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DEPARTMENT OF THE INTERIOR available at the Fish and Wildlife analysis of the designation of critical Service Web site and Field Office set out habitat. In order to consider economic Fish and Wildlife Service above, and may also be included in the impacts, we prepared an incremental preamble and at http:// effects memorandum and a screening 50 CFR Part 17 www.regulations.gov. analysis, which together with our [Docket No. FWS–R1–ES–2013–0088; FOR FURTHER INFORMATION CONTACT: Eric narrative and interpretation of effects 4500030114] V. Rickerson, State Supervisor, U.S. we consider our draft economic analysis (DEA) of the proposed critical habitat RIN 1018–AZ56 Fish and Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond designation and related factors. The analysis, dated April 30, 2014, was Endangered and Threatened Wildlife Drive SE., Suite 102, Lacey, WA 98503, made available for public review from by telephone 360–753–9440, or by and Plants; Designation of Critical June 18, 2014, through July 18, 2014 (79 facsimile 360–753–9445. If you use a Habitat for the Oregon Spotted Frog FR 34685). The analysis was made telecommunications device for the deaf available for review a second time when AGENCY: Fish and Wildlife Service, (TDD), call the Federal Information we reopened the comment period from Interior. Relay Service (FIRS) at 800–877–8339. ACTION: Final rule. September 9, 2014, through September SUPPLEMENTARY INFORMATION: 23, 2014 (79 FR 53384). The DEA SUMMARY: We, the U.S. Fish and Executive Summary addressed probable economic impacts of Wildlife Service (Service), designate critical habitat designation for the Why we need to publish a rule. This critical habitat for the Oregon spotted Oregon spotted frog. Following the close is a final rule to designate critical frog (Rana pretiosa) under the of the comment period, we reviewed habitat for the Oregon spotted frog. Endangered Species Act. In total, and evaluated all information submitted Under the Endangered Species Act of approximately 65,038 acres (26,320 during the comment period that may 1973, as amended (16 U.S.C. 1531 et hectares) and 20.3 river miles (32.7 river pertain to our consideration of the seq.) (ESA or Act), any species that is kilometers) in Whatcom, Skagit, probable incremental economic impacts determined to be an endangered or Thurston, Skamania, and Klickitat of this critical habitat designation. We threatened species requires critical Counties in Washington, and Wasco, have incorporated the comments into habitat to be designated, to the Deschutes, Klamath, Lane, and Jackson this final determination. maximum extent prudent and Counties in Oregon, fall within the Peer review and public comment. We determinable. Designations and boundaries of the critical habitat sought comments from independent revisions of critical habitat can only be designation. The effect of this regulation specialists to ensure that our completed by issuing a rule. is to designate critical habitat for the designation is based on scientifically We, the U.S. Fish and Wildlife sound data and analyses. We solicited Oregon spotted frog under the Service (Service), listed the Oregon Endangered Species Act. opinions from nine knowledgeable spotted frog as a threatened species on individuals with scientific expertise to DATES: This rule becomes effective on August 29, 2014 (79 FR 51658). On review our technical assumptions, June 10, 2016. August 29, 2013, we published in the analysis, and whether or not we used ADDRESSES: This final rule is available Federal Register a proposed critical the best available information. Five on the internet at http:// habitat designation for the Oregon individuals provided comments. These www.regulations.gov and http:// spotted frog (78 FR 53538). On June 18, peer reviewers generally concurred with www.fws.gov/wafwo. Comments and 2014, we published in the Federal our methods and conclusions and materials we received, as well as some Register a proposed refinement to the provided additional information, supporting documentation we used in August 29, 2013, proposal (79 FR clarifications, and suggestions to preparing this final rule, are available 34685). Section 4(b)(2) of the Act states improve this final rule. Information we for public inspection at http:// that the Secretary shall designate critical received from peer review is www.regulations.gov. All of the habitat on the basis of the best available incorporated in this final designation. comments, materials, and scientific data after taking into We also considered all comments and documentation that we considered in consideration the economic impact, information received from the public this rulemaking are available by national security impact, and any other during the comment period. appointment, during normal business relevant impact of specifying any hours at: U.S. Fish and Wildlife Service, particular area as critical habitat. Previous Federal Actions Washington Fish and Wildlife Office, The critical habitat areas we are The Service listed the Oregon spotted 510 Desmond Drive SE., Suite 102, designating in this rule constitute our frog as a threatened species on August Lacey, WA 98503, by telephone 360– current best assessment of the areas that 29, 2014 (79 FR 51658). A list of the 753–9440 or by facsimile 360–753– meet the definition of critical habitat for previous Federal actions can be found 9445. the Oregon spotted frog. Here we are in the final listing rule and in the The coordinates or plot points or both designating approximately 65,038 acres proposal to designate critical habitat (78 from which the maps are generated are (ac) (26,320 hectares) (ha)) and 20.3 FR 53538, August 29, 2013). included in the administrative record river miles (mi) (32.7 river kilometers for this critical habitat designation and (km)) in 14 units as critical habitat in Summary of Comments and are available at http:// Washington and Oregon for the Oregon Recommendations www.regulations.gov at Docket No. spotted frog. We requested written comments from FWS–R1–ES–2013–0088, and at the This rule consists of: A final rule for the public on the proposed designation Washington Fish and Wildlife Office designation of critical habitat for the of critical habitat for the Oregon spotted (http://www.fws.gov/wafwo) (see FOR Oregon spotted frog. The Oregon spotted frog during three comment periods. The FURTHER INFORMATION CONTACT). Any frog was listed as threatened under the first comment period associated with additional tools or supporting Act. This rule designates critical habitat the publication of the proposed rule (78 information that we developed for this necessary for the conservation of the FR 53538) opened on August 29, 2013, critical habitat designation will also be species. We have prepared an economic and closed on November 12, 2013. We

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opened a second comment period on critical habitat for the Oregon spotted Our response: The primary June 18, 2014, to allow for comment on frog. Two of the peer reviewers constituent element (PCE) characteristic the DEA and associated perceptional provided additional information, of inundation for a minimum of 4 effects memorandum, as well as a clarifications, and suggestions to months per year is applied to both the revised proposed rule with changes to improve the final critical habitat rule. breeding and rearing habitats. This is the critical habitat designation; this We evaluated and incorporated this not counter to the information discussed period closed on July 18, 2014 (79 FR information into this final rule when by the peer reviewer. However, 34685). A third comment period opened and where appropriate to clarify this throughout the range of the species, not September 9, 2014, to allow for final designation. Two peer reviewers all breeding areas are shallow, additional comment on the DEA and provided substantive comments on the seasonally inundated areas that cannot associated perceptional effects proposed designation of critical habitat support rearing, such that tadpoles must memorandum, and on the changes to for the Oregon spotted frog, which we out-migrate. For example, some proposed critical habitat we announced address below. Peer reviewer comments breeding areas in Oregon and on June 18, 2014; it closed on are addressed in the following summary Washington retain water throughout the September 23, 2014 (79 FR 53384). We and incorporated into the final rule as rearing phase. Due to the variations received one request for a public appropriate. across the range, we believe the hearing; however, the request was from characteristic of inundation for a Peer Reviewer Comments a county in California where the species minimum of 4 months is appropriate. is not known to currently occur (see (1) Comment: One peer reviewer Comments From Federal Agencies Response to Comment 22). However, we expressed concern that Unit 7 does not did hold a public hearing on October 21, sufficiently delineate the habitat (3) Comment: One commenter from 2013, in Lacey, Washington. In addition, currently used by the population of the U.S. Environmental Protection multiple informal public meetings were Oregon spotted frogs in that area, Agency, two State commenters (one held in the Bend and Klamath Falls specifically Camas Prairie. The western from Washington Department of Ecology areas in Oregon. We also contacted boundary was drawn around what (WDOE) and one from Washington appropriate Federal, State, and local appear to be wetlands on aerial Department of Fish and Wildlife agencies; scientific organizations; and photographs, but does not account for (WDFW), Whatcom County, and one other interested parties and invited the primary wintering sites, such as member of the public expressed the them to comment on the proposed rule springs, small streams, and immediately opinion that the portion of Swift Creek and DEA during these comment periods. adjacent streambanks. included in the proposed critical habitat During the three comment periods, we Our response: This comment was may not be capable of supporting a received comments from 114 received during the comment period for healthy Oregon spotted frog population commenters directly addressing the our original proposed critical habitat, due to the environmental conditions August 29, 2013, proposed critical published in the Federal Register on caused by the Sumas Mountain habitat designation and the June 18, August 29, 2013 (78 FR 53538). We landslide. 2014, revision to proposed critical subsequently modified the boundaries Our response: We concur that Swift habitat. During the October 21, 2013, of Unit 7 to include overwintering Creek and the segments of the Sumas public hearing, four individuals or habitat and included this boundary River downstream of its confluence with organizations made statements on the refinement in the revised critical habitat Swift Creek likely lack the PCEs and designation of critical habitat for the proposed in the Federal Register on may not be capable of providing habitat Oregon spotted frog. All substantive June 18, 2014 (79 FR 34685). We did not in the future. Therefore, based on the information provided during comment receive comments that disagreed with information provided by the periods has either been incorporated the Unit 7 boundary refinements; commenters, we have revised Unit 1 to directly into this final determination or therefore, the final designation for this remove these areas from critical habitat. addressed below. Comments received unit includes, according to the best (4) Comment: A commenter with the were grouped into six general issues available scientific information, the U.S. Forest Service (USFS) and three specifically relating to the proposed known habitats that meet the year-round public commenters suggested expanding critical habitat designation for the needs of the species in this unit. the proposed critical habitat designation Oregon spotted frog and the June 18, (2) Comment: One peer reviewer in Unit 12 to include newly identified 2014, proposed revision to the stated that, in his experience, egg-laying occupied habitat at the headwaters of designation, and are addressed in the sites are depressions that hold shallow Jack Creek (Yellow Jacket Spring area) following summary and incorporated water in a nearly flat topography and and extend the downstream extent to into the final rule as appropriate. frequently do not sustain water for the Lily Camp. One commenter asked that entire 4-month larval rearing period. all wet meadow habitat adjacent to Jack Peer Review The reviewer stated that it is only Creek be explicitly mentioned in the In accordance with our peer review critical that these depressions maintain text as critical habitat. The public policy published on July 1, 1994 (59 FR water during the embryonic commenters also recommended 34270), we solicited expert opinions development and early larval periods to expanding proposed critical habitat to from nine knowledgeable individuals allow tadpoles to move to more include Round Meadow, an unoccupied with scientific expertise that included permanent waters to complete their but apparently suitable site that was not familiarity with the species, the development. The success of these proposed as critical habitat. geographic region in which the species breeding pools is based on the ability of Our response: Critical habitat in Unit occurs, and conservation biology free-swimming tadpoles to move out to 12 was proposed for expansion on June principles. We received responses more permanent waters sometime after 18, 2014 (79 FR 34685), extending pertinent to the proposed critical habitat hatching, usually within about 2 weeks. critical habitat approximately 3.1 mi (5 rule from five peer reviewers. Therefore, the total period of time that km) downstream along Jack Creek to We reviewed all comments received these areas must retain water, from egg- O’Connor Meadow. This expansion from the peer reviewers for substantive laying to out-migration, is closer to 6 includes the location described as issues and new information regarding weeks. Yellow Jacket Spring by the

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commenters. However, we did not contain the PCEs and are, therefore, not using NAIP imagery, NWI information, include the area beyond O’Connor included in this final designation. and other resources at a scale of Meadow as far south as Lily Camp due However, the lateral extent of critical 1:24,000, which has inherent limitations to the lack of detections south of Yellow habitat along river corridors will vary that preclude the specificity the Jacket Spring. This is in compliance because of their dynamic nature. commenters desire. While we with the 3.1-mi (5-km) rule set, as Critical habitat along river corridors acknowledge the data limitations defined in our description of critical in Units 1 through 5 is intended to implicit in our data source, the addition habitat (78 FR 53546). To the best of our encompass rivers/streams/creeks and all of a 100-ft buffer along all rivers would ability, we believe that the entire wet areas within the associated hydrologic encompass an area beyond what is meadow habitat associated with Jack floodplain, including adjacent necessary for the survival and recovery Creek has been included in critical seasonally wetted areas that contain any of the Oregon spotted frog. However, see habitat in Unit 12. We have no components of the PCEs. The text the Criteria Used To Identify Critical information in our files to suggest that within the criteria section and unit Habitat section and our response to Round Meadow is currently occupied descriptions has been revised to better Comment 5 pertaining to the in-text by Oregon spotted frogs. Technically, define the features included in this final description of areas that are considered Round Meadow is part of the Deschutes designation. The commenter did not to be critical habitat along designated Basin; however, it is not hydrologically provide specific details of areas believed river miles (see Table 2 for a summary connected via surface water to any other to be incorrectly mapped; therefore, no of approximate river mileage and Oregon spotted frog location in the additional changes beyond the revised ownership within proposed critical Deschutes Basin nor the Klamath Basin, descriptions have been made to critical habitat units, and also descriptions of including Jack Creek. Thus Round habitat boundaries. Units 1 through 5). Meadow does not fit the criteria for (6) Comment: A commenter from Comments From States designating unoccupied critical habitat. USFS raised a concern about the scale (5) Comment: A commenter from the of critical habitat mapping in an area of Section 4(i) of the Act states, ‘‘the USFS observed that the National proposed Unit 10. The area of concern Secretary shall submit to the State Wetlands Inventory (NWI) data used, in is in the Willamette National Forest on agency a written justification for his part, to map critical habitat for the the south fork of the McKenzie River failure to adopt regulations consistent Oregon spotted frog does not capture all between two unnamed marshes. The with the agency’s comments or potential wet habitats along rivers, width of the stream, as mapped for the petition.’’ Comments received from the streams, lakes, and ponds and purposes of critical habitat, is 2 meters State regarding the proposal to designate concluded that the proposed critical wide at some points, and the stream critical habitat for the Oregon spotted habitat does not accurately encompass channel itself may shift depending on frog are addressed below. all potential habitat. The commenter seasonal flow. Considering this (7) Comment: A commenter from the then recommended adding language to scenario, the commenter suggested a WDOE suggested that text in the the rule to address areas of potential 100-foot (ft) buffer on each side of the proposed rule appears to confuse the habitat outside mapped critical habitat segment of stream in question, stating Sumas River in Whatcom County, in order to be clear as to whether these that such an amendment would not only Washington, with the Chilliwack River lands will be treated as critical habitat. accommodate future changes in the in British Columbia, Canada. The Our response: We are aware that the location of the stream, but would also commenter asserted that in one part of NWI does not map all potential wet protect habitat immediately adjacent to the rule the Sumas River is described as habitats that are consistent with our the stream, which the USFS indicated a tributary to the Lower Chilliwack PCEs. Where we knew the data was should be considered as important for River watershed, which the commenter incomplete, we employed National protecting the physical and biological believed to be correct, but pointed out Agriculture Imagery Program (NAIP) features that are essential to the that elsewhere in the rule the Sumas digital imagery, hydrologic and slope conservation of the Oregon spotted frog. River was used interchangeably with the data, and our best professional judgment Similarly, a commenter from WDFW Chilliwack River and/or the Lower to identify and map the areas containing suggested that proposed critical habitat Chilliwack River, which the commenter the PCEs. Critical habitat, as defined along streams would be improved by felt was incorrect. and used in the Act, is the specific areas making allowances for natural Our response: The commenter’s within the geographical area occupied disturbance processes, such as flooding confusion arises from the multiple by the species at the time it is listed on and American beaver (Castor geographic scales that could be used to which are found those physical or canadensis) activity, which might affect describe the distribution of the Oregon biological features essential for the the size and location of the wetted areas spotted frog. Because we are considering conservation of the species and which along streams. the species across its range, we may require special management Our response: Regarding the attempted to use a consistent naming considerations or protection, and McKenzie River polygon width, we convention across the range, specifically specific areas outside the geographical recognize that there are areas within the we chose to use the hydrological unit area occupied by the species at the time critical habitat designation where our code (HUC) 8 (4th field or sub-basin) or it is listed, upon a determination by the mapped polygons may not precisely HUC 10 (5th field or watershed) Secretary that such areas are essential delineate all of the habitat features that delineation. In this case, the Sumas for the conservation of the species. All constitute critical habitat for the spotted River is a tributary to the Lower the areas designated as critical habitat frog due to limitations of the data used Chilliwack River watershed (HUC 10) for the Oregon spotted frog meet the to delineate the boundaries. We also and to the Fraser River sub-basin (HUC definition of critical habitat and contain recognize that the characteristics of the 8), and we chose to use the HUC 10 the PCEs for the species’ habitat; area designated as critical habitat may name to delineate Unit 1 consistent with conversely, areas of potential habitat fluctuate over time as water is the convention used for the other outside of the designated critical habitat impounded by beavers or natural critical habitat units. boundaries could not be determined to disturbances affect the riverine (8) Comment: The WDFW questioned meet the definition of critical habitat or hydrology. We mapped critical habitat why some areas were not included in

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Critical Habitat Unit 4: Black River. The (9) Comment: The WDFW wanted to enhancement needs for the Oregon agency stated that we did not clearly highlight the preparation of a Habitat spotted frog. Because the Oregon identify whether the wetlands Conservation Plan (HCP) that will cover spotted frog is not a covered species (including seasonally flooded wetlands multiple species across Washington under the Forest Practices HCP and the and pastures) associated with Upper State where they occur on WDFW- proposed listing decision does not draw Dempsey Creek, Upper Salmon Creek, owned Wildlife Areas and requested a specific determination regarding the and lower Beaver Creek were included. that the Service provide the same ‘‘potential for incidental take of the The agency further commented that consideration for exclusion of West species while conducting forest these segments have not been well- Rocky Prairie Wildlife Area under management activities covered by the surveyed, and the possibility remains section 4(b)(2) of the Act as the Service Forest Practices HCP,’’ the regulating that Oregon spotted frogs occur in the is providing to the Deschutes Basin State agency expressed its desire to wetlands associated with these Multispecies HCP. ‘‘avoid a circumstance where actions segments. In addition, the agency noted Our response: The Service approved to benefit one set of listed that Allen Creek between Tilly Road acknowledges the valuable effort on the species may potentially adversely and Interstate 5 (through Deep Lake and part of WDFW to prepare the state-wide impact another listed species.’’ Scott Lake) is not mapped as critical Wildlife Areas HCP. The protective Our response: The Oregon spotted habitat and that, although Oregon provisions provided by completed HCPs frog, as a species, is not generally spotted frogs are not currently known to are an important part of balancing dependent on a forested landscape; occur in this area, there are many species conservation with the needs of therefore, there is a lower likelihood unsurveyed wetlands and the possibility entities to manage their lands for public that Oregon spotted frogs or their habitat remains that Oregon spotted frogs may and private good. In the absence of an will be negatively affected by forest occur here. approved HCP, there are no concrete management activities. That said, Our response: Critical habitat, as assurances of funding or Oregon spotted frogs may occur in areas defined and used in the Act, is the implementation of the measures delineated as forested wetlands (e.g., specific areas within the geographical included in such a plan. Because there along Trout Lake Creek) or located area occupied by the species at the time is no approved HCP for either the West downstream or downslope from forest it is listed on which are found those Rocky Prairie Wildlife Area or the management activities, and management physical or biological features essential Deschutes Basin Multispecies area, we agencies should be aware of the are unable to exclude either of these activities that may negatively impact for the conservation of the species and areas from the proposed designation of them. An example of such activity may which may require special management critical habitat. include upslope management actions considerations or protection, and (10) Comment: The Washington that alter the hydrology of streams, specific areas outside the geographical Department of Natural Resources springs, or wetlands upon which area occupied by the species at the time (WDNR) expressed support for the Oregon spotted frogs depend. Activities it is listed, upon a determination by the designation of critical habitat on the that are currently allowed under the Secretary that such areas are essential Trout Lake Natural Area Preserve (NAP) Forest Practices HCP do have the for the conservation of the species. We in the absence of a completed potential to impact Oregon spotted frogs agree that, throughout the range, there Management Plan, stating that or their habitat. Conversely, disallowing are many areas that may provide the designation of critical habitat would be management actions that could improve types of habitat needed by the Oregon appropriate and may help strengthen habitat for Oregon spotted frogs could spotted frog but have yet to be surveyed; conservation support at the site. hinder or prolong their recovery. For however, the available information is Our response: In our proposed example, a lack of options to manage not sufficient to support a conclusion designation of critical habitat for the trees and/or shrubs that encroach into that all of these areas are essential for Oregon spotted frog (78 FR 53538), we the wetlands could reduce the the conservation of the species. stated that we were considering the availability of suitable egg-laying To the best of our ability, we have exclusion of the Trout Lake NAP if habitat. We note that areas of concern included the seasonally flooded conservation efforts identified in a are limited to a very small subset of wetlands and pastures associated with revised and finalized NAP management lands included or covered under the Upper Dempsey Creek, Upper Salmon plan would provide a conservation Forest Practices HCP. If there is a Creek, and lower Beaver Creek when benefit to the Oregon spotted frog. Based process for landowners to obtain a they were within 3.1 mi (5 km) of on comments from WDNR, we variance from WDNR in order to currently known occupied areas. Please understand that the management plan reestablish or enhance Oregon spotted see response to Comment 5 for further for this area cannot be updated and frog habitat, the Service recommends clarification of areas included in the finalized before final designation of that WDNR make that process available river mile segments. Areas beyond 3.1 critical habitat. Therefore, with WDNR’s to willing landowners. mi (5 km) of currently known occupied support, Trout Lake NAP was not areas were outside of our mapping excluded from critical habitat. We Comments From Tribes criteria. As noted by WDFW, the areas appreciate the WDNR’s commitment to (12) Comment: The Yakama Nation of Allen Creek between Tilly Road and managing the Trout Lake NAP for the asserted that Critical Habitat Unit 6 lies Interstate 5 are not occupied, there have benefit of the Oregon spotted frog. entirely within the boundaries of the been no indications that Oregon spotted (11) Comment: The WDNR stated that Yakama Reservation, despite the frogs are or will be able to use Deep the proposed critical habitat in areas statement in the proposed rule that the Lake and Scott Lake, nor did WDFW regulated by WDNR presents a potential Service ‘‘determined that the proposed provide information to support our conflict between the long-term designation does not include any tribal finding that these areas are essential for Washington State Forest Practices Rules lands’’ (78 FR 53553). The Yakama the conservation of the species; and their associated HCP, citing a Nation further stated that Critical therefore, we were unable to adequately misalignment between management Habitat Unit 6 is within the Tract D justify revising the boundaries of Unit 4 strategies for wetlands and riparian Area and explained that this area was to include these areas. areas and the habitat maintenance and included in the Yakama Nation’s

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homelands, which was expressly suffice to address impacts to Oregon groundwater can result in lower water reserved by the Treaty of 1855 ‘‘for the spotted frogs that result from water levels in groundwater systems, exclusive use and benefit’’ of the management, which is governed diminished flow of springs, and reduced Confederated Tribes and Bands of the primarily by Oregon law. The Service is streamflow (Gannett et al. 2007, pp. 59– Yakama Nation. The Yakama Nation working with irrigation districts and 60, 65), and could adversely affect contends that Tract D was erroneously other entities in the Deschutes River wetland habitats occupied by Oregon excluded from the Yakama Basin to develop a habitat conservation spotted frog that are supported by Reservation’s original boundaries and plan aimed at minimizing the impacts of springs. Therefore, the Service directed the attention of the Service to irrigation diversions on Oregon spotted appropriately identified groundwater the correction of this mistake through frogs and listed fish species. pumping as a potential threat to Oregon the return of Tract D to the Yakama (14) Comment: One commenter spotted frog. A determination of Nation in 1972 under Executive Order expressed concern about the lack of whether such pumping poses a threat to 11670. The Yakama Nation requested regulatory oversight for federally the frog’s habitat at any particular site that the critical habitat designation be permitted grazing where it may overlap will depend on site-specific analysis. amended to reflect consideration of the with critical habitat on USFS land. The Service assesses impacts on critical Yakama Nation’s concerns regarding Our response: The Service habitat only in the context of long-term management implications and coordinates and provides technical consultation with Federal agencies on objected to the proposed Oregon spotted assistance to other Federal agencies, the effects of their actions. Hence, if frog critical habitat designation for the including the USFS, on a broad scope of groundwater pumping in a particular area entitled, Critical Habitat Unit 6: work. The USFS has been proactive in instance does not involve a nexus with Middle Klickitat River. developing site management plans a Federal agency action, designation of Our response: While we understand specific to Oregon spotted frogs. critical habitat for the Oregon spotted that the Yakama Nation disputes the However, development of their Forest frog will have no impact on such ownership in this area, it is our current Plans, land use classifications, pumping. understanding that the Federal lands are standards and guidelines, and project (16) Comment: One commenter stated under ownership of the U.S. Fish and planning remains under the purview of that the Service’s Director should not be Wildlife Service’s Conboy Lake National the Federal agencies developing such able to certify whether the critical Wildlife Refuge. Based upon products. Additionally, if a federally habitat rule will have a significant consultation with the Yakama Nation, it authorized, funded, or conducted action economic impact. The commenter is our understanding that the Nation could affect a listed species or its speculated that the decisionmaking would like assurances that designation critical habitat, the responsible Federal process represents a conflict of interest of critical habitat will not infringe on agency is then required to enter into and does not allow any protections for tribal treaty rights that may be exercised consultation with the Service under the private landowners. on the lands that fall within Unit 6. section 7 of the Act. Our response: We assume the (15) Comment: One commenter FWS sought information from NWR staff commenter is referring to our expressed concern that groundwater and Yakama Nation representatives determination under the Regulatory pumping conveyed as surface water for regarding exercising tribal treaty rights Flexibility Act (RFA; 5 U.S.C. 601 et long distances or across lands that may on the lands included in the critical seq.) that this final critical habitat be considered critical habitat will be designation will not have a significant habitat designation. Whether or not regulated and ultimately result in less economic impact. Under section 605 of treaty rights have been exercised on water available for irrigation. Currently the RFA, ‘‘the head of the agency’’ can these lands is unclear; however, it is our groundwater pumping and use is make a certification ‘‘that the rule will opinion that designation of critical monitored and regulated by the Oregon not, if promulgated, have a significant habitat for the Oregon spotted frog on Water Resources Department in economic impact on a substantial lands owned by the Conboy Lake NWR accordance with State law. The number of small entities.’’ The Director will not affect the exercise of treaty commenter is concerned that additional of the Service is in the approval chain rights by the Yakama Nation. regulation could ultimately result in less for Service designations of critical Public Comments water available for irrigation. In habitat. However, the Principal Deputy addition, the commenter expressed the Assistant Secretary for Fish and Wildlife Service Authorities and Policy opinion that groundwater pumping and Parks within the Department of the Compliance practices should not be identified as an Interior has the ultimate signature (13) Comment: One commenter action that could negatively affect authority for Service designations of observed that the annual water Oregon spotted frog habitat because critical habitat. regulation of the Deschutes River for the such a connection is not supported by As described in our response to purpose of irrigation has had negative science. Comment 17 and later in this document impacts on the populations of fish and Our response: The critical habitat under Required Determinations, under other wildlife for which the river designation will have no effect on section 7 of the Act only Federal action provides habitat. The commenter pumping or conveyance of groundwater agencies are directly subject to the expressed frustration about mortality to where there is no Federal nexus to that specific regulatory requirement wildlife and questioned the utility of a action. On actions where there is a (avoiding destruction and adverse Federal agency listing another species Federal nexus the Service will analyze modification) imposed by critical and designating associated critical groundwater pumping effects to Oregon habitat designation. Consequently, our habitat under the Act to address these spotted frog critical habitat on a case-by- position is that only Federal action impacts. case basis. Our current understanding of agencies will be directly regulated by Our response: The Act requires the the sources of surface water within the this designation, and Federal agencies Service to designate critical habitat for designated critical habitat is that the are not small entities. Therefore, listed species to the maximum extent seasonally flooded areas are fed by because no small entities are directly prudent and determinable. This winter rains or snowmelt, not regulated by this rulemaking, we certify designation will not, standing alone, groundwater pumping. Pumping of that, if promulgated, the final critical

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

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

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

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

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

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

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

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

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

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number of small entities. Because (4) Based on comments received Critical Habitat certification is possible, no regulatory regarding the complexity with Background flexibility analysis is required. implementing the textual exclusion of the deep-water areas, we have removed Critical habitat is defined in section 3 Summary of Changes From Proposed language referring to the exclusion of of the Act as: Rule deep water from the unit description of (1) The specific areas within the We are designating a total of 65,038 ac Critical Habitat Subunit 8B in the geographical area occupied by the (26,320 ha) and 20.3 river mi (32.7 km) preamble to this final rule. species, at the time it is listed in of critical habitat for the Oregon spotted accordance with the Act, on which are (5) Based on comments received, we found those physical or biological frog. We received a number of site- have revised the boundaries of the specific comments related to critical features critical habitat delineation within Units (a) Essential to the conservation of the habitat for the species, completed our 8 and 9 using NAIP imagery to align analysis of areas considered for species, and more closely with the areas containing (b) Which may require special exclusion under section 4(b)(2) of the the PCEs. The areas where boundaries management considerations or Act or for exemption under section were refined are primarily along the protection; and 4(a)(3) of the Act, reviewed the Deschutes and Little Deschutes Rivers (2) Specific areas outside the application of our criteria for identifying where developed areas do not provide geographical area occupied by the critical habitat across the range of these PCEs. These refinements resulted in a species at the time it is listed, upon a species to refine our designations, and net removal of approximately 45 ac (18 determination that such areas are completed the final economic analysis ha) in Subunit 8a and 207 ac (84 ha) in essential for the conservation of the of the designation as proposed. We fully Unit 9. In Subunit 8A, a segment of the species. considered all comments from the Deschutes River was removed from final Conservation, as defined under public and peer reviewers on the critical habitat designation because it section 3 of the Act, means to use and proposed rule and the associated did not contain the PCEs nor could it the use of all methods and procedures economic analysis to develop this final contain PCEs in the future due to the that are necessary to bring an designation of critical habitat for Oregon geometry of the river channel (narrow endangered or threatened species to the spotted frog. This final rule incorporates and steep gradient) and distance (i.e., point at which the measures provided changes to our proposed critical habitat greater than 3.1 mi (5 km)) from known pursuant to the Act are no longer based on the comments that we received populations of Oregon spotted frogs. necessary. Such methods and and have responded to in this This segment of the Deschutes River procedures include, but are not limited document. (approximately 88 ac (36 ha) of to, all activities associated with Some technical corrections to the proposed critical habitat was also scientific resources management such as document including our final ground-verified for presence of PCEs, research, census, law enforcement, designation of critical habitat reflect the and the Service determined that the habitat acquisition and maintenance, following changes from the proposed PCEs were not present. propagation, live trapping, and rule as summarized here: (6) Minor corrections in acres and transplantation, and, in the (1) Based on comments received from river miles were made to correct errors extraordinary case where population Whatcom County, WDOE, WDFW, and made in the area calculations found pressures within a given ecosystem the Environmental Protection Agency, between proposed and final. Updated cannot be otherwise relieved, may we have revised Unit 1 by removing ownership layers were used to calculate include regulated taking. Swift Creek and the Sumas River final acres/river miles, resulting in Critical habitat receives protection downstream from the confluence with increased acres/river miles for some under section 7 of the Act through the Swift Creek. The final critical habitat land ownerships (Units 4, 6, and 13) requirement that Federal agencies designation is reduced by 137 acres (55 and decreased acres/river miles for ensure, in consultation with the Service, hectares) and 3.2 river mi (5.1 river km) others (Units 4 and 12), even though no that any action they authorize, fund, or from the proposed rule. other changes were made. In Unit 7, 6 carry out is not likely to result in the (2) In the proposed rule, we did not ac (2 ha), were incorrectly double- destruction or adverse modification of identify the scale at which occupancy counted in the proposed refinement (79 critical habitat. The designation of was to be determined. Therefore, the FR 34685, June 18, 2014), and the final critical habitat does not affect land proposed rule included occupied and critical habitat acres have been adjusted ownership or establish a refuge, ‘‘not known to be occupied’’ segments accordingly. wilderness, reserve, preserve, or other within a single critical habitat unit. In conservation area. Such designation this final rule, we have clarified the (7) A total of 3,083 ac (1,248 ha) has does not allow the government or public scale of occupancy to be a sub-basin been excluded under section 4(b)(2) in to access private lands. Such (hydrologic unit code 8, 4th field three units: 2,627 ac (1,062 ha) in Unit designation does not require watershed) or 5th field watershed when 6; 335 ac (136 ha) in Subunit 8a; and implementation of restoration, recovery, more appropriate (hydrologic unit code 121 ac (49 ha) in Unit 9. or enhancement measures by non- 10). Therefore, all designated critical Due to these changes in our final Federal landowners. Where a landowner habitat units are known to be occupied critical habitat designation, we have requests Federal agency funding or at the time the species was listed in updated unit descriptions and critical authorization for an action that may 2014, and language pertaining to ‘‘not habitat maps, all of which can be found affect a listed species or critical habitat, known to be occupied’’ critical habitat later in this document. This final the consultation requirements of section has been removed. For further designation of critical habitat represents 7(a)(2) of the Act would apply, but even information, see Criteria Used To a reduction of 3,463 ac (1,401 ha) and in the event of a destruction or adverse Identify Critical Habitat. 3.2 river mi (5.1 river km) from our modification finding, the obligation of (3) Trout Lake Natural Area Preserve proposed critical habitat for Oregon the Federal action agency and the was not excluded, based on comments spotted frog for the reasons detailed landowner is not to restore or recover received from WDNR. above. the species, but to implement

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reasonable and prudent alternatives to the extent consistent with the Act and occupied by the species at the time of avoid destruction or adverse with the use of the best scientific data listing to designate as critical habitat, modification of critical habitat. available, to use primary and original we consider the physical or biological Under the first prong of the Act’s sources of information as the basis for features essential to the conservation of definition of critical habitat, areas recommendations to designate critical the species and which may require within the geographical area occupied habitat. special management considerations or by the species at the time it was listed When we are determining which areas protection. These include, but are not are included in a critical habitat should be designated as critical habitat, limited to: designation if they contain physical or our primary source of information is (1) Space for individual and biological features (1) which are generally the information developed population growth and for normal essential to the conservation of the during the listing process for the behavior; species and (2) which may require species. Additional information sources (2) Food, water, air, light, minerals, or special management considerations or may include the recovery plan for the other nutritional or physiological protection. For these areas, critical species, articles in peer-reviewed requirements; habitat designations identify, to the journals, conservation plans developed (3) Cover or shelter; extent known using the best scientific by States and counties, scientific status (4) Sites for breeding, reproduction, or and commercial data available, those surveys and studies, biological rearing (or development) of offspring; physical or biological features that are assessments, other unpublished and essential to the conservation of the materials, or experts’ opinions or (5) Habitats that are protected from species (such as space, food, cover, and personal knowledge. disturbance or are representative of the protected habitat). In identifying those Habitat is dynamic, and species may historical, geographical, and ecological physical or biological features within an move from one area to another over distributions of a species. area, we focus on the principal time. We recognize that critical habitat We derive the specific physical or biological or physical constituent designated at a particular point in time biological features essential for the elements (PCEs such as roost sites, may not include all of the habitat areas Oregon spotted frog from studies of this nesting grounds, seasonal wetlands, that we may later determine are species’ habitat, ecology, and life history water quality, tide, soil type) that are necessary for the recovery of the as described in the Critical Habitat essential to the conservation of the species. For these reasons, a critical section of the proposed rule to designate species. PCEs are those specific habitat designation does not signal that critical habitat published in the Federal elements of the physical or biological habitat outside the designated area is Register on August 29, 2013 (78 FR features that provide for a species’ life- unimportant or may not be needed for 53538), and in the information history processes and are essential to recovery of the species. Areas that are presented below. Additional the conservation of the species. important to the conservation of the information can be found in the final Under the second prong of the Act’s species, both inside and outside the listing rule published in the Federal definition of critical habitat, we can critical habitat designation, will Register on August 29, 2014 (79 FR designate critical habitat in areas continue to be subject to: (1) 51658). We have determined that the outside the geographical area occupied Conservation actions implemented Oregon spotted frog requires the by the species at the time it is listed, under section 7(a)(1) of the Act, (2) following physical or biological upon a determination that such areas regulatory protections afforded by the features: are essential for the conservation of the requirement in section 7(a)(2) of the Act Space for Individual and Population species. For example, an area currently for Federal agencies to insure their Growth and for Normal Behavior occupied by the species but that was not actions are not likely to jeopardize the occupied at the time of listing may be continued existence of any endangered The Oregon spotted frog is the most essential to the conservation of the or threatened species, and (3) section 9 aquatic native frog species in the Pacific species and may be included in the of the Act’s prohibitions on taking any Northwest, as it is the only frog species critical habitat designation. We individual of the species, including that does not have a terrestrial life stage. designate critical habitat in areas taking caused by actions that affect It is found in or near perennial bodies outside the geographical area occupied habitat. Federally funded or permitted of water, such as springs, ponds, lakes, by a species only when a designation projects affecting listed species outside sluggish streams, irrigation canals, and limited to its range would be inadequate their designated critical habitat areas roadside ditches. For completion of to ensure the conservation of the may still result in jeopardy findings in their life cycle, Oregon spotted frogs species. some cases. These protections and require shallow, stable water areas for Section 4 of the Act requires that we conservation tools will continue to egg and tadpole survival and designate critical habitat on the basis of contribute to recovery of this species. development; perennial, deep, the best scientific and commercial data Similarly, critical habitat designations moderately vegetated pools for adult available. Further, our Policy on made on the basis of the best available and juvenile survival in the dry season; Information Standards Under the information at the time of designation and perennial water overlying emergent Endangered Species Act (published in will not control the direction and vegetation for protecting all age classes the Federal Register on July 1, 1994 (59 substance of future recovery plans, during cold wet weather (Watson et al. FR 34271)), the Information Quality Act HCPs, or other species conservation 2003, p. 298; Pearl and Hayes 2004, p. (section 515 of the Treasury and General planning efforts if new information 18). This scenario essentially equates to Government Appropriations Act for available at the time of these planning ‘‘an expansive meadow/wetland with a Fiscal Year 2001 (Pub. L. 106–554; H.R. efforts calls for a different outcome. continuum of vegetation densities along 5658)), and our associated Information edges and in pools and an absence of Quality Guidelines provide criteria, Physical or Biological Features introduced predators’’ (Watson et al. establish procedures, and provide In accordance with section 3(5)(A)(i) 2003, p. 298). guidance to ensure that our decisions and 4(b)(1)(A) of the Act and regulations Oregon spotted frogs exhibit fidelity are based on the best scientific data at 50 CFR 424.12, in determining which to seasonal pools throughout all seasons available. They require our biologists, to areas within the geographical area (breeding, dry, and wet) (Watson et al.

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2003, p. 295), and these seasonal pools surfaces and ingesting plant tissue and Oregon spotted frogs, which are need to be connected by water, at least bacteria, algae, detritus, and probably palatable to fish and bullfrogs (see through the spring and again in the fall, carrion (Licht 1974, p. 624; McAllister Factor C. Disease or Predation in our for frogs to access them. Subadult and and Leonard 1997, p. 13). Competitors final listing rule published in the adult frogs may be able to make short for food resources include nonnative Federal Register on August 29, 2014 (79 terrestrial movements, but wetted fish species, bullfrogs, and green frogs. FR 51658)), did not evolve with movement corridors are preferred. A Pearl and Hayes (2004, pp. 8–9) posit introduced species and, in some areas, wetted movement corridor with a that Oregon spotted frogs are limited by such as high-elevation lakes, did not gradual topographic gradient (less than both latitude and elevation to areas that evolve with native fish. Therefore, or equal to three percent) is necessary to provide warm-water marsh conditions Oregon spotted frogs may not have the enable tadpole movement out of shallow (summer shallow water exceeding 68 mechanisms to avoid the fish that prey egg-laying sites into deeper, more degrees Fahrenheit (F) (20 degrees on the tadpoles. The warm-water permanent water, as water levels recede Celsius (C)) based on the observed microhabitat requirement of the Oregon during the dry season (Watson et al. temperatures and slow developmental spotted frog, unique among native 2003, p. 298; Pearl and Hayes 2004, p. rates in egg stages (compared to other ranids of the Pacific Northwest, exposes 20). Impediments to upstream pond-breeding ranid frogs) and it to a number of introduced fish species movement may include, but are not increased surface activity in adult frogs (Hayes 1994, p. 25), the most common limited to, hard barriers such as dams, as water temperatures exceed 68 degrees being brook trout (Salvelinus fontinalis). impassable culverts, lack of water, and F (20 degrees C) and when the During drought years, as dropping water biological barriers, such as lakes or differentiation between surface and levels reduce wetland refuges, Oregon rivers/creeks without refugia from subsurface is greater than 37 degrees F spotted frog larvae become concentrated predators. (3 degrees C) (Watson et al. 2003, p. and are exposed to brook trout Therefore, based on the information 299). Warmer water is important for predation (Hayes et al. 1997, p. 5; Hayes above, we identify the following embryonic development and plant food 1998a, p. 15), resulting in lower Oregon physical or biological features needed production for larval rearing (Watson et spotted frog recruitment (Pearl 1999, p. by Oregon spotted frogs to provide al. 2003, p. 299) and to allow subadults 18). Demographic data suggest space for their individual and and adults to bask. introduced fish have a negative effect on population growth and for normal Therefore, based on the information Oregon spotted frogs because sites with behavior: (1) Perennial bodies of water above, we identify the following significant numbers of brook trout and/ (such as, but not limited to springs, or fathead minnow have a ponds, lakes, and sluggish streams) or physical or biological features needed by Oregon spotted frogs to provide for disproportionate ratio of older spotted other water bodies that retain water year frogs to juvenile frogs (i.e., poor round (such as irrigation canals or their nutritional and physiological requirements: (1) Sufficient quality of recruitment) (Hayes 1997, pp. 42–43). roadside ditches) with a continuum of Winter survival rates of Oregon spotted vegetation densities along edges; (2) a water to support habitat used by Oregon spotted frogs (including providing for a frog males and females are higher in gradual topographic gradient that overwintering locations where enables movement out of shallow sufficient prey base); (2) absence of competition from introduced fish and nonnative fish have limited or no access oviposition (egg-laying) sites into (Chelgren et al. 2008, p. 749), and the deeper, more permanent water; and, (3) bullfrogs; and (3) shallow (warmer) water. associated breeding areas have a barrier-free movement corridors. significantly higher (0.89 times) number Food, Water, Air, Light, Minerals, or Cover or Shelter of egg masses (Pearl et al. 2009a, p. 142). Other Nutritional or Physiological During the dry season, Oregon spotted Predation is believed to be more Requirements frogs move to deeper, permanent pools pronounced in spatially constrained The ecosystems utilized by Oregon or creeks and show a preference for overwintering habitats where frogs and spotted frogs have inherent community areas with greater than 50 percent fish both seek flowing water with dynamics that sustain the food web. surface water and/or less than 50 dissolved oxygen; however, these Habitats, therefore, must maintain percent vegetation closure (Watson et al. negative effects can be mediated by sufficient water quality to sustain all life 2003, pp. 295, 297), avoiding dense habitat complexity and the seasonal use stages, as well as acceptable ranges for stands of grasses with greater than 75 of microhabitats, and Oregon spotted maintaining the underlying ecological percent closure. They are often observed frogs can benefit from fish-free community. These key physical near the water surface basking and overwintering sites, even if fish are parameters include pH, dissolved feeding in beds of floating and shallow present in other local habitats (Pearl et oxygen, temperature, nutrients, and subsurface vegetation (Watson et al. al. 2009a, p. 143). In addition, uncontaminated water (see Water 2003, pp. 291–298; Pearl et al. 2005a, nonnative fish (in particular wide-gape Quality and Contamination is the Final pp. 36–37) that appears to allow them fish like bluegill sunfish) may be Listing Document (79 FR 51688–51690). to effectively use ambush behaviors in facilitating the distribution and For tadpoles and frogs living in habitats with high prey availability. The abundance of bullfrogs by preying upon productive wetland habitats, food is not off-shore vegetation mats also offer macroinvertebrates that would usually a limiting factor. Post- basking habitat that is less accessible to otherwise consume bullfrog tadpoles metamorphic Oregon spotted frogs are some terrestrial predators (Pearl et al. (Adams et al. 2003, p. 349). opportunistic predators feeding on live 2005a, p. 37). Proximity to escape cover Bullfrogs share similar habitat and animals found in or near water such as aggregated organic substrates temperature requirements with the (important prey species information is also may be particularly important for Oregon spotted frog, but adult bullfrogs provided in the life-history section of Oregon spotted frogs to successfully achieve larger body size than native our final listing rule published in the evade avian, terrestrial, and amphibian western ranids and even juvenile Federal Register on August 29, 2014 (79 predators (Licht 1986b, p. 241; Hallock bullfrogs can consume post- FR 51658)). Tadpoles are grazers, having and Pearson 2001, pp. 14–15; Pearl & metamorphic native frogs (Hayes and rough tooth rows for scraping plant Hayes 2004, p. 26). Jennings 1986, p. 492; Pearl et al. 2004,

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p. 16). In addition, bullfrog larvae can below, 2.0 mg/L and do not (approximately 4 months), and survival outcompete or displace native larvae purposefully avoid areas with low of frogs. Egg-laying can begin as early as from their habitat or optimal conditions oxygen levels, at least for short periods February in British Columbia and by harassing native larvae at feeding (Hayes et al. 2001, pp. 20–22; Washington, and as late as early June in stations or inhibiting native larvae Risenhoover et al. 2001b, pp. 17–18). the higher elevations (Leonard et al. feeding patterns (Kupferberg 1997, pp. Therefore, based on the information 1993, p. 132). In addition, breeding 1741–1746, Kiesecker and Blaustein above, we identify the following habitat must be hydrologically 1998, pp. 783–784, Kiesecker et al. physical or biological features needed connected to permanent waters. The 2001b, pp. 1966–1967). Therefore, by Oregon spotted frogs to provide for heaviest losses to predation are thought Oregon spotted frogs require areas that their cover and shelter requirements: (1) to occur shortly after tadpoles emerge are sheltered from competition with, or Permanent fresh water bodies, including from eggs, when they are relatively predation by, bullfrogs. natural and manmade, that have greater exposed and poor swimmers (Licht Within the current range of the than 50 percent surface water with 1974, p. 624). Significant mortality can Oregon spotted frog are two different floating and shallow subsurface also result when tadpoles become winter regimes. In British Columbia and vegetation during the summer, and that isolated in breeding pools away from Washington, the Puget Trough climate is are hydrologically connected via surface more permanent waters (Licht 1974, p. maritime with mild summer and winter water to breeding and rearing habitat; 619; Watson et al. 2003, p. 298). Watson temperatures. Subfreezing conditions (2) permanent fresh water bodies, et al. (2000, p. 28) reported nearly total occur only for short periods in including natural and manmade, that reproductive failure in 1998 when the November through March, but ice rarely hold water from October to March and egg-laying pools dried due to dry persists for more than a week. The are hydrologically connected via surface weather following breeding. In addition Cascades winter conditions are cold water to breeding and rearing habitat; to being vulnerable to desiccation, enough to produce ice-capped water (3) physical cover from avian and tadpoles may succumb to low dissolved bodies from December to February, and terrestrial predators, and lack of oxygen levels in isolated pools and temperatures regularly extend below predation by introduced fish and ponds during summer (Watson et al. freezing between mid-October and early bullfrogs; and (4) refuge from lethal 2000, p. 28). April. Known overwintering sites are overwintering conditions (freezing and Therefore, based on the information associated with flowing systems, such anoxia). above, we identify the following as springs and creeks, that provide well- physical or biological features needed Sites for Breeding, Reproduction, or oxygenated water (Hallock and Pearson by Oregon spotted frogs to provide for Rearing (or Development) of Offspring 2001, p. 15; Hayes et al. 2001, pp. 20– sites for reproduction, or rearing 23; Tattersall and Ultsch 2008, pp. 123, Oregon spotted frog breeding sites are (development) of offspring: (1) Standing 129, 136) and sheltering locations generally temporarily inundated bodies of fresh water, including natural protected from predators and freezing (flooded or underwater) shallows (≤12 and manmade ponds, slow-moving conditions (Risenhoover et al. 2001b, in (30 cm) deep) that are hydrologically streams or pools within streams, and pp. 13–26; Watson et al. 2003, p. 295; connected to permanent waters (Licht other ephemeral or permanent water Pearl and Hayes 2004, pp. 32–33). 1971, p. 120, Hayes et al. 2000 entire, bodies that typically become inundated Oregon spotted frogs may burrow in Pearl and Bury 2000, pp. 6–7, during winter rains and hold water for mud, silty substrate, or clumps of Risenhoover et al. 2001a, pp. 13–15, a minimum of 4 months (from egg- emergent vegetation during periods of Watson et al. 2003, p. 297) and include laying through metamorphosis); (2) prolonged or severe cold (Watson et al. pools, gradually receding shorelines, shallow (less than or equal to 12 in (30 2003, p. 295; McAllister and Leonard benches of seasonal lakes and marshes, cm)) water areas (shallow water may 1997, p. 17) but may remain active and wet meadows. Egg-laying also occur over vegetation that is in throughout most of the winter (Hallock microhabitats are gradually sloped and deeper water); (3) a hydrological and Pearson 2001, p. 17). Therefore, relatively close to shorelines (Hayes et connection to a permanent water body; overwintering habitat needs to retain al. 2000, p. 5; Pearl and Bury 2000, p. (4) gradual topographic gradient; (5) water during the winter (October 6; Pearl and Hayes 2004, p. 20) and are emergent wetland vegetation (or through March or early April), and, to usually associated with submergent or vegetation that can mimic emergent facilitate movement, these areas need to the previous year’s emergent vegetation. vegetation via manipulation, for be hydrologically connected via surface Characteristic vegetation includes example reed canarygrass that can be water breeding and rearing habitat. grasses, sedges, and rushes. Vegetation mowed); and (6) full solar exposure. In the areas of the range where water coverage beneath egg masses is bodies become capped by ice and snow generally high, and Oregon spotted frog Habitats Protected From Disturbance or for several weeks during the winter, egg masses are rarely found over open Representative of the Historical, hypoxic water conditions can occur due soil or rock substrates (Pearl and Bury Geographic, and Ecological to cessation of photosynthesis combined 2000, p. 6; Lewis et al. 2001, pp. 9–10). Distributions of the Species with oxygen consumption by Full solar exposure seems to be a Dispersal habitat may consist of decomposers (Wetzel 1983, pp. 162– significant factor in breeding habitat ephemeral (water present for only a 170). While lethal oxygen levels for selection and eggs are laid where the short time), intermittent, or perennial Oregon spotted frogs have not been vegetation is low or sparse, such that drainages that are generally not suitable evaluated, other ranid species have been vegetation structure does not shade the for breeding but can provide corridors found to use overwintering microhabitat eggs (McAllister and Leonard 1997, pp. that afford movement. This habitat also with well-oxygenated waters (Ultsch et 8, 17; McAllister and White 2001, pp. offers areas for the establishment of al. 2000, p. 315; Lamoureux and 10–11; Pearl and Bury 2000, p. 6; Pearl home ranges by juvenile recruits, Madison 1999, p. 434), and most fish et al. 2009a, pp. 141–142). maintenance of gene flow through the cannot tolerate levels below 2.0 mg/L To be considered essential breeding movement of juveniles and adults (Wetzel 1983, p. 170). However, some habitat, water must be permanent between populations, and recruitment evidence indicates that Oregon spotted enough to support breeding, tadpole into new breeding habitat or frogs can tolerate levels at, or somewhat development to metamorphosis recolonization of breeding habitat after

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local extirpations. Detailed studies of Maintenance of populations across a one or more of the following dispersal and population dynamics of diversity of ecological landscapes is characteristics: Oregon spotted frogs are limited. necessary to provide sufficient • Inundated for a minimum of 4 However, home ranges in a Washington protection against changing months per year (B, R) (timing varies by study averaged 5.4 ac (2.2 ha), and daily environmental circumstances (such as elevation but may begin as early as movement was 16–23 feet (5–7 meters) climate change). This diversity of February and last as long as September); • throughout the year (Watson et al. 2003, habitat areas provides functional Inundated from October through p. 295). Oregon spotted frogs at the redundancy to safeguard against March (O); • Sunriver site in Oregon routinely make stochastic events (such as droughts) and If ephemeral, areas are annual migrations of 0.31–0.81 mi (0.5– may also be necessary as different hydrologically connected by surface 1.3 km) between the major egg-laying regions or microclimates respond to water flow to a permanent water body complex and an overwintering site changing climate conditions. (e.g., pools, springs, ponds, lakes, (Bowerman 2006, pers. comm.). Longer Establishing or maintaining populations streams, canals, or ditches) (B, R); • Shallow-water areas (less than or travel distances, while infrequent, have across a broad geographic area spreads equal to 30 centimeters (12 inches), or been observed between years and within out the risk to individual populations across the range of the species, thereby water of this depth over vegetation in a single year between seasons. The conferring species resilience. Finally, deeper water (B, R); maximum observed movement distance protecting a wide range of habitats • Total surface area with less than 50 in Washington was 1.5 mi (2.4 km) across the occupied range of the species percent vegetative cover (N); between seasons along lower Dempsey simultaneously maintains genetic • Gradual topographic gradient (less Creek to the creek’s mouth from the diversity of the species, which protects than 3 percent slope) from shallow point where the frogs were marked the underlying integrity of the major water toward deeper, permanent water (McAllister and Walker 2003, p. 6). In genetic groups (Blouin et al. 2010, pp. (B, R); Oregon, the maximum observed 2184–2185) whose persistence is • Herbaceous wetland vegetation (i.e., movement was 1.74 mi (2.8 km) important to the ecological fitness of the emergent, submergent, and floating- downstream (Cushman and Pearl 2007, species as a whole (Blouin et al. 2010, leaved aquatic plants), or vegetation that p. 13). While these movement studies p. 2190). can structurally mimic emergent are specific to Oregon spotted frogs, the Therefore, based on the information wetland vegetation through number of studies and size of the study above, we identify the following manipulation (B, R); areas are limited and studies have not physical or biological features needed • Shallow-water areas with high solar been conducted over multiple seasons by Oregon spotted frogs to provide exposure or low (short) canopy cover (B, or years. In addition, the ability to habitats protected from disturbance and R); detect frogs is challenging because of representative of the historical, • An absence or low density of the difficult terrain in light of the need geographic, and ecological distribution: nonnative predators (B, R, N) for the receiver and transmitter to be in (1) Wetted corridors within 3.1 mi (5 (2) PCE 2—Aquatic movement close proximity. Hammerson (2005) km) of breeding habitat that are free of corridors. Ephemeral or permanent recommends that a 3.1-mi (5-km) barriers to movement, and (2) a diversity bodies of fresh water that have one or separation distance for suitable habitat of high-quality habitats across multiple more of the following characteristics: • be applied to all ranid frog species sub-basins throughout the geographic Less than or equal to 3.1 mi (5 km) extent of the species’ range sufficiently linear distance from breeding areas; because the movement data for ranids • are consistent. Furthermore, despite representing the major genetic groups. Impediment free (including, but not occasional movements that are longer or limited to, hard barriers such as dams, Primary Constituent Elements for impassable culverts, lack of water, or that may allow some genetic Oregon Spotted Frog interchange between distant biological barriers such as abundant Under the Act and its implementing predators, or lack of refugia from populations (for example, the 10-km regulations, we are required to identify predators). (6.2-mi) distance noted by Blouin et al. the physical or biological features (3) PCE 3—Refugia habitat. (2010, pp. 2186, 2188), the essential to the conservation of the Nonbreeding, breeding, rearing, or preponderance of data indicates that a Oregon spotted frog in areas occupied at overwintering habitat or aquatic separation distance of several kilometers the time of listing, focusing on the movement corridors with habitat may be appropriate and practical for features’ PCEs. PCEs are those specific characteristics (e.g., dense vegetation delineation of occupancy. Therefore, for elements of the physical or biological and/or an abundance of woody debris) the purposes of evaluating the features that provide for a species’ life- that provide refugia from predators (e.g., connectedness of Oregon spotted frog history processes and are essential to nonnative fish or bullfrogs). breeding areas and individual frogs’ the conservation of the species. ability to move between areas of suitable Based on our current knowledge of Special Management Considerations or habitat, we will assume a maximum the physical or biological features and Protection movement distance of 3.1 mi (5 km). habitat characteristics required to When designating critical habitat, we However, this distance does not account sustain the species’ life-history assess whether the specific areas within for high-water events that can transport processes, we determine that the PCEs the geographical area occupied by the frogs and tadpoles downstream. In specific to the Oregon spotted frog are: species at the time of listing contain addition, these aquatic movement (1) PCE 1—Nonbreeding (N), Breeding features that are essential to the corridors should be free of impediments (B), Rearing (R), and Overwintering conservation of the species and which to upstream movement, including but Habitat (O). Ephemeral or permanent may require special management not limited to hard barriers such as bodies of fresh water, including but not considerations or protection. Here we dams, impassable culverts, lack of limited to natural or manmade ponds, describe the type of special management water, and biological barriers such as springs, lakes, slow-moving streams, or considerations or protection that may be lakes or rivers/creeks without refugia pools within or oxbows adjacent to required for the physical or biological from predators. streams, canals, and ditches, that have features identified as essential for the

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Oregon spotted frog. The specific those currently occupied—are essential course) to delineate river miles. The critical habitat units and subunits where for the conservation of the species. lateral extent of critical habitat in these these management considerations or We equate the geographical area segments is defined as the stream and protection apply for each species are occupied at the time of listing with the the associated hydrologic floodplain. identified in Unit Descriptions. current range for the species; see the The hydrologic floodplain is the A detailed discussion of activities final listing rule (79 FR 51658, August relatively flat, depositional surface influencing the Oregon spotted frog and 29, 2014; Current Range/Distribution adjacent to the channel, formed by the their habitat can be found in the final and Table 1) for a description of the river under its present climate and listing rule (79 FR 51658). Threats to the current range of the Oregon spotted frog, sediment load, and overflowed during physical or biological features that are which is identified at the scale of sub- moderate peak flow events. The essential to the conservation of this basin/5th field watershed. We used hydrologic floodplain can be species and that may warrant special information from reports and databases distinguished from the abutting upland management considerations or prepared by Federal and State agencies by the presence of soils derived from protection include, but are not limited and private researchers to identify the alluvial sediments, wetland soils, and to: (1) Habitat modifications brought on specific locations used by Oregon riparian/wetland vegetation. by nonnative plant invasions or native spotted frogs for egg-laying, rearing, Within the geographical area vegetation encroachment (trees and nonbreeding, and overwintering. occupied at the time of listing we shrubs); (2) loss of habitat from Occurrence data used for determining identified specific areas that are known conversion to other uses; (3) hydrologic occupancy includes the time period to be occupied by the Oregon spotted manipulation; (4) removal of beavers between 2000 and 2013; older frog on which are found those physical and features created by beavers; (5) occurrence data were not considered to or biological features essential to the livestock grazing; and (6) predation by be a reliable predictor for current conservation of the species and which invasive fish and bullfrogs. These occupancy. In only one location (Davis may require special management threats also have the potential to affect Lake in the Upper Deschutes River) considerations or protection. the PCEs if conducted within or throughout the species’ range is Additionally, in the proposed rule (78 adjacent to designated units. occurrence data used prior to 2005 (i.e., FR 53538, August 29, 2013) we The physical or biological features 2000–2004). Therefore, the majority of proposed to designate areas that are essential to the conservation of the occupied occurrence data was collected currently ‘‘not known to be occupied.’’ Oregon spotted frog may require special in 2005 or later. Although we acknowledged in the management considerations or To determine whether the specific proposed rule our uncertainty about the protection to ensure the provision of areas within the occupied sub-basins/ occupancy status of these areas based on wetland conditions and landscape watersheds contain the PCEs, we plotted a lack of specific survey data, we context of sufficient quantity and all occurrence records in ArcGIS, determined that these areas are quality for long-term conservation and version 9 or 10 (Environmental Systems occupied under the definition of critical recovery of the species. Management Research Institute, Inc.), a computer habitat based on the following factors: activities that could ameliorate the geographic information system program, These areas (1) are within occupied sub- threats described above include (but are and overlaid them on NAIP digital basins, (2) contain habitat features not limited to): Treatment or removal of imagery, NWI data, National Hydrologic similar to known occupied areas, (3) exotic and encroaching vegetation (for Data (NHD), and slope data. Where NWI hydrologically connect (via surface example mowing, burning, grazing, data were available and appeared to waters) to occupied areas, and (4) do not herbicide treatment, shrub/tree well-represent the potential habitat as contain barriers that would inhibit removal); modifications to fish stocking seen on the NAIP imagery, the NWI data Oregon spotted frog movement between and beaver removal practices in specific were used to approximate PCEs. These occupied areas. water bodies; nonnative predator areas are referred to as ‘‘wetlands’’ in We recognize that the physical or control; stabilization of extreme water the unit descriptions. However, in many biological features may only be present level fluctuations; restoration of habitat cases the NWI features were either too seasonally in some areas because features; and implementation of expansive or not expansive enough to aquatic systems are not static; water appropriate livestock grazing practices. capture the known occurrences and levels fluctuate between seasons, severe areas of use; in these cases, NAIP flood events occur, and beavers abandon Criteria Used To Identify Critical imagery, slope, and local knowledge and recolonize sites. As a result of these Habitat were utilized to approximate the areas changing habitat conditions, some areas As required by section 4(b)(2) of the that are most likely to contain the PCEs. may not have continuous Oregon Act, we use the best scientific data These areas are referred to as spotted frog presence. Therefore, we available to designate critical habitat. In ‘‘seasonally wetted’’ in the unit also applied the standard for accordance with the Act and our descriptions. In order to capture PCE unoccupied areas and evaluated implementing regulations at 50 CFR 2-aquatic movement corridors, we used whether all areas are essential for the 424.12(b), we review available the NHD to map 3.1 mi (5 km) distance conservation of the species. In information pertaining to the habitat up and downstream from the occurrence evaluating this, we considered: (1) The requirements of the species and identify data. NAIP imagery and local importance of the area to the future occupied areas at the time of listing that knowledge were used to refine NHD line recovery of the species; (2) whether the contain the features essential to the features (for example, adjusting areas have or are capable of providing conservation of the species. If, after alignment with actual water course). the essential physical or biological identifying currently occupied areas, we In Washington, within five of the sub- features; and (3) whether the areas determine that those areas are basins/watersheds, NWI and NAIP provide connectivity between upstream inadequate to ensure conservation of the imagery were not sufficient to map the and downstream populations, thus species, in accordance with the Act and seasonally flooded areas adjacent to facilitating gene flow and allowing for our implementing regulations at 50 CFR rivers/streams. In these areas, we relied recolonization of sites that may become 424.12(e) we then consider whether on the NHD line features (adjusting lost due to threats or other factors, such designating additional areas—outside where needed to reflect the actual water as natural catastrophic or stochastic

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events that render existing occupied with respect to critical habitat and the uncertain, seasonal, or sporadic, we also areas nonfunctional. We determined requirement of no adverse modification consider those areas to be essential for that all of the areas included in critical unless the specific action would affect the conservation of the species. These habitat also meet these three factors; the physical or biological features in the units are delineated by the sub-basins/ therefore, we consider all lands and adjacent critical habitat. watersheds where Oregon spotted frogs waters included in the designation to be The critical habitat designation is remain extant, based on occurrence data essential for the conservation of the defined by the map or maps, as as described above. Within each unit, species. modified by any accompanying the physical or biological features Areas designated as critical habitat for regulatory text, presented at the end of necessary to support life-history the Oregon spotted frog are not this document in the rule portion. We processes require special management representative of the entire known include more detailed information on historical geographic distribution of the the boundaries of the critical habitat (see Special Management species. We are not designating critical designation in the preamble of this Considerations or Protections above). habitat in areas where the species may document. We will make the The threats are relatively consistent be extirpated, such as in California or coordinates or plot points or both on across each unit, with the exception of the Willamette Valley in Oregon. These which each map is based available to one unit where threats are significantly historical areas do not meet the criteria the public on http:// different (Unit 8 Upper Deschutes for critical habitat since they are not www.regulations.gov at Docket No. River). This unit is further subdivided essential to the conservation of the FWS–R1–ES–2013–0088, on our into two subunits. species. Internet site http://www.fws.gov/wafwo/ Final Critical Habitat Designation When determining critical habitat osf.html, and at the field office boundaries within this final rule, we responsible for the designation (see FOR We are designating 14 units as critical made every effort to avoid including FURTHER INFORMATION CONTACT above). habitat for the Oregon spotted frog. The developed areas such as lands covered In summary, we are designating 14 critical habitat areas described below by buildings, pavement, and other units of critical habitat that we constitute our best assessment at this structures because such lands lack determined were occupied at the time of time of areas that meet the definition of physical or biological features for the listing and contain sufficient elements Oregon spotted frog. The scale of the of physical or biological features being critical habitat. Those 14 units are: (1) maps we prepared under the parameters present to support Oregon spotted frog Lower Chilliwack River; (2) South Fork for publication within the Code of life-history processes. The physical or Nooksack River; (3) Samish River; (4) Federal Regulations may not reflect the biological features relate to Oregon Black River; (5) White Salmon River; (6) exclusion of such developed lands. Any spotted frog nonbreeding, breeding, Middle Klickitat River; (7) Lower such lands inadvertently left inside rearing, and overwintering habitat Deschutes River; (8) Upper Deschutes critical habitat boundaries shown on the needs, the specifics of which are River; (9) Little Deschutes River; (10) maps of this final rule have been discussed in greater detail above, see McKenzie River; (11) Middle Fork excluded by text in the rule and are not Primary Constituent Elements for Willamette River; (12) Williamson designated as critical habitat. Therefore, Oregon spotted frog. In addition, where River; (13) Upper Klamath Lake; and a Federal action involving these lands occupancy or the presence of the (14) Upper Klamath. Table 1 shows the will not trigger section 7 consultation physical or biological features may be 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 State County municipalities Total Ac (Ha) Ac (Ha) Ac (Ha) Ac (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.

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TABLE 2—APPROXIMATE RIVER MILEAGE AND OWNERSHIP WITHIN PROPOSED CRITICAL HABITAT UNITS FOR THE OREGON SPOTTED FROG

Federal/ County/ Private/local Federal river private * river State river State/private County river private river municipalities Critical habitat unit mile mile mile river mile mile mile river mile Total (km) (km) (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 esti- mates in Table 1.

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

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

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

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Critical Habitat Unit 12: Williamson includes three creeks (Sevenmile, Crane, Creek as well as four lakes associated River and Fourmile) that flow into Sevenmile with the creek. Oregon spotted frogs are The Williamson River unit consists of Canal and then into Agency Lake and known to currently occupy this unit 15,331 ac (6,204 ha) in Klamath County, their adjacent seasonally wetted areas. (BLM, USFS, USGS, and USFWS Sevenmile Creek includes 1.40 mi Oregon. This unit includes the multiple data sources). Within this unit, (2.25 km) beginning north of Nicholson Williamson River and adjacent, 103 ac (42 ha) are managed by the BLM Road, south to the confluence of Crane seasonally wetted areas in Klamath and USFS Fremont-Winema National Creek as well as the entire length of two Marsh NWR 4.89 mi (7.87 km) east of Forest, and 159 ac (64 ha) are privately connected tributaries (Blue Spring and Silver Lake Highway, north to 0.998 mi owned. All of the essential physical or Short Creek) and the associated, (1.61 km) southeast of Big Springs, biological features are found within the adjacent seasonally wetted areas. Crane north through the Refuge to 0.24 mi unit, but are impacted by woody Creek includes adjacent seasonally (0.36 km) southeast of Three Creek vegetation succession, nonnative wetted areas 0.28 mi (0.44 km) from its predators, lack of beaver, and spring, and upstream to 2.14 mi (3.44 headwaters south to the confluence with km) north of the confluence with Aspen hydrological changes. The essential Sevenmile Creek as well as two features within this unit may require Creek. This unit also includes a portion tributaries (Mares Egg spring and a of one tributary to the Williamson River special management considerations or portion of an unnamed spring to the protection to ensure maintenance or (Jack Creek) and its adjacent seasonally west of Crane Creek 0.16 mi (0.30 km) wetted areas from National Forest Road improvement of the existing south of three unnamed springs near nonbreeding, breeding, rearing, and 94, south of National Forest Road 88 Sevenmile Road). Fourmile Creek through 1.32 mi (2.12 km) of O’Connor overwintering habitat, aquatic includes the adjacent seasonally wetted movement corridors, or refugia habitat, Meadow. Oregon spotted frogs are areas associated with the historical known to currently occupy this unit as well as to address any changes that Crane Creek channel, Threemile Creek, could affect these features. (USGS, USFS, and USFWS multiple Cherry Creek, Jack springs, Fourmile data sources). Within this unit, 10,418 springs, the confluence of Nannie Creek, Effects of Critical Habitat Designation ac (4,216 ha) are federally managed by and the north-south canals that connect Section 7 Consultation the Klamath Marsh NWR and the USFS Fourmile Creek to Crane Creek. Fremont-Winema National Forest, and Oregon spotted frogs are known to Section 7(a)(2) of the Act requires 4,913 ac (1,988 ha) are privately owned. currently occupy this unit (BLM, USFS, Federal agencies, including the Service, Additionally, the essential physical or USGS, and USFWS multiple data to ensure that any action they fund, biological features are found within the sources). Within this unit, 1,259 ac (510 authorize, or carry out is not likely to unit, but are impacted by invasive ha) are managed by the BLM, USFS jeopardize the continued existence of plants (reed canarygrass), woody Fremont-Winema National Forest, and any endangered species or threatened vegetation succession, absence of Bureau of Reclamation; 9 ac (4 ha) are species or result in the destruction or beaver, and nonnative predators. The managed by Oregon State Parks; less adverse modification of designated essential features within occupied areas than 1 ac (<1 ha) are owned by Klamath critical habitat of such species. In within this unit may require special County; and 1,068 ac (432 ha) are addition, section 7(a)(4) of the Act management considerations or privately owned. All of the essential requires Federal agencies to confer with protection to ensure maintenance or physical or biological features are found the Service on any agency action which improvement of the existing within the unit, but are impacted by is likely to jeopardize the continued nonbreeding, breeding, rearing, and invasive plants (reed canarygrass), existence of any species proposed to be overwintering habitat, aquatic woody vegetation plantings and listed under the Act or result in the movement corridors, or refugia habitat, succession, hydrological changes, and destruction or adverse modification of as well as to address any changes that nonnative predators. The essential proposed critical habitat. could affect these features. features within this unit may require We published a final regulation with a new definition of destruction or Critical Habitat Unit 13: Upper Klamath special management considerations or protection to ensure maintenance or adverse modification on February 11, Lake improvement of the existing 2016 (81 FR 7214), which became The Upper Klamath Lake unit consists nonbreeding, breeding, rearing, and effective on March 14, 2016. Destruction of 2,337 ac (946 ha) in Klamath County, overwintering habitat, aquatic or adverse modification means a direct Oregon. This unit includes the Wood movement corridors, or refugia habitat, or indirect alteration that appreciably River and its adjacent seasonally wetted as well as to address any changes that diminishes the value of critical habitat areas from its headwaters downstream could affect these features. for the conservation of a listed species. to the BLM south levee road just north Such alterations may include, but are of the confluence with Agency Lake as Critical Habitat Unit 14: Upper Klamath not limited to, those that alter the well as the complete length of the Wood The Upper Klamath unit consists of physical or biological features essential River Canal (west of the Wood River) 262 ac (106 ha) of lakes and creeks in to the conservation of a species or that and its adjacent seasonally wetted areas Klamath and Jackson Counties, Oregon. preclude or significantly delay starting 1.80 mi (2.90 km) south of Weed In Klamath County, Buck Lake critical development of such features. Road and continuing south. This unit habitat includes seasonally wetted areas If a Federal action may affect a listed also includes two tributaries to the adjacent to the western edge of Buck species or its critical habitat, the Wood River (Fort Creek and Annie Lake encompassing Spencer Creek responsible Federal agency (action Creek) and their adjacent seasonally downstream due west of Forest Service agency) must enter into consultation wetted areas: Fort Creek in its entirety Road 46, three unnamed springs, and with us. Examples of actions that are from its headwaters to the junction of Tunnel Creek. Parsnip Lakes, in Jackson subject to the section 7 consultation the Wood River and Annie Creek 0.75 County, includes seasonally wetted process are actions on State, tribal, mi (1.2 km) downstream from the Annie areas associated with Keene Creek from local, or private lands that require a Creek Sno-Park to its junction with the the Keene Creek dam to 0.55 mi (0.88 Federal permit (such as a permit from Wood River. In addition, this unit km) east from the confluence of Mill the U.S. Army Corps of Engineers under

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section 404 of the Clean Water Act (33 control over the action (or the agency’s h. water withdrawal; U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is i. hydropower generation; Service under section 10 of the Act) or authorized by law). Consequently, j. livestock grazing; that involve some other Federal action Federal agencies sometimes may need to k. beaver removal; (such as funding from the Federal request reinitiation of consultation with l. destruction of riparian or wetland Highway Administration, Federal us on actions for which formal vegetation; Aviation Administration, or the Federal consultation has been completed, if m. pond construction; Emergency Management Agency). those actions with discretionary n. river restoration, including channel Federal actions not affecting listed involvement or control may affect reconstruction, placement of large species or critical habitat, and actions subsequently listed species or woody debris, vegetation planting, on State, tribal, local, or private lands designated critical habitat. reconnecting riverine floodplain, or that are not federally funded or Application of the ‘‘Adverse gravel placement; and authorized, do not require section 7 Modification’’ Standard o. reservoir water storage and release. consultation. These activities may lead to changes As a result of section 7 consultation, The key factor related to the adverse in the hydrologic function of the aquatic we document compliance with the modification determination is whether, habitat and alter the timing, duration, requirements of section 7(a)(2) through with implementation of the proposed water flows, and water depth. These our issuance of: Federal action, the affected critical changes may be designed to benefit the (1) A concurrence letter for Federal habitat would continue to serve its Oregon spotted frog and actually actions that may affect, but are not intended conservation role for the increase habitat in the long term, or may likely to adversely affect, listed species species. Activities that may destroy or degrade or eliminate Oregon spotted or critical habitat; or adversely modify critical habitat are frog habitat and could lead to the (2) A biological opinion for Federal those that result in a direct or indirect reduction in available breeding, rearing, actions that may affect and are likely to alteration that appreciably diminishes nonbreeding, and overwintering habitat adversely affect listed species or critical the value of critical habitat for the necessary for the frog to complete its life habitat. conservation of the Oregon spotted frog. cycle. If the permanence of an aquatic When we issue a biological opinion Such alterations may include, but are system declines so that it regularly dries concluding that a project is likely to not limited to, those that alter the up, it may lose its ability to support jeopardize the continued existence of a physical or biological features essential Oregon spotted frogs. If the quantity of listed species and/or destroy or to the conservation of these species or water declines, it may reduce the adversely modify critical habitat, we that preclude or significantly delay likelihood that the site will support a provide reasonable and prudent development of such features. As population of frogs that is robust enough alternatives to the project, if any are discussed above, the role of critical to be viable over time. Similarly, identifiable, that would avoid the habitat is to support life-history needs of ephemeral, intermittent, or perennial likelihood of jeopardy and/or the species and provide for the ponds can be important stop-over points destruction or adverse modification of conservation of the species. for frogs moving among breeding areas critical habitat. We define ‘‘reasonable Section 4(b)(8) of the Act requires us or between breeding, rearing, dry and prudent alternatives’’ (at 50 CFR to briefly evaluate and describe, in any season, or wintering areas. Reducing the 402.02) as alternative actions identified proposed or final regulation that permanence of these sites may reduce during consultation that: designates critical habitat, activities their ability to facilitate frog (1) Can be implemented in a manner involving a Federal action that may consistent with the intended purpose of movements. However, in some cases, destroy or adversely modify such increasing permanence can be the action, habitat, or that may be affected by such (2) Can be implemented consistent detrimental as well, if it creates designation. favorable habitat for predatory fish or with the scope of the Federal agency’s Activities that may affect critical bullfrogs that otherwise could not exist legal authority and jurisdiction, habitat, when carried out, funded, or in the system. Reservoir operations such (3) Are economically and authorized by a Federal agency, should as the storage and release of water could technologically feasible, and result in consultation for the Oregon be timed to support breeding, rearing, (4) Would, in the Director’s opinion, spotted frog. These activities include, and overwintering habitat within avoid the likelihood of jeopardizing the but are not limited to: occupied reservoirs and downstream of continued existence of the listed species (1) Actions that would significantly dams. and/or avoid the likelihood of alter the structure and function of the destroying or adversely modifying wetland, pond, channel, lake, oxbow, (2) Actions that would significantly critical habitat. spring, or seasonally flooded areas alter the vegetation structure in and Reasonable and prudent alternatives morphology, geometry, or water around habitat. Such actions or can vary from slight project availability/permanence. Such actions activities could include, but are not modifications to extensive redesign or or activities could include, but are not limited to, removing, cutting, burning, relocation of the project. Costs limited to: or planting vegetation for restoration associated with implementing a a. Filling or excavation; actions, creation or maintenance of reasonable and prudent alternative are channelization; impoundment; urban or recreational developments, similarly variable. b. road and bridge construction; agricultural activities, and grazing. The Regulations at 50 CFR 402.16 require urban, agricultural, or recreational alteration of the vegetation structure Federal agencies to reinitiate development; may change the habitat characteristics consultation on previously reviewed c. mining; by changing the microhabitat (e.g., actions in instances where we have d. groundwater pumping; change in temperature, water depth, listed a new species or subsequently e. dredging; basking opportunities, and cover) and designated critical habitat that may be f. construction or destruction of dams thereby negatively affect whether the affected and the Federal agency has or impoundments; Oregon spotted frog is able to complete retained discretionary involvement or g. water diversion; all normal behaviors and necessary life

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functions or may allow invasion of Conservation Service Wetland Reserve encouragement of partnerships; or competitors or predators. Program, USDA Farm Service Agency’s implementation of a management plan (3) Actions that would significantly Conservation Reserve and Conservation that provides equal to or more degrade water quality (for example, alter Reserve Enhancement Programs, HCPs, conservation than a critical habitat water chemistry or temperature). Such Safe Harbor Agreements, or CCAAs. designation would provide. actions or activities could include, but In the case of the Oregon spotted frog, are not limited to, release of chemicals Exemptions the benefits of critical habitat include or biological pollutants into surface Application of Section 4(a)(3) of the Act promotion of public awareness of the water or into connected ground water at Section 4(a)(3)(B)(i) of the Act (16 presence of the Oregon spotted frog and a point source or by dispersed release U.S.C. 1533(a)(3)(B)(i)) provides that: the importance of habitat protection, (nonpoint source); livestock grazing that ‘‘The Secretary shall not designate as results in sedimentation, urine, or feces and in cases where a Federal nexus critical habitat any lands or other exists, potentially greater habitat in surface water; runoff from geographic areas owned or controlled by agricultural fields; and application of protection for the Oregon spotted frog the Department of Defense, or due to the protection from adverse pesticides (including aerial overspray). designated for its use, that are subject to These actions could adversely affect the modification or destruction of critical an integrated natural resources habitat. ability of the habitat to support survival management plan [INRMP] prepared and reproduction of Oregon spotted under section 101 of the Sikes Act (16 When we evaluate the existence of a frogs. Variances in water chemistry or U.S.C. 670a), if the Secretary determines conservation plan when considering the temperature could also affect the frog’s in writing that such plan provides a benefits of exclusion, we consider a ability to survive with chytrid fungus benefit to the species for which critical variety of factors, including but not (Batrachochytrium dendrobatidis), habitat is proposed for designation.’’ limited to, whether the plan is finalized; oomycete water mold Saprolegnia, or There are no Department of Defense how it provides for the conservation of the trematode Ribeiroia ondatrae. lands within the critical habitat the essential physical or biological (4) Actions that would directly or designation. features; whether there is a reasonable indirectly result in introduction of expectation that the conservation nonnative predators, increase the Consideration of Impacts Under Section management strategies and actions abundance of extant predators, or 4(b)(2) of the Act contained in a management plan will be introduce disease. Such actions could Section 4(b)(2) of the Act states that implemented into the future; whether include, but are not limited to: the Secretary shall designate and make the conservation strategies in the plan Introduction or stocking of fish or revisions to critical habitat on the basis are likely to be effective; and whether bullfrogs; water diversions, canals, or of the best available scientific data after the plan contains a monitoring program other water conveyance that moves taking into consideration the economic or adaptive management to ensure that water from one place to another and impact, national security impact, and the conservation measures are effective through which inadvertent transport of any other relevant impact of specifying and can be adapted in the future in predators into Oregon spotted frog any particular area as critical habitat. response to new information. habitat may occur; and movement of The Secretary may exclude an area from After identifying the benefits of water, mud, wet equipment, or vehicles critical habitat if she determines that the inclusion and the benefits of exclusion, from one aquatic site to another, benefits of such exclusion outweigh the we carefully weigh the two sides to through which inadvertent transport of benefits of specifying such area as part evaluate whether the benefits of eggs, tadpoles, or pathogens may occur. of the critical habitat, unless she exclusion outweigh those of inclusion. These actions could adversely affect the determines, based on the best scientific If our analysis indicates that the benefits ability of the habitat to support survival data available, that the failure to of exclusion outweigh the benefits of and reproduction of Oregon spotted designate such area as critical habitat inclusion, we then determine whether frogs. Additionally, the stocking of will result in the extinction of the exclusion would result in extinction of introduced fishes could prevent or species. In making that determination, the species. If exclusion of an area from preclude recolonization of otherwise the statute on its face, as well as the critical habitat will result in extinction, available breeding or overwintering legislative history are clear that the we will not exclude it from the habitats, which are necessary for the Secretary has broad discretion regarding designation. conservation of Oregon spotted frogs. which factor(s) to use and how much (5) Actions and structures that would weight to give to any factor. Based on the information provided by physically block aquatic movement When identifying the benefits of entities seeking exclusion, as well as corridors. Such actions and structures inclusion for an area, we consider the any additional public comments include, but are not limited to: Urban, additional regulatory benefits that area received, we evaluated whether certain industrial, or agricultural development; would receive from the protection from lands in the proposed critical habitat water diversions (such as dams, canals, adverse modification or destruction as a were appropriate for exclusion from this pipes); water bodies stocked with result of actions with a Federal nexus; final designation pursuant to section predatory fishes or bullfrogs; roads that the educational benefits of mapping 4(b)(2) of the Act. We are excluding the do not include culverts; or other essential habitat for recovery of the areas listed below (table 3) from critical structures that physically block listed species; and any benefits that may habitat designation for the Oregon movement. These actions and structures result from a designation due to State or spotted frog based on the following final could reduce or eliminate immigration Federal laws that may apply to critical plans/agreements: Glenwood Valley and emigration within a sub-basin. habitat. Coordinated Resource Management Plan (6) Inclusion of lands in conservation When identifying the benefits of and Conservation Agreement, agreements or easements that result in exclusion, we consider, among other Crosswater Environmental Plan, any of the actions discussed above. things, whether exclusion of a specific Sunriver Management Plans, and Old Such easements could include, but are area is likely to result in conservation; Mill District Candidate Conservation not limited to, Natural Resources the continuation, strengthening, or Agreement with Assurances.

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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 Coordinated Resource Management Plan 2,627 (1,063) and Conservation Agreement. 8A—Upper Deschutes River Below Wickiup Dam ...... Crosswater Environmental Plan ...... 86 (35) 9—Little Deschutes River ...... 121 (49) 8A—Upper Deschutes River Below Wickiup Dam ...... Sunriver Management Plans ...... 223 (90) 8A—Upper Deschutes River Below Wickiup Dam ...... Old Mill District Candidate Conservation Agreement with As- 26 (11) surances.

Consideration of Economic Impacts critical habitat is unlikely to trigger discretion to exclude any areas from this Under section 4(b)(2) of the Act, we additional requirements under State or final designation based on impacts on consider the economic impacts of local regulations. In addition, the national security or homeland security. specifying any particular area as critical analysis was supplemented by a separate memorandum assessing the Exclusions Based on Other Relevant habitat. In order to consider economic Impacts impacts, we prepared an IEM and potential perceptional effects on the value of privately owned grazing lands. screening analysis which, together with Under section 4(b)(2) of the Act, we The analysis concluded that the our narrative and interpretation of consider any other relevant impacts, in aggregate value of private lands is less effects, we consider our DEA of the than $100 million. addition to economic impacts and proposed critical habitat designation Therefore, the analysis concluded that impacts on national security. We and related factors (IeC 2014). The the critical habitat designation for the consider a number of factors including analysis, dated April 30, 2014, was Oregon spotted frog is unlikely to whether there are permitted made available for public review from generate costs exceeding $100 million in conservation plans covering the species June 18, 2014, through July 18, 2014 (79 a single year. The magnitude of benefits in the area such as HCPs, safe harbor FR 34685), and from September 9, 2014, is highly uncertain, and quantification agreements, or candidate conservation through September 23, 2014 (79 FR would require primary research and the agreements with assurances, or whether 53384). The DEA addressed probable generation of substantial amounts of there are non-permitted conservation economic impacts of critical habitat new data, which was beyond the scope agreements and partnerships that would designation for the Oregon spotted frog. of the analysis and Executive Order be encouraged by designation of, or Following the close of the comment 12866. periods, we reviewed and evaluated all exclusion from, critical habitat. In information submitted during the Exclusions Based on Economic Impacts addition, we look at the existence of comment periods that may pertain to tribal conservation plans and The Service considered the economic partnerships and consider the our consideration of the probable impacts of the critical habitat government-to-government relationship incremental economic impacts of this designation and the Secretary is not of the United States with tribal entities. critical habitat designation. Additional exercising her discretion to exclude any We also consider any social impacts that information relevant to the probable areas from this designation of critical incremental economic impacts of habitat for the Oregon spotted frog based might occur because of the designation. critical habitat designation for the on economic impacts. In our proposed critical habitat we Oregon spotted frog is summarized A copy of the IEM and screening extended consideration of exclusion to below and available in the screening analysis with supporting documents the Trout Lake NAP Draft Management analysis for the Oregon spotted frog (Iec may be obtained by contacting the Plan and the Deschutes Basin HCP. The 2014), available at http:// Washington Fish and Wildlife Office Trout Lake NAP is managed by the www.regulations.gov. (see ADDRESSES) or by downloading WDNR. In its comment letter on the The economic analysis estimated from the Internet at http:// proposed critical habitat, the WDNR direct (section 7) and indirect costs www.regulations.gov. stated that the draft management plan likely to result from the critical habitat would not be finalized prior to final designation for the Oregon spotted frog. Exclusions Based on National Security designation of critical habitat and the The economic impacts of implementing Impacts or Homeland Security Impacts the rule through section 7 of the Act are Under section 4(b)(2) of the Act, we critical habitat designation for the lands expected to be limited to additional consider whether there are lands owned with the NAP appears appropriate and administrative effort to consider adverse or managed by the Department of may help to strengthen conservation modification in section 7 consultations, Defense where a national security support at the site. The Deschutes Basin which are not expected to exceed impact might exist. In preparing this Multispecies HCP continues to be in the $200,000 in a typical year. The critical final rule, we have determined that no development stage; therefore, no habitat unit likely to incur the largest lands within the designation of critical analysis of the conservation benefit can incremental administrative costs is Unit habitat for the Oregon spotted frog are be made for consideration of exclusion. 9 (Little Deschutes River) due to a owned or managed by the Department of Therefore, lands managed under the relatively high number of anticipated Defense or Department of Homeland Trout Lake NAP Draft Management Plan consultations to consider grazing Security, and, therefore, we anticipate and areas that may be covered by the allotments intersecting the unit. no impact on national security or Deschutes Basin Multispecies HCP are In terms of indirect costs, the analysis homeland security. Consequently, the not excluded from critical habitat. concluded that the designation of Secretary is not exercising her

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Private or Other Non-Federal conservation measures are effective and management within Oregon spotted frog Conservation Plans or Agreements and can be modified in the future in habitats and to maintain adequate Partnerships, in General response to new information. wetland breeding areas and deeper- We find that the Glenwood Valley We sometimes exclude specific areas water overwintering areas for the frog. Coordinated Resource Management Plan from critical habitat designations based Although some of these practices may and Conservation Agreement, in part on the existence of private or impact individual frogs, overall these Crosswater Environmental Plan, other non-Federal conservation plans or practices contribute to a positive long- Sunriver Management Plans, and Old term conservation benefit for the species agreements and their attendant Mill District Candidate Conservation and its habitat. partnerships. A conservation plan or Agreement with Assurances all fulfill agreement describes actions that are the above criteria. We are excluding Benefits of Inclusion—Glenwood Valley designed to provide for the conservation these lands because the plans Coordinated Resource Management needs of a species and its habitat, and adequately provide for the long-term Plan and Conservation Agreement may include actions to reduce or conservation of the Oregon spotted frog; We find that there are minimal mitigate negative effects on the species such exclusion is likely to result in the benefits to including Glenwood Valley caused by activities on or adjacent to the continuation, strengthening, or ranchers’ lands in critical habitat. As area covered by the plan. Conservation encouragement of important discussed above under Application of plans or agreements can be developed conservation partnerships; and the Section 4(b)(2) of the Act, the primary by private entities with no Service Secretary has determined that the effect of designating any particular area involvement, or in partnership with the benefits of excluding such areas as critical habitat is the requirement for Service. outweigh the benefits of including them Federal agencies to consult with us We evaluate a variety of factors to in critical habitat as detailed here. under section 7 of the Act to ensure determine how the benefits of any actions they carry out, authorize, or exclusion and the benefits of inclusion Glenwood Valley Coordinated Resource fund do not adversely modify are affected by the existence of private Management Plan and Conservation designated critical habitat. Absent or other non-Federal conservation plans Agreement critical habitat designation in occupied or agreements and their attendant In this final designation, the Secretary areas, Federal agencies remain obligated partnerships when we undertake a has exercised her discretion under under section 7 of the Act to consult discretionary section 4(b)(2) exclusion section 4(b)(2) of the Act to exclude with us on actions that may affect a analysis. A non-exhaustive list of factors from this critical habitat designation federally listed species to ensure such that we will consider for non-permitted 2,625 ac (1,062 ha) of private lands and actions do not jeopardize the species’ plans or agreements is shown below. 2 ac (1 ha) of Klickitat County lands that continued existence. These factors are not required elements are covered under a Coordinated Because the Glenwood Valley of plans or agreements, and all items Resource Management Plan and ranchers’ lands are currently occupied may not apply to every plan or Conservation Agreement (Agreement). by the Oregon spotted frog, a Federal agreement. The excluded area falls within a portion action with potential adverse effects (i) The degree to which the plan or of the proposed Unit 6 (Middle Klickitat would trigger a jeopardy analysis. agreement provides for the conservation River) (78 FR 53538, August 29, 2013). Should critical habitat be designated, an of the species or the essential physical The Service worked directly with adverse modification analysis would or biological features (if present) for the several Glenwood Valley private also be triggered by the action. If such species; landowners (hereafter known as a Federal nexus were to occur, it would (ii) Whether there is a reasonable Glenwood Valley ranchers) regarding most likely result from the granting of expectation that the conservation conservation actions that are being Federal funds to manage the lands and management strategies and actions implemented through this Agreement or Federal permitting to upgrade water contained in a management plan or on a subset of private lands within the control structures to benefit the Oregon agreement will be implemented; Glenwood Valley/Conboy Lake area. spotted frog. However, we anticipate (iii) The demonstrated Glenwood Valley Ranchers that any section 7 consultations related implementation and success of the collaboratively developed a voluntary to funding of upgrades to water control chosen conservation measures; resource management plan and structures or habitat management are (iv) The degree to which the record of conservation agreement with the Service not likely to provide much added the plan supports a conclusion that a to conserve the Oregon spotted frog benefit to the species, since the action critical habitat designation would while continuing their ranching being consulted on is itself intended to impair the realization of benefits operations in an economically viable benefit this species. In addition, because expected from the plan, agreement, or manner. This 20-year agreement was one of the primary threats to the species partnership; approved and signed by the Service, is habitat loss and degradation, a section (v) The extent of public participation participating Glenwood Valley ranchers, 7 jeopardy analysis would evaluate the in the development of the conservation and Klickitat County on June 29, 2015 effects of the action on the conservation plan; (USFWS et al. 2015). or function of the habitat for the species (vi) The degree to which there has Under the agreement, the regardless of whether or not critical been agency review and required participating Glenwood Valley ranchers habitat is designated for these lands. determinations (e.g., State regulatory manage their lands and water in a Project modifications requested to avoid requirements), as necessary and manner that is compatible with the adverse modification would likely be appropriate; long-term conservation of the Oregon the same as those needed to avoid (vii) Whether National Environmental spotted frog and in partnership with the jeopardy. Therefore, we anticipate that Policy Act (NEPA; 42 U.S.C. 4321 et adjacent Conboy Lake NWR. The section 7 consultation analyses will seq.) compliance was required; and management plan uses a combination of likely result in no difference between (viii) Whether the plan or agreement water management, livestock grazing, conservation recommendations to avoid contains a monitoring program and and haying as the primary tools on these jeopardy or adverse modification in adaptive management to ensure that the private lands to provide vegetation occupied areas of critical habitat,

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making the incremental benefit of Agreement provides greater protection from encouraging the development of designating critical habitat in this case to Oregon spotted frog habitat than the such voluntary conservation agreements low at best. designation of critical habitat since the in cooperation with non-Federal Another benefit of including lands in provisions of the Agreement are partners. Because the majority of a critical habitat designation is that it intended to improve water management occurrences of endangered or threatened serves to educate landowners, State and and the habitat conditions to support species are on non-Federal lands, local governments, and the public the long-term conservation of the partnerships with non-Federal regarding the potential conservation species on these lands (critical habitat landowners and land managers are vital value of an area. Identifying areas of designation does not require active to the conservation of listed species. high conservation value for the Oregon management, only avoidance of Therefore, the Service is committed to spotted frog can help focus and promote destruction or adverse modification). In maintaining and encouraging such conservation efforts by other parties. many cases, this work is accomplished partnerships through the recognition of Designation of critical habitat informs without Federal funding, which positive conservation contributions. State agencies and local governments highlights these landowners’ Excluding these private properties about areas that could be conserved willingness to implement the from critical habitat designation will under State laws or local ordinances. partnership. We have no information to provide a significant benefit in terms of Any additional information about the suggest that the designation of critical sustaining and enhancing the current needs of the Oregon spotted frog or its habitat on these properties would partnership between the Service and habitat that reaches a wider audience generate any appreciable added benefit participating Glenwood Valley ranchers, can be of benefit to future conservation beyond what is outlined in the as well as other partners who participate efforts. In this case, however, the Agreement. in Oregon spotted frog habitat potential educational benefit of critical management decisionmaking. The habitat is reduced due to the extensive Benefits of Exclusion—Glenwood Valley willingness of these private landowners knowledge by the State, Klickitat Coordinated Resource Management to undertake conservation efforts for the County, and private landowners about Plan and Conservation Agreement benefit of the Oregon spotted frog, and the presence of the frog in this area of The benefits of excluding these work with the Service and others to the Glenwood Valley; the location of private properties from designated develop and employ conservation Conboy Lake NWR immediately critical habitat are relatively greater. We actions, will continue to reinforce those adjacent to these areas (on which developed a partnership with Glenwood conservation efforts and our critical habitat will remain designated); Valley ranchers and can use these partnership, which contribute toward and the limited number of private properties as an example of land uses achieving recovery of the Oregon landowners encompassed by the critical that can be compatible with Oregon spotted frog. We consider this voluntary habitat designation. Because of Conboy spotted frog conservation given it is now partnership in conservation vital to the Lake NWR’s proximity to private largely a management-dependent further development of our ranching lands and the importance of species. This partnership is evidenced understanding of the status of the water management in the Glenwood by the Agreement provisions that are Oregon spotted frog on agricultural Valley for both the Oregon spotted frog anticipated to improve the conservation lands and the further refinement of the and ranching activities, refuge staff status of the Oregon spotted frog. They levels of compatible agricultural activity frequently interact with ranchers to include: (1) Seasonally retaining water on such lands. This information is discuss the management of water longer on inundated fields to improve necessary for us to implement recovery resources and the conservation of the the successful development of tadpoles actions such as habitat protection, frog. This interaction has increased the and subsequent migration of juvenile restoration, and beneficial management ranchers’ understanding of the frogs from potential breeding sites; (2) actions for this species. In addition, ecological value of their land and has support of efforts to upgrade or replace exclusion will provide the landowner emphasized the importance of this key water control structures to facilitate with relief from any potential additional ongoing collaboration between the this water management; (3) ongoing regulatory burden associated with the ranchers and the Service. vegetation management of reed canary designation of critical habitat, whether The incremental benefit from grass to support suitable wetland real or perceived, which we consider to designating critical habitat for the breeding habitats and to allow migratory be a significant benefit of exclusion in Oregon spotted frog on these private movements of frogs; (4) periodic ditch acknowledging the positive lands is further minimized due to the cleaning conducted in a manner that contributions of our conservation long-term conservation agreement reduces direct and indirect impacts to partners. recently signed by participating frogs, while maintaining these water Together, States, counties, local ranchers, Klickitat County, and the sources in a condition suitable for jurisdictions, conservation Service (USFWS et al. 2015). These summer holding habitat; and (5) organizations, and private landowners ranchers have committed to opportunities to conduct Oregon spotted can implement various cooperative implementing management for the frog surveys on private lands as part of conservation actions (such as Safe conservation of the Oregon spotted frog an adaptive management process. These Harbor Agreements, HCPs, and other that will improve maintenance of surveys will help determine levels of conservation plans, particularly large, habitat that contains the essential use and provide options for more site- regional conservation plans that involve physical or biological features to specific management actions and numerous participants and/or address support the frog. We are confident that options for periodically translocating landscape-level conservation of species the Agreement signed by participating frogs to more secure sites. Measures and habitats) that we would be unable ranchers will be successful in contained in the Agreement are to accomplish otherwise. These private conserving habitat for the frog, as a consistent with recommendations from landowners have made a commitment to number of ongoing actions conducted the Service for the conservation of the develop and implement this Agreement, by participating ranchers have Oregon spotted frog, and will afford which will maintain and enhance contributed to the frogs’ persistence in benefits to the species and its habitat. habitat favorable to the Oregon spotted this area. The implementation of the The Service accrues a significant benefit frog, and can engage and encouraged

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other parties, both public and private, to spotted frog. In this instance, the management of Oregon spotted frog join in conservation partnerships. These Agreement with the Glenwood Valley habitat on these private lands will private landowners serve as a model of Ranchers contains provisions for continue and may be modified over time voluntary conservation and may aid in conserving and enhancing habitat on to better enhance Oregon spotted frog fostering future voluntary conservation which the Oregon spotted frog relies, habitat as new information is gained efforts by other parties in other locations and those provisions exceed the and addressed through the adaptive for the benefit of listed species. Most conservation benefits that would be management process under the endangered or threatened species do not afforded through section 7 and, Agreement. occur on Federal lands. As the recovery therefore, reduce the benefts of Crosswater Environmental Plan of these species, and in particular the designating this area as critical habitat. Oregon spotted frog, will, therefore, In contrast, the benefits derived from In this final designation, the Secretary depend on the willingness of non- excluding the private lands of has exercised her discretion to exclude Federal landowners to partner with us participating Glenwood Valley ranchers 207 ac (84 ha) of lands from critical to engage in conservation efforts are substantial. Excluding these lands habitat, under section 4(b)(2) of the Act, (including active management of will help us maintain and foster an that are owned by the Sunriver Limited habitat), we consider the positive effect important and successful partnership Partnership and managed under the of excluding proven conservation with these private landowners. They Crosswater Environmental Plan (CEP). partners from critical habitat to be a have voluntarily supported stewardship The excluded area falls within a portion significant benefit of exclusion. of habitat beneficial to the conservation of Subunit 8A (78 FR 53538, August 29, of the Oregon spotted frog on working 2013). Benefits of Exclusion Outweigh Benefits agricultural lands. The exclusion of The Crosswater Resort comprises an of Inclusion—Glenwood Valley participating Glenwood Valley ranchers’ area of 617 ac (250 ha), including the Coordinated Resource Management lands will serve as a positive proposed Oregon spotted frog critical Plan and Conservation Agreement conservation model, and provides habitat, at the confluence of the The Secretary has determined that the encouragement for other private Deschutes and Little Deschutes Rivers benefits of excluding the private lands landowners to partner with the Service south of Sunriver, Oregon. The of participating Glenwood Valley for the purpose of conserving listed Crosswater Resort is a private golf and ranchers from the designation of critical species. The positive conservation residential community under ownership habitat for the Oregon spotted frog benefits that may be realized through of the Sunriver Limited Partnership. outweigh the benefits of including these the maintenance of this existing Oregon spotted frog conservation areas in critical habitat. The regulatory partnership, as well as through the measures outlined in the CEP and and informational benefits of including encouragement of future such voluntarily implemented by the the private lands of participating partnerships, and the importance of Crosswater Resort in partnership with Glenwood Valley ranchers in critical developing such partnerships on non- Sunriver Nature Center and Observatory habitat are minimal. Furthermore, any Federal lands for the benefit of listed (SRNCO) for over a decade have potential limited benefits of inclusion species in other areas, are such that we contributed to sustaining a population on the section 7 process are relatively consider the positive effect of excluding of Oregon spotted frogs on private lands unlikely to be realized, because a willing conservation partners from within the Crosswater Resort. The CEP, Federal nexus on these lands would critical habitat to be a significant benefit developed and implemented prior to rarely occur. If one were to occur, it of exclusion. For these reasons, we have 2003, contains conservation measures would most likely be with the Service, determined that the benefits of that are specific to Oregon spotted frog, Natural Resources Conservation Service, exclusion outweigh the benefits of such as the removal of invasive or Army Corps of Engineers, and their inclusion in this case. bullfrogs from wetlands and ponds on actions would be geared toward the private lands that are inhabited by the conservation benefits of restoring and Exclusion Will Not Result in the Oregon spotted frog and maintaining enhancing habitat specifically for the Extinction of the Species—Glenwood buffers for herbicide application Oregon spotted frog. This type of Valley Coordinated Resource between golf courses and wetlands management is focused on the Management Plan and Conservation inhabited by the frog. The CEP also maintenance of open wetland breeding Agreement addresses management of vegetation habitats with short-statured vegetative We have determined that exclusion of encroachment into wetlands that may conditions, and providing sufficient approximately 2,627 ac (1,063 ha) for threaten the amount of open water sources of adjacent habitats of deeper the portion of the Unit 6 managed under habitat for spotted frogs. In addition to water for maturation and overwintering the Agreement implemented by implementing voluntary conservation that the Oregon spotted frog requires for participating Glenwood Valley ranchers measures for spotted frogs through the persistence. Since any action likely to will not result in extinction of the CEP, the preservation of wetland and be the subject of consultation under the Oregon spotted frog. Actions covered by riparian areas along the Deschutes and adverse modification standard on this the Agreement will not result in the Little Deschutes Rivers under a area would be largely focused on extinction of the Oregon spotted frog conservation easement provide providing positive habitat benefits for because the management actions protection to spotted frog habitat. These the Oregon spotted frog, we find it implemented on participating ongoing management activities unlikely that critical habitat would Glenwood Valley ranchers’ lands are combined with a conservation easement result in any significant additional designed to conserve and enhance for wetlands have reduced threats to the benefit to the species. Furthermore, the Oregon spotted frog habitat during the Oregon spotted frog and its habitat by informational benefits of including this period of the agreement, plus a maintaining habitat conditions that are area in critical habitat are further significant portion of Oregon spotted suitable for all life-history stages of the reduced since significant management frog habitat within Unit 6 occurs on species. actions are already under way to adjacent Conboy Lake NWR lands and The Crosswater Resort has been a manage habitat on the adjacent Conboy the Refuge is specifically managing conservation partner for over a decade. Lake NWR for the benefit of Oregon habitat for the frog. We anticipate that In 2009, the Service worked with

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Crosswater to monitor water quality in or function of the habitat for the species the existing management at this site will ponds and wetlands inhabited by the regardless of whether or not critical provide greater benefit than the Oregon spotted frog to determine habitat is designated for these lands, regulatory designation of critical habitat, whether or not the buffer for herbicide and project modifications requested to which requires only the avoidance of use adjacent to wetlands outlined in the avoid adverse modification would likely adverse modification and does not CEP was effectively protecting water be the same as those needed to avoid require the creation, improvement, or quality. A report published by the jeopardy. Therefore, we anticipate that restoration of habitat. Service in 2009 indicated that the section 7 consultation analyses will Another potential benefit of including Integrated Pest Management practices likely result in no difference between lands in a critical habitat designation is implemented by Crosswater Resort conservation recommendations to avoid that such inclusion raises the awareness minimized the input of herbicides into jeopardy or adverse modification in of landowners, State and local water bodies inhabited by the species. occupied areas of critical habitat, governments, and the public regarding Oregon spotted frog surveys, conducted making the incremental benefit of the potential conservation value of an in partnership with the USGS and designating critical habitat in this case area. This knowledge can help focus SRNCO on private lands within the low at best. and promote conservation efforts by Crosswater Resort, have been provided The inclusion of these private lands identifying areas of high conservation to the Service since 2000. Habitat as critical habitat could provide some value for the Oregon spotted frog. The protection, management and monitoring additional Federal regulatory benefits designation of critical habitat informs conducted at Crosswater Resort have for the species consistent with the State agencies and local governments significantly contributed to our conservation standard addressed in the about areas that could be conserved understanding of Oregon spotted frog Ninth Circuit Court’s decision in Gifford under State laws or local ordinances. biology and responses to habitat Pinchot Task Force v. United States Fish Any additional information about the management. and Wildlife Service, 378 F.3d 1059 (9th needs of the Oregon spotted frog or its Cir. 2004). As noted above, a potential habitat that reaches a wider audience Benefits of Inclusion—Crosswater benefit of inclusion would be the can be of benefit to future conservation Environmental Plan requirement of a Federal agency to efforts. The Crosswater Resort has been We find there are minimal benefits to ensure that their actions on these non- working on implementing conservation including the Crosswater Resort lands in Federal lands would not likely result in measures for the Oregon spotted frog critical habitat. As dicussed above the destruction or adverse modification with assistance from SRNCO, which has under Application of Section 4(b)(2) of of critical habitat. However, this been a key partner in providing the Act, the primary effect of additional analysis to determine education and outreach to landowners designating any particular area as whether a Federal action is likely to and visitors to the Sunriver area for over critical habitat is the requirement for result in destruction or adverse 20 years about the Oregon spotted frog. Federal agencies to consult with us modification of critical habitat is not Because of this ongoing education in the under section 7 of the Act to ensure likely to be significant because these Sunriver area, we have been able to hold actions they carry out, authorize, or covered lands are not under Federal public meetings about the proposed fund do not adversely modify ownership, making the application of critical habitat and listing without designated critical habitat. Absent section 7 less likely. Overall, given the contention. Furthermore, the critical habitat designation in occupied low likelihood of a Federal nexus management and monitoring of spotted areas, Federal agencies remain obligated occurring on these lands, we believe the frog habitat at Crosswater Resort for over under section 7 of the Act to consult regulatory benefit of a critical habitat a decade has provided us with with us on actions that may affect a designation on these lands, if any, may information about how to improve federally listed species to ensure such be limited. As described above, the spotted frog habitat through actions do not jeopardize the species’ presence of a beneficial conservation management. The educational benefits continued existence. plan and the history of implementing of including this area in the designation The analysis of effects to critical conservation actions specific to the of critical habitat are reduced by the habitat is a separate and different Oregon spotted frog on these lands above-mentioned public education that analysis from that of the effects to the further reduces this benefit of including is ongoing in the Sunriver area. species. Therefore, the difference in these lands in critical habitat. outcomes of these two analyses The incremental benefit of inclusion Benefits of Exclusion—Crosswater represents the regulatory benefit of is reduced because of the ongoing Environmental Plan critical habitat. The regulatory standard implementation of management actions The benefits of excluding private is different, as the jeopardy analysis by the Crosswater Resort that benefit the lands at Crosswater Resort from critical investigates the action’s impact on the conservation of the Oregon spotted frog habitat are substantial. The partnership survival and recovery of the species, and its habitat, as discussed above. The in Oregon spotted frog conservation is while the adverse modification analysis Crosswater Resort has been evidenced by the conservation and focuses on the action’s effects on the implementing specific management management actions that provide a designated habitat’s contribution to actions that maintain and enhance benefit to the Oregon spotted frog and conservation. This will, in many spotted frog habitat for over a decade. its habitat for over a decade; monitoring instances, lead to different results and Monitoring of the spotted frog results indicate that such management different regulatory requirements. Thus, population conducted at Crosswater actions improve breeding, rearing, and critical habitat designations have the Resort has shown that the ongoing overwintering habitat for spotted frog. potential to provide greater benefit to management is providing benefits to the The CEP includes specific conservation the recovery of a species than would species. These management actions measures for the Oregon spotted frog listing alone. However, because one of provide greater benefits to spotted frog and its habitat, including bull frog the primary threats to the species is habitat than a designation of critical removal and management of habitat loss and degradation, a section 7 habitat would, since these actions encroaching vegetation in wetlands jeopardy analysis would evaluate the actively improve the breeding, rearing, inhabited by spotted frogs. The CEP also effects of the action on the conservation and overwintering habitat. Therefore, requires a buffer for the application of

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herbicide on golf courses from wetlands. modify designated critical habitat. wetlands and riparian areas inhabited Annual monitoring conducted by the However, this benefit is reduced for the by the frog that provide for the needs of USGS in partnership with SRNCO following reasons. First, the likelihood the species by protecting, restoring, and validates that these types of of a Federal nexus on these lands is low. enhancing all of the Oregon spotted frog management activities are effectively Furthermore, these lands are occupied habitat at Crosswater Resort along the providing conservation benefits to the by the Oregon spotted frog and we Deschutes and Little Deschutes Rivers. species. The Crosswater Resort retains a anticipate that even if a Federal nexus Further, for projects having a Federal conservation easement that prohibits exists and triggers the need for section nexus and potentially affecting the development on all wetland and 7 consultation, there will be no Oregon spotted frog, the jeopardy riparian areas along the Deschutes and difference between conservation standard of section 7 of the Act, coupled Little Deschutes River, thereby recommendations to avoid jeopardy and with protection provided by the CEP, providing additional protections to those to avoid adverse modification in would provide a level of assurance that Oregon spotted frog habitat. occupied areas of critical habitat. this subspecies will not go extinct as a Biological information gathered while Finally, the benefits of including these result of excluding these lands from the working in partnership with the lands in critical habitat are reduced due critical habitat designation. Critical Crosswater Resort will facilitate the to the existing easement and ongoing habitat for the Oregon spotted frog development of strategies to conserve management at the site that provides a would be designated in the Deschutes the species and inform conservation greater benefit than the regulatory River west of Crosswater Resort and efforts for the species in other areas. designation of critical habitat. within the Little Deschutes River south Without the partnership between the Another benefit of including these of Crosswater Resort. Oregon spotted Service, Crosswater Resort, and SRNCO, lands in critical habitat is the frogs inhabit the Deschutes and Little management actions that benefit the opportunity to educate landowners, Deschutes Rivers in this area. Therefore, spotted frog would not occur, and State and local governments, and the actions that result in a Federal nexus important breeding, rearing, and public regarding the potential would undergo section 7 consultation overwintering habitat for the spotted conservation value of the area. However, with the Service. frog may not be maintained and we have determined that the above- enhanced. Excluding lands from critical mentioned entities are all aware of the Sunriver Management Plans habitat designation that are managed conservation value of these lands for the In this final designation, the Secretary under the CEP and already protected Oregon spotted frog and that education has exercised her discretion under through a conservation easement will of the private landowners that reside section 4(b)(2) of the Act to exclude affirm and sustain the partnership, and within and visit Crosswater Resort has from this critical habitat designation 223 is expected to enhance the working been ongoing for over a decade. ac (90 ha) of private land owned by the relationship between the Service and Therefore, the benefit of designating members of the Sunriver Owners property owners at Crosswater Resort these lands as critical habitat is Association (SROA) and covered under and the Sunriver Limited Partnership. minimal. the Sunriver Great Meadow The designation of critical habitat on The benefits of excluding these lands Management Plan (GMMP). The private lands within Crosswater Resort from the critical habitat designation are excluded area falls within a portion of may have a negative effect on the greater than inclusion for the following the proposed Subunit 8A (78 FR 53538, conservation partnership between the reasons. The exclusion will affirm and August 29, 2013). Service and the owners of Crosswater maintain a partnership with private The Sunriver Community comprises Resort who have agreed to future landowners that promotes the an area of 3,373 ac (1,365 ha), including implementation of conservation conservation of the species. approximately 219 ac (89 ha) of measures for the Oregon spotted frog Additionally, the ongoing proposed Oregon spotted frog critical and its habitat. By excluding these implementation of habitat habitat and 223 ac (90 ha) of critical lands, we affirm the conservation improvements to promote Oregon habitat that was revised via mapping for partnership with Crosswater Resort that spotted frog conservation provides the final rule. Sunriver hosts the largest not only are providing conservation strong evidence that our partnership known population of Oregon spotted benefits to the Oregon spotted frog and with the Crosswater Resort will frogs in the Upper Deschutes River sub- its habitat during the present time but continue into the future. basin downstream of Wickiup Dam. also into the future. Excluding the lands For these reasons, stated above, the Oregon spotted frog conservation managed under the CEP and protected Secretary has determined that the measures voluntarily implemented by through an existing conservation benefits of excluding the 207 ac (84 ha) the SRNCO for over two decades and easement from critical habitat on private lands within Crosswater preservation of wetland and riparian designation will sustain the long- Resort from the designation of critical areas along the Deschutes River under standing conservation partnership habitat for the Oregon spotted frog the Sunriver GMMP have contributed to between the Service, private landowners outweigh the benefits of including these sustaining a large population of Oregon that reside within Crosswater Resort, areas in critical habitat. spotted frogs on private lands in the and the Sunriver Limited Partnership. Sunriver area. Common areas within the Exclusion Will Not Result in Extinction Sunriver Community, including Benefits of Exclusion Outweigh the of the Species—Crosswater wetlands, ponds, and meadows, are Benefits of Inclusion—Crosswater Environmental Plan managed under the authority of the Environmental Plan We have determined that exclusion of SROA via the Sunriver GMMP. Through The primary benefit of including approximately 207 ac (84 ha) on private a contract with SROA, the SRNCO has these lands as critical habitat for the lands within Crosswater Resort will not been managing a system of weirs within Oregon spotted frog is the regulatory result in the extinction of the Oregon the waterways and ponds to improve requirement for Federal agencies to spotted frog. This exclusion will not breeding, rearing, and overwintering consult with us under section 7 of the result in extinction of the Oregon habitat conditions for the Oregon Act to ensure actions they carry out, spotted frog because the CEP outlines spotted frog. The SRNCO also has been authorize, or fund do not adversely specific conservation actions for voluntarily removing invasive bullfrogs

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from wetlands and ponds in Sunriver section 7 consultation analyses will requires only the avoidance of adverse that are inhabited by the Oregon spotted likely result in no difference between modification and does not require the frog. These ongoing management conservation recommendations to avoid creation, improvement, or restoration of activities have reduced threats to the jeopardy or adverse modification in habitat. Oregon spotted frog and its habitat by occupied areas of critical habitat, Another potential benefit of including maintaining habitat conditions that are making the incremental benefit of lands in a critical habitat designation is suitable for all life-history stages of the designating critical habitat in this case that doing so raises the awareness of species. The SRNCO has been a low at best. landowners, State and local conservation partner since the Oregon The inclusion of these private lands governments, and the public regarding spotted frog became a candidate species as critical habitat could provide some the potential conservation value of an for listing in 1993. Monitoring, research, additional Federal regulatory benefits area. This knowledge can help focus and habitat management conducted by for the species consistent with the and promote conservation efforts by SRNCO have significantly contributed conservation standard addressed in the identifying areas of high conservation to our understanding of Oregon spotted Ninth Circuit Court’s decision in Gifford value for the Oregon spotted frog. The frog biology and responses to habitat Pinchot Task Force v. United States Fish designation of critical habitat informs management. and Wildlife Service, 378 F.3d 1059 (9th State agencies and local governments Cir. 2004). As noted above, a potential about areas that could be conserved Benefits of Inclusion—Sunriver benefit of inclusion would be the under State laws or local ordinances. Management Plans requirement of a Federal agency to Any additional information about the We find there are minimal benefits to ensure that their actions on these non- needs of the Oregon spotted frog or its including the Sunriver Management Federal lands would not likely result in habitat that reaches a wider audience Plans lands in critical habitat. As the destruction or adverse modification can be of benefit to future conservation dicussed above under Application of of critical habitat. However, this efforts. The SRNCO has been educating Section 4(b)(2) of the Act, the primary additional analysis to determine landowners and visitors to Sunriver effect of designating any particular area whether a Federal action is likely to Resort for over 20 years about the as critical habitat is the requirement for result in destruction or adverse Oregon spotted frog. Because of this Federal agencies to consult with us modification of critical habitat is not ongoing education in the Sunriver area, under section 7 of the Act to ensure likely to be significant because these we have been able to hold public actions they carry out, authorize, or covered lands are not under Federal meetings about the proposed critical fund do not adversely modify ownership, making the application of habitat and listing without contention. designated critical habitat. Absent section 7 less likely. Overall, given the High school and college students in critical habitat designation in occupied low likelihood of a Federal nexus central Oregon are gaining opportunities areas, Federal agencies remain obligated occurring on these lands, we believe the to learn about the Oregon spotted frog under section 7 of the Act to consult regulatory benefit of a critical habitat through the efforts of the SRNCO. The with us on actions that may affect a designation on these lands, if any, may management and monitoring of spotted federally listed species to ensure such be limited. As described above, the frog habitat in Sunriver that has been actions do not jeopardize the species’ presence of a beneficial conservation implemented by SRNCO for the past 20 continued existence. plan and the history of implementing years has provided us with information The analysis of effects to critical conservation actions specific to the about how to improve Oregon spotted habitat is a separate and different Oregon spotted frog on these lands frog habitat through management. The analysis from that of the effects to the further reduces this benefit of including educational benefits of including this species. Therefore, the difference in these lands in critical habitat. area in the designation of critical habitat outcomes of these two analyses The incremental benefit of inclusion are reduced by the above-mentioned represents the regulatory benefit of is reduced because of the ongoing public education that is ongoing critical habitat. The regulatory standard implementation of management actions through the SRNCO. is different, as the jeopardy analysis by the Sunriver Nature Center, under investigates the action’s impact on the contract with the SROA, that benefit the Benefits of Exclusion—Sunriver survival and recovery of the species, conservation of the Oregon spotted frog Management Plans while the adverse modification analysis and its habitat, as discussed above. The benefits of excluding private focuses on the action’s effects on the Sunriver has been implementing lands in Sunriver lands from critical designated habitat’s contribution to specific management actions that habitat are substantial. Conservation conservation. This will, in many maintain and enhance spotted frog measures that provide a benefit to the instances, lead to different results and habitat for over two decades. Monitoring Oregon spotted frog and its habitat have different regulatory requirements. Thus, of the spotted frog population been implemented since Oregon spotted critical habitat designations have the conducted by the SRNCO has shown frogs were determined to be a candidate potential to provide greater benefit to that the management being for listing in 1993. Since that time, the the recovery of a species than would implemented is providing benefits to Service has worked in partnership with listing alone. However, because one of the species, and Sunriver hosts the the SRNCO and SROA to address the the primary threats to the species is largest population of spotted frogs needs of the Oregon spotted frog. habitat loss and degradation, a section 7 downstream of Wickiup Dam. These Evidence of this partnership is the jeopardy analysis would evaluate the management actions provide greater ongoing management over the last 20 effects of the action on the conservation benefits to spotted frog habitat than the years that has improved breeding, or function of the habitat for the species designation of critical habitat, since rearing, and overwintering habitat. The regardless of whether or not critical these actions actively improve the GMMP and specific habitat habitat is designated for these lands and breeding, rearing, and overwintering enhancement measures implemented by project modifications requested to avoid habitat. Therefore, the existing SRNCO provide a benefit to the Oregon adverse modification would likely be management at this site will provide spotted frog and its habitat. The threat the same as those needed to avoid greater benefit than the regulatory of low-water conditions in wetlands jeopardy. Therefore, we anticipate that designation of critical habitat, which during the breeding, rearing, and

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overwintering period has been reduced lands is low. Furthermore, these lands Oregon spotted frog. Further, for by the ongoing management. Sunriver are occupied by the Oregon spotted frog, projects having a Federal nexus and maintains water levels in wetlands and we anticipate that if a Federal nexus potentially affecting the Oregon spotted through a weir system that offsets exists and triggers the need for section frog, the jeopardy standard of section 7 impacts to this habitat that occurs when 7 consultation, there will be no of the Act coupled with protection water is stored behind Wickiup Dam difference between conservation provided by the Sunriver GMMP would from October through April. Water level recommendations to avoid jeopardy or provide a level of assurance that this management combined with bull frog adverse modification in occupied areas subspecies will not go extinct as a result removal has improved habitat for of critical habitat. Finally, the benefits of excluding these lands from the Oregon spotted frogs. Annual of including these lands in critical critical habitat designation. Critical monitoring conducted by SRNCO habitat are reduced due to the habitat for the Oregon spotted frog validates that these types of commitment to management at the site would be designated in the Deschutes management activities are effectively that provides a greater benefit than the River west of Sunriver. Oregon spotted providing conservation benefits to the regulatory designation of critical habitat. frogs that inhabit Sunriver use the species. Another benefit of including these Deschutes River in this area. Therefore, Biological information gathered while lands in critical habitat is the actions that result in a Federal nexus working with these private landowners opportunity to educate landowners, would undergo section 7 consultation will facilitate the development of State and local governments, and the with the Service. strategies to conserve the species and public regarding the potential inform conservation efforts for the conservation value of the area. However, Private or Other Non-Federal species in other areas. Without the we have determined that the above- Conservation Plans Related to Permits partnership between the Service, SROA, mentioned entities are all aware of the Under Section 10 of the Act and SRNCO, management actions that conservation value of these lands for the HCPs for incidental take permits benefit the spotted frog would not occur Oregon spotted frog and that education under section 10(a)(1)(B) of the Act and important breeding, rearing, and of the public and students has been provide for partnerships with non- overwintering habitat for the spotted ongoing since 1993. Therefore, the Federal entities to minimize and frog may not be maintained and benefit of designating these lands as mitigate impacts to listed species and enhanced. Excluding lands managed critical habitat is minimal. their habitat. In some cases, HCP under the Sunriver GMMP from critical The benefits of excluding these lands permittees agree to do more for the habitat designation will affirm and from the critical habitat designation are conservation of the species and their sustain the partnership and is expected greater than inclusion for the following habitats on private lands than to enhance the working relationship reasons. The exclusion will affirm and designation of critical habitat would between the Service and property maintain a partnership with private provide alone. We place great value on owners in Sunriver. The designation of landowners that is promoting the partnerships that are developed critical habitat on private lands within conservation of the species. during the preparation and Sunriver may have a negative effect on Additionally, the ongoing implementation of HCPs. the conservation partnership between implementation of habitat CCAAs and SHAs are voluntary the Service and the SROA and SRNCO improvements to promote Oregon agreements designed to conserve who have agreed to future spotted frog conservation provides candidate and listed species, implementation of conservation strong evidence that our partnership respectively, on non-Federal lands. In measures for the Oregon spotted frog with the SROA and SRNCO will exchange for actions that contribute to and its habitat. By excluding these continue into the future. the conservation of species on non- lands, we affirm the conservation For these reasons, stated above, the Federal lands, participating property partnership with SROA and SRNCO that Secretary has determined that the owners are covered by an ‘‘enhancement not only are providing conservation benefits of excluding the 223 ac (90 ha) of survival’’ permit under section benefits to the Oregon spotted frog and on private lands in the Sunriver area 10(a)(1)(A) of the Act, which authorizes its habitat during the present time but from the designation of critical habitat incidental take of the covered species also into the future. Excluding the lands for the Oregon spotted frog outweigh the that may result from implementation of managed under the Sunriver GMMP benefits of including these areas in conservation actions, specific land uses, from critical habitat designation will critical habitat. and, in the case of SHAs, the option to return to a baseline condition under the sustain the long-standing conservation Exclusion Will Not Result in Extinction partnership between the Service and the agreements. The Service also provides of the Species—Sunriver Management Sunriver Community. enrollees assurances that we will not Plans impose further land-, water-, or Benefits of Exclusion Outweigh the We have determined that exclusion of resource-use restrictions, or require Benefits of Inclusion—Sunriver approximately 223 ac (90 ha) on additional commitments of land, water, Management Plans Sunriver private lands will not result in or finances, beyond those agreed to in The primary benefit of including the extinction of the Oregon spotted the agreements. these lands as critical habitat for the frog. This exclusion will not result in When we undertake a discretionary Oregon spotted frog is the regulatory extinction of the Oregon spotted frog section 4(b)(2) exclusion analysis, we requirement for Federal agencies to because the Sunriver GMMP and will always consider areas covered by consult with us under section 7 of the ongoing active habitat enhancement an approved CCAA/SHA/HCP, and Act to ensure actions they carry out, provide for the needs of the species by generally exclude such areas from a authorize, or fund do not adversely protecting, restoring, and enhancing all designation of critical habitat if three modify designated critical habitat. of the Oregon spotted frog habitat conditions are met: However, this benefit is reduced for the within Sunriver along the Deschutes 1. The permittee is properly following reasons. First, the benefits of River and implementing species-specific implementing the CCAA/SHA/HCP and inclusion are reduced because the conservation measures designed to is expected to continue to do so for the likelihood of a Federal nexus on these avoid and minimize impacts to the term of the agreement. A CCAA/SHA/

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HCP is properly implemented if the suitable for all life-history stages of the function of the habitat for the species permittee is, and has been, fully species through the implementation of regardless of whether or not critical implementing the commitments and conservation measures. Further, habitat is designated for these lands and provisions in the CCAA/SHA/HCP, conservation measures within the CCAA project modifications requested to avoid Implementing Agreement, and permit. include monitoring and management of adverse modification would likely be 2. The species for which critical areas within the covered lands and the same as those needed to avoid habitat is being designated is a covered outside of critical habitat that may jeopardy. Therefore, we anticipate that species in the CCAA/SHA/HCP, or very provide habitat for Oregon spotted frogs section 7 consultation analyses will similar in its habitat requirements to a in the future as the Old Mill District likely result in no difference between covered species. The recognition that continues to develop a stormwater conservation recommendations to avoid the Services extend to such an management system. Stormwater jeopardy or adverse modification in agreement depends on the degree to bioswales will be designed to catch occupied areas of critical habitat, which the conservation measures runoff before reaching the riparian areas making the incremental benefit of undertaken in the CCAA/SHA/HCP and wetlands of the Deschutes River designating critical habitat in this case would also protect the habitat features that are occupied by Oregon spotted low at best. of the similar species. frogs. The bioswales will be monitored The inclusion of these private lands 3. The CCAA/SHA/HCP specifically for frog use and managed to reduce the as critical habitat could provide some addresses the habitat of the species for threat of stranding frogs during the additional Federal regulatory benefits which critical habitat is being breeding season. The landowners have for the species consistent with the designated and meets the conservation been voluntarily implementing Oregon conservation standard addressed in the needs of the species in the planning spotted frog conservation measures Ninth Circuit Court’s decision in Gifford area. outlined in the CCAA since Oregon Pinchot Task Force v. United States Fish We believe that the Old Mill District spotted frogs were discovered in the Old and Wildlife Service, 378 F.3d 1059 (9th CCAA fulfills all of the above criteria. Mill District in 2012, and these Cir. 2004). As noted above, a potential Old Mill District CCAA conservation efforts are expected to benefit of inclusion would be the occur throughout the 20-year term of the requirement that a Federal agency In this final designation, the Secretary CCAA agreement. ensure that its actions on these non- has exercised her discretion under Federal lands would not likely result in section 4(b)(2) of the Act to exclude Benefits of Inclusion—Old Mill District the destruction or adverse modification from this critical habitat designation 26 CCAA of critical habitat. However, this ac (11 ha) of private lands covered The primary effect of designating any additional analysis to determine under the Old Mill District CCAA. The particular area as critical habitat is the whether a Federal action is likely to excluded area falls within a portion of requirement for Federal agencies to result in destruction or adverse the proposed Subunit 8A (78 FR 53538, consult with us under section 7 of the modification of critical habitat is not August 29, 2013). Act to ensure actions they carry out, likely to be significant because these The Old Mill District CCAA was authorize, or fund do not adversely covered lands are not under Federal developed to protect and manage 29 ac modify designated critical habitat. ownership, making the application of (12 ha) of Oregon spotted frog habitat, Absent critical habitat designation in section 7 less likely. Overall, given the including 26 ac (11 ha) that were occupied areas, Federal agencies remain low likelihood of a Federal nexus proposed as critical habitat for the obligated under section 7 of the Act to occurring on these lands, we believe the Oregon spotted frog, while operating the consult with us on actions that may regulatory benefit of a critical habitat 170-ac (69-ha) Old Mill District mixed- affect a federally listed species to ensure designation on these lands, if any, may use development complex. The CCAA such actions do not jeopardize the be limited. covers only the Oregon spotted frog. The species’ continued existence. As described above, the presence of a permit associated with this CCAA was The analysis of effects to critical beneficial conservation plan and the issued September 18, 2014, has a term habitat is a separate and different history of implementing conservation of 20 years, and covers activities analysis from that of the effects to the actions specific to the Oregon spotted primarily associated with water and species. Therefore, any difference in frog on these lands further reduces this vegetation management, potential predicted outcomes between these two benefit of including these lands in predator control, and riparian use. analyses represents the regulatory critical habitat. The conservation Conservation measures include benefit of critical habitat. The regulatory measures that have been implemented monitoring and maintaining sufficient standard is different, as the jeopardy and will continue to be implemented water levels in a manmade pond to analysis investigates the action’s impact under the Old Mill District CCAA focus support breeding, rearing, and on the survival and recovery of the on reducing threats to the habitat such overwintering habitat; reduction of species, while the adverse modification as vegetation encroachment and vegetation encroachment into the analysis focuses on the action’s effects dropping water levels. These manmade pond to maintain open-water on the designated habitat’s contribution management actions are likely to areas for breeding; removal of nonnative to conservation. This difference could, provide greater benefits to the Oregon predators in the pond should they be in some instances, lead to different spotted frog habitat than would the discovered during annual surveys; and results and different regulatory designation of critical habitat, since protection of the riparian zone along the requirements. Thus, critical habitat these actions actively improve the banks of the Deschutes River, including designations have the potential to breeding, rearing, and overwintering marsh habitat occupied by Oregon provide greater benefit to the recovery of habitat. The designation of critical spotted frogs, within the covered lands, a species than would listing alone. habitat does not require any active through the use of signs and temporary However, because one of the primary management. Therefore, the benefits of fencing. These activities reduce or threats to the species is habitat loss and including these lands in critical habitat eliminate threats to the Oregon spotted degradation, a section 7 jeopardy are reduced due to the commitment to frog and its habitat by creating or analysis would evaluate the effects of management at this site that provides maintaining habitat conditions that are the action on the conservation or greater benefit than the regulatory

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designation of critical habitat, which CCAA from critical habitat are consult with us under section 7 of the requires only the avoidance of adverse substantial. Conservation measures that Act to ensure actions they carry out, modification and does not require the provide a benefit to the Oregon spotted authorize, or fund do not adversely creation, improvement, or restoration of frog and its habitat have been modify designated critical habitat. habitat. implemented since Oregon spotted frogs However, this benefit is reduced for the Another potential benefit of including were detected in the Old Mill District in following reasons. First, the likelihood lands in a critical habitat designation is 2012. Since that time, the owners of of a Federal nexus on these lands is low. that it serves to educate landowners, private lands within the Old Mill Furthermore, these lands are occupied State and local governments, and the District and the Service have formed a by the Oregon spotted frog, and we public regarding the potential conservation partnership to implement anticipate that if a Federal nexus exists conservation value of an area. This conservation measures for the Oregon and triggers the need for section 7 knowledge can help focus and promote spotted frog. Further evidence of this consultation, there will be no difference conservation efforts by identifying areas conservation partnership is the between conservation recommendations of high conservation value for the development of the Old Mill District to avoid jeopardy or adverse Oregon spotted frog. The designation of CCAA, which was finalized on modification in occupied areas of critical habitat informs State agencies September 18, 2014. Through the critical habitat. Finally, the benefits of and local governments about areas that CCAA, the landowner commits to including these lands in critical habitat could be conserved under State laws or manage vegetation and water levels in a are reduced due to the commitment to local ordinances. Any additional stormwater pond that supports Oregon management at the site that provides a information about the needs of the spotted frog breeding, rearing, and greater benefit than the regulatory Oregon spotted frog or its habitat that overwintering habitat over a 20-year designation of critical habitat. reaches a wider audience can be of period. The installation of riparian Another benefit of including these benefit to future conservation efforts. fencing within the high public use areas lands in critical habitat is the However, in this case, designation of has facilitated the reestablishment of opportunity to educate landowners, critical habitat would result in little, if riparian vegetation along the banks of State and local governments, and the any, additional educational benefit, the Deschutes River, which provides public regarding the potential because the conservation needs of the habitat for Oregon spotted frogs during conservation value of the area. However, Oregon spotted frog are already well- the summer. Biological information we determined that the above- recognized in the Old Mill District. The gathered while working with these mentioned entities are all aware of the Old Mill District CCAA covers an area private landowners will facilitate the conservation value of these lands for the that receives high public use within the development of strategies to conserve Oregon spotted frog and that education shopping area and along the river, and the species and inform conservation of the public and students has been the discovery of Oregon spotted frogs efforts for the species in other areas. ongoing since the discovery of this within a manmade pond at the Old Mill Without the partnership between the population of Oregon spotted frogs in in 2012 gained immediate awareness Service and the parties to the Old Mill 2012. Therefore, the benefit of from the public. Furthermore, the District CCAA, such management would designating these lands as critical Oregon spotted frogs received not occur and vegetation encroachment habitat is minimal. immediate attention from the into the pond would reduce breeding The benefits of excluding these lands landowners, spotted frog researchers, and rearing habitat for the frog and the from the critical habitat designation are and the public media, since the known banks of the Deschutes River would not greater than inclusion for the following distribution of the species at the time be protected. Excluding these lands reasons. The exclusion will affirm and ended approximately 17 mi (27 km) managed under the Old Mill District maintain a partnership with private upstream on the Deschutes National CCAA from critical habitat designation landowners that is promoting Forest. The Sunriver Nature Center will affirm and sustain the partnership conservation of the species. naturalist, a local expert on Oregon and is expected to enhance the working Additionally, the ongoing spotted frogs, began monitoring the relationship between the Service and implementation of habitat newly found population, providing the Old Mill District property owners. improvements to promote Oregon habitat management recommendations The designation of critical habitat on spotted frog conservation provides to the landowner that led to the private lands within the Old Mill strong evidence that our partnership development of the CCAA. The Sunriver District may have a negative effect on with private landowners in the Old Mill Nature Center naturalist also began the conservation partnership between District will continue into the future. mentoring Oregon spotted frog research the Service and the landowners who For these reasons, stated above, the focused in the Old Mill District for high have agreed to future implementation of Secretary has determined that the school and college students, providing conservation measures for the Oregon benefits of excluding the 26 ac (11 ha) an educational benefit to the community spotted frog and its habitat. By covered by the Old Mill District CCAA and providing the Service with new excluding these lands, we affirm the from the designation of critical habitat information on the species. Given that conservation partnership with private for the Oregon spotted frog outweigh the the Oregon spotted frog population in landowners that not only are providing benefits of including these areas in the Old Mill District is receiving conservation benefits to the Oregon critical habitat. attention from the landowners, public, spotted frog and its habitat during the Exclusion Will Not Result in Extinction researchers, and students, an present time but also into the future. of the Species—Old Mill District CCAA educational benefit already exists and Benefits of Exclusion Outweigh the the conservation of the Oregon spotted We have determined that exclusion of Benefits of Inclusion—Old Mill District frog is being promoted. approximately 26 ac (11 ha) in the Old CCAA Mill District CCAA covered lands will Benefits of Exclusion—Old Mill District The primary benefit of including not result in the extinction of the CCAA these lands as critical habitat for the Oregon spotted frog. Actions covered by The benefits of excluding lands Oregon spotted frog is the regulatory the Old Mill CCAA will not result in covered under the Old Mill District requirement for Federal agencies to extinction of the Oregon spotted frog

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because the CCAA provides for the further that regulations must be based required to evaluate the potential needs of the species by protecting, on the best available science and that incremental impacts of rulemaking only restoring, and enhancing all of the the rulemaking process must allow for on those entities directly regulated by Oregon spotted frog habitat within the public participation and an open the rulemaking itself and, therefore, not Old Mill District along the Deschutes exchange of ideas. We have developed required to evaluate the potential River and implementing species-specific this rule in a manner consistent with impacts to indirectly regulated entities. conservation measures designed to these requirements. The regulatory mechanism through which critical habitat protections are avoid and minimize impacts to the Regulatory Flexibility Act (5 U.S.C. 601 realized is section 7 of the Act, which Oregon spotted frog. Monitoring, as et seq.) agreed to within the CCAA, will ensure requires Federal agencies, in that conservation measures are effective Under the Regulatory Flexibility Act consultation with the Service, to ensure and an adaptive management (RFA; 5 U.S.C. 601 et seq.), as amended that any action authorized, funded, or component of the CCAA allows for by the Small Business Regulatory carried by the Agency is not likely to modification to future management in Enforcement Fairness Act of 1996 destroy or adversely modify critical response to new information. (SBREFA; 5 U.S.C. 801 et seq.), habitat. Therefore, under section 7 only Further, for projects having a Federal whenever an agency is required to Federal action agencies are directly nexus and potentially affecting the publish a notice of rulemaking for any subject to the specific regulatory Oregon spotted frog, the jeopardy proposed or final rule, it must prepare requirement (avoiding destruction and standard of section 7 of the Act, coupled and make available for public comment adverse modification) imposed by with protection provided by the a regulatory flexibility analysis that critical habitat designation. voluntary Old Mill CCAA would describes the effects of the rule on small Consequently, it is our position that provide a level of assurance that this entities (i.e., small businesses, small only Federal action agencies will be species will not go extinct as a result of organizations, and small government directly regulated by this designation. excluding these lands from the critical jurisdictions). However, no regulatory There is no requirement under the RFA habitat designation. Critical habitat for flexibility analysis is required if the to evaluate the potential impacts to the Oregon spotted frog would be head of the agency certifies the rule will entities not directly regulated. designated in the Deschutes River not have a significant economic impact Moreover, Federal agencies are not adjacent to the Old Mill District and on a substantial number of small small entities. Therefore, because no outside of the lands covered by the Old entities. The SBREFA amended the RFA small entities are directly regulated by Mill CCAA. Oregon spotted frogs that to require Federal agencies to provide a this rulemaking, the Service certifies inhabit the covered lands use the certification statement of the factual that, if promulgated, the final critical Deschutes River in this area. Therefore, basis for certifying that the rule will not habitat designation will not have a actions that result in a Federal nexus have a significant economic impact on significant economic impact on a would undergo section 7 consultation a substantial number of small entities. substantial number of small entities. According to the Small Business with the Service. For example, if the During the development of this final Administration, small entities include Old Mill District were to install a boat rule we reviewed and evaluated all small organizations such as ramp that extends into the Deschutes information submitted during the independent nonprofit organizations; comment period that may pertain to our River where critical habitat is small governmental jurisdictions, designated and a U.S. Army Corps of consideration of the probable including school boards and city and incremental economic impacts of this Engineers permit is required, then town governments that serve fewer than section 7 consultation would be critical habitat designation. Based on 50,000 residents; and small businesses this information, we affirm our required for the species and critical (13 CFR 121.201). Small businesses habitat. certification that this final critical include manufacturing and mining habitat designation will not have a Required Determinations concerns with fewer than 500 significant economic impact on a employees, wholesale trade entities substantial number of small entities, Regulatory Planning and Review with fewer than 100 employees, retail and a regulatory flexibility analysis is (Executive Orders 12866 and 13563) and service businesses with less than $5 not required. Executive Order 12866 provides that million in annual sales, general and the Office of Information and Regulatory heavy construction businesses with less Energy Supply, Distribution, or Use— Affairs will review all significant rules. than $27.5 million in annual business, Executive Order 13211 The Office of Information and special trade contractors doing less than Executive Order 13211 (Actions Regulatory Affairs has determined that $11.5 million in annual business, and Concerning Regulations That this rule is not significant. agricultural businesses with annual Significantly Affect Energy Supply, Executive Order 13563 reaffirms the sales less than $750,000. To determine Distribution, or Use) requires agencies principles of E.O. 12866 while calling if potential economic impacts to these to prepare Statements of Energy Effects for improvements in the nation’s small entities are significant, we when undertaking certain actions. OMB regulatory system to promote considered the types of activities that has provided guidance for predictability, to reduce uncertainty, might trigger regulatory impacts under implementing this Executive Order that and to use the best, most innovative, this designation as well as types of outlines nine outcomes that may and least burdensome tools for project modifications that may result. In constitute ‘‘a significant adverse effect’’ achieving regulatory ends. The general, the term ‘‘significant economic when compared to not taking the executive order directs agencies to impact’’ is meant to apply to a typical regulatory action under consideration. consider regulatory approaches that small business firm’s business The economic analysis finds that reduce burdens and maintain flexibility operations. none of these criteria are relevant to this and freedom of choice for the public The Service’s current understanding analysis. Thus, based on information in where these approaches are relevant, of the requirements under the RFA, as the economic analysis, energy-related feasible, and consistent with regulatory amended, and following recent court impacts associated with Oregon spotted objectives. E.O. 13563 emphasizes decisions, is that Federal agencies are frog conservation activities within

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critical habitat are not expected. As funding, assistance, or permits, or that proposed critical habitat designation such, the designation of critical habitat otherwise require approval or with, appropriate State resource is not expected to significantly affect authorization from a Federal agency for agencies in Washington and Oregon. We energy supplies, distribution, or use. an action, may be indirectly impacted received comments from WDFW, Therefore, this action is not a significant by the designation of critical habitat, the WDNR, WDOE, and ODFW and have energy action, and no Statement of legally binding duty to avoid addressed them in the Summary of Energy Effects is required. destruction or adverse modification of Comments and Recommendations critical habitat rests squarely on the section of the rule. From a federalism Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the perspective, the designation of critical U.S.C. 1501 et seq.) extent that non-Federal entities are habitat directly affects only the In accordance with the Unfunded indirectly impacted because they responsibilities of Federal agencies. The Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate Act imposes no other duties with seq.), we make the following findings: in a voluntary Federal aid program, the respect to critical habitat, either for (1) This rule will not produce a Unfunded Mandates Reform Act would States and local governments, or for Federal mandate. In general, a Federal not apply, nor would critical habitat anyone else. As a result, the rule does mandate is a provision in legislation, shift the costs of the large entitlement not have substantial direct effects either statute, or regulation that would impose programs listed above onto State on the States, or on the relationship an enforceable duty upon State, local, or governments. between the Federal Government and tribal governments, or the private sector, (2) We do not believe that this rule the States, or on the distribution of and includes both ‘‘Federal will significantly or uniquely affect powers and responsibilities among the intergovernmental mandates’’ and small governments because it would not various levels of government. The ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 designation may have some benefit to These terms are defined in 2 U.S.C. million or greater in any year; that is, it these governments because the areas 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ that contain the features essential to the mandate’’ includes a regulation that under the Unfunded Mandates Reform conservation of the species are more ‘‘would impose an enforceable duty Act. The economic analysis concludes clearly defined, and the physical and upon State, local, or tribal governments’’ that incremental impacts may occur due biological features of the habitat with two exceptions. It excludes ‘‘a to administrative costs of section 7 necessary to the conservation of the condition of Federal assistance.’’ It also consultations; however, these are not species are specifically identified. This excludes ‘‘a duty arising from expected to significantly affect small information does not alter where and participation in a voluntary Federal governments. The designation of critical what federally sponsored activities may program,’’ unless the regulation ‘‘relates habitat imposes no obligations on State occur. However, it may assist these local to a then-existing Federal program or local governments. By definition, governments in long-range planning under which $500,000,000 or more is Federal agencies are not considered (because these local governments no provided annually to State, local, and small entities, although the activities longer have to wait for case-by-case tribal governments under entitlement they fund or permit may be proposed or section 7 consultations to occur). authority,’’ if the provision would carried out by small entities. Where State and local governments ‘‘increase the stringency of conditions of Consequently, we do not believe that require approval or authorization from a assistance’’ or ‘‘place caps upon, or the critical habitat designation would Federal agency for actions that may otherwise decrease, the Federal significantly or uniquely affect small affect critical habitat, consultation Government’s responsibility to provide government entities. As such, a Small under section 7(a)(2) would be required. funding,’’ and the State, local, or tribal Government Agency Plan is not While non-Federal entities that receive governments ‘‘lack authority’’ to adjust required. Federal funding, assistance, or permits, accordingly. At the time of enactment, or that otherwise require approval or these entitlement programs were: Takings—Executive Order 12630 authorization from a Federal agency for Medicaid; Aid to Families with In accordance with Executive Order an action, may be indirectly impacted Dependent Children work programs; 12630 (‘‘Government Actions and by the designation of critical habitat, the Child Nutrition; Food Stamps; Social Interference with Constitutionally legally binding duty to avoid Services Block Grants; Vocational Protected Private Property Rights’’), we destruction or adverse modification of Rehabilitation State Grants; Foster Care, have analyzed the potential takings critical habitat rests squarely on the Adoption Assistance, and Independent implications of designating critical Federal agency. Living; Family Support Welfare habitat for the Oregon spotted frog in a Civil Justice Reform—Executive Order Services; and Child Support takings implications assessment. Based 12988 Enforcement. ‘‘Federal private sector on the best available information, the mandate’’ includes a regulation that takings implications assessment In accordance with Executive Order ‘‘would impose an enforceable duty concludes that this designation of 12988 (Civil Justice Reform), the Office upon the private sector, except (i) a critical habitat for the Oregon spotted of the Solicitor has determined that the condition of Federal assistance or (ii) a frog does not pose significant takings rule does not unduly burden the judicial duty arising from participation in a implications. system and that it meets the applicable voluntary Federal program.’’ standards set forth in sections 3(a) and The designation of critical habitat Federalism—Executive Order 13132 3(b)(2) of the Order. We are designating does not impose a legally binding duty In accordance with E.O. 13132 critical habitat in accordance with the on non-Federal Government entities or (Federalism), this rule does not have provisions of the Act. To assist the private parties. Under the Act, the only significant Federalism effects. A public in understanding the habitat regulatory effect is that Federal agencies Federalism assessment is not required. needs of the species, the rule identifies must ensure that their actions do not In keeping with Department of the the elements of physical or biological destroy or adversely modify critical Interior and Department of Commerce features essential to the conservation of habitat under section 7. While non- policy, we requested information from, the Oregon spotted frog. The designated Federal entities that receive Federal and coordinated development of the areas of critical habitat are presented on

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maps, and the rule provides several Government-to-Government www.regulations.gov and upon request options for the interested public to Relationship With Tribes from the Washington Fish and Wildlife obtain more detailed location In accordance with the President’s Office (see FOR FURTHER INFORMATION information, if desired. memorandum of April 29, 1994 CONTACT). Paperwork Reduction Act of 1995 (44 (Government-to-Government Relations Authors with Native American Tribal U.S.C. 3501 et seq.) Governments; 59 FR 22951), Executive The primary authors of this This rule does not contain any new Order 13175 (Consultation and rulemaking are the staff members of the collections of information that require Coordination With Indian Tribal Washington Fish and Wildlife Office, approval by OMB under the Paperwork Governments), and the Department of Oregon Fish and Wildlife Office—Bend Field Office, and Klamath Falls Fish and Reduction Act of 1995 (44 U.S.C. 3501 the Interior’s manual at 512 DM 2, we Wildlife Office. et seq.). This rule will not impose readily acknowledge our responsibility recordkeeping or reporting requirements to communicate meaningfully with List of Subjects in 50 CFR Part 17 recognized Federal Tribes on a on State or local governments, government-to-government basis. In Endangered and threatened species, individuals, businesses, or accordance with Secretarial Order 3206 Exports, Imports, Reporting and organizations. An agency may not of June 5, 1997 (American Indian Tribal recordkeeping requirements, conduct or sponsor, and a person is not Rights, Federal-Tribal Trust Transportation. required to respond to, a collection of Responsibilities, and the Endangered information unless it displays a Species Act), we readily acknowledge Regulation Promulgation currently valid OMB control number. our responsibilities to work directly Accordingly, we amend part 17, National Environmental Policy Act (42 with tribes in developing programs for subchapter B of chapter I, title 50 of the U.S.C. 4321 et seq.) healthy ecosystems, to acknowledge that Code of Federal Regulations, as set forth tribal lands are not subject to the same below: It is our position that, outside the controls as Federal public lands, to jurisdiction of the U.S. Court of Appeals remain sensitive to Indian culture, and PART 17—ENDANGERED AND for the Tenth Circuit, we do not need to to make information available to tribes. THREATENED WILDLIFE AND PLANTS prepare environmental analyses We determined that there are no tribal pursuant to the NEPA (42 U.S.C. 4321 lands occupied by the Oregon spotted ■ 1. The authority citation for part 17 et seq.) in connection with designating frog at the time of listing that contain continues to read as follows: the physical or biological features critical habitat under the Act. We Authority: 16 U.S.C. 1361–1407; 1531– essential to conservation of the species, published a notice outlining our reasons 1544; 4201–4245; unless otherwise noted. and no tribal lands unoccupied by the for this determination in the Federal Oregon spotted frog that are essential for ■ 2. Amend § 17.11(h), the List of Register on October 25, 1983 (48 FR the conservation of the species. Endangered and Threatened Wildlife, by 49244). This position was upheld by the Therefore, we are not designating revising the entry for ‘‘Frog, Oregon U.S. Court of Appeals for the Ninth critical habitat for the Oregon spotted spotted’’ to read as follows: Circuit (Douglas County v. Babbitt, 48 frog on tribal lands. F.3d 1495 (9th Cir. 1995), cert. denied § 17.11 Endangered and threatened 516 U.S. 1042 (1996)). References Cited wildlife. A complete list of all references cited * * * * * is available on the Internet at http:// (h) * * *

Species Vertebrate population Historic where When Critical Special Common Scientific range endangered Status listed habitat rules name name or threatened

******* AMPHIBIANS

******* Frog, Oregon spotted Rana pretiosa ...... Canada (BC); U.S.A. Entire T 846 17.95(d) NA (CA, OR, WA).

*******

* * * * * (d) Amphibians. Klamath, Lane, and Wasco Counties in ■ 3. In § 17.95, amend paragraph (d) by * * * * * Oregon, on the maps below. (2) Within these areas, the PCEs of the adding an entry for ‘‘Oregon Spotted Oregon Spotted Frog (Rana pretiosa) Frog (Rana pretiosa)’’ in the same order physical or biological features essential that the species appears in the table at (1) Critical habitat units are depicted to the conservation of the Oregon spotted frog consist of three § 17.11(h), to read as follows: for Klickitat, Skagit, Skamania, components: Thurston, and Whatcom Counties in § 17.95 Critical habitat—fish and wildlife. (i) Primary constituent element 1.— Washington and Deschutes, Jackson, * * * * * Nonbreeding (N), Breeding (B), Rearing

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

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Critical Habitat for Oregon Spotted Frog in Washington and Oregon

12li"'"''W 12i"O'O'W 126'0'11'W 125'0'0'W 124"0'11'W 123"0'0'W 122'00W 121"0'11'W 120"0'0'W 119'0'0"W 118'0'0"W

PACIFIC OCEAN

12li"'"''W 127"0'11'W 126'0'11'W 125'0'0'W 124"0'11'W 123"0'0'W 122'00W 121"0'11'W 120"0'0'W 119'0'0"W 119'0'0"W

N A LEGEND /"\./ Highways Critical Habitat Units Kilometers Major Cities 0 40 00 160 • I • I States I I 'I I I I I I LJ 0 25 50 100 Q Counties Miles

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(6) Unit 1: Lower Chilliwack River, Whatcom County, Washington. Map of Unit 1 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 1: Lower Chilliwack River, Washington 122'JIIti'W 122'3lti'W 122'1Dti'W

122'JIIti'W 122'3lti'W 122'1Dti'W

N A M Critical Habitat Wlshington ..,.__ CH Stream Kjlometers 0 2 4 6 8 • City /V Road 0 2 3 4 Miles LJ County

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(7) Unit 2: South Fork Nooksack River, Whatcom County, Washington. Map of Unit 2 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 2: South Fork Nooksack River, Washington 122"21011"1\1 122"1011"1\1

122"1011"1\1

N A Wtsllington M Critical Habitat Mikm"elers 0 2 4 6 8 ~CHStream • City 0 2 3 4 - /"+.../Road

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(8) Unit 3: Samish River, Whatcom and Skagit Counties, Washington. Map of Unit 3 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 3: Samish River, Washington 122"2.011"111 122"10'0"1'1'

z b !i i!il

Samish Bay

z b R i!il

122"2.0'0"111 122"10'0"111

N A M Crttical Habitat Wtsllington ..,.__ CH Stream Mikm"elers 0 2 4 6 8 • City /V Road 0 2 3 4 - LJ County

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(9) Unit 4: Black River, Thurston County, Washington. Map of Unit 4 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 4: Black River, Washington

N A M Critical Habitat lllllshington ..,.._,_ CH Stream KiloneBs 0 2 4 6 8 • City /'.,/Road 0 2 3 4 Miles LJ County

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(10) Unit 5: White Salmon River, Skamania and Klickitat Counties, Washington. Map of Unit 5 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 5: White Salmon River, Washington 121"«1!1"1\1 121"111!1"1\1

Yakima

z b b ii

Skamania

N A M Crttical Habitat Wtsllington ..,.__ CH Stream Mikm"elers 0 2 4 6 8 • City /V Road 0 2 3 4 - LJ County

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(11) Unit 6: Middle Klickitat River, Klickitat County, Washington. Map of Unit 6 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa)

I"J1ckitai

I ._;·

N A M Cntica, Habltai hj ~rr:~+.=1~ 0 4 ll 8 • Tc.N.lS

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(12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of Unit 7 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 7: Lower Deschutes River, Oregon 121"3B'D"W 121'30'0'W

Warm Springs • Junction wasco

121"WO'W 121"34"0"W 121"3Z'O"W 121"WO"W

N A II& Critical Habi1at Kllomelers Location 0 1 2 3 • I I I I I I I I"./ Road 0 0.8 1.2 1.8 Milas [] County

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(13) Unit 8A: Upper Deschutes River, (i) Map 1 of 2, Upper Deschutes River, Subunit: Below Wickiup Dam, Oregon. Below Wickiup Dam, Deschutes County, Oregon. Map 1 of 2 of Unit 8A follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit SA: Upper Deschutes River, Subunit Below Wickiup Dam, Oregon - Map 1 of 2 12t'3S'II'W 121"30'11'W 121'2S'O'W

Deschutes

Klwa• Butte

wanoga• Butte

AnnsButte •

• Sugar Pine Butte

121'3S'II'W 121'WO'W 121'25'0"W 121"20'0'W

N A Oregon II& Critical Habi1at a KDomelers 0 3 8 9 • Location I I I I I I I I"./ Road 0 2 4 8 Millis [] County

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(ii) Map 2 of 2, Upper Deschutes County, Oregon. Map 2 of 2 of Unit 8A River, Below Wickiup Dam, Deschutes follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit SA: Upper Deschutes River, Subunit Below Wickiup Dam, Oregon - Map 2 of 2 121·40'0"'tN 121'3S'V'W 121'30'0'W

Pistol Butte •

Round• Mountain

BMese Cemetery•

Deschutes

Klamath

121"35VW 121"25VW

N A Oregon Ill Critical Habi1at a Klomelers 0 3 8 9 • Location I I I I I I I A/Road 0 2 4 8 Miles [] County

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(14) Unit 8B: Upper Deschutes River, (i) Map 1 of 2, Upper Deschutes River, Klamath Counties, Oregon. Map 1 of 2 Subunit: Above Wickiup Dam, Oregon. Above Wickiup Dam, Deschutes and of Unit 8B follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 88: Upper Deschutes River, Subunit: Above Wickiup Dam, Oregon - Map 1 of 2

Pine Butte •

Davis Mountain • Deschutes

Klamath

Maldaks Mountain •

Hamner• Butte

Royce •Mountain

N A Ill Critical Habi1at a Oregon Klomelers Location 0 3 8 9 • I I I I I I I A/Road 0 2 4 8 Miles [] County

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(ii) Map 2 of 2, Upper Deschutes and Klamath Counties, Oregon. Map 2 River, Above Wickiup Dam, Deschutes of 2 of Unit 8B follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 88: Upper Deschutes River, Subunit: Above Wickiup Dam, Oregon - Map 2 of 2

Sheridan• Mountain

Pilar• Peak

Round• Mountain

N A

I] Oregon Klomelers 0 3 8 9 Ill Critical Habi1at I I I I I I I • Location 0 2 4 8 Miles [] County

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(15) Unit 9: Little Deschutes River, (i) Map 1 of 3, Little Deschutes River, Deschutes and Klamath Counties, Deschutes and Klamath Counties, Oregon. Oregon. Map 1 of 3 of Unit 9 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 9: Little Deschutes River, Oregon - Map 1 of 3 121'30'0'W 121"2S'O'W

Pistol• Butte

Breese •Cemetery

Haner• Butte Anley• Butte

Deschutes

Klamath

121"35'11'W 121'2$'0'W

N A Oregon II& Critical Habi1at c KDomelers Location 0 3 8 9 • I I I I I I I I"./ Road 0 1.5 3 4.5 Milas [] County

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(ii) Map 2 of 3, Little Deschutes River, Deschutes and Klamath Counties, Oregon. Map 2 of 3 of Unit 9 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 9: Little Deschutes River, Oregon - Map 2 of 3 121".o'O'W 121"3SV'W

Deschutes

Klamath

Cryder• Butte

• Black Rock Butte

121.45'11'W 121·- 121"3SV'W 121"30'11'W

N A II& Critical Habi1at Oregon KDomelers Location a 0 3 8 9 • I I I I I I I I"./ Road 0 1.5 3 4.5 Milas [] County

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(iii) Map 3 of 3, Little Deschutes River, Deschutes and Klamath Counties, Oregon. Map 3 of 3 of Unit 9 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 9: Little Deschutes River, Oregon - Map 3 of 3

• Royce Mountain

Black Rock• Butte

• Beales Butte

N A II& Critical Habi1at Oregon Kilometers Location D 0 3 8 I • I I I I I I I I"./ Road 0 1.5 3 4.5 MIIH [] County

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(16) Unit 10: McKenzie River, Lane County, Oregon. Map of Unit 10 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 10: McKenzie River, Oregon 121'S8'0'W 121"S8'0'W 121'54'0'W 121'52'0'W

Shroy • Meadows

Pond NE Penn Lake PennLake ~

--.~ Cabin Meadows ~._,_~Boat Lake~ Reserve •Meadow Beaver Marsh Dealy• Way

Unnamed Marsh Mud Lake

Packsaddle Mountain• Trail

121"S8'0'W 121"S8'0'W 121"54'0"W 121"52'0'W

N A Ill Critical Habi1at • Oregon Klomelers Location 0 1 2 3 • I I I I I I I A/Road 0 0.6:5 1.3 1.95 Milas [] County

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(17) Unit 11: Middle Fork Willamette River, Lane County, Oregon. Map of Unit 11 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 11: Middle Fork Willamette River, Oregon

• Mount Ray

Lane

Deschutes

Klamath

N A II& Critical Habi1at • Oregon KDomelers Location 0 1 2 3 • I I I I I I I I"./ Road 0 0.8:5 1.3 1.115 Milas [] County

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(18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit 12 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 12: Williamson River, Oregon 121"li0l!'W 121"401!"111 121"201!"111

l

Three Creek .. • b b 12

z b &! 1l

121"li0l!'W 121"401!"111 121"301!"111 121"201!"111

N A Oregon .. Critical I-I abitat l':iiDmetss Location 0 6 12 18 • D /'V Road 0 3.5 7 10.5 County Miles LJ

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(19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of Unit 13 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 13: Upper Klamath Lake, Or~n 1%2"1011'W 1%2"!1VW

Upper Klamath l.al:e

1%2"1011'W 1%2"!1VW

N A 0111!1011 M Critical Habitat Kilometss Location 0 3 6 9 • D /V Road 0 1.5 3 4.5 Miles LJ County

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(20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon. Map of Unit 14 follows:

Critical Habitat for Oregon Spotted Frog (Rana pretiosa) Unit 14: Upper Klamath, Oregon 12Z'"31'0'W 1!!.,0'D'W i~------~--~----~---.------.~------~-----. ~

Jackson Klamalh

1Z!'"'10tnV 1Z!'"'10'0"W

N A II Critical Habitat l'.ilamelers 0 3 6 9 • Location ~0' Road a 0 1.5 3 4.5 - LJ County

* * * * * 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

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