; and the Secretary has 
determined that the benefits of excluding such areas outweigh the 
benefits of including them in critical habitat as detailed here.
Glenwood Valley Coordinated Resource Management Plan and Conservation 
Agreement
    In this final designation, the Secretary has exercised her 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 2,625 ac (1,062 ha) of private lands and 2 
ac (1 ha) of Klickitat County lands that are covered under a 
Coordinated Resource Management Plan and Conservation Agreement 
(Agreement). The excluded area falls within a portion of the proposed 
Unit 6 (Middle Klickitat River) (78 FR 53538, August 29, 2013).
    The Service worked directly with several Glenwood Valley private 
landowners (hereafter known as Glenwood Valley ranchers) regarding 
conservation actions that are being implemented through this Agreement 
on a subset of private lands within the Glenwood Valley/Conboy Lake 
area. Glenwood Valley Ranchers collaboratively developed a voluntary 
resource management plan and conservation agreement with the Service to 
conserve the Oregon spotted frog while continuing their ranching 
operations in an economically viable manner. This 20-year agreement was 
approved and signed by the Service, participating Glenwood Valley 
ranchers, and Klickitat County on June 29, 2015 (USFWS et al. 2015).
    Under the agreement, the participating Glenwood Valley ranchers 
manage their lands and water in a manner that is compatible with the 
long-term conservation of the Oregon spotted frog and in partnership 
with the adjacent Conboy Lake NWR. The management plan uses a 
combination of water management, livestock grazing, and haying as the 
primary tools on these private lands to provide vegetation management 
within Oregon spotted frog habitats and to maintain adequate wetland 
breeding areas and deeper-water overwintering areas for the frog. 
Although some of these practices may impact individual frogs, overall 
these practices contribute to a positive long-term conservation benefit 
for the species and its habitat.

Benefits of Inclusion--Glenwood Valley Coordinated Resource Management 
Plan and Conservation Agreement

    We find that there are minimal benefits to including Glenwood 
Valley ranchers' lands in critical habitat. As discussed above under 
Application of Section 4(b)(2) of the Act, the primary effect of 
designating any particular area as critical habitat is the requirement 
for Federal agencies to consult with us under section 7 of the Act to 
ensure actions they carry out, authorize, or fund do not adversely 
modify designated critical habitat. Absent critical habitat designation 
in occupied areas, Federal agencies remain obligated under section 7 of 
the Act to consult with us on actions that may affect a federally 
listed species to ensure such actions do not jeopardize the species' 
continued existence.
    Because the Glenwood Valley ranchers' lands are currently occupied 
by the Oregon spotted frog, a Federal action with potential adverse 
effects would trigger a jeopardy analysis. Should critical habitat be 
designated, an adverse modification analysis would also be triggered by 
the action. If such a Federal nexus were to occur, it would most likely 
result from the granting of Federal funds to manage the lands and or 
Federal permitting to upgrade water control structures to benefit the 
Oregon spotted frog. However, we anticipate that any section 7 
consultations related to funding of upgrades to water control 
structures or habitat management are not likely to provide much added 
benefit to the species, since the action being consulted on is itself 
intended to benefit this species. In addition, because one of the 
primary threats to the species is habitat loss and degradation, a 
section 7 jeopardy analysis would evaluate the effects of the action on 
the conservation or function of the habitat for the species regardless 
of whether or not critical habitat is designated for these lands. 
Project modifications requested to avoid adverse modification would 
likely be the same as those needed to avoid jeopardy. Therefore, we 
anticipate that section 7 consultation analyses will likely result in 
no difference between conservation recommendations to avoid jeopardy or 
adverse modification in occupied areas of critical habitat,

[[Page 29365]]

making the incremental benefit of designating critical habitat in this 
case low at best.
    Another benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. Identifying areas of high conservation value for the Oregon 
spotted frog can help focus and promote conservation efforts by other 
parties. Designation of critical habitat informs State agencies and 
local governments about areas that could be conserved under State laws 
or local ordinances. Any additional information about the needs of the 
Oregon spotted frog or its habitat that reaches a wider audience can be 
of benefit to future conservation efforts. In this case, however, the 
potential educational benefit of critical habitat is reduced due to the 
extensive knowledge by the State, Klickitat County, and private 
landowners about the presence of the frog in this area of the Glenwood 
Valley; the location of Conboy Lake NWR immediately adjacent to these 
areas (on which critical habitat will remain designated); and the 
limited number of private landowners encompassed by the critical 
habitat designation. Because of Conboy Lake NWR's proximity to private 
ranching lands and the importance of water management in the Glenwood 
Valley for both the Oregon spotted frog and ranching activities, refuge 
staff frequently interact with ranchers to discuss the management of 
water resources and the conservation of the frog. This interaction has 
increased the ranchers' understanding of the ecological value of their 
land and has emphasized the importance of this ongoing collaboration 
between the ranchers and the Service.
    The incremental benefit from designating critical habitat for the 
Oregon spotted frog on these private lands is further minimized due to 
the long-term conservation agreement recently signed by participating 
ranchers, Klickitat County, and the Service (USFWS et al. 2015). These 
ranchers have committed to implementing management for the conservation 
of the Oregon spotted frog that will improve maintenance of habitat 
that contains the essential physical or biological features to support 
the frog. We are confident that the Agreement signed by participating 
ranchers will be successful in conserving habitat for the frog, as a 
number of ongoing actions conducted by participating ranchers have 
contributed to the frogs' persistence in this area. The implementation 
of the Agreement provides greater protection to Oregon spotted frog 
habitat than the designation of critical habitat since the provisions 
of the Agreement are intended to improve water management and the 
habitat conditions to support the long-term conservation of the species 
on these lands (critical habitat designation does not require active 
management, only avoidance of destruction or adverse modification). In 
many cases, this work is accomplished without Federal funding, which 
highlights these landowners' willingness to implement the partnership. 
We have no information to suggest that the designation of critical 
habitat on these properties would generate any appreciable added 
benefit beyond what is outlined in the Agreement.

Benefits of Exclusion--Glenwood Valley Coordinated Resource Management 
Plan and Conservation Agreement

    The benefits of excluding these private properties from designated 
critical habitat are relatively greater. We developed a partnership 
with Glenwood Valley ranchers and can use these properties as an 
example of land uses that can be compatible with Oregon spotted frog 
conservation given it is now largely a management-dependent species. 
This partnership is evidenced by the Agreement provisions that are 
anticipated to improve the conservation status of the Oregon spotted 
frog. They include: (1) Seasonally retaining water longer on inundated 
fields to improve the successful development of tadpoles and subsequent 
migration of juvenile frogs from potential breeding sites; (2) support 
of efforts to upgrade or replace key water control structures to 
facilitate this water management; (3) ongoing vegetation management of 
reed canary grass to support suitable wetland breeding habitats and to 
allow migratory movements of frogs; (4) periodic ditch cleaning 
conducted in a manner that reduces direct and indirect impacts to 
frogs, while maintaining these water sources in a condition suitable 
for summer holding habitat; and (5) opportunities to conduct Oregon 
spotted frog surveys on private lands as part of an adaptive management 
process. These surveys will help determine levels of use and provide 
options for more site-specific management actions and options for 
periodically translocating frogs to more secure sites. Measures 
contained in the Agreement are consistent with recommendations from the 
Service for the conservation of the Oregon spotted frog, and will 
afford benefits to the species and its habitat. The Service accrues a 
significant benefit from encouraging the development of such voluntary 
conservation agreements in cooperation with non-Federal partners. 
Because the majority of occurrences of endangered or threatened species 
are on non-Federal lands, partnerships with non-Federal landowners and 
land managers are vital to the conservation of listed species. 
Therefore, the Service is committed to maintaining and encouraging such 
partnerships through the recognition of positive conservation 
contributions.
    Excluding these private properties from critical habitat 
designation will provide a significant benefit in terms of sustaining 
and enhancing the current partnership between the Service and 
participating Glenwood Valley ranchers, as well as other partners who 
participate in Oregon spotted frog habitat management decisionmaking. 
The willingness of these private landowners to undertake conservation 
efforts for the benefit of the Oregon spotted frog, and work with the 
Service and others to develop and employ conservation actions, will 
continue to reinforce those conservation efforts and our partnership, 
which contribute toward achieving recovery of the Oregon spotted frog. 
We consider this voluntary partnership in conservation vital to the 
further development of our understanding of the status of the Oregon 
spotted frog on agricultural lands and the further refinement of the 
levels of compatible agricultural activity on such lands. This 
information is necessary for us to implement recovery actions such as 
habitat protection, restoration, and beneficial management actions for 
this species. In addition, exclusion will provide the landowner with 
relief from any potential additional regulatory burden associated with 
the designation of critical habitat, whether real or perceived, which 
we consider to be a significant benefit of exclusion in acknowledging 
the positive contributions of our conservation partners.
    Together, States, counties, local jurisdictions, conservation 
organizations, and private landowners can implement various cooperative 
conservation actions (such as Safe Harbor Agreements, HCPs, and other 
conservation plans, particularly large, regional conservation plans 
that involve numerous participants and/or address landscape-level 
conservation of species and habitats) that we would be unable to 
accomplish otherwise. These private landowners have made a commitment 
to develop and implement this Agreement, which will maintain and 
enhance habitat favorable to the Oregon spotted frog, and can engage 
and encouraged

[[Page 29366]]

other parties, both public and private, to join in conservation 
partnerships. These private landowners serve as a model of voluntary 
conservation and may aid in fostering future voluntary conservation 
efforts by other parties in other locations for the benefit of listed 
species. Most endangered or threatened species do not occur on Federal 
lands. As the recovery of these species, and in particular the Oregon 
spotted frog, will, therefore, depend on the willingness of non-Federal 
landowners to partner with us to engage in conservation efforts 
(including active management of habitat), we consider the positive 
effect of excluding proven conservation partners from critical habitat 
to be a significant benefit of exclusion.

Benefits of Exclusion Outweigh Benefits of Inclusion--Glenwood Valley 
Coordinated Resource Management Plan and Conservation Agreement

    The Secretary has determined that the benefits of excluding the 
private lands of participating Glenwood Valley ranchers from the 
designation of critical habitat for the Oregon spotted frog outweigh 
the benefits of including these areas in critical habitat. The 
regulatory and informational benefits of including the private lands of 
participating Glenwood Valley ranchers in critical habitat are minimal. 
Furthermore, any potential limited benefits of inclusion on the section 
7 process are relatively unlikely to be realized, because a Federal 
nexus on these lands would rarely occur. If one were to occur, it would 
most likely be with the Service, Natural Resources Conservation 
Service, or Army Corps of Engineers, and their actions would be geared 
toward the conservation benefits of restoring and enhancing habitat 
specifically for the Oregon spotted frog. This type of management is 
focused on the maintenance of open wetland breeding habitats with 
short-statured vegetative conditions, and providing sufficient sources 
of adjacent habitats of deeper water for maturation and overwintering 
that the Oregon spotted frog requires for persistence. Since any action 
likely to be the subject of consultation under the adverse modification 
standard on this area would be largely focused on providing positive 
habitat benefits for the Oregon spotted frog, we find it unlikely that 
critical habitat would result in any significant additional benefit to 
the species. Furthermore, the informational benefits of including this 
area in critical habitat are further reduced since significant 
management actions are already under way to manage habitat on the 
adjacent Conboy Lake NWR for the benefit of Oregon spotted frog. In 
this instance, the Agreement with the Glenwood Valley Ranchers contains 
provisions for conserving and enhancing habitat on which the Oregon 
spotted frog relies, and those provisions exceed the conservation 
benefits that would be afforded through section 7 and, therefore, 
reduce the benefts of designating this area as critical habitat.
    In contrast, the benefits derived from excluding the private lands 
of participating Glenwood Valley ranchers are substantial. Excluding 
these lands will help us maintain and foster an important and 
successful partnership with these private landowners. They have 
voluntarily supported stewardship of habitat beneficial to the 
conservation of the Oregon spotted frog on working agricultural lands. 
The exclusion of participating Glenwood Valley ranchers' lands will 
serve as a positive conservation model, and provides encouragement for 
other private landowners to partner with the Service for the purpose of 
conserving listed species. The positive conservation benefits that may 
be realized through the maintenance of this existing partnership, as 
well as through the encouragement of future such partnerships, and the 
importance of developing such partnerships on non-Federal lands for the 
benefit of listed species in other areas, are such that we consider the 
positive effect of excluding willing conservation partners from 
critical habitat to be a significant benefit of exclusion. For these 
reasons, we have determined that the benefits of exclusion outweigh the 
benefits of inclusion in this case.

Exclusion Will Not Result in the Extinction of the Species--Glenwood 
Valley Coordinated Resource Management Plan and Conservation Agreement

    We have determined that exclusion of approximately 2,627 ac (1,063 
ha) for the portion of the Unit 6 managed under the Agreement 
implemented by participating Glenwood Valley ranchers will not result 
in extinction of the Oregon spotted frog. Actions covered by the 
Agreement will not result in the extinction of the Oregon spotted frog 
because the management actions implemented on participating Glenwood 
Valley ranchers' lands are designed to conserve and enhance Oregon 
spotted frog habitat during the period of the agreement, plus a 
significant portion of Oregon spotted frog habitat within Unit 6 occurs 
on adjacent Conboy Lake NWR lands and the Refuge is specifically 
managing habitat for the frog. We anticipate that management of Oregon 
spotted frog habitat on these private lands will continue and may be 
modified over time to better enhance Oregon spotted frog habitat as new 
information is gained and addressed through the adaptive management 
process under the Agreement.
Crosswater Environmental Plan
    In this final designation, the Secretary has exercised her 
discretion to exclude 207 ac (84 ha) of lands from critical habitat, 
under section 4(b)(2) of the Act, that are owned by the Sunriver 
Limited Partnership and managed under the Crosswater Environmental Plan 
(CEP). The excluded area falls within a portion of Subunit 8A (78 FR 
53538, August 29, 2013).
    The Crosswater Resort comprises an area of 617 ac (250 ha), 
including the proposed Oregon spotted frog critical habitat, at the 
confluence of the Deschutes and Little Deschutes Rivers south of 
Sunriver, Oregon. The Crosswater Resort is a private golf and 
residential community under ownership of the Sunriver Limited 
Partnership. Oregon spotted frog conservation measures outlined in the 
CEP and voluntarily implemented by the Crosswater Resort in partnership 
with Sunriver Nature Center and Observatory (SRNCO) for over a decade 
have contributed to sustaining a population of Oregon spotted frogs on 
private lands within the Crosswater Resort. The CEP, developed and 
implemented prior to 2003, contains conservation measures that are 
specific to Oregon spotted frog, such as the removal of invasive 
bullfrogs from wetlands and ponds on private lands that are inhabited 
by the Oregon spotted frog and maintaining buffers for herbicide 
application between golf courses and wetlands inhabited by the frog. 
The CEP also addresses management of vegetation encroachment into 
wetlands that may threaten the amount of open water habitat for spotted 
frogs. In addition to implementing voluntary conservation measures for 
spotted frogs through the CEP, the preservation of wetland and riparian 
areas along the Deschutes and Little Deschutes Rivers under a 
conservation easement provide protection to spotted frog habitat. These 
ongoing management activities combined with a conservation easement for 
wetlands have reduced threats to the Oregon spotted frog and its 
habitat by maintaining habitat conditions that are suitable for all 
life-history stages of the species.
    The Crosswater Resort has been a conservation partner for over a 
decade. In 2009, the Service worked with

[[Page 29367]]

Crosswater to monitor water quality in ponds and wetlands inhabited by 
the Oregon spotted frog to determine whether or not the buffer for 
herbicide use adjacent to wetlands outlined in the CEP was effectively 
protecting water quality. A report published by the Service in 2009 
indicated that the Integrated Pest Management practices implemented by 
Crosswater Resort minimized the input of herbicides into water bodies 
inhabited by the species. Oregon spotted frog surveys, conducted in 
partnership with the USGS and SRNCO on private lands within the 
Crosswater Resort, have been provided to the Service since 2000. 
Habitat protection, management and monitoring conducted at Crosswater 
Resort have significantly contributed to our understanding of Oregon 
spotted frog biology and responses to habitat management.

Benefits of Inclusion--Crosswater Environmental Plan

    We find there are minimal benefits to including the Crosswater 
Resort lands in critical habitat. As dicussed above under Application 
of Section 4(b)(2) of the Act, the primary effect of designating any 
particular area as critical habitat is the requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not adversely modify 
designated critical habitat. Absent critical habitat designation in 
occupied areas, Federal agencies remain obligated under section 7 of 
the Act to consult with us on actions that may affect a federally 
listed species to ensure such actions do not jeopardize the species' 
continued existence.
    The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
the difference in outcomes of these two analyses represents the 
regulatory benefit of critical habitat. The regulatory standard is 
different, as the jeopardy analysis investigates the action's impact on 
the survival and recovery of the species, while the adverse 
modification analysis focuses on the action's effects on the designated 
habitat's contribution to conservation. This will, in many instances, 
lead to different results and different regulatory requirements. Thus, 
critical habitat designations have the potential to provide greater 
benefit to the recovery of a species than would listing alone. However, 
because one of the primary threats to the species is habitat loss and 
degradation, a section 7 jeopardy analysis would evaluate the effects 
of the action on the conservation or function of the habitat for the 
species regardless of whether or not critical habitat is designated for 
these lands, and project modifications requested to avoid adverse 
modification would likely be the same as those needed to avoid 
jeopardy. Therefore, we anticipate that section 7 consultation analyses 
will likely result in no difference between conservation 
recommendations to avoid jeopardy or adverse modification in occupied 
areas of critical habitat, making the incremental benefit of 
designating critical habitat in this case low at best.
    The inclusion of these private lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard addressed in the Ninth 
Circuit Court's decision in Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted 
above, a potential benefit of inclusion would be the requirement of a 
Federal agency to ensure that their actions on these non-Federal lands 
would not likely result in the destruction or adverse modification of 
critical habitat. However, this additional analysis to determine 
whether a Federal action is likely to result in destruction or adverse 
modification of critical habitat is not likely to be significant 
because these covered lands are not under Federal ownership, making the 
application of section 7 less likely. Overall, given the low likelihood 
of a Federal nexus occurring on these lands, we believe the regulatory 
benefit of a critical habitat designation on these lands, if any, may 
be limited. As described above, the presence of a beneficial 
conservation plan and the history of implementing conservation actions 
specific to the Oregon spotted frog on these lands further reduces this 
benefit of including these lands in critical habitat.
    The incremental benefit of inclusion is reduced because of the 
ongoing implementation of management actions by the Crosswater Resort 
that benefit the conservation of the Oregon spotted frog and its 
habitat, as discussed above. The Crosswater Resort has been 
implementing specific management actions that maintain and enhance 
spotted frog habitat for over a decade. Monitoring of the spotted frog 
population conducted at Crosswater Resort has shown that the ongoing 
management is providing benefits to the species. These management 
actions provide greater benefits to spotted frog habitat than a 
designation of critical habitat would, since these actions actively 
improve the breeding, rearing, and overwintering habitat. Therefore, 
the existing management at this site will provide greater benefit than 
the regulatory designation of critical habitat, which requires only the 
avoidance of adverse modification and does not require the creation, 
improvement, or restoration of habitat.
    Another potential benefit of including lands in a critical habitat 
designation is that such inclusion raises the awareness of landowners, 
State and local governments, and the public regarding the potential 
conservation value of an area. This knowledge can help focus and 
promote conservation efforts by identifying areas of high conservation 
value for the Oregon spotted frog. The designation of critical habitat 
informs State agencies and local governments about areas that could be 
conserved under State laws or local ordinances. Any additional 
information about the needs of the Oregon spotted frog or its habitat 
that reaches a wider audience can be of benefit to future conservation 
efforts. The Crosswater Resort has been working on implementing 
conservation measures for the Oregon spotted frog with assistance from 
SRNCO, which has been a key partner in providing education and outreach 
to landowners and visitors to the Sunriver area for over 20 years about 
the Oregon spotted frog. Because of this ongoing education in the 
Sunriver area, we have been able to hold public meetings about the 
proposed critical habitat and listing without contention. Furthermore, 
the management and monitoring of spotted frog habitat at Crosswater 
Resort for over a decade has provided us with information about how to 
improve spotted frog habitat through management. The educational 
benefits of including this area in the designation of critical habitat 
are reduced by the above-mentioned public education that is ongoing in 
the Sunriver area.

Benefits of Exclusion--Crosswater Environmental Plan

    The benefits of excluding private lands at Crosswater Resort from 
critical habitat are substantial. The partnership in Oregon spotted 
frog conservation is evidenced by the conservation and management 
actions that provide a benefit to the Oregon spotted frog and its 
habitat for over a decade; monitoring results indicate that such 
management actions improve breeding, rearing, and overwintering habitat 
for spotted frog. The CEP includes specific conservation measures for 
the Oregon spotted frog and its habitat, including bull frog removal 
and management of encroaching vegetation in wetlands inhabited by 
spotted frogs. The CEP also requires a buffer for the application of

[[Page 29368]]

herbicide on golf courses from wetlands. Annual monitoring conducted by 
the USGS in partnership with SRNCO validates that these types of 
management activities are effectively providing conservation benefits 
to the species. The Crosswater Resort retains a conservation easement 
that prohibits development on all wetland and riparian areas along the 
Deschutes and Little Deschutes River, thereby providing additional 
protections to Oregon spotted frog habitat.
    Biological information gathered while working in partnership with 
the Crosswater Resort will facilitate the development of strategies to 
conserve the species and inform conservation efforts for the species in 
other areas. Without the partnership between the Service, Crosswater 
Resort, and SRNCO, management actions that benefit the spotted frog 
would not occur, and important breeding, rearing, and overwintering 
habitat for the spotted frog may not be maintained and enhanced. 
Excluding lands from critical habitat designation that are managed 
under the CEP and already protected through a conservation easement 
will affirm and sustain the partnership, and is expected to enhance the 
working relationship between the Service and property owners at 
Crosswater Resort and the Sunriver Limited Partnership. The designation 
of critical habitat on private lands within Crosswater Resort may have 
a negative effect on the conservation partnership between the Service 
and the owners of Crosswater Resort who have agreed to future 
implementation of conservation measures for the Oregon spotted frog and 
its habitat. By excluding these lands, we affirm the conservation 
partnership with Crosswater Resort that not only are providing 
conservation benefits to the Oregon spotted frog and its habitat during 
the present time but also into the future. Excluding the lands managed 
under the CEP and protected through an existing conservation easement 
from critical habitat designation will sustain the long-standing 
conservation partnership between the Service, private landowners that 
reside within Crosswater Resort, and the Sunriver Limited Partnership.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Crosswater 
Environmental Plan

    The primary benefit of including these lands as critical habitat 
for the Oregon spotted frog is the regulatory requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not adversely modify 
designated critical habitat. However, this benefit is reduced for the 
following reasons. First, the likelihood of a Federal nexus on these 
lands is low. Furthermore, these lands are occupied by the Oregon 
spotted frog and we anticipate that even if a Federal nexus exists and 
triggers the need for section 7 consultation, there will be no 
difference between conservation recommendations to avoid jeopardy and 
those to avoid adverse modification in occupied areas of critical 
habitat. Finally, the benefits of including these lands in critical 
habitat are reduced due to the existing easement and ongoing management 
at the site that provides a greater benefit than the regulatory 
designation of critical habitat.
    Another benefit of including these lands in critical habitat is the 
opportunity to educate landowners, State and local governments, and the 
public regarding the potential conservation value of the area. However, 
we have determined that the above-mentioned entities are all aware of 
the conservation value of these lands for the Oregon spotted frog and 
that education of the private landowners that reside within and visit 
Crosswater Resort has been ongoing for over a decade. Therefore, the 
benefit of designating these lands as critical habitat is minimal.
    The benefits of excluding these lands from the critical habitat 
designation are greater than inclusion for the following reasons. The 
exclusion will affirm and maintain a partnership with private 
landowners that promotes the conservation of the species. Additionally, 
the ongoing implementation of habitat improvements to promote Oregon 
spotted frog conservation provides strong evidence that our partnership 
with the Crosswater Resort will continue into the future.
    For these reasons, stated above, the Secretary has determined that 
the benefits of excluding the 207 ac (84 ha) on private lands within 
Crosswater Resort from the designation of critical habitat for the 
Oregon spotted frog outweigh the benefits of including these areas in 
critical habitat.

Exclusion Will Not Result in Extinction of the Species--Crosswater 
Environmental Plan

    We have determined that exclusion of approximately 207 ac (84 ha) 
on private lands within Crosswater Resort will not result in the 
extinction of the Oregon spotted frog. This exclusion will not result 
in extinction of the Oregon spotted frog because the CEP outlines 
specific conservation actions for wetlands and riparian areas inhabited 
by the frog that provide for the needs of the species by protecting, 
restoring, and enhancing all of the Oregon spotted frog habitat at 
Crosswater Resort along the Deschutes and Little Deschutes Rivers. 
Further, for projects having a Federal nexus and potentially affecting 
the Oregon spotted frog, the jeopardy standard of section 7 of the Act, 
coupled with protection provided by the CEP, would provide a level of 
assurance that this subspecies will not go extinct as a result of 
excluding these lands from the critical habitat designation. Critical 
habitat for the Oregon spotted frog would be designated in the 
Deschutes River west of Crosswater Resort and within the Little 
Deschutes River south of Crosswater Resort. Oregon spotted frogs 
inhabit the Deschutes and Little Deschutes Rivers in this area. 
Therefore, actions that result in a Federal nexus would undergo section 
7 consultation with the Service.
Sunriver Management Plans
    In this final designation, the Secretary has exercised her 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 223 ac (90 ha) of private land owned by 
the members of the Sunriver Owners Association (SROA) and covered under 
the Sunriver Great Meadow Management Plan (GMMP). The excluded area 
falls within a portion of the proposed Subunit 8A (78 FR 53538, August 
29, 2013).
    The Sunriver Community comprises an area of 3,373 ac (1,365 ha), 
including approximately 219 ac (89 ha) of proposed Oregon spotted frog 
critical habitat and 223 ac (90 ha) of critical habitat that was 
revised via mapping for the final rule. Sunriver hosts the largest 
known population of Oregon spotted frogs in the Upper Deschutes River 
sub-basin downstream of Wickiup Dam. Oregon spotted frog conservation 
measures voluntarily implemented by the SRNCO for over two decades and 
preservation of wetland and riparian areas along the Deschutes River 
under the Sunriver GMMP have contributed to sustaining a large 
population of Oregon spotted frogs on private lands in the Sunriver 
area. Common areas within the Sunriver Community, including wetlands, 
ponds, and meadows, are managed under the authority of the SROA via the 
Sunriver GMMP. Through a contract with SROA, the SRNCO has been 
managing a system of weirs within the waterways and ponds to improve 
breeding, rearing, and overwintering habitat conditions for the Oregon 
spotted frog. The SRNCO also has been voluntarily removing invasive 
bullfrogs

[[Page 29369]]

from wetlands and ponds in Sunriver that are inhabited by the Oregon 
spotted frog. These ongoing management activities have reduced threats 
to the Oregon spotted frog and its habitat by maintaining habitat 
conditions that are suitable for all life-history stages of the 
species. The SRNCO has been a conservation partner since the Oregon 
spotted frog became a candidate species for listing in 1993. 
Monitoring, research, and habitat management conducted by SRNCO have 
significantly contributed to our understanding of Oregon spotted frog 
biology and responses to habitat management.

Benefits of Inclusion--Sunriver Management Plans

    We find there are minimal benefits to including the Sunriver 
Management Plans lands in critical habitat. As dicussed above under 
Application of Section 4(b)(2) of the Act, the primary effect of 
designating any particular area as critical habitat is the requirement 
for Federal agencies to consult with us under section 7 of the Act to 
ensure actions they carry out, authorize, or fund do not adversely 
modify designated critical habitat. Absent critical habitat designation 
in occupied areas, Federal agencies remain obligated under section 7 of 
the Act to consult with us on actions that may affect a federally 
listed species to ensure such actions do not jeopardize the species' 
continued existence.
    The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
the difference in outcomes of these two analyses represents the 
regulatory benefit of critical habitat. The regulatory standard is 
different, as the jeopardy analysis investigates the action's impact on 
the survival and recovery of the species, while the adverse 
modification analysis focuses on the action's effects on the designated 
habitat's contribution to conservation. This will, in many instances, 
lead to different results and different regulatory requirements. Thus, 
critical habitat designations have the potential to provide greater 
benefit to the recovery of a species than would listing alone. However, 
because one of the primary threats to the species is habitat loss and 
degradation, a section 7 jeopardy analysis would evaluate the effects 
of the action on the conservation or function of the habitat for the 
species regardless of whether or not critical habitat is designated for 
these lands and project modifications requested to avoid adverse 
modification would likely be the same as those needed to avoid 
jeopardy. Therefore, we anticipate that section 7 consultation analyses 
will likely result in no difference between conservation 
recommendations to avoid jeopardy or adverse modification in occupied 
areas of critical habitat, making the incremental benefit of 
designating critical habitat in this case low at best.
    The inclusion of these private lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard addressed in the Ninth 
Circuit Court's decision in Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted 
above, a potential benefit of inclusion would be the requirement of a 
Federal agency to ensure that their actions on these non-Federal lands 
would not likely result in the destruction or adverse modification of 
critical habitat. However, this additional analysis to determine 
whether a Federal action is likely to result in destruction or adverse 
modification of critical habitat is not likely to be significant 
because these covered lands are not under Federal ownership, making the 
application of section 7 less likely. Overall, given the low likelihood 
of a Federal nexus occurring on these lands, we believe the regulatory 
benefit of a critical habitat designation on these lands, if any, may 
be limited. As described above, the presence of a beneficial 
conservation plan and the history of implementing conservation actions 
specific to the Oregon spotted frog on these lands further reduces this 
benefit of including these lands in critical habitat.
    The incremental benefit of inclusion is reduced because of the 
ongoing implementation of management actions by the Sunriver Nature 
Center, under contract with the SROA, that benefit the conservation of 
the Oregon spotted frog and its habitat, as discussed above. Sunriver 
has been implementing specific management actions that maintain and 
enhance spotted frog habitat for over two decades. Monitoring of the 
spotted frog population conducted by the SRNCO has shown that the 
management being implemented is providing benefits to the species, and 
Sunriver hosts the largest population of spotted frogs downstream of 
Wickiup Dam. These management actions provide greater benefits to 
spotted frog habitat than the designation of critical habitat, since 
these actions actively improve the breeding, rearing, and overwintering 
habitat. Therefore, the existing management at this site will provide 
greater benefit than the regulatory designation of critical habitat, 
which requires only the avoidance of adverse modification and does not 
require the creation, improvement, or restoration of habitat.
    Another potential benefit of including lands in a critical habitat 
designation is that doing so raises the awareness of landowners, State 
and local governments, and the public regarding the potential 
conservation value of an area. This knowledge can help focus and 
promote conservation efforts by identifying areas of high conservation 
value for the Oregon spotted frog. The designation of critical habitat 
informs State agencies and local governments about areas that could be 
conserved under State laws or local ordinances. Any additional 
information about the needs of the Oregon spotted frog or its habitat 
that reaches a wider audience can be of benefit to future conservation 
efforts. The SRNCO has been educating landowners and visitors to 
Sunriver Resort for over 20 years about the Oregon spotted frog. 
Because of this ongoing education in the Sunriver area, we have been 
able to hold public meetings about the proposed critical habitat and 
listing without contention. High school and college students in central 
Oregon are gaining opportunities to learn about the Oregon spotted frog 
through the efforts of the SRNCO. The management and monitoring of 
spotted frog habitat in Sunriver that has been implemented by SRNCO for 
the past 20 years has provided us with information about how to improve 
Oregon spotted frog habitat through management. The educational 
benefits of including this area in the designation of critical habitat 
are reduced by the above-mentioned public education that is ongoing 
through the SRNCO.

Benefits of Exclusion--Sunriver Management Plans

    The benefits of excluding private lands in Sunriver lands from 
critical habitat are substantial. Conservation measures that provide a 
benefit to the Oregon spotted frog and its habitat have been 
implemented since Oregon spotted frogs were determined to be a 
candidate for listing in 1993. Since that time, the Service has worked 
in partnership with the SRNCO and SROA to address the needs of the 
Oregon spotted frog. Evidence of this partnership is the ongoing 
management over the last 20 years that has improved breeding, rearing, 
and overwintering habitat. The GMMP and specific habitat enhancement 
measures implemented by SRNCO provide a benefit to the Oregon spotted 
frog and its habitat. The threat of low-water conditions in wetlands 
during the breeding, rearing, and

[[Page 29370]]

overwintering period has been reduced by the ongoing management. 
Sunriver maintains water levels in wetlands through a weir system that 
offsets impacts to this habitat that occurs when water is stored behind 
Wickiup Dam from October through April. Water level management combined 
with bull frog removal has improved habitat for Oregon spotted frogs. 
Annual monitoring conducted by SRNCO validates that these types of 
management activities are effectively providing conservation benefits 
to the species.
    Biological information gathered while working with these private 
landowners will facilitate the development of strategies to conserve 
the species and inform conservation efforts for the species in other 
areas. Without the partnership between the Service, SROA, and SRNCO, 
management actions that benefit the spotted frog would not occur and 
important breeding, rearing, and overwintering habitat for the spotted 
frog may not be maintained and enhanced. Excluding lands managed under 
the Sunriver GMMP from critical habitat designation will affirm and 
sustain the partnership and is expected to enhance the working 
relationship between the Service and property owners in Sunriver. The 
designation of critical habitat on private lands within Sunriver may 
have a negative effect on the conservation partnership between the 
Service and the SROA and SRNCO who have agreed to future implementation 
of conservation measures for the Oregon spotted frog and its habitat. 
By excluding these lands, we affirm the conservation partnership with 
SROA and SRNCO that not only are providing conservation benefits to the 
Oregon spotted frog and its habitat during the present time but also 
into the future. Excluding the lands managed under the Sunriver GMMP 
from critical habitat designation will sustain the long-standing 
conservation partnership between the Service and the Sunriver 
Community.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Sunriver 
Management Plans

    The primary benefit of including these lands as critical habitat 
for the Oregon spotted frog is the regulatory requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not adversely modify 
designated critical habitat. However, this benefit is reduced for the 
following reasons. First, the benefits of inclusion are reduced because 
the likelihood of a Federal nexus on these lands is low. Furthermore, 
these lands are occupied by the Oregon spotted frog, and we anticipate 
that if a Federal nexus exists and triggers the need for section 7 
consultation, there will be no difference between conservation 
recommendations to avoid jeopardy or adverse modification in occupied 
areas of critical habitat. Finally, the benefits of including these 
lands in critical habitat are reduced due to the commitment to 
management at the site that provides a greater benefit than the 
regulatory designation of critical habitat.
    Another benefit of including these lands in critical habitat is the 
opportunity to educate landowners, State and local governments, and the 
public regarding the potential conservation value of the area. However, 
we have determined that the above-mentioned entities are all aware of 
the conservation value of these lands for the Oregon spotted frog and 
that education of the public and students has been ongoing since 1993. 
Therefore, the benefit of designating these lands as critical habitat 
is minimal.
    The benefits of excluding these lands from the critical habitat 
designation are greater than inclusion for the following reasons. The 
exclusion will affirm and maintain a partnership with private 
landowners that is promoting conservation of the species. Additionally, 
the ongoing implementation of habitat improvements to promote Oregon 
spotted frog conservation provides strong evidence that our partnership 
with the SROA and SRNCO will continue into the future.
    For these reasons, stated above, the Secretary has determined that 
the benefits of excluding the 223 ac (90 ha) on private lands in the 
Sunriver area from the designation of critical habitat for the Oregon 
spotted frog outweigh the benefits of including these areas in critical 
habitat.

Exclusion Will Not Result in Extinction of the Species--Sunriver 
Management Plans

    We have determined that exclusion of approximately 223 ac (90 ha) 
on Sunriver private lands will not result in the extinction of the 
Oregon spotted frog. This exclusion will not result in extinction of 
the Oregon spotted frog because the Sunriver GMMP and ongoing active 
habitat enhancement provide for the needs of the species by protecting, 
restoring, and enhancing all of the Oregon spotted frog habitat within 
Sunriver along the Deschutes River and implementing species-specific 
conservation measures designed to avoid and minimize impacts to the 
Oregon spotted frog. Further, for projects having a Federal nexus and 
potentially affecting the Oregon spotted frog, the jeopardy standard of 
section 7 of the Act coupled with protection provided by the Sunriver 
GMMP would provide a level of assurance that this subspecies will not 
go extinct as a result of excluding these lands from the critical 
habitat designation. Critical habitat for the Oregon spotted frog would 
be designated in the Deschutes River west of Sunriver. Oregon spotted 
frogs that inhabit Sunriver use the Deschutes River in this area. 
Therefore, actions that result in a Federal nexus would undergo section 
7 consultation with the Service.

Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act

    HCPs for incidental take permits under section 10(a)(1)(B) of the 
Act provide for partnerships with non-Federal entities to minimize and 
mitigate impacts to listed species and their habitat. In some cases, 
HCP permittees agree to do more for the conservation of the species and 
their habitats on private lands than designation of critical habitat 
would provide alone. We place great value on the partnerships that are 
developed during the preparation and implementation of HCPs.
    CCAAs and SHAs are voluntary agreements designed to conserve 
candidate and listed species, respectively, on non-Federal lands. In 
exchange for actions that contribute to the conservation of species on 
non-Federal lands, participating property owners are covered by an 
``enhancement of survival'' permit under section 10(a)(1)(A) of the 
Act, which authorizes incidental take of the covered species that may 
result from implementation of conservation actions, specific land uses, 
and, in the case of SHAs, the option to return to a baseline condition 
under the agreements. The Service also provides enrollees assurances 
that we will not impose further land-, water-, or resource-use 
restrictions, or require additional commitments of land, water, or 
finances, beyond those agreed to in the agreements.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis, we will always consider areas covered by an approved CCAA/
SHA/HCP, and generally exclude such areas from a designation of 
critical habitat if three conditions are met:
    1. The permittee is properly implementing the CCAA/SHA/HCP and is 
expected to continue to do so for the term of the agreement. A CCAA/
SHA/

[[Page 29371]]

HCP is properly implemented if the permittee is, and has been, fully 
implementing the commitments and provisions in the CCAA/SHA/HCP, 
Implementing Agreement, and permit.
    2. The species for which critical habitat is being designated is a 
covered species in the CCAA/SHA/HCP, or very similar in its habitat 
requirements to a covered species. The recognition that the Services 
extend to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    3. The CCAA/SHA/HCP specifically addresses the habitat of the 
species for which critical habitat is being designated and meets the 
conservation needs of the species in the planning area.
    We believe that the Old Mill District CCAA fulfills all of the 
above criteria.
Old Mill District CCAA
    In this final designation, the Secretary has exercised her 
discretion under section 4(b)(2) of the Act to exclude from this 
critical habitat designation 26 ac (11 ha) of private lands covered 
under the Old Mill District CCAA. The excluded area falls within a 
portion of the proposed Subunit 8A (78 FR 53538, August 29, 2013).
    The Old Mill District CCAA was developed to protect and manage 29 
ac (12 ha) of Oregon spotted frog habitat, including 26 ac (11 ha) that 
were proposed as critical habitat for the Oregon spotted frog, while 
operating the 170-ac (69-ha) Old Mill District mixed-use development 
complex. The CCAA covers only the Oregon spotted frog. The permit 
associated with this CCAA was issued September 18, 2014, has a term of 
20 years, and covers activities primarily associated with water and 
vegetation management, potential predator control, and riparian use. 
Conservation measures include monitoring and maintaining sufficient 
water levels in a manmade pond to support breeding, rearing, and 
overwintering habitat; reduction of vegetation encroachment into the 
manmade pond to maintain open-water areas for breeding; removal of 
nonnative predators in the pond should they be discovered during annual 
surveys; and protection of the riparian zone along the banks of the 
Deschutes River, including marsh habitat occupied by Oregon spotted 
frogs, within the covered lands, through the use of signs and temporary 
fencing. These activities reduce or eliminate threats to the Oregon 
spotted frog and its habitat by creating or maintaining habitat 
conditions that are suitable for all life-history stages of the species 
through the implementation of conservation measures. Further, 
conservation measures within the CCAA include monitoring and management 
of areas within the covered lands and outside of critical habitat that 
may provide habitat for Oregon spotted frogs in the future as the Old 
Mill District continues to develop a stormwater management system. 
Stormwater bioswales will be designed to catch runoff before reaching 
the riparian areas and wetlands of the Deschutes River that are 
occupied by Oregon spotted frogs. The bioswales will be monitored for 
frog use and managed to reduce the threat of stranding frogs during the 
breeding season. The landowners have been voluntarily implementing 
Oregon spotted frog conservation measures outlined in the CCAA since 
Oregon spotted frogs were discovered in the Old Mill District in 2012, 
and these conservation efforts are expected to occur throughout the 20-
year term of the CCAA agreement.

Benefits of Inclusion--Old Mill District CCAA

    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not adversely modify designated critical habitat. Absent 
critical habitat designation in occupied areas, Federal agencies remain 
obligated under section 7 of the Act to consult with us on actions that 
may affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence.
    The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
any difference in predicted outcomes between these two analyses 
represents the regulatory benefit of critical habitat. The regulatory 
standard is different, as the jeopardy analysis investigates the 
action's impact on the survival and recovery of the species, while the 
adverse modification analysis focuses on the action's effects on the 
designated habitat's contribution to conservation. This difference 
could, in some instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations have the 
potential to provide greater benefit to the recovery of a species than 
would listing alone. However, because one of the primary threats to the 
species is habitat loss and degradation, a section 7 jeopardy analysis 
would evaluate the effects of the action on the conservation or 
function of the habitat for the species regardless of whether or not 
critical habitat is designated for these lands and project 
modifications requested to avoid adverse modification would likely be 
the same as those needed to avoid jeopardy. Therefore, we anticipate 
that section 7 consultation analyses will likely result in no 
difference between conservation recommendations to avoid jeopardy or 
adverse modification in occupied areas of critical habitat, making the 
incremental benefit of designating critical habitat in this case low at 
best.
    The inclusion of these private lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard addressed in the Ninth 
Circuit Court's decision in Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted 
above, a potential benefit of inclusion would be the requirement that a 
Federal agency ensure that its actions on these non-Federal lands would 
not likely result in the destruction or adverse modification of 
critical habitat. However, this additional analysis to determine 
whether a Federal action is likely to result in destruction or adverse 
modification of critical habitat is not likely to be significant 
because these covered lands are not under Federal ownership, making the 
application of section 7 less likely. Overall, given the low likelihood 
of a Federal nexus occurring on these lands, we believe the regulatory 
benefit of a critical habitat designation on these lands, if any, may 
be limited.
    As described above, the presence of a beneficial conservation plan 
and the history of implementing conservation actions specific to the 
Oregon spotted frog on these lands further reduces this benefit of 
including these lands in critical habitat. The conservation measures 
that have been implemented and will continue to be implemented under 
the Old Mill District CCAA focus on reducing threats to the habitat 
such as vegetation encroachment and dropping water levels. These 
management actions are likely to provide greater benefits to the Oregon 
spotted frog habitat than would the designation of critical habitat, 
since these actions actively improve the breeding, rearing, and 
overwintering habitat. The designation of critical habitat does not 
require any active management. Therefore, the benefits of including 
these lands in critical habitat are reduced due to the commitment to 
management at this site that provides greater benefit than the 
regulatory

[[Page 29372]]

designation of critical habitat, which requires only the avoidance of 
adverse modification and does not require the creation, improvement, or 
restoration of habitat.
    Another potential benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. This knowledge can help focus and promote conservation 
efforts by identifying areas of high conservation value for the Oregon 
spotted frog. The designation of critical habitat informs State 
agencies and local governments about areas that could be conserved 
under State laws or local ordinances. Any additional information about 
the needs of the Oregon spotted frog or its habitat that reaches a 
wider audience can be of benefit to future conservation efforts. 
However, in this case, designation of critical habitat would result in 
little, if any, additional educational benefit, because the 
conservation needs of the Oregon spotted frog are already well-
recognized in the Old Mill District. The Old Mill District CCAA covers 
an area that receives high public use within the shopping area and 
along the river, and the discovery of Oregon spotted frogs within a 
manmade pond at the Old Mill in 2012 gained immediate awareness from 
the public. Furthermore, the Oregon spotted frogs received immediate 
attention from the landowners, spotted frog researchers, and the public 
media, since the known distribution of the species at the time ended 
approximately 17 mi (27 km) upstream on the Deschutes National Forest. 
The Sunriver Nature Center naturalist, a local expert on Oregon spotted 
frogs, began monitoring the newly found population, providing habitat 
management recommendations to the landowner that led to the development 
of the CCAA. The Sunriver Nature Center naturalist also began mentoring 
Oregon spotted frog research focused in the Old Mill District for high 
school and college students, providing an educational benefit to the 
community and providing the Service with new information on the 
species. Given that the Oregon spotted frog population in the Old Mill 
District is receiving attention from the landowners, public, 
researchers, and students, an educational benefit already exists and 
the conservation of the Oregon spotted frog is being promoted.

Benefits of Exclusion--Old Mill District CCAA

    The benefits of excluding lands covered under the Old Mill District 
CCAA from critical habitat are substantial. Conservation measures that 
provide a benefit to the Oregon spotted frog and its habitat have been 
implemented since Oregon spotted frogs were detected in the Old Mill 
District in 2012. Since that time, the owners of private lands within 
the Old Mill District and the Service have formed a conservation 
partnership to implement conservation measures for the Oregon spotted 
frog. Further evidence of this conservation partnership is the 
development of the Old Mill District CCAA, which was finalized on 
September 18, 2014. Through the CCAA, the landowner commits to manage 
vegetation and water levels in a stormwater pond that supports Oregon 
spotted frog breeding, rearing, and overwintering habitat over a 20-
year period. The installation of riparian fencing within the high 
public use areas has facilitated the reestablishment of riparian 
vegetation along the banks of the Deschutes River, which provides 
habitat for Oregon spotted frogs during the summer. Biological 
information gathered while working with these private landowners will 
facilitate the development of strategies to conserve the species and 
inform conservation efforts for the species in other areas. Without the 
partnership between the Service and the parties to the Old Mill 
District CCAA, such management would not occur and vegetation 
encroachment into the pond would reduce breeding and rearing habitat 
for the frog and the banks of the Deschutes River would not be 
protected. Excluding these lands managed under the Old Mill District 
CCAA from critical habitat designation will affirm and sustain the 
partnership and is expected to enhance the working relationship between 
the Service and the Old Mill District property owners. The designation 
of critical habitat on private lands within the Old Mill District may 
have a negative effect on the conservation partnership between the 
Service and the landowners who have agreed to future implementation of 
conservation measures for the Oregon spotted frog and its habitat. By 
excluding these lands, we affirm the conservation partnership with 
private landowners that not only are providing conservation benefits to 
the Oregon spotted frog and its habitat during the present time but 
also into the future.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Old Mill 
District CCAA

    The primary benefit of including these lands as critical habitat 
for the Oregon spotted frog is the regulatory requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not adversely modify 
designated critical habitat. However, this benefit is reduced for the 
following reasons. First, the likelihood of a Federal nexus on these 
lands is low. Furthermore, these lands are occupied by the Oregon 
spotted frog, and we anticipate that if a Federal nexus exists and 
triggers the need for section 7 consultation, there will be no 
difference between conservation recommendations to avoid jeopardy or 
adverse modification in occupied areas of critical habitat. Finally, 
the benefits of including these lands in critical habitat are reduced 
due to the commitment to management at the site that provides a greater 
benefit than the regulatory designation of critical habitat.
    Another benefit of including these lands in critical habitat is the 
opportunity to educate landowners, State and local governments, and the 
public regarding the potential conservation value of the area. However, 
we determined that the above-mentioned entities are all aware of the 
conservation value of these lands for the Oregon spotted frog and that 
education of the public and students has been ongoing since the 
discovery of this population of Oregon spotted frogs in 2012. 
Therefore, the benefit of designating these lands as critical habitat 
is minimal.
    The benefits of excluding these lands from the critical habitat 
designation are greater than inclusion for the following reasons. The 
exclusion will affirm and maintain a partnership with private 
landowners that is promoting conservation of the species. Additionally, 
the ongoing implementation of habitat improvements to promote Oregon 
spotted frog conservation provides strong evidence that our partnership 
with private landowners in the Old Mill District will continue into the 
future.
    For these reasons, stated above, the Secretary has determined that 
the benefits of excluding the 26 ac (11 ha) covered by the Old Mill 
District CCAA from the designation of critical habitat for the Oregon 
spotted frog outweigh the benefits of including these areas in critical 
habitat.

Exclusion Will Not Result in Extinction of the Species--Old Mill 
District CCAA

    We have determined that exclusion of approximately 26 ac (11 ha) in 
the Old Mill District CCAA covered lands will not result in the 
extinction of the Oregon spotted frog. Actions covered by the Old Mill 
CCAA will not result in extinction of the Oregon spotted frog

[[Page 29373]]

because the CCAA provides for the needs of the species by protecting, 
restoring, and enhancing all of the Oregon spotted frog habitat within 
the Old Mill District along the Deschutes River and implementing 
species-specific conservation measures designed to avoid and minimize 
impacts to the Oregon spotted frog. Monitoring, as agreed to within the 
CCAA, will ensure that conservation measures are effective and an 
adaptive management component of the CCAA allows for modification to 
future management in response to new information.
    Further, for projects having a Federal nexus and potentially 
affecting the Oregon spotted frog, the jeopardy standard of section 7 
of the Act, coupled with protection provided by the voluntary Old Mill 
CCAA would provide a level of assurance that this species will not go 
extinct as a result of excluding these lands from the critical habitat 
designation. Critical habitat for the Oregon spotted frog would be 
designated in the Deschutes River adjacent to the Old Mill District and 
outside of the lands covered by the Old Mill CCAA. Oregon spotted frogs 
that inhabit the covered lands use the Deschutes River in this area. 
Therefore, actions that result in a Federal nexus would undergo section 
7 consultation with the Service. For example, if the Old Mill District 
were to install a boat ramp that extends into the Deschutes River where 
critical habitat is designated and a U.S. Army Corps of Engineers 
permit is required, then section 7 consultation would be required for 
the species and critical habitat.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 the 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 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself and, therefore, not required to evaluate the potential impacts 
to indirectly regulated entities. The regulatory mechanism through 
which critical habitat protections are realized is section 7 of the 
Act, which requires Federal agencies, in consultation with the Service, 
to ensure that any action authorized, funded, or carried by the Agency 
is not likely to destroy or adversely modify critical habitat. 
Therefore, under section 7 only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Consequently, it is our position that only Federal action agencies will 
be directly regulated by this designation. There is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that, if promulgated, the final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with Oregon spotted frog 
conservation activities within

[[Page 29374]]

critical habitat are not expected. As such, the designation of critical 
habitat 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:
    (1) This rule 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, or 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; Aid to Families 
with Dependent Children 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 that receive 
Federal funding, assistance, or permits, or that 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 onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The economic analysis concludes that incremental impacts may occur 
due to administrative costs of section 7 consultations; however, these 
are not expected to significantly affect small governments. The 
designation of critical habitat imposes no obligations on State or 
local governments. By definition, Federal agencies are not considered 
small entities, although the activities they fund or permit may be 
proposed or carried out by small entities. Consequently, we do not 
believe that the critical habitat designation would significantly or 
uniquely affect small government entities. As such, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Oregon spotted frog in a takings 
implications assessment. Based on the best available information, the 
takings implications assessment concludes that this designation of 
critical habitat for the Oregon spotted frog does not pose significant 
takings implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of the proposed critical habitat designation with, 
appropriate State resource agencies in Washington and Oregon. We 
received comments from WDFW, WDNR, WDOE, and ODFW and have addressed 
them in the Summary of Comments and Recommendations section of the 
rule. From a federalism perspective, the designation of critical 
habitat directly affects only the responsibilities of Federal agencies. 
The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the rule does not have substantial direct effects either on the 
States, or on the relationship between the Federal Government and the 
States, or on the distribution of powers and responsibilities among the 
various levels of government. The designation may have some benefit to 
these governments because the areas that contain the features essential 
to the conservation of the species are more clearly defined, and the 
physical and biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
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.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Oregon spotted frog. The 
designated areas of critical habitat are presented on

[[Page 29375]]

maps, and the rule provides several options for the interested public 
to obtain more detailed location information, if desired.

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 of 1995 (44 
U.S.C. 3501 et seq.). 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (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 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
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. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands occupied by the Oregon spotted frog at the time of listing that 
contain the physical or biological features essential to conservation 
of the species, and no tribal lands unoccupied by the Oregon spotted 
frog that are essential for the conservation of the species. Therefore, 
we are not designating critical habitat for the Oregon spotted frog on 
tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Washington Fish and Wildlife Office, Oregon Fish and Wildlife Office--
Bend Field Office, and Klamath Falls 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

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.


0
2. Amend Sec.  17.11(h), the List of Endangered and Threatened 
Wildlife, by revising the entry for ``Frog, Oregon spotted'' to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                   Vertebrate population
----------------------------------------------------------     Historic range       where endangered or     Status      When      Critical     Special
            Common name                Scientific name                                  threatened                     listed     habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Amphibians
 
                                                                      * * * * * * *
Frog, Oregon spotted..............  Rana pretiosa........  Canada (BC); U.S.A.    Entire                          T        846     17.95(d)           NA
                                                            (CA, OR, WA).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

0
3. In Sec.  17.95, amend paragraph (d) by adding an entry for ``Oregon 
Spotted Frog (Rana pretiosa)'' in the same order that the species 
appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
Oregon Spotted Frog (Rana pretiosa)
    (1) Critical habitat units are depicted for Klickitat, Skagit, 
Skamania, Thurston, and Whatcom Counties in Washington and Deschutes, 
Jackson, Klamath, Lane, and Wasco Counties in Oregon, on the maps 
below.
    (2) Within these areas, the PCEs of the physical or biological 
features essential to the conservation of the Oregon spotted frog 
consist of three components:
    (i) Primary constituent element 1.--Nonbreeding (N), Breeding (B), 
Rearing

[[Page 29376]]

(R), and Overwintering (O) Habitat. Ephemeral or permanent bodies of 
fresh water, including, but not limited to, natural or manmade ponds, 
springs, lakes, slow-moving streams, or pools within or oxbows adjacent 
to streams, canals, and ditches, that have one or more of the following 
characteristics:
    (A) Inundated for a minimum of 4 months per year (B, R) (timing 
varies by elevation but may begin as early as February and last as long 
as September);
    (B) Inundated from October through March (O);
    (C) If ephemeral, areas are hydrologically connected by surface 
water flow to a permanent water body (e.g., pools, springs, ponds, 
lakes, streams, canals, or ditches) (B, R);
    (D) Shallow-water areas (less than or equal to 12 inches (30 
centimeters), or water of this depth over vegetation in deeper water 
(B, R);
    (E) Total surface area with less than 50 percent vegetative cover 
(N);
    (F) Gradual topographic gradient (less than 3 percent slope) from 
shallow water toward deeper, permanent water (B, R);
    (G) Herbaceous wetland vegetation (i.e., emergent, submergent, and 
floating-leaved aquatic plants), or vegetation that can structurally 
mimic emergent wetland vegetation through manipulation (B, R);
    (H) Shallow-water areas with high solar exposure or low (short) 
canopy cover (B, R); and
    (I) An absence or low density of nonnative predators (B, R, N).
    (ii) Primary constituent element 2.--Aquatic movement corridors. 
Ephemeral or permanent bodies of fresh water that have one or more of 
the following characteristics:
    (A) Less than or equal to 3.1 miles (5 kilometers) linear distance 
from breeding areas; and
    (B) Impediment free (including, but not limited to, hard barriers 
such as dams, impassable culverts, lack of water, or biological 
barriers such as abundant predators, or lack of refugia from 
predators).
    (iii) Primary constituent element 3.--Refugia habitat. Nonbreeding, 
breeding, rearing, or overwintering habitat or aquatic movement 
corridors with habitat characteristics (e.g., dense vegetation and/or 
an abundance of woody debris) that provide refugia from predators 
(e.g., nonnative fish or bullfrogs).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
June 10, 2016.
    (4) Critical habitat map units. Data layers defining map units were 
created from 2010-2013 aerial photography from USDA National 
Agriculture Imagery Program base maps using ArcMap (Environmental 
Systems Research Institute, Inc.), a computer geographic information 
system program. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site, 
(http://www.fws.gov/wafwo), http://www.regulations.gov at Docket No. 
FWS-R1-ES-2013-0088, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map follows:
BILLING CODE 4333-15-P

[[Page 29377]]

[GRAPHIC] [TIFF OMITTED] TR11MY16.000


[[Page 29378]]


    (6) Unit 1: Lower Chilliwack River, Whatcom County, Washington. Map 
of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.001


[[Page 29379]]


    (7) Unit 2: South Fork Nooksack River, Whatcom County, Washington. 
Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.002


[[Page 29380]]


    (8) Unit 3: Samish River, Whatcom and Skagit Counties, Washington. 
Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.003


[[Page 29381]]


    (9) Unit 4: Black River, Thurston County, Washington. Map of Unit 4 
follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.004


[[Page 29382]]


    (10) Unit 5: White Salmon River, Skamania and Klickitat Counties, 
Washington. Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.005


[[Page 29383]]


    (11) Unit 6: Middle Klickitat River, Klickitat County, Washington. 
Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.006


[[Page 29384]]


    (12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of 
Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.007


[[Page 29385]]


    (13) Unit 8A: Upper Deschutes River, Subunit: Below Wickiup Dam, 
Oregon.
    (i) Map 1 of 2, Upper Deschutes River, Below Wickiup Dam, Deschutes 
County, Oregon. Map 1 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.008


[[Page 29386]]


    (ii) Map 2 of 2, Upper Deschutes River, Below Wickiup Dam, 
Deschutes County, Oregon. Map 2 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.009


[[Page 29387]]


    (14) Unit 8B: Upper Deschutes River, Subunit: Above Wickiup Dam, 
Oregon.
    (i) Map 1 of 2, Upper Deschutes River, Above Wickiup Dam, Deschutes 
and Klamath Counties, Oregon. Map 1 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.010


[[Page 29388]]


    (ii) Map 2 of 2, Upper Deschutes River, Above Wickiup Dam, 
Deschutes and Klamath Counties, Oregon. Map 2 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.011


[[Page 29389]]


    (15) Unit 9: Little Deschutes River, Deschutes and Klamath 
Counties, Oregon.
    (i) Map 1 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 1 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.012


[[Page 29390]]


    (ii) Map 2 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 2 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.013


[[Page 29391]]


    (iii) Map 3 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 3 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.014


[[Page 29392]]


    (16) Unit 10: McKenzie River, Lane County, Oregon. Map of Unit 10 
follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.015


[[Page 29393]]


    (17) Unit 11: Middle Fork Willamette River, Lane County, Oregon. 
Map of Unit 11 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.016


[[Page 29394]]


    (18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit 
12 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.017


[[Page 29395]]


    (19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of 
Unit 13 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.018


[[Page 29396]]


    (20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon. 
Map of Unit 14 follows:
[GRAPHIC] [TIFF OMITTED] TR11MY16.019

* * * * *

    Dated: April 7, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-10712 Filed 5-10-16; 8:45 am]
 BILLING CODE 4333-15-C