Vol. 76 Tuesday, No. 187 September 27, 2011

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mississippi Gopher Frog; Proposed Rule

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DEPARTMENT OF THE INTERIOR a comment by clicking on ‘‘Send a species, should be included in the Comment or Submission.’’ designation and why, Fish and Wildlife Service (2) By hard copy: Submit by U.S. mail (c) Special management or hand-delivery to: Public Comments considerations or protection that may be 50 CFR Part 17 Processing, Attn: FWS–R4–ES–2010– needed in critical habitat areas we are [Docket No. FWS–R4–ES–2010–0024; MO 0024; Division of Policy and Directives proposing, including managing for the 92210–0–0009] Management; U.S. Fish and Wildlife potential effects of climate change, and Service; 4401 N. Fairfax Drive, MS (d) What areas not occupied at the RIN 1018–AW89 2042–PDM; Arlington, VA 22203. time of listing are essential for the We will not accept e-mail or faxes. We conservation of the species and why. Endangered and Threatened Wildlife will post all comments on http:// (3) Land-use designations and current and Plants; Designation of Critical www.regulations.gov. This generally or planned activities in the subject areas Habitat for Mississippi Gopher Frog means that we will post any personal and their possible impacts on proposed AGENCY: Fish and Wildlife Service, information you provide us (see Public critical habitat. Interior. Comments section below for more (4) Information on the projected and reasonably likely impacts of climate ACTION: Revised proposed rule; information). change on the Mississippi gopher frog availability of draft economic analysis; FOR FURTHER INFORMATION CONTACT: and proposed critical habitat. and reopening of comment period. Stephen Ricks, Field Supervisor, U.S. (5) Any probable economic, national Fish and Wildlife Service, Mississippi SUMMARY: We, the U.S. Fish and security, or other relevant impacts of Fish and Wildlife Office, 6578 Dogwood Wildlife Service, propose to designate designating any area (especially Unit 1 View Parkway, Jackson, MS 39213; critical habitat for the Mississippi in St. Tammany Parish, Louisiana) that telephone: 601–321–1122; facsimile: gopher frog (Rana sevosa) [= Rana may be included in the final 601–965–4340. If you use a capito sevosa] under the Endangered designation; in particular, any impacts telecommunications device for the deaf Species Act of 1973, as amended (Act). on small entities or families, and the (TDD), call the Federal Information We also announce revisions to the benefits of including or excluding areas Relay Service (FIRS) at 800–877–8339. proposed critical habitat units, as that exhibit these impacts. described in the proposed rule SUPPLEMENTARY INFORMATION: (6) Whether any specific areas we are published in the Federal Register on Public Comments proposing for critical habitat June 3, 2010 (75 FR 31387), and designation should be considered for We intend that any final action announce the availability of the draft exclusion under section 4(b)(2) of the resulting from this proposed rule will be economic analysis (DEA) for the revised Act, and whether the benefits of based on the best scientific and proposed critical habitat designation. potentially excluding any specific area commercial data available and be as This proposed rule replaces the outweigh the benefits of including that accurate and as effective as possible. previous June 3, 2010, proposed rule in area under section 4(b)(2) of the Act. Therefore, we request comments or its entirety. In total, approximately (7) Whether we could improve or information from other concerned 2,839 hectares (ha) (7,015 acres (ac)) are modify our approach to designation of governmental agencies, the scientific being proposed for designation as critical habitat in any way to provide for community, industry, or any other critical habitat in 12 units, 3 of which greater public participation and interested party concerning this are divided into 2 subunits each. The understanding, or to better proposed designation of critical habitat proposed critical habitat is located accommodate public concerns and for the Mississippi gopher frog, the DEA within St. Tammany Parish, Louisiana, comments. of the proposed designation of critical and Forrest, Harrison, Jackson, and (8) The appropriateness of the habitat for the Mississippi gopher frog, Perry Counties, Mississippi. The taxonomic name change of the and the amended required comment period will allow all Mississippi gopher frog from Rana determinations provided in this interested parties an opportunity to capito sevosa to Rana sevosa. document. We will consider You may submit your comments and comment simultaneously on the revised information and recommendations from materials concerning this proposed rule proposed rule, the associated DEA, and all interested parties. We are by one of the methods listed in the amended required determinations particularly interested in comments ADDRESSES. We will not accept section. concerning: comments sent by e-mail or fax or to an DATES: We will accept comments (1) The reasons why we should or address not listed in ADDRESSES. We received or postmarked on or before should not designate habitat as ‘‘critical will post your entire comment— November 28, 2011. We must receive habitat’’ under section 4 of the Act (16 including your personal identifying requests for public hearings, in writing, U.S.C. 1531 et seq.), including whether information—on http:// at the address shown in the ADDRESSES there are threats to the species from www.regulations.gov. You may request section by November 14, 2011. human activity, the degree of which can at the top of your document that we ADDRESSES: You may submit comments be expected to increase due to the withhold personal information such as by one of the following methods: designation, and whether that increase your street address, phone number, or e- (1) Electronically: Go to the Federal in threat outweighs the benefit of mail address from public review; eRulemaking Portal: http:// designation such that the designation of however, we cannot guarantee that we www.regulations.gov. In the Keyword critical habitat may not be prudent. will be able to do so. box, enter Docket No. FWS–R4–ES– (2) Specific information on: Comments and materials we receive, 2010–0024, which is the docket number (a) The amount and distribution of as well as supporting documentation for this rulemaking. Then, in the Search Mississippi gopher frog habitat, used in preparing the proposed rule and panel on the left side of the screen, (b) What areas, that were occupied at DEA, will be available for public under the Document Type heading, the time of listing (or are currently inspection on http:// click on the Proposed Rules link to occupied) and that contain features www.regulations.gov, or by locate this document. You may submit essential to the conservation of the appointment, during normal business

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hours, at the U.S. Fish and Wildlife Geographic Range, Habitat, and Threats historically the Mississippi gopher frog Service’s Mississippi Fish and Wildlife The Mississippi gopher frog has a was commonly found in the coastal Office (see FOR FURTHER INFORMATION very limited historical range in counties of Mississippi (Allen 1932, p. CONTACT). You may obtain copies of the Alabama, Mississippi, and Louisiana. At 9; Neill 1957, p. 49), very few of the proposed rule and the DEA on the the time of listing in 2001, this species remaining ponds provide potential Internet at http://www.regulations.gov at occurred at only one site, Glen’s Pond, appropriate breeding habitat (Sisson Docket Number FWS–R4–ES–2010– in the DeSoto National Forest in 2003, p. 6). Nevertheless, two new 0024 or by mail from the Mississippi Harrison County, Mississippi (66 FR naturally occurring populations of the Field Office (see FOR FURTHER 62993). Mississippi gopher frog habitat Mississippi gopher frog were found in INFORMATION CONTACT). includes both upland sandy habitats— Jackson County, Mississippi (Sisson 2004, p. 8). Field surveys conducted in historically forest dominated by longleaf Background Alabama and Louisiana have been pine (Pinus palustris)—and isolated unsuccessful in documenting the It is our intent to discuss only those temporary wetland breeding sites continued existence of Mississippi topics directly relevant to the embedded within the forested gopher frogs in these States (Pechmann designation of critical habitat in this landscape. Adult and subadult frogs et al. 2006, pp. 1–23; Bailey 2009, pp. proposed rule. For more information on spend the majority of their lives the Mississippi gopher frog, refer to the 1–2). underground in active and abandoned Due to the paucity of available final rule listing the species as gopher tortoise (Gopherus polyphemus) endangered, which was published in the suitable habitat for the Mississippi burrows, abandoned mammal burrows, gopher frog, we have worked with our Federal Register on December 4, 2001 and holes in and under old stumps (66 FR 62993). See also the discussion State, Federal, and nongovernmental (Richter et al. 2001, p. 318). Frequent partners to identify and restore upland of habitat in the Physical and Biological fires are necessary to maintain the open Features section below. and wetland habitats to create canopy and ground cover vegetation of appropriate translocation sites for the Taxonomy and Nomenclature their aquatic and terrestrial habitat. The species. We have focused our efforts on Mississippi gopher frog was listed as an Subsequent to the listing of the areas in the State of Mississippi. We endangered species due to its low identified 15 ponds and associated Mississippi gopher frog, taxonomic population size and because of ongoing research was completed which forested uplands that we considered to threats to the species and its habitat (66 have restoration potential. These sites indicated that the listed entity FR 62993). Primary threats to the (originally listed as a DPS of Rana occur on the DeSoto National Forest species include urbanization and (Harrison, Forrest, and Perry Counties), capito sevosa) is different from other associated development and road the Ward Bayou Wildlife Management gopher frogs and warrants acceptance as building; fire suppression; two Area (Jackson County), and two its own species, Rana sevosa (Young potentially fatal amphibian diseases privately owned sites (Jackson County). and Crother 2001, pp. 382–388). The known to be present in the population; We have used Glen’s Pond and its herpetological scientific community has and the demographic effects of small surrounding uplands on the DeSoto accepted this taxonomic change, and, as population size (66 FR 62993; Sisson National Forest, Harrison County, a result, we announce our intention to 2003, pp. 5, 9; Overstreet and Lotz 2004, Mississippi, as a guide in our revise our List of Endangered and pp. 1–13). management efforts. Ongoing habitat Threatened Wildlife to reflect this management is being conducted at these change in nomenclature. The common Current Status areas to restore them as potential name for Rana sevosa used in the most Since the time of listing on December relocation sites for the Mississippi recent taxonomic treatment for reptiles 4, 2001, we have used information from gopher frog. Habitat management at one and amphibians is dusky gopher frog surveys and reports prepared by the of the privately owned sites (Unit 4, (Crother et al. 2003, p. 197). However, Alabama Department of Conservation below) reached the point where we we will continue to use the common and Natural Resources; Louisiana believed a translocation effort could be name, Mississippi gopher frog, to Department of Wildlife and Fisheries/ initiated. In 2004, we began releasing describe the listed entity in order to Natural Heritage Program; Mississippi tadpoles and metamorphic frogs at a avoid confusion with some populations Museum of Natural Science/Mississippi pond restored for use as a breeding site of the eastern Rana capito, for which the Department of Wildlife, Fisheries, and (Sisson et al. 2008, p. 16). In December common name of dusky gopher frog is Parks; Mississippi gopher frog 2007, Mississippi gopher frogs were still popularly used. researchers; and Service data and heard calling at the site, and one egg We also propose to remove the State records to search for additional mass was discovered (Baxley and Qualls of Florida from the ‘‘Historic range’’ locations occupied, or with the potential 2007, pp. 14–15). Another gopher frog column of the table entry in 50 CFR to be occupied, by the Mississippi egg mass was found in the pond in 2010 17.11(h) since the areas currently listed gopher frog. After reviewing the (Lee 2010). As a result, we consider this (Alabama, Florida, Louisiana, and available information from the areas in site to be currently occupied by the Mississippi) delineated the entire range, the three States that were historically species, bringing the total number of including unlisted portions, of the occupied by the Mississippi gopher frog, currently occupied sites to four. subspecies, Rana capito sevosa. we determined that most of the Therefore, we propose to revise the potential restorable habitat for the Previous Federal Actions ‘‘Historic range’’ column of the table species occurs in Mississippi. Wetlands The Mississippi gopher frog was entry in 50 CFR 17.11(h) to reflect the throughout the coastal counties of listed as an endangered species under historical range of the listed entity, Mississippi have been identified by the Act on December 4, 2001 (66 FR Rana sevosa. As a result of the name using U.S. Geological Survey 62993). It was at that time identified as change, the species occupying the topographic maps, National Wetland Rana capito sevosa, a distinct eastern portion of the range that Inventory maps, Natural Resource population segment of the gopher frog includes the State of Florida is the Conservation Service county soil survey Rana capito (see Taxonomy and unlisted Rana capito. maps, and satellite imagery. Although Nomenclature discussion above). At the

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time of listing the Service found that (b) Which may require special habitat designations identify, to the designation of critical habitat was management considerations or extent known using the best scientific prudent. However, the development of a protection; and and commercial data available, those designation was deferred due to (2) Specific areas outside the physical or biological features that are budgetary and workload constraints. geographical area occupied by the essential to the conservation of the On November 27, 2007, the Center for species at the time it is listed, upon a species (such as space, food, cover, and Biological Diversity and Friends of determination that such areas are protected habitat). In identifying those Mississippi Public Lands (plaintiffs) essential for the conservation of the physical and biological features within filed a lawsuit against the Service and species. an area, we focus on the principal the Secretary of the Interior for our Conservation, as defined under biological or physical constituent failure to timely designate critical section 3 of the Act, means to use and elements (primary constituent elements habitat for the Mississippi gopher frog the use of all methods and procedures such as roost sites, nesting grounds, (Friends of Mississippi Public Lands and that are necessary to bring an seasonal wetlands, water quality, tide, Center for Biological Diversity v. endangered or threatened species to the soil type) that are essential to the Kempthorne (07–CV–02073)). In a court- point at which the measures provided conservation of the species. Primary approved settlement, the Service agreed under the Act are no longer necessary. constituent elements are the elements of to submit to the Federal Register a new Such methods and procedures include, physical or biological features that, prudency determination, and if the but are not limited to, all activities when laid out in the appropriate designation was found to be prudent, a associated with scientific resources quantity and spatial arrangement to proposed designation of critical habitat, management such as research, census, provide for a species’ life-history by May 30, 2010, and a final designation law enforcement, habitat acquisition processes, are essential to the by May 30, 2011. A proposed rule to and maintenance, propagation, live conservation of the species. designate critical habitat for the trapping, and transplantation, and, in Under the second prong of the Act’s Mississippi gopher frog was published the extraordinary case where population definition of critical habitat, we can on June 3, 2010 (75 FR 31387). pressures within a given ecosystem designate critical habitat in areas During the comment period for the cannot be otherwise relieved, may outside the geographic area occupied by June 3, 2010, proposed rule, the peer include regulated taking. the species at the time it is listed, upon reviewers and other commenters Critical habitat receives protection a determination that such areas are indicated they believed that the amount under section 7 of the Act through the essential for the conservation of the of critical habitat proposed was requirement that Federal agencies species. For example, an area currently insufficient for the conservation of the ensure, in consultation with the Service, occupied by the species but that was not Mississippi gopher frog and that that any action they authorize, fund, or occupied at the time of listing may be carry out is not likely to result in the additional habitat should be considered essential to the conservation of the destruction or adverse modification of throughout the historical range of the species and may be included in the critical habitat. The designation of species. Specifically, information was critical habitat designation. We critical habitat does not affect land provided that pointed to limitations in designate critical habitat in areas ownership or establish a refuge, the data we used to determine the size outside the geographic area occupied by wilderness, reserve, preserve, or other of individual critical habitat units and a species only when a designation conservation area. Such designation the presence of potential habitat in limited to its range would be inadequate does not allow the government or public Louisiana which would aid in the to ensure the conservation of the to access private lands. Such conservation of Mississippi gopher species. designation does not require Section 4 of the Act requires that we frogs. Based on this new information, implementation of restoration, recovery, designate critical habitat on the basis of we asked the plaintiffs to agree to an or enhancement measures by non- the best scientific data available. extension for the final critical habitat Federal landowners. Where a landowner Further, our Policy on Information determination. In a modification to the seeks or requests Federal agency Standards Under the Endangered original settlement signed on May 4, funding or authorization for an action Species Act (published in the Federal 2011, the court agreed to the Service’s that may affect a listed species or Register on July 1, 1994 (59 FR 34271)), timeline to send a revised proposed critical habitat, the consultation the Information Quality Act (section 515 critical habitat rule to the Federal requirements of section 7(a)(2) would of the Treasury and General Register by September 15, 2011, and a apply, but even in the event of a Government Appropriations Act for final critical habitat rule to the Federal destruction or adverse modification Fiscal Year 2001 (Pub. L. 106–554; H.R. Register by May 30, 2012. Therefore, finding, the obligation of the Federal 5658)), and our associated Information this proposed rule revises the June 3, action agency and the landowner is not Quality Guidelines, provide criteria, 2010, proposed rule by expanding the to restore or recover the species, but to establish procedures, and provide areas to be designated as critical habitat. implement reasonable and prudent guidance to ensure that our decisions Critical Habitat alternatives to avoid destruction or are based on the best scientific data adverse modification of critical habitat. available. They require our biologists, to Background Under the first prong of the Act’s the extent consistent with the Act and Critical habitat is defined in section 3 definition of critical habitat, areas with the use of the best scientific data of the Act as: within the geographic area occupied by available, to use primary and original (1) The specific areas within the the species at the time it was listed are sources of information as the basis for geographical area occupied by the included in a critical habitat designation recommendations to designate critical species, at the time it is listed in if they contain the physical and habitat. accordance with the Act, on which are biological features (1) which are When we determine which areas found those physical or biological essential to the conservation of the should be designated as critical habitat, features species and (2) which may require our primary source of information is (a) Essential to the conservation of the special management considerations or generally the information developed species and protection. For these areas, critical during the listing process for the

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species. Additional information sources degree of threat to the species; or (2) the (2) Food, water, air, light, minerals, or may include the recovery plan for the designation of critical habitat would not other nutritional or physiological species, articles in peer-reviewed be beneficial to the species. requirements; journals, conservation plans developed There is no documentation that the (3) Cover or shelter; (4) Sites for breeding, reproduction, or by States and counties, scientific status Mississippi gopher frog is threatened by surveys and studies, biological rearing (or development) of offspring; collection. Although human visitation and assessments, other unpublished to Mississippi gopher frog habitat materials, or experts’ opinions or (5) Habitats that are protected from carries with it the possibility of disturbance or are representative of the personal knowledge. introducing infectious disease and Habitat is dynamic, and species may historical, geographic, and ecological potentially increasing other threats move from one area to another over distributions of a species. where the frogs occur, the locations of time. We recognize that critical habitat We derive the specific physical and important recovery areas are already designated at a particular point in time biological features required for the may not include all of the habitat areas accessible to the public through Web Mississippi gopher frog from studies of that we may later determine are sites, reports, online databases, and this species’ habitat, ecology, and life necessary for the recovery of the other easily accessible venues. history as described below. Additional species. For these reasons, a critical Therefore, identifying and mapping information can be found in the final habitat designation does not signal that critical habitat is unlikely to increase listing rule published in the Federal habitat outside the designated critical threats to the species or its habitat. Register on December 4, 2001 (66 FR habitat area is unimportant or may not In the absence of finding that the 62993). To identify the physical and be needed for recovery of the species. designation of critical habitat would biological features essential to the Areas that are important to the increase threats to the species, if there conservation of the Mississippi gopher conservation of the species, both inside are any benefits to a critical habitat frog, we have relied on current and outside the critical habitat designation, then a finding that conditions at locations where the designation, will continue to be subject designation is prudent is warranted. The species survives, the limited to: (1) Conservation actions potential benefits of critical habitat to information available on this species implemented under section 7(a)(1) of the Mississippi gopher frog include: (1) and its close relatives, as well as factors the Act, (2) regulatory protections Triggering consultation, under section 7 associated with the decline of other afforded by the requirement in section of the Act, in new areas for actions in amphibians that occupy similar habitats 7(a)(2) of the Act for Federal agencies to which there may be a Federal nexus in the lower Southeastern Coastal Plain ensure their actions are not likely to where it would not otherwise occur, (Service 2001, pp. 62993–63002). jeopardize the continued existence of because, for example, it is or has We have determined that the any endangered or threatened species, become unoccupied or the occupancy is Mississippi gopher frog requires the and (3) the prohibitions of section 9 of in question; (2) focusing conservation following physical and biological the Act if actions occurring in these activities on the most essential features features: areas may affect the species. Federally and areas; (3) providing educational Space for Individual and Population funded or permitted projects affecting benefits to State or county governments Growth and for Normal Behavior listed species outside their designated or private entities; and (4) preventing critical habitat areas may still result in people from causing inadvertent harm Mississippi gopher frogs are terrestrial jeopardy findings in some cases. These to the species. amphibians endemic to the longleaf protections and conservation tools will pine ecosystem. They spend most of Therefore, because we have continue to contribute to recovery of their lives underground in forested determined that the designation of this species. Similarly, critical habitat habitat consisting of fire-maintained, critical habitat will not likely increase designations made on the basis of the open-canopied woodlands historically the degree of threat to the species and best available information at the time of dominated by longleaf pine (naturally may provide some measure of benefit, designation will not control the occurring slash pine (P. elliotti) in we find that the designation of critical direction and substance of future wetter areas). Optimal habitat is created habitat is prudent for the Mississippi recovery plans, habitat conservation when management includes frequent gopher frog. plans (HCPs), or other species fires which support a diverse ground conservation planning efforts if new Proposed Critical Habitat Designation cover of herbaceous plants, both in the information available at the time of for Mississippi Gopher Frog uplands and in the breeding ponds these planning efforts calls for a (Hedman et al. 2000, p. 233; Kirkman et different outcome. Physical and Biological Features al. 2000, p. 373). Historically, fire- tolerant longleaf pine dominated the Prudency Determination In accordance with section 3(5)(A)(i) uplands; however, much of the original Section 4 of the Act, as amended, and and 4(b)(1)(A) of the Act and regulations habitat has been converted to pine implementing regulations (50 CFR at 50 CFR 424.12, in determining which (often loblolly (P. taeda) or slash pine) 424.12) require that, to the maximum areas within the geographic area plantations and has become a closed- extent prudent and determinable, the occupied by the species at the time of canopy forest unsuitable as habitat for Secretary designate critical habitat at the listing to designate as critical habitat, gopher frogs (Roznik and Johnson time the species is determined to be we consider the physical and biological 2009a, p. 265). endangered or threatened. Our features that are essential to the During the breeding season, regulations at 50 CFR 424.12(a)(1) state conservation of the species and which Mississippi gopher frogs leave their that the designation of critical habitat is may require special management subterranean retreats in the uplands and not prudent when one or both of the considerations or protection. These migrate to their breeding sites during following situations exist: (1) The include, but are not limited to: rains associated with passing cold species is threatened by taking or other (1) Space for individual and fronts. Breeding sites are ephemeral activity and the identification of critical population growth and for normal (seasonally flooded) isolated ponds (not habitat can be expected to increase the behavior; connected to other water bodies) located

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in the uplands. Both forested uplands but these data are limited. We have geographic area occupied currently by and isolated wetlands (see further assumed that the Mississippi gopher the Mississippi gopher frog is essential discussion of isolated wetlands in ‘‘Sites frog can move farther distances, and for the conservation of the species for Breeding, Reproduction, and Rearing may use a larger area, than the existing (Semlitsch 2002, p. 624; Harper et al. of Offspring’’ section) are needed to data for the species indicate. Therefore, 2008, p. 1205). It allows for gene flow provide space for individual and we have taken the mean of all the among local populations within a population growth and normal behavior. gopher frog movement data available to metapopulation, which enhances the After breeding, adult Mississippi us (600 m (1,969 ft)) and are using this likelihood of metapopulation gopher frogs leave pond sites during value when constructing the area persistence and allows for major rainfall events. Metamorphic frogs around a breeding pond used by a recolonization of sites that are lost due follow, once their development is Mississippi gopher frog population. to drought, disease, or other factors complete. Limited data are available on Due to the low number of occupied (Hanski and Gilpin 1991, pp. 4–6). the distance between the wetland sites for the species, we are conducting breeding and upland terrestrial habitats habitat management at potential Based on the biological information of post-larval and adult Mississippi relocation sites with the hope of and needs discussed above, we identify gopher frogs. Richter et al. (2001, pp. establishing new populations (see ephemeral isolated ponds and 316–321) used radio transmitters to discussion above at Geographic Range, associated forested uplands, and track a total of 13 adult frogs at Glen’s Habitat, and Threats and Status connectivity of these areas, to be Pond, the primary Mississippi gopher sections). When possible, we are physical and biological features frog breeding site, located in Harrison managing wetlands within 1,000 m necessary to accommodate breeding, County, Mississippi. The farthest (3,281 ft) of each other, in these areas, growth, and other normal behaviors of movement recorded was 299 meters (m) as a block in order to create multiple the Mississippi gopher frog and to (981 feet (ft)) by a frog tracked for 63 breeding sites and metapopulation promote genetic flow within the species. days from the time of its exit from the structure (defined as neighboring local Food, Water, Air, Light, Minerals, or breeding site (Richter et al. 2001, p. populations close enough to one another Other Nutritional or Physiological 318). Tupy and Pechmann (2011, p. 1) that dispersing individuals could be Requirements conducted a more recent radio telemetry exchanged (gene flow) at least once per study of 17 Mississippi gopher frogs generation) in support of recovery Mississippi gopher frog tadpoles eat captured at Glen’s Pond. The maximum (Marsh and Trenham 2001, p. 40; periphyton (microscopic algae, bacteria, distance traveled by one of these frogs Richter et al. 2003, p. 177). and protozoans) from surfaces of to its underground refuge was 240 m Due to fragmentation and destruction emergent vegetation or along the pond (787 ft). of habitat, the current range of naturally bottom, as is typical of pond-type As a group, gopher frogs (Rana capito occurring Mississippi gopher frogs has tadpoles (Duellman and Trueb 1986, p. and Rana sevosa) are capable of moving been reduced to three sites. In addition, 159). Juvenile and adult gopher frogs are surprising distances. In a study in the optimal terrestrial habitat for gopher carnivorous. Insects found in their sandhills of North Carolina, the post- frogs is considered to be within burrows stomachs have included carabid breeding movements of 17 gopher frogs of the gopher tortoise, a rare and (Pasimachus sp.) and scarabaeid (genera were tracked (Humphries and Sisson declining species that is listed as Canthon sp. and Ligryus sp.) beetles 2011, p. 1). The maximum distance a threatened under the Act within the (Netting and Goin 1942, p. 259) and frog was found from its breeding site range of the Mississippi gopher frog. Ceuthophilus crickets (Milstrey 1984, p. was 3.5 kilometers (km) (2.2 miles (mi)). Therefore, this specialized microhabitat 10). Mississippi gopher frogs are gape- In Florida, gopher frogs have been found has been reduced as well as the limited (limited by the size of the jaw up to 2 km (1.2 mi) from their breeding surrounding forested habitat. opening) predators with a diet probably sites (Carr 1940, p. 64; Franz et al. 1988, Fragmentation and loss of the frog’s similar to that reported for other gopher p. 82). The frequency of these long- habitat has subjected the species’ small, frogs, including frogs, toads, beetles, distance movements is not known (see isolated populations to genetic isolation hemipterans, grasshoppers, spiders, discussion in Roznik et al. 2009, p. 192). and reduction of space for reproduction, roaches, and earthworms (Dickerson A number of other gopher frog studies development of young, and population 1969, p. 196; Carr 1940, p. 64). Within have either tracked frogs or observed maintenance; thus, the likelihood of the pine uplands, a diverse and them in upland habitat at varying population extinction has increased abundant herbaceous layer consisting of distances from their breeding ponds. (U.S. Fish and Wildlife Service 2001, native species, maintained by frequent These movements range from between pp. 62993–63002). Genetic variation and fires, is important to maintain the prey the minimum of 240 m observed by diversity within a species are essential base for juvenile and adult Mississippi Tupy and Pechmann (2011, p. 1) and for recovery, adaptation to gopher frogs. Wetland water quality and the maximum of 3.5 km (2.2 mi) environmental changes, and long-term observed by Humphries and Sisson viability (capability to live, reproduce, an open canopy (Skelly et al. 2002, p. (2011, p. 1). These include studies or and develop) (Harris 1984, pp. 93–107). 983) are important to the maintenance observations by Carr (1940), Franz et al. Long-term viability is founded on the of the periphyton that serves as a food (1988), Phillips (1995), Rostal (1999), existence of numerous interbreeding source for Mississippi gopher frog Neufeldt and Birkhead (2001), Blihovde local populations throughout the range tadpoles. (2006), Roznik (2007), and Roznik and (Harris 1984, pp. 93–107). Therefore, based on the biological Johnson (2009a and 2009b). Connectivity of Mississippi gopher information and needs discussed above, It is difficult to interpret habitat use frog breeding and nonbreeding habitat we identify ephemeral, isolated ponds for the Mississippi gopher frog from within the geographic area occupied by with emergent vegetation, and open- these available data. Movements are the species must be maintained to canopied pine uplands with a diverse generally between breeding sites and support the species’ survival (Semlitsch herbaceous layer, as physical and belowground refugia. Distances moved 2002, p. 624; Harper et al. 2008, p. biological features necessary to provide are likely to be tied to the abundance 1205). Additionally, connectivity of for adequate food sources for the and distribution of appropriate refugia, these sites with other areas outside the Mississippi gopher frog.

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Cover or Shelter on a cyclic basis. Faulkner (U.S. Fish chemicals associated with road runoff to Amphibians need to maintain moist and Wildlife Service 2001, p. 62994) be physical and biological features skin for respiration (breathing) and conducted hydrologic research at the essential for breeding and development osmoregulation (controlling the Glen’s Pond site on DeSoto National of the Mississippi gopher frog. Forest, Harrison County, Mississippi. He amounts of water and salts in their Primary Constituent Elements for the described the pond as a depressional bodies) (Duellman and Trueb 1986, pp. Mississippi Gopher Frog 197–222). Since Mississippi gopher feature on a topographic high. The frogs disperse from their aquatic dominant source of water to the pond is Under the Act and its implementing rainfall within a small, localized breeding sites to the uplands where they regulations, we are required to identify watershed that extends 61 to 122 m (200 live as adults, desiccation (drying out) the physical and biological features to 400 ft) from the pond’s center. can be a limiting factor in their essential to the conservation of the Substantial winter rains are needed to movements. Thus, it is important that Mississippi gopher frog in areas ensure that the pond fills sufficiently to areas connecting their wetland and occupied at the time of listing, focusing allow hatching, development, and terrestrial habitats are protected in order on the features’ primary constituent metamorphosis (change to adults) of to provide cover and appropriate elements. We consider primary larvae. The timing and frequency of moisture regimes during their migration. constituent elements to be the elements rainfall are critical to the successful Richter et al. (2001, pp. 317–318) found of physical and biological features that, reproduction and recruitment of that during migration, Mississippi when laid out in the appropriate Mississippi gopher frogs. Adult frogs quantity and spatial arrangement to gopher frogs used clumps of grass or leaf move to wetland breeding sites during litter for refuge. Protection of this provide for a species’ life-history heavy rain events, usually from January processes, are essential to the connecting habitat may be particularly to late March (Richter and Seigel 2002, important for juveniles as they move out conservation of the species. p. 964). Based on our current knowledge of of the breeding pond for the first time. Studies at Glen’s Pond indicate that Studies of migratory success in post- the physical or biological features and this breeding pond is approximately 1.5 habitat characteristics required to metamorphic amphibians have ha (3.8ac) when filled and attains a demonstrated the importance of high sustain the species’ life-history maximum depth of 1.1 m (3.6 ft) processes, we determine that the levels of survival of these individuals to (Thurgate and Pechmann 2007, p. 1846). population maintenance and persistence primary constituent elements specific to The pond is hard-bottomed, has an open the Mississippi gopher frog are: (Rothermel 2004, pp. 1544–1545). canopy, and contains emergent and Both adult and juvenile Mississippi (1) Primary Constituent Element 1— submergent vegetation. It is especially Ephemeral wetland habitat. Breeding gopher frogs spend most of their lives important that a breeding pond have an underground in forested uplands ponds, geographically isolated from open canopy: though the mechanism is other waterbodies and embedded in (Richter et al. 2001, p. 318). unclear, it is believed an open canopy Underground retreats include gopher forests historically dominated by is critical to tadpole development. longleaf pine communities, that are tortoise burrows, small mammal Experiments conducted by Thurgate and burrows, stump holes, and root mounds small (generally <0.4 to 4.0 ha (<1 to 10 Pechmann (2007, pp. 1845–1852) ac), ephemeral, and acidic. Specific of fallen trees (Richter et al. 2001, p. demonstrated the lethal and sublethal conditions necessary in breeding ponds 318). Availability of appropriate effects of canopy closure on Mississippi to allow for successful reproduction of underground sites is especially gopher frog tadpoles. The general Mississippi gopher frogs are: important for juveniles in their first habitat attributes of the other three (a) An open canopy with emergent year. Survival of juvenile gopher frogs Mississippi gopher frog breeding ponds herbaceous vegetation for egg in northcentral Florida was found to be are similar to those of Glen’s Pond. dependent on their use of underground Female Mississippi gopher frogs attach attachment; refugia (Roznik and Johnson 2009b, p. their eggs to rigid vertical stems of (b) An absence of large, predatory fish 431). Mortality for a frog occupying an emergent vegetation (Young 1997, p. which prey on frog larvae; underground refuge was estimated to be 48). Breeding ponds typically dry in (c) Water quality such that frogs, their only 4 percent of the likelihood of early to mid-summer, but on occasion eggs, or larvae are not exposed to mortality for a frog not occupying an have remained wet until early fall pesticides or chemicals and sediment underground refuge (Roznik and (Richter and Seigel 1998, p. 24). associated with road runoff; and Johnson 2009b, p. 434). Breeding ponds of closely related (d) Surface water that lasts for a Therefore, based on the biological gopher frogs in Alabama and Florida minimum of 195 days during the information and needs discussed above, have similar structure and function to breeding season to allow a sufficient we identify appropriate connectivity those of the Mississippi gopher frog period for larvae to hatch, mature, and habitat between wetland and upland (Bailey 1990, p. 29; Palis 1998, p. 217; metamorphose. sites (to support survival during Greenberg 2001, p. 74). (2) Primary Constituent Element 2— migration), and a variety of An unpolluted wetland with water Upland forested nonbreeding habitat. underground retreats such as gopher free of predaceous fish, sediment, Forests historically dominated by tortoise burrows, small mammal pesticides, and chemicals associated longleaf pine, adjacent and accessible to burrows, stump holes, and root mounds with road runoff is important for egg and from breeding ponds, that is of fallen trees within non-wetland development, tadpole growth and maintained by fires frequent enough to habitats (to provide cover and shelter), development, and successful mating support an open canopy and abundant to be essential physical and biological and egg laying by adult frogs. herbaceous ground cover and gopher features for the Mississippi gopher frog. Therefore, based on the biological tortoise burrows, small mammal information and needs discussed above, burrows, stump holes, or other Sites for Breeding, Reproduction, or we identify isolated ponds with hard underground habitat that the Rearing (or Development) of Offspring bottoms, open canopies, emergent Mississippi gopher frog depends upon Mississippi gopher frog breeding sites vegetation, and water free of predaceous for food, shelter, and protection from are isolated ponds that dry completely fish, sediment, pesticides, and the elements and predation.

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(3) Primary Constituent Element 3— or adjacent to proposed critical habitat, Criteria Used To Identify Critical Upland connectivity habitat. Accessible that may affect one or more of the Habitat upland habitat between breeding and primary constituent elements. Special As required by section 4(b)(1)(A) of nonbreeding habitats to allow for management of ephemeral wetland the Act, we use the best scientific and Mississippi gopher frog movements breeding sites (Primary Constituent commercial data available to designate between and among such sites. It is Element 1) will be needed to ensure that critical habitat. We review available characterized by an open canopy and these areas provide water quantity, information pertaining to the habitat abundant native herbaceous species and quality, and appropriate hydroperiod; requirements of the species. In subsurface structure which provides cover; and absence from levels of accordance with the Act and its shelter for Mississippi gopher frogs predation and disease that can affect implementing regulation at 50 CFR during seasonal movements, such as population persistence. In nonbreeding 424.12(e), we consider whether that created by deep litter cover, clumps upland forested areas (Primary designating additional areas—outside of grass, or burrows. Constituent Elements 2 and 3), special those currently occupied as well as With this proposed designation of management will be needed to ensure those occupied at the time of listing— critical habitat, we intend to identify the an open canopy and abundant are necessary to ensure the conservation physical and biological features herbaceous ground cover; underground of the species. We are proposing to essential to the conservation of the habitat for adult and subadult frogs to designate critical habitat in areas within species, through the identification of the occupy; and sufficient cover as frogs the geographic area occupied by the appropriate quantity and spatial migrate to and from breeding sites. species at the time of listing in 2001. We arrangement of the primary constituent A detailed discussion of activities also are proposing to designate specific elements sufficient to support the life- influencing the Mississippi gopher frog history processes of the species. All and its habitat can be found in the final areas outside the geographic area proposed critical habitat units are listing rule (66 FR 62993; December 4, occupied by the species at the time of within the species’ historical geographic 2001). The features essential to the listing, including those that are range and contain sufficient primary conservation of this species may require currently occupied, and others which constituent elements to support at least special management considerations or are currently unoccupied. Most of the one life-history function of the protection to reduce threats posed by: unoccupied areas considered for Mississippi gopher frog. Four units/ Land use conversions, primarily urban inclusion are part of ongoing recovery subunits (Unit 2, Subunit A; Unit 4, development and conversion to initiatives for this species. All areas Subunit A; Unit 5, Subunit A; and Unit agriculture and pine plantations; stump proposed for critical habitat designation 7) are currently occupied by the species; removal and other soil-disturbing outside the area occupied by the species of these four units/subunits, only Unit activities that destroy the belowground at the time of listing are considered to 2, Subunit A was occupied at the time structure within forest soils; fire be essential for the conservation of the of listing. All of the other units/subunits suppression and low fire frequencies; species. proposed as critical habitat are currently wetland destruction and degradation; Mississippi gopher frogs require unoccupied, but contain sufficient random effects of drought or floods; off- small, isolated, acidic, depressional primary constituent elements to support road vehicle use; use of gas, water, standing bodies of freshwater for all the life-history functions essential for electrical power, and sewer easements; breeding, upland pine forested habitat the conservation of the species with the and activities that disturb underground that has an open canopy maintained by exception of Unit 1. Unit 1 only refugia used by Mississippi gopher frogs fire for nonbreeding habitat, and upland contains one primary constituent for foraging, protection from predators, connectivity habitat areas that allow for element (ephemeral wetland habitat). and shelter from the elements. Other movement between nonbreeding and This unit is needed as a future site for activities that may affect primary breeding sites. The range of the frog reestablishment and is essential for constituent elements in the proposed Mississippi gopher frog has been the conservation of the species. Within critical habitat units include those listed severely curtailed, occupied habitats are Unit 1, the other primary constituent in the Effects of Critical Habitat limited and isolated, and population elements could be restored with a Designation section below. sizes are extremely small and at risk of reasonable level of effort. Special management considerations extirpation and extinction from or protection are required within critical stochastic events that occur as periodic Special Management Considerations or habitat areas to address the threats natural events or existing or potential Protection identified above. Management activities human-induced events (U.S. Fish and When designating critical habitat, we that could ameliorate these threats Wildlife Service 2001, pp. 62993– assess whether the specific areas within include (but are not limited to): 63002). To reduce the risk of extinction the geographic area occupied by the Maintaining critical habitat areas as through these processes, it is important species at the time of listing contain forested pine habitat (preferably longleaf to establish multiple protected features that are essential to the pine); conducting forestry management subpopulations across the landscape conservation of the species and which using prescribed burning, avoiding the (Soule´ and Simberloff 1986, pp. 25–35; may require special management use of beds when planting trees, and Wiens 1996, pp. 73–74). We considered considerations or protection. reducing planting densities to create or the following criteria in the selection of All areas proposed for designation as maintain an open canopied forest with areas that contain the essential features critical habitat will require some level of abundant herbaceous ground cover; for the Mississippi gopher frog when management to address the current and maintaining forest underground designating units: (1) The historical future threats to the Mississippi gopher structure such as gopher tortoise distribution of the species; (2) presence frog and to maintain or restore the burrows, small mammal burrows, and of open-canopied, isolated wetlands; (3) primary constituent elements. The stump holes; and protecting ephemeral presence of open-canopied, upland pine features essential to the conservation of wetland breeding sites from chemical forest in sufficient quantity around each this species may require special and physical changes to the site that wetland location to allow for sufficient management considerations or could occur by presence or construction survival and recruitment to maintain a protection to reduce various threats, in of ditches or roads. breeding population over the long term;

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(4) open-canopied, forested connectivity Within the historical distribution of additional populations beyond the habitat between wetland and upland the frog in Mississippi, wetlands single site known to be occupied at sites; and (5) multiple isolated wetlands throughout the coastal counties were listing is critical to protect the species in upland habitat that would allow for identified using U.S. Geological Survey from extinction and provide for the the development of metapopulations. topographic maps, National Wetland species’ eventual recovery. We began our determination of which Inventory maps, Natural Resource We have determined that, with proper areas to designate as critical habitat for Conservation Service county soil survey protection and management, the areas the Mississippi gopher frog with an maps, and satellite imagery. Habitat we are proposing for critical habitat are assessment of the critical life-history with the best potential of establishing needed for the conservation of the components of the Mississippi gopher the physical and biological features species based on our current frog, as they relate to habitat. We then essential to the conservation of the understanding of the species’ evaluated the Mississippi gopher frog in Mississippi gopher frog were requirements. However, as discussed in the context of its historical (Alabama, concentrated on the DeSoto National the Critical Habitat section above, we Louisiana, and Mississippi) and current Forest in Forrest, Harrison, and Perry recognize that designation of critical (Mississippi) distribution to establish Counties in southern Mississippi. Some habitat may not include all habitat areas what portion of its range still contains additional sites were found in Jackson that we may eventually determine are the physical and biological features that County on Federal land being managed necessary for the recovery of the species are essential to the conservation of the by the State as a Wildlife Management and that for this reason, a critical habitat species. We reviewed the available Area and on private land being managed designation does not signal that habitat information pertaining to historical and as a wetland mitigation bank. Habitat outside the designated area is current distributions, life histories, and restoration efforts have been successful unimportant or may not promote the habitat requirements of this species. Our in establishing at least one of the recovery of the species. sources included surveys, unpublished primary constituent elements on each of We delineated the critical habitat unit boundaries using the following steps: reports, and peer-reviewed scientific these sites, and management is (1) We used digital aerial photography literature prepared by the Alabama continuing, with the goal of establishing using ArcMap 9.3.1 to map the specific all of the primary constituent elements Department of Conservation and Natural location of the breeding site occupied by at all of the sites. Resources, Mississippi Department of the Mississippi gopher frog at the time Wildlife, Fisheries, and Parks, and Only one subunit (Unit 2, subunit A) of listing, and those locations of Mississippi gopher frog researchers; is known to have been occupied at the breeding sites outside the geographic Service data and publications such as time of listing in December 2001. We area occupied by the species at the time the final listing rule for the Mississippi believe this occupied area, which we are it was listed, both occupied and not gopher frog; and Geographic proposing as critical habitat, contains occupied, that were determined to be Information System (GIS) data (such as sufficient primary constituent elements essential for the conservation of the species occurrence data, habitat data, to support life-history functions species. land use, topography, digital aerial essential to the conservation of the (2) We delineated proposed critical photography, and ownership maps). species. Sites not known to be occupied habitat units by buffering the above In Alabama, we were unable to at the time of listing in December 2001 locations by a radius of 650 m (2,133 ft). identify habitat that met the are also proposed as critical habitat. We believe the area created would requirements for sustaining the essential These sites are all within the historical protect the majority of a Mississippi life-history functions of the species. No range of the Mississippi gopher frog. gopher frog population’s breeding and historical breeding sites for the species The inclusion of these areas will upland habitat and incorporate all are known in Alabama. The only record provide habitat for population primary constituent elements within the is from 1922 in Mobile County near translocation and will decrease the risk critical habitat unit. We chose the value Mobile Bay. Bailey (1994, p. 5) visited of extinction of the species. Three units/ of 650 m (2,133 ft) by using the mean this general area and noted that, subunits (Unit 4, subunit A, Unit 5, farthest distance movement (600 m although residential development and subunit A, and Unit 7) are currently (1,969 ft)) from data collected during fire suppression had drastically altered occupied by the Mississippi gopher frog, multiple studies of the gopher frog the upland habitat, large longleaf pines but were discovered subsequent to the group (see discussion under Space for still present in lawns and vacant lots listing of the species. Eleven units/ Individual and Population Growth and indicated that the area was formerly subunits, not known to be occupied at for Normal Behavior) and adding 50 m suitable habitat for gopher frogs. Ponds the time of listing, are currently (164 ft) to this distance to minimize the that have potential as breeding sites for unoccupied. One of the units (Unit 1) edge effects of the surrounding land use the Mississippi gopher frog have been represents a historical record for the (see discussion in Semlitsch and Bodie identified in Choctaw, Mobile, and Mississippi gopher frog. The historical 2003, pp. 1222–1223). Washington Counties, Alabama, using occupancy status of the other 10 units/ (3) We used aerial imagery and aerial imagery (Bailey 2009, p. 1). subunits is unknown. All 14 units/ ArcMap to connect critical habitat areas However, no Mississippi gopher frogs subunits not known to be occupied at within 1,000 m (3,281 ft) of each other have been found at these sites, and at the time of listing, which were to create routes for gene flow between this time, we do not consider them to be unoccupied or not known to be breeding sites and metapopulation essential to the conservation of the occupied at that time, are being structure (see discussion under Space species. proposed as critical habitat because they for Individual and Population Growth In Louisiana, we assessed the are considered essential for the and for Normal Behavior). condition of the last known breeding conservation of the species. The When determining proposed critical pond for the species there (Thomas and Mississippi gopher frog is at high risk of habitat boundaries, we made every Ballew 1997, p. 4–5). We found that the extirpation from stochastic events, such effort to avoid including developed pond, and a series of others, contained as disease or drought, and from areas, such as lands covered by the habitat requirements for Primary demographic factors such as inbreeding buildings, pavement, and other Constituent Element 1. depression. The establishment of structures, because such lands lack

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physical and biological features the physical and biological features in identified elements of physical and necessary for the Mississippi gopher the adjacent critical habitat. biological features and supported frog. The scale of the maps we prepared In summary, we are proposing areas multiple life-history processes. Other under the parameters for publication for critical habitat designation that we units contained only some elements of within the Code of Federal Regulations have determined were occupied at the the physical and biological features may not reflect the exclusion of such time of listing and contain sufficient necessary to support the Mississippi developed lands. Any such lands elements of physical and biological gopher frog’s particular use of that inadvertently left inside critical habitat features to support life-history processes habitat. essential to the conservation of the boundaries shown on the maps of this species, and areas outside the Proposed Critical Habitat Designation proposed rule have been excluded by geographic area occupied at the time of text in the proposed rule and are not listing that we have determined are We are proposing 15 units/subunits as proposed for designation as critical essential for the conservation the critical habitat for the Mississippi habitat. Therefore, if the critical habitat Mississippi gopher frog. Twelve units, gopher frog. The critical habitat areas is finalized as proposed, a Federal three of which are divided into two we describe below constitute our action involving these lands would not subunits each, were proposed for current best assessment of areas that trigger section 7 consultation with designation based on sufficient elements meet the definition of critical habitat for respect to critical habitat and the of physical and biological features the Mississippi gopher frog. Table 1 requirement of no adverse modification present to support the Mississippi below shows the specific occupancy unless the specific action would affect gopher frog life-history processes. Some status of each unit/subunit at the time units/subunits contained all of the of listing and currently.

TABLE 1—OCCUPANCY OF MISSISSIPPI GOPHER FROG PROPOSED CRITICAL HABITAT UNITS

Currently occupied but Currently unoccupied Currently occupied and not known to be and not known to be Unit Parish/county known to be occupied at occupied at the time of occupied at the time of the time of listing listing listing

LOUISIANA

1 ...... St. Tammany ...... X

MISSISSIPPI

2, Subunit A ...... Harrison ...... X ...... 2, Subunit B ...... Harrison ...... X 3 ...... Jackson ...... X 4, Subunit A ...... Jackson ...... X ...... 4, Subunit B ...... Jackson ...... X 5, Subunit A ...... Jackson ...... X ...... 5, Subunit B ...... Jackson ...... X 6 ...... Jackson ...... X 7 ...... Jackson ...... X ...... 8 ...... Forrest ...... X 9 ...... Forrest ...... X 10 ...... Perry ...... X 11 ...... Perry ...... X 12 ...... Perry ...... X

Table 2 provides the approximate area habitat unit. Hectare and acre values using GIS software, rounded to nearest and ownership of each proposed critical were individually computer-generated whole number, and then summed.

TABLE 2—PROPOSED CRITICAL HABITAT UNITS WITH AREA ESTIMATES (HECTARES (HA) AND ACRES (AC)) AND LAND OWNERSHIP FOR THE MISSISSIPPI GOPHER FROG. AREA SIZES MAY NOT SUM DUE TO ROUNDING

Ownership Unit Parish/county Total area Federal State Private

LOUISIANA

1 ...... St. Tammany ...... 667 ha (1,649 ac) ...... 667 ha (1,649 ac).

MISSISSIPPI

2, Subunit A ...... Harrison ...... 109 ha (269 ac) ...... 24 ha (59 ac) ...... 133 ha (329 ac). 2, Subunit B ...... Harrison ...... 436 ha (1,077 ac) ...... 3 ha (7 ac) ...... 439 ha (1,085 ac). 3 ...... Harrison ...... 133 ha (329 ac) ...... 133 ha (329 ac). 4, Subunit A ...... Jackson ...... 133 ha (329 ac) ...... 133 ha (329 ac). 4, Subunit B ...... Jackson ...... 52 ha (129 ac) ...... 113 ha (279 ac) ...... 165 ha (408 ac). 5, Subunit A ...... Jackson ...... 133 ha (329 ac) ...... 133 ha (329 ac).

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TABLE 2—PROPOSED CRITICAL HABITAT UNITS WITH AREA ESTIMATES (HECTARES (HA) AND ACRES (AC)) AND LAND OWNERSHIP FOR THE MISSISSIPPI GOPHER FROG. AREA SIZES MAY NOT SUM DUE TO ROUNDING—Continued

Ownership Unit Parish/county Total area Federal State Private

5, Subunit B ...... Jackson ...... 56 ha (138 ac) ...... 56 ha (138 ac). 6 ...... Jackson ...... 133 ha (329 ac) ...... 133 ha (329 ac). 7 ...... Jackson ...... 116 ha (287 ac) ...... 17 ha (42 ac) ...... 133 ha (329 ac). 8 ...... Forrest ...... 133 ha (329 ac) ...... 133 ha (329 ac). 9 ...... Forrest ...... 131 ha (324 ac) ...... 2 ha (5 ac) ...... 133 ha (329 ac). 10 ...... Perry ...... 135 ha (334 ac) ...... 47 ha (116 ac) ...... 182 ha (450 ac). 11 ...... Perry ...... 129 ha (319 ac) ...... 4 ha (10 ac) ...... 133 ha (329 ac). 12 ...... Perry ...... 125 ha (309 ac) ...... 8 ha (20 ac) ...... 133 ha (329 ac).

Total ...... All Parishes and 1,516 ha (3,746 ac) ... 116 ha (287 ac) ...... 1,207 ha (2,983 ac) ... 2,839 ha (7,015 ac). Counties.

We present brief descriptions of all elements of the essential physical and (ephemeral wetland habitat, upland units and reasons why they meet the biological features of habitat for the forested nonbreeding habitat, and definition of critical habitat for the Mississippi gopher frog within this unit upland connectivity habitat) to support Mississippi gopher frog, below. include the potential of: hydrologic life-history functions essential to the changes resulting from ditches, or conservation of the species. Unit 1: St. Tammany Parish, Louisiana adjacent highways and roads that could Glen’s Pond and the habitat Unit 1 encompasses 667 ha (1,649 ac) alter the ecology of the ponds; wetland surrounding it, consisting of forested on private lands in St. Tammany Parish, degradation; random effects of drought uplands used as nonbreeding habitat Louisiana. This unit is located north or floods; off-road vehicle use; gas, and upland connectivity habitat and south of State Hwy. 36, water, electrical power, and sewer between breeding and nonbreeding approximately 3.1 km (1.9 mi) west of easements; and agricultural and urban habitat, support the majority of the State Hwy. 41 and the town of Hickory, and residential development (see also Mississippi gopher frogs that currently Louisiana. Unit 1 is not within the discussion in Special Management exist in the wild. Within Unit 2, Subunit geographic area occupied by the species Considerations or Protection section). A, the Mississippi gopher frog and its at the time of listing. It is currently habitat may require special management unoccupied; however, one of the ponds Unit 2: Harrison County, Mississippi considerations or protection to address in the unit is where gopher frogs were Unit 2 comprises two subunits potential adverse effects caused by: fire last observed in Louisiana in 1965. We encompassing 572 ha (1,413 ac) on suppression and low fire frequencies; believe this unit is essential for the Federal and private lands in Harrison detrimental alterations in forestry conservation of the species because it County, Mississippi. This unit, between practices that could destroy provides additional habitat for U.S. Hwy. 49 and Old Hwy. 67, is belowground soil structures such as population expansion outside of the approximately 224 m (735 ft) northeast stump removal; hydrologic changes core population areas in Mississippi. of the Biloxi River. It is located resulting from ditches, and/or adjacent Unit 1 consists of five ponds (ephemeral approximately 2.8 km (1.8 mi) east of highways and roads that could alter the wetland habitat) and their associated U.S. Hwy. 49 and approximately 2.3 km ecology of the breeding pond and uplands. If Mississippi gopher frogs are (1.4 mi) west of Old Hwy. 67. Within surrounding terrestrial habitat; wetland translocated to the site, the five areas are this unit, approximately 545 ha (1,347 degradation; random effects of drought in close enough proximity to each other ac) are in the DeSoto National Forest or floods; off-road vehicle use; gas, that gopher frogs could move between and 27 ha (67 ac) are in private water, electrical power, and sewer them. The uplands associated with the ownership. easements; and agricultural and urban ponds do not currently contain the development. essential biological and physical Subunit A features of critical habitat; however, we Unit 2, Subunit A encompasses 133 Subunit B believe them to be restorable with ha (329 ac) around the only breeding Unit 2, Subunit B encompasses 439 ha reasonable effort. We believe this unit pond (Glen’s Pond) known for the (1,084 ac) adjacent to Subunit A and the provides potential for establishing new Mississippi gopher frog when it was area surrounding Glen’s Pond. The breeding ponds and metapopulation listed in 2001; as a result, it is within majority of this subunit (436 ha (1,077 structure which will support recovery of the geographic area of the species ac)) is on the DeSoto National Forest, the species. Maintaining these ponds as occupied at the time of listing. In with the remainder of the subunit (3 ha suitable breeding habitat, into which addition, this subunit contains all (7 ac)) in private ownership. This Mississippi gopher frogs could be elements of the essential physical and subunit is not within the geographic translocated, is essential to decrease the biological features of the species. The area of the species occupied at the time risk of extinction of the species resulting majority of this subunit (109 ha (269 ac)) of listing and is currently unoccupied. from stochastic events and to provide is on the DeSoto National Forest, with However, we believe this subunit is for the species’ eventual recovery. This the remainder of the subunit (24 ha (59 essential for the conservation of the unit is proposed as critical habitat ac)) in private ownership. This subunit Mississippi gopher frog because it because it is essential for the is proposed as critical habitat because it consists of areas, within the dispersal conservation of the species. was occupied at the time of listing, is range of the Mississippi gopher frog Unit 1 is currently managed as currently occupied, and contains (from Subunit A), which we believe industrial forest land. Threats to sufficient primary constituent elements provides potential for establishing new

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breeding ponds and metapopulation from stochastic events, such as disease Mississippi gopher frog. Due to the low structure that will protect the or drought. Maintaining this area as number of remaining populations and Mississippi gopher frog from extinction. suitable habitat into which Mississippi severely restricted range of the This unoccupied area consists of three gopher frogs could be translocated is Mississippi gopher frog, the species may ponds and their associated uplands on essential to decrease the potential risk of be at high risk of extirpation from the DeSoto National Forest. These extinction of the species resulting from stochastic events, such as disease or ponds have been named Reserve Pond, stochastic events and to provide for the drought. Maintaining this area as Pony Ranch Pond, and New Pond species’ eventual recovery. We believe suitable habitat into which Mississippi during ongoing recovery initiatives. The this area is essential for the conservation gopher frogs can continue to be U.S. Forest Service (USFS) is actively of the Mississippi gopher frog because it translocated is essential to decrease the managing this area to benefit the contains a potential breeding pond risk of extinction of the species resulting recovery of the Mississippi gopher frog. surrounded by uplands which provide from stochastic events and provide for Due to the low number of remaining habitat for future translocation of the the species’ eventual recovery. This populations and severely restricted species in support of Mississippi gopher subunit is proposed as critical habitat range of the Mississippi gopher frog, the frog recovery. because it is essential for the species is at high risk of extirpation Within Unit 3, threats to the elements conservation of the species. from stochastic events, such as disease of essential physical and biological Within Unit 4, Subunit A, threats to or drought. Maintaining this area as features of habitat for the Mississippi elements of the essential physical and suitable habitat into which Mississippi gopher frog are: fire suppression and biological features of habitat for the gopher frogs could be translocated is low fire frequencies; detrimental Mississippi gopher frog are: fire essential to decrease the risk of alterations in forestry practices that suppression and low fire frequencies; extinction of the species resulting from could destroy belowground soil detrimental alterations in forestry stochastic events and provide for the structures such as stump removal; practices that could destroy species’ eventual recovery. This subunit hydrologic changes resulting from belowground soil structures such as is proposed as critical habitat because it ditches, and/or adjacent highways and stump removal; hydrologic changes is essential for the conservation of the roads that could alter the ecology of the resulting from ditches, and/or adjacent species. breeding pond and surrounding highways and roads that could alter the Within Unit 2, Subunit B, threats to terrestrial habitat; wetland degradation; ecology of the breeding pond and elements of the essential physical and random effects of drought or floods; off- surrounding terrestrial habitat; wetland biological features of habitat for the road vehicle use; gas, water, electrical degradation; random effects of drought Mississippi gopher frog are: fire power, and sewer easements; and or floods; off-road vehicle use; gas, suppression and low fire frequencies; agricultural and urban development. water, electrical power, and sewer detrimental alterations in forestry easements; and agricultural and urban Unit 4: Jackson County, Mississippi practices that could destroy development. belowground soil structures such as Unit 4 encompasses 298 ha (736 ac) Subunit B stump removal; hydrologic changes on Federal and private land in Jackson resulting from ditches, and/or adjacent County, Mississippi. This unit borders Unit 4, Subunit B encompasses 165 ha highways and roads that could alter the the north side of Interstate 10 (408 ac) on Federal and private land ecology of the breeding pond and approximately 1.1 km (0.7 mi) west of adjacent to Subunit A. The majority of surrounding terrestrial habitat; wetland State Hwy. 57. Within this unit, this subunit (113 ha (279 ac)) is on degradation; random effects of drought approximately 52 ha (129 ac) are in the private land, with the remainder of the or floods; off-road vehicle use; gas, Mississippi Sandhill Crane National unit (52 ha (129 ac)) on the Mississippi water, electrical power, and sewer Wildlife Refuge and 246 ha (608 ac) are Sandhill Crane National Wildlife easements; and agricultural and urban in private ownership. Refuge. This subunit is not within the development. geographic area of the species occupied Subunit A at the time of listing and is currently Unit 3: Harrison County, Mississippi Unit 4, Subunit A encompasses 133 unoccupied. However, we believe this Unit 3 encompasses 133 ha (329 ac) ha (329 ac) on private land. It is subunit is essential for the conservation on Federal land in Harrison County, currently occupied as a result of of the Mississippi gopher frog because it Mississippi. This unit is located on the translocation efforts conducted in 2004, consists of an area, within the dispersal DeSoto National Forest approximately 2005, 2007, 2008, 2009, and 2010; range of the Mississippi gopher frog 7.9 km (4.9 mi) east of the community however, it was not occupied at the time (from Subunit A), which we believe of Success at Old Hwy. 67 and 4 km (2.5 of listing. We believe this subunit is provides potential for establishing new mi) south of Bethel Road. essential for the conservation of the breeding ponds and metapopulation Unit 3 is not within the geographic Mississippi gopher frog because of the structure that will protect the range of the species occupied at the time presence of a proven breeding pond (egg Mississippi gopher frog from extinction. of listing and is currently unoccupied. masses have been deposited here in This unoccupied area consists of two This area surrounds a pond on the 2007 and 2010 by gopher frogs ponds and their associated uplands. DeSoto National Forest given the name translocated to the site) and its This area is actively managed to benefit of Carr Bridge Road Pond during associated uplands (upland forested the recovery of the Mississippi gopher ongoing recovery initiatives when it was nonbreeding habitat and upland frog. Due to the low number of selected as a Mississippi gopher frog connectivity habitat). We also believe remaining populations and severely translocation site. The USFS is actively that metapopulation structure, which restricted range of the Mississippi managing this area to benefit the will further protect the Mississippi gopher frog, the species may be at risk recovery of the Mississippi gopher frog. gopher frog from extinction, is possible of extirpation from stochastic events, Due to the low number of remaining when the whole area of Unit 4 is such as disease or drought. Maintaining populations and severely restricted considered. The private owners of this this area as suitable habitat is essential range of the Mississippi gopher frog, the property are actively managing this area to decrease the potential risk of species may be at risk of extirpation to benefit the recovery of the extinction of the species and provide for

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the species’ eventual recovery. This critical habitat because it is essential for water, electrical power, and sewer subunit is proposed as critical habitat the conservation of the species. easements; and agricultural and urban because it is essential for the Within Unit 5, Subunit A, threats to development. conservation of the species. elements of the essential physical and Within Unit 4, Subunit B, threats to biological features of habitat for the Unit 6: Jackson County, Mississippi elements of the essential physical and Mississippi gopher frog are: fire Unit 6 encompasses 133 ha (329 ac) biological features of habitat for the suppression and low fire frequencies; on Federal land in Jackson County, Mississippi gopher frog are: fire detrimental alterations in forestry Mississippi. This unit is located on the suppression and low fire frequencies; practices that could destroy Ward Bayou Wildlife Management Area detrimental alterations in forestry belowground soil structures such as (WMA) approximately 4.8 km (3 mi) practices that could destroy stump removal; hydrologic changes northeast of State Hwy. 57 and the belowground soil structures such as resulting from ditches, and/or adjacent community of Vancleave. This land is stump removal; hydrologic changes highways and roads that could alter the owned by the Army Corps of Engineers resulting from ditches, and/or adjacent ecology of the breeding pond and (Corps) and managed by the Mississippi highways and roads that could alter the surrounding terrestrial habitat; wetland Department of Wildlife, Fisheries, and ecology of the breeding pond and degradation; random effects of drought Parks (MDWFP). surrounding terrestrial habitat; wetland or floods; off-road vehicle use; gas, degradation; random effects of drought water, electrical power, and sewer Unit 6 is not within the geographic or floods; off-road vehicle use; gas, easements; and agricultural and urban range of the species occupied at the time water, electrical power, and sewer development. of listing and is currently unoccupied. easements; and agricultural and urban This area consists of a pond and its Subunit B development. associated uplands on the WMA and Unit 5, Subunit B encompasses 56 ha has been given the name of Mayhaw Unit 5: Jackson County, Mississippi (138 ac) on private land adjacent to Pond during ongoing recovery Unit 5 encompasses 189 ha (467ac) on Subunit A. This subunit is not within initiatives. We believe this area is private land in Jackson County, the geographic area of the species essential for the conservation of the Mississippi. This unit is located occupied at the time of listing and is Mississippi gopher frog because it approximately 10.6 km (6.6 mi) north of currently unoccupied. However, we contains elements of features essential Interstate 10. It is 124 m (407 ft) north believe this subunit is essential for the to the conservation of the species, a of Jim Ramsey Road and 5.7 km (3.6 mi) conservation of the Mississippi gopher potential breeding pond and the west of the community of Vancleave frog because it consists of an area, surrounding uplands, that provide located near State Hwy. 57. within the dispersal range of the habitat for future translocation of the Mississippi gopher frog (from Subunit Subunit A species in support of Mississippi gopher A), which we believe provides potential frog recovery. Unit 5, Subunit A encompasses 133 for establishing a new breeding pond Unit 6 is being actively managed by ha (329 ac) on private land. It is and metapopulation structure that will the Corps and MDWFP to benefit the currently occupied, but was not known protect the Mississippi gopher frog from recovery of the Mississippi gopher frog. to be occupied at the time of listing. extinction. This unoccupied area Due to the low number of remaining This subunit contains a breeding site consists of a single pond and its populations and severely restricted where Mississippi gopher frogs were associated uplands. This area is actively range of the Mississippi gopher frog, the discovered in 2004, subsequent to the managed to benefit the recovery of the species may be at risk of extirpation listing of the Mississippi gopher frog. Mississippi gopher frog. Due to the low from stochastic events, such as disease We believe this subunit is essential number of remaining populations and or drought. Maintaining this area of for the conservation of the Mississippi severely restricted range of the gopher frog because of the presence of Mississippi gopher frog, the species may suitable habitat, into which Mississippi a proven breeding pond, designated be at risk of extirpation from stochastic gopher frogs could be translocated, is Mike’s Pond (ephemeral wetland events, such as disease or drought. essential to decrease the potential risk of habitat), and its associated uplands Maintaining this area as suitable habitat extinction of the species and provide for (upland forested nonbreeding habitat is essential to decrease the potential risk the species’ eventual recovery. This unit and upland connectivity habitat). We of extinction of the species and provide is proposed as critical habitat because it also believe that metapopulation for the species’ eventual recovery. This is essential for the conservation of the structure, which will further protect the subunit is proposed as critical habitat species. Mississippi gopher frog from extinction, because it is essential for the Within Unit 6, threats to elements of is possible when the whole area of Unit conservation of the species. the essential physical and biological 5 is considered. The private owners of Within Unit 5, Subunit B, threats to features of habitat for the Mississippi this property are actively managing this elements of the essential physical and gopher frog are: fire suppression and area to benefit the recovery of the biological features of habitat for the low fire frequencies; detrimental Mississippi gopher frog. Due to the low Mississippi gopher frog are: fire alterations in forestry practices that number of remaining populations and suppression and low fire frequencies; could destroy belowground soil severely restricted range of the detrimental alterations in forestry structures such as stump removal; Mississippi gopher frog, the species may practices that could destroy hydrologic changes resulting from be at high risk of extirpation from belowground soil structures such as ditches, and/or adjacent highways and stochastic events, such as disease or stump removal; hydrologic changes roads that could alter the ecology of the drought. Maintaining this area as resulting from ditches, and/or adjacent breeding pond and surrounding suitable habitat is essential to decrease highways and roads that could alter the terrestrial habitat; wetland degradation; the risk of extinction of the species ecology of the breeding pond and random effects of drought or floods; off- resulting from stochastic events and surrounding terrestrial habitat; wetland road vehicle use; gas, water, electrical provide for the species’ eventual degradation; random effects of drought power, and sewer easements; and recovery. This subunit is proposed as or floods; off-road vehicle use; gas, agricultural and urban development.

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Unit 7: Jackson County, Mississippi Mississippi. This unit is located on the mi) south of Black Creek, and Unit 7 encompasses 133 ha (329 ac) DeSoto National Forest approximately approximately 6.1 km (3.8 mi) southeast on State and private land in Jackson 1.9 km (1.2 mi) east of U.S. Hwy. 49, of the community of Brooklyn, County, Mississippi. This unit is located approximately 1.7 km (1.1 mi) south of Mississippi, at the Perry County line. Unit 9 is not within the geographic approximately 4.2 km (2.6 mi) east of Black Creek, and approximately 3.1 km range of the species occupied at the time the intersection of State Hwy. 63 and (1.9 mi) southeast of the community of of listing and is currently unoccupied. State Hwy. 613; it is 3.8 km (2.4 mi) Brooklyn, Mississippi. Unit 8 is not within the geographic This area consists of a pond and west of the Escatawpa River, and 3.2 km range of the species occupied at the time associated uplands that have been (2 mi) northeast of Helena, Mississippi. of listing and is currently unoccupied. selected as a future Mississippi gopher The portion of this unit in State This area consists of a pond and frog translocation site during ongoing ownership (116 ha (287 ac)) is 16th associated uplands that have been recovery initiatives. We believe this area section land held in trust by the State selected as a future Mississippi gopher is essential for the conservation of the of Mississippi as a local funding source frog translocation site during ongoing Mississippi gopher frog because it for education in Jackson County. The recovery initiatives. We believe this area contains elements of features essential local Jackson County School board has is essential for the conservation of the to the conservation of the species, a jurisdiction and control of the land. The Mississippi gopher frog because it potential breeding pond and the balance of this unit is on private land contains elements of features essential surrounding uplands, that provide (17 ha (42 ac)). to the conservation of the species, a habitat for future translocation of the Unit 7 is currently occupied, but was potential breeding pond and species in support of Mississippi gopher not known to be occupied at the time of surrounding uplands, that provide frog recovery. listing. The area, discovered in 2004 habitat for future translocation of the Most of Unit 9 is being actively subsequent to the listing of the species in support of Mississippi gopher managed by the USFS to benefit the Mississippi gopher frog, contains a frog recovery. recovery of the Mississippi gopher frog. breeding pond designated McCoy’s Unit 8 is being actively managed by Due to the low number of remaining Pond and associated uplands. We the USFS to benefit the recovery of the populations and severely restricted believe this area is essential for the Mississippi gopher frog. Due to the low range of the Mississippi gopher frog, the conservation of the species because it number of remaining populations and species may be at risk of extirpation represents habitat naturally occupied by severely restricted range of the from stochastic events, such as disease the Mississippi gopher frog and will Mississippi gopher frog, the species may or drought. Maintaining this area as support recovery of the species. be at risk of extirpation from stochastic suitable habitat, into which Mississippi Currently, the State-owned portion of events, such as disease or drought. gopher frogs could be translocated, is the area is managed by the Mississippi Maintaining this area as suitable habitat, essential to decrease the potential risk of Forestry Commission for timber into which Mississippi gopher frogs extinction of the species and provide for production for the Jackson County could be translocated, is essential to the species’ eventual recovery. This unit School Board. Due to the low number of decrease the potential risk of extinction is proposed as critical habitat because it remaining populations and severely of the species and provide for the is essential for the conservation of the restricted range of the Mississippi species’ eventual recovery. This unit is species. gopher frog, it may be at high risk of proposed as critical habitat because it is Within Unit 9, threats to elements of extirpation from stochastic events, such essential for the conservation of the the essential physical and biological as disease or drought. Maintaining this species. features of habitat for the Mississippi area of currently occupied habitat for Within Unit 8, threats to the elements gopher frog are: fire suppression and Mississippi gopher frogs is essential to of essential physical and biological low fire frequencies; detrimental decrease the risk of extinction of the features of habitat for the Mississippi alterations in forestry practices that species and provide for the species’ gopher frog are: fire suppression and could destroy belowground soil eventual recovery. This unit is proposed low fire frequencies; detrimental structures such as stump removal; as critical habitat because it is essential alterations in forestry practices that hydrologic changes resulting from for the conservation of the species. could destroy belowground soil ditches, and/or adjacent highways and Within Unit 7, threats to elements of structures such as stump removal; roads that could alter the ecology of the the essential physical and biological hydrologic changes resulting from breeding pond and surrounding features of habitat for the Mississippi ditches, and/or adjacent highways and terrestrial habitat; wetland degradation; gopher frog are: fire suppression and roads that could alter the ecology of the random effects of drought or floods; off- low fire frequencies; detrimental breeding pond and surrounding road vehicle use; gas, water, electrical alterations in forestry practices that terrestrial habitat; wetland degradation; power, and sewer easements; and could destroy belowground soil random effects of drought or floods; off- agricultural and urban development. structures such as stump removal; road vehicle use; gas, water, electrical Unit 10: Perry County, Mississippi hydrologic changes resulting from power, and sewer easements; and ditches, and/or adjacent highways and agricultural and urban development. Unit 10 encompasses 182 ha (450 ac) roads that could alter the ecology of the on Federal land and private land in breeding pond and surrounding Unit 9: Forrest County, Mississippi Perry County, Mississippi. The majority terrestrial habitat; wetland degradation; Unit 9 encompasses 133 ha (329 ac) of this unit (135 ha (334 ac) is located random effects of drought or floods; off- on Federal land and private land in on the DeSoto National Forest and the road vehicle use; gas, water, electrical Forrest County, Mississippi. The remaining balance (47 ha (116 ac)) is power, and sewer easements; and majority of this unit (131 ha (324)) is located on private land. This unit is agricultural and urban development. located on the DeSoto National Forest located at the intersection of Benndale and the balance (2 ha (5 ac)) is located Road and Mars Hill Road, Unit 8: Forrest County, Mississippi on private land. This unit is located approximately 2.6 km (1.6 mi) Unit 8 encompasses 133 ha (329 ac) approximately 3.9 km (2.4 mi) east of northwest of the intersection of the on Federal land in Forrest County, U.S. Hwy. 49, approximately 4.3 km (2.7 Perry County, Stone County, and George

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County lines and approximately 7.2 km County lines, approximately 6.4 km (4 of listing and is currently unoccupied. (4.5 mi) north of State Hwy. 26. mi) north of State Hwy. 26. This area consists of a pond and its Unit 10 is not within the geographic Unit 11 is not within the geographic associated uplands that have been range of the species occupied at the time range of the species occupied at the time selected as a future Mississippi gopher of listing and is currently unoccupied. of listing and is currently unoccupied. frog translocation site during ongoing This area consists of two ponds and This area consists of a pond and recovery initiatives. We believe this area their associated uplands that have been associated uplands that have been is essential for the conservation of the selected as future Mississippi gopher selected as a future Mississippi gopher Mississippi gopher frog because it frog translocation sites during ongoing frog translocation site during ongoing contains elements of features essential recovery initiatives. It provides the recovery initiatives. We believe this area to the conservation of the species, a potential for establishing new breeding is essential for the conservation of the potential breeding pond and the ponds and metapopulation structure Mississippi gopher frog because it surrounding uplands, that provide that will protect the Mississippi gopher contains features essential to the habitat for future translocation of the frog from extinction. We believe this conservation of the species, a potential species in support of Mississippi gopher area is essential for the conservation of breeding pond and the surrounding frog recovery. the Mississippi gopher frog because it uplands, that provide habitat for future Most of Unit 12 is being actively contains elements of features essential translocation of the species in support managed by the USFS to benefit the to the conservation of the species, two of Mississippi gopher frog recovery. recovery of the Mississippi gopher frog. potential breeding ponds and their Most of Unit 11 is being actively Due to the low number of remaining surrounding uplands, that provide managed by the USFS to benefit the populations and severely restricted habitat for future translocation of the recovery of the Mississippi gopher frog. range of the Mississippi gopher frog, the species in support of Mississippi gopher Due to the low number of remaining species may be at risk of extirpation frog recovery. populations and severely restricted Most of Unit 10 is being actively range of the Mississippi gopher frog, the from stochastic events such as disease managed by the USFS to benefit the species may be at risk of extirpation or drought. Maintaining this area as recovery of the Mississippi gopher frog. from stochastic events, such as disease suitable habitat into which Mississippi Due to the low number of remaining or drought. Maintaining this area as gopher frogs could be translocated is populations and severely restricted suitable habitat, into which Mississippi essential to decrease the potential risk of range of the Mississippi gopher frog, the gopher frogs could be translocated, is extinction of the species and provide for species may be at high risk of essential to decrease the potential risk of the species’ eventual recovery. This unit extirpation from stochastic events, such extinction of the species and provide for is proposed as critical habitat because it as disease or drought. Maintaining this the species’ eventual recovery. This unit is essential for the conservation of the area as suitable habitat, into which is proposed as critical habitat because it species. Mississippi gopher frogs could be is essential for the conservation of the Within Unit 12, threats to elements of translocated, is essential to decrease the species. the essential physical and biological risk of extinction of the species and Within Unit 11, threats to elements of features of habitat for the Mississippi provide for the species’ eventual the essential physical and biological gopher frog are: fire suppression and recovery. This unit is proposed as features of habitat for the Mississippi low fire frequencies; detrimental critical habitat because it is essential for gopher frog are: fire suppression and alterations in forestry practices that the conservation of the species. low fire frequencies; detrimental could destroy belowground soil Within Unit 10, threats to elements of alterations in forestry practices that structures such as stump removal; the essential physical and biological could destroy belowground soil hydrologic changes resulting from features of habitat for the Mississippi structures such as stump removal; ditches, and/or adjacent highways and gopher frog are: fire suppression and hydrologic changes resulting from roads that could alter the ecology of the low fire frequencies; detrimental ditches, and/or adjacent highways and breeding pond and surrounding alterations in forestry practices that roads that could alter the ecology of the terrestrial habitat; wetland degradation; could destroy belowground soil breeding pond and surrounding random effects of drought or floods; off- structures such as stump removal; terrestrial habitat; wetland degradation; road vehicle use; gas, water, electrical hydrologic changes resulting from random effects of drought or floods; off- power, and sewer easements; and ditches, and/or adjacent highways and road vehicle use; gas, water, electrical agricultural and urban development. roads that could alter the ecology of the power, and sewer easements; and breeding pond and surrounding agricultural and urban development. Effects of Critical Habitat Designation terrestrial habitat; wetland degradation; Section 7 Consultation random effects of drought or floods; off- Unit 12: Perry County, Mississippi road vehicle use; gas, water, electrical Unit 12 encompasses 133 ha (329 ac) Section 7(a)(2) of the Act requires power, and sewer easements; and on Federal land and private land in Federal agencies, including the Service, agricultural and urban development. Perry County, Mississippi. The majority to ensure that any action they fund, of this unit (125 ha (309 ac)) is located authorize, or carry out is not likely to Unit 11: Perry County, Mississippi on the DeSoto National Forest and the jeopardize the continued existence of Unit 11 encompasses 133 ha (329 ac) remaining balance (8 ha (20 ac)) is any endangered species or threatened on Federal land and private land in located on private land. This unit is species or result in the destruction or Perry County, Mississippi. The majority located approximately 1.2 km (0.75 mi) adverse modification of designated of this unit (129 ha (319 ac)) is located east of Mars Hill Road, approximately critical habitat of such species. In on the DeSoto National Forest and the 3.9 km (2.4 mi) north of the intersection addition, section 7(a)(4) of the Act remaining balance (4 ha (10 ac)) is of the Perry County, Stone County, and requires Federal agencies to confer with located on private land. This unit George County lines, and approximately the Service on any agency action which borders the north side of Benndale Road 10.2 km (6.4 mi) north of State Hwy. 26. is likely to jeopardize the continued northeast of the intersection of the Perry Unit 12 is not within the geographic existence of any species proposed to be County, Stone County, and George range of the species occupied at the time listed under the Act or result in the

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destruction or adverse modification of and prudent alternatives’’ (at 50 CFR habitat, or that may be affected by such proposed critical habitat. 402.02) as alternative actions identified designation. Decisions by the 5th and 9th Circuit during consultation that: Activities that may affect critical Courts of Appeals have invalidated our (1) Can be implemented in a manner habitat, when carried out, funded, or definition of ‘‘destruction or adverse consistent with the intended purpose of authorized by a Federal agency, should modification’’ (50 CFR 402.02) (see the action, result in consultation for the Mississippi Gifford Pinchot Task Force v. U.S. Fish (2) Can be implemented consistent gopher frog. These activities include, and Wildlife Service, 378 F.3d 1059 (9th with the scope of the Federal agency’s but are not limited to: Cir. 2004) and Sierra Club v. U.S. Fish legal authority and jurisdiction, (1) Actions that would alter the and Wildlife Service, 245 F.3d 434, 442 (3) Are economically and hydrology or water quality of (5th Cir. 2001)), and we do not rely on technologically feasible, and Mississippi gopher frog wetland this regulatory definition when (4) Would, in the Director’s opinion, habitats. Such activities could include, analyzing whether an action is likely to avoid the likelihood of jeopardizing the but are not limited to, discharge of fill destroy or adversely modify critical continued existence of the listed species material; release of chemicals and/or habitat. Under the statutory provisions and/or avoid the likelihood of biological pollutants; clearcutting, of the Act, we determine destruction or destroying or adversely modifying draining, ditching, grading, or bedding; adverse modification on the basis of critical habitat. diversion or alteration of surface or whether, with implementation of the Reasonable and prudent alternatives ground water flow into or out of a proposed Federal action, the affected can vary from slight project wetland (i.e., due to roads, fire breaks, critical habitat would continue to serve modifications to extensive redesign or impoundments, discharge pipes, etc.); its intended conservation role for the relocation of the project. Costs discharge or dumping of toxic species. associated with implementing a chemicals, silt, or other pollutants (i.e., If a Federal action may affect a listed reasonable and prudent alternative are sewage, oil, pesticides, and gasoline); species or its critical habitat, the similarly variable. and use of vehicles within wetlands. responsible Federal agency (action Regulations at 50 CFR 402.16 require These activities could destroy agency) must enter into consultation Federal agencies to reinitiate Mississippi gopher frog breeding sites, with us. Examples of actions that are consultation on previously reviewed reduce the hydrological regime subject to the section 7 consultation actions in instances where we have necessary for successful larval process are actions on State, tribal, listed a new species or subsequently metamorphosis, and/or eliminate or local, or private lands that require a designated critical habitat that may be reduce the habitat necessary for the Federal permit (such as a permit from affected and the Federal agency has growth and reproduction, and affect the the U.S. Army Corps of Engineers under retained discretionary involvement or prey base, of the Mississippi gopher section 404 of the Clean Water Act (33 control over the action (or the agency’s frog. U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is (2) Forestry management actions in Service under section 10 of the Act) or authorized by law). Consequently, pine habitat that would significantly that involve some other Federal action Federal agencies may sometimes need to alter the suitability of Mississippi (such as funding from the Federal request reinitiation of consultation with gopher frog terrestrial habitat. Such Highway Administration, Federal us on actions for which formal activities could include, but are not Aviation Administration, or the Federal consultation has been completed, if limited to, conversion of timber land to Emergency Management Agency). those actions with discretionary another use; timber management Federal actions not affecting listed involvement or control may affect including clearcutting, site preparation species or critical habitat, and actions subsequently listed species or involving ground disturbance, on State, tribal, local or private lands designated critical habitat. prescribed burning, and unlawful that are not federally funded or Application of the ‘‘Adverse pesticide application. These activities authorized, do not require section 7 Modification’’ Standard could destroy or alter the uplands consultation. necessary for the growth and As a result of section 7 consultation, The key factor related to the adverse modification determination is whether, development of juvenile and adult we document compliance with the Mississippi gopher frogs. requirements of section 7(a)(2) through with implementation of the proposed Federal action, the affected critical (3) Actions that would significantly our issuance of: fragment and isolate Mississippi gopher (1) A concurrence letter for Federal habitat would continue to serve its frog wetland and upland habitats from actions that may affect, but are not intended conservation role for the each other. Such activities could likely to adversely affect, listed species species. Activities that may destroy or include, but are not limited to, or critical habitat; or adversely modify critical habitat are constructing new structures or new (2) A biological opinion for Federal those that alter the physical and roads and converting forested habitat to actions that may affect, or are likely to biological features to an extent that other uses. These activities could limit adversely affect, listed species or critical appreciably reduces the conservation or prevent the dispersal of Mississippi habitat. value of critical habitat for the When we issue a biological opinion Mississippi gopher frog. As discussed gopher frogs from breeding sites to concluding that a project is likely to above, the role of critical habitat is to upland habitat or vice versa due to jeopardize the continued existence of a support life-history needs of the species obstructions to movement caused by listed species and/or destroy or and provide for the conservation of the structures, certain types of curbs, adversely modify critical habitat, we species. increased traffic density, or inhospitable provide reasonable and prudent Section 4(b)(8) of the Act requires us habitat. alternatives to the project, if any are to briefly evaluate and describe, in any Exemptions identifiable, that would avoid the proposed or final regulation that likelihood of jeopardy and/or designates critical habitat, activities Application of Section 4(a)(3) of the Act destruction or adverse modification of involving a Federal action that may The Sikes Act Improvement Act of critical habitat. We define ‘‘reasonable destroy or adversely modify such 1997 (Sikes Act) (16 U.S.C. 670a)

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required each military installation that any particular area as critical habitat. separates conservation measures into includes land and water suitable for the The Secretary may exclude an area from two distinct categories according to conservation and management of critical habitat if he determines that the ‘‘without critical habitat’’ and ‘‘with natural resources to complete an benefits of such exclusion outweigh the critical habitat’’ scenarios. The ‘‘without integrated natural resources benefits of specifying such area as part critical habitat’’ scenario represents the management plan (INRMP) by of the critical habitat, unless he baseline for the analysis, considering November 17, 2001. An INRMP determines, based on the best scientific protections otherwise afforded to the integrates implementation of the data available, that the failure to Mississippi gopher frog (e.g., under the military mission of the installation with designate such area as critical habitat Federal listing and other Federal, State, stewardship of the natural resources will result in the extinction of the and local regulations). The ‘‘with found on the base. Each INRMP species. In making that determination, critical habitat’’ scenario describes the includes: the statute on its face, as well as the incremental impacts specifically due to (1) An assessment of the ecological legislative history, are clear that the designation of critical habitat for the needs on the installation, including the Secretary has broad discretion regarding species. In other words, these need to provide for the conservation of which factor(s) to use and how much incremental conservation measures and listed species; weight to give to any factor. associated economic impacts would not (2) A statement of goals and priorities; Under section 4(b)(2) of the Act, we occur but for the designation. (3) A detailed description of may exclude an area from designated Conservation measures implemented management actions to be implemented critical habitat based on economic under the baseline (without critical to provide for these ecological needs; impacts, impacts on national security, habitat) scenario are described and or any other relevant impacts. In qualitatively within the DEA, but (4) A monitoring and adaptive considering whether to exclude a economic impacts associated with these management plan. particular area from the designation, we measures are not quantified. Economic Among other things, each INRMP identify the benefits of including the impacts are only quantified for must, to the extent appropriate and area in the designation, identify the conservation measures implemented applicable, provide for fish and wildlife benefits of excluding the area from the specifically due to the designation of management; fish and wildlife habitat designation, and evaluate whether the critical habitat (i.e., incremental enhancement or modification; wetland benefits of exclusion outweigh the impacts). For a further description of the protection, enhancement, and benefits of inclusion. If the analysis methodology of the analysis, see restoration where necessary to support indicates that the benefits of exclusion Chapter 2, ‘‘Framework for the fish and wildlife; and enforcement of outweigh the benefits of inclusion, the Analysis,’’ of the DEA. Secretary may exercise his discretion to applicable natural resource laws. The DEA describes incremental exclude the area only if such exclusion The National Defense Authorization economic impacts associated with Unit would not result in the extinction of the Act for Fiscal Year 2004 (Pub. L. 108– 1 in St. Tammany Parish, Louisiana, 136) amended the Act to limit areas species. We have not proposed to exclude any using three different scenarios. This eligible for designation as critical approach was taken because most of the habitat. Specifically, section 4(a)(3)(B)(i) areas from critical habitat. However, the final decision on whether to exclude estimated incremental impacts are of the Act (16 U.S.C. 1533(a)(3)(B)(i)) related to the lost development value in now provides: ‘‘The Secretary shall not any areas will be based on the best scientific data available at the time of Unit 1, considerable uncertainty existed designate as critical habitat any lands or regarding the likelihood of a Federal other geographic areas owned or the final designation, including information obtained during the nexus for development activities there, controlled by the Department of and potential existed for the Service to Defense, or designated for its use, that comment period and information about the impacts of designation. recommend conservation measures if are subject to an integrated natural consultation were to occur. Scenario 1 resources management plan prepared Exclusions Based on Economic Impacts assumes the proposed development under section 101 of the Sikes Act (16 Under section 4(b)(2) of the Act, we within Unit 1 would avoid impacts to U.S.C. 670a), if the Secretary determines jurisdictional wetlands and, as a result, in writing that such plan provides a consider the economic impacts of specifying any particular area as critical there would be no Federal nexus (no benefit to the species for which critical Federal permit required) triggering habitat is proposed for designation.’’ habitat. In order to consider economic impacts, we have prepared a draft section 7 consultation regarding gopher There are no Department of Defense frog critical habitat. Scenario 2 assumes lands with a completed INRMP within economic analysis (DEA) concerning this proposed critical habitat the proposed development within Unit the proposed critical habitat 1 would impact jurisdictional wetlands designation. Therefore, we are not designation, which is available for review and comment (see ADDRESSES). and a U.S. Army Corps of Engineers proposing exemption of any lands (Corps) Clean Water Act Section 404 owned or managed by the Department of This DEA was specifically drafted for this revised proposed designation of permit (permit) would be required, thus Defense from this designation of critical triggering section 7 consultation habitat for the Mississippi gopher frog. critical habitat for the Mississippi gopher frog. It represents a revision of regarding gopher frog critical habitat. Exclusions the previous DEA announced in the This scenario assumed that the Service would work with the landowner to Application of Section 4(b)(2) of the Act Federal Register on June 1, 2010 (75 FR 77817). establish conservation areas for the Section 4(b)(2) of the Act states that gopher frog that would result in the Secretary shall designate and make Draft Economic Analysis management of 60 percent of the area revisions to critical habitat on the basis The purpose of the DEA is to identify for gopher frog conservation and of the best available scientific data after and analyze the potential economic recovery. Scenario 3 is similar to taking into consideration the economic impacts associated with this proposed Scenario 2 in that it assumes the impact, national security impact, and critical habitat designation for the proposed development within Unit 1 any other relevant impact of specifying Mississippi gopher frog. The DEA would impact jurisdictional wetlands

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and a Corps permit would be required, area from critical habitat if we consider any social impacts that might thus triggering section 7 consultation determine that the benefits of excluding occur because of the designation. regarding gopher frog critical habitat. the area outweigh the benefits of In preparing this proposed rule, we However, in this scenario, the including the area, provided the have determined that there are currently assumption was made that due to the exclusion will not result in the no HCPs or other management plans for importance of Unit 1 to the conservation extinction of this species. the Mississippi gopher frog, and the and recovery of the species, the Service proposed designation does not include Exclusions Based on National Security would recommend no development any tribal lands or trust resources. We Impacts within the unit during consultation. The anticipate no impact on tribal lands, DEA cost estimates for each scenario Under section 4(b)(2) of the Act, we partnerships, or HCPs from this were broken down into the following consider whether there are lands owned proposed critical habitat designation. categories: (1) Costs associated with or managed by the Department of Accordingly, the Secretary does not economic activities, including Defense where a national security propose to exert his discretion to development and forestry; (2) costs impact might exist. The Mississippi exclude any areas from the final associated with military activities; and Army National Guard conducts training designation based on other relevant (3) costs associated with active species in an area of the DeSoto National Forest impacts. management. where Units 10, 11, and 12 are located. Applying a seven percent discount This training is authorized by a Special Peer Review rate, the DEA estimates that over the Use Permit with the USFS and the lands In accordance with our joint policy next 20 years the total incremental covered by the permit are open to the published in the Federal Register on impacts of conservation activities for the public for all lawful purposes. The July 1, 1994 (59 FR 34270), we will seek Mississippi gopher frog using Scenario USFS manages this property as part of the expert opinions of at least three 1 would be $102,000 ($9,610 in a Habitat Management Area for red- appropriate and independent specialists annualized impacts); using Scenario 2, cockaded woodpeckers and, as a result, regarding this proposed rule. The it would be $21.8 million ($2.06 million there are certain limitations to training purpose of peer review is to ensure that in annualized impacts); and using activities in this area. In preparing this our critical habitat designation is based Scenario 3, it would be $36.3 million proposal, we have determined that on scientifically sound data, ($3.43 million in annualized impacts). lands within the proposed designation assumptions, and analyses. We have The broad range in cost estimates stems of critical habitat for the Mississippi invited these peer reviewers to comment primarily from uncertainty regarding the gopher frog are not owned or managed during this public comment period on likelihood of a Federal nexus for by the Department of Defense. our specific assumptions and development activities in Unit 1, and Additionally, we anticipate no impact to conclusions in this proposed the conservation measures that the national security because training designation of critical habitat. Service may recommend if consultation limitations are already in place for the We will consider all comments and does occur. All economic impacts stem endangered red-cockaded woodpecker. information received during this from the administrative cost of Consequently, the Secretary does not comment period on this proposed rule, addressing adverse modification of propose to exert his discretion to as well as those comments received critical habitat during section 7 exclude any areas from the final during the comment period for the consultations. Incremental impacts designation based on impacts to previous proposed rule, during stemming from additional gopher frog national security. However, we did preparation of a final determination. conservation measures requested by the receive a request to exclude this area Accordingly, the final decision may Service during section 7 consultation during the comment period for the differ from this proposal. are not expected in occupied areas previously published proposed rule. because project modifications that may Therefore, if anyone has information on Public Hearings be needed to minimize impacts to the why this property, or any property Section 4(b)(5) of the Act provides for species would coincidentally minimize owned or managed by Department of one or more public hearings on this impacts to critical habitat. In Defense, should be excluded under proposal, if requested. Requests must be unoccupied areas, project modifications Section 4(b)(2) of the Act we encourage received within 45 days of the resulting from consultation would be the submission of comments as publication of this proposed rule in the considered incremental impacts of the described above under the Public Federal Register. Such requests must be critical habitat designation. Comments section of this proposed rule. sent to the address shown in FOR The DEA also discusses the potential FURTHER INFORMATION CONTACT. We will Exclusions Based on Other Relevant economic benefits associated with the schedule public hearings on this Impacts designation of critical habitat. However, proposal, if any are requested, and because the Service believes that the Under section 4(b)(2) of the Act, we announce the dates, times, and places of direct benefits of the designation are consider any other relevant impacts, in those hearings, as well as how to obtain best expressed in biological terms, this addition to economic impacts and reasonable accommodations, in the analysis does not quantify or monetize impacts on national security. We Federal Register and local newspapers benefits; only a qualitative discussion of consider a number of factors, including at least 15 days before the hearing. economic benefits is provided. whether the landowners have developed As stated earlier, we are soliciting any HCPs or other management plans Required Determinations—Amended data and comments from the public on for the area, or whether there are In our June 3, 2010, proposed rule (75 the DEA, as well as all aspects of the conservation partnerships that would be FR 31387), we indicated that we would proposed rule and our amended encouraged by designation of, or defer our determination of compliance required determinations. We may revise exclusion from, critical habitat. In with several statutes until our draft the rule or supporting documents to addition, we look at any tribal issues, economic analysis was available. In this incorporate or address information we and consider the government-to- revision of the proposed designation of receive during the public comment government relationship of the United critical habitat for Mississippi gopher period. In particular, we may exclude an States with tribal entities. We also frog, we have made use of the

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information in our draft economic independent nonprofit organizations; habitat would be incorporated into the analysis in making our determination small governmental jurisdictions, same consultation process. that this proposed rule is in compliance including school boards and city and In the DEA, we evaluated the with the statutes and Executive Orders town governments that serve fewer than potential economic effects on small detailed below. 50,000 residents; and small businesses entities resulting from implementation (13 CFR 121.201). Small businesses of conservation actions related to the Regulatory Planning and Review— include manufacturing and mining proposed designation of critical habitat Executive Order 12866 concerns with fewer than 500 for the Mississippi gopher frog. The The Office of Management and Budget employees, wholesale trade entities Service and the action agency are the (OMB) has determined that this rule is with fewer than 100 employees, retail only entities with direct compliance not significant and has not reviewed and service businesses with less than $5 costs associated with this proposed this proposed rule under Executive million in annual sales, general and critical habitat designation, although Order 12866 (Regulatory Planning and heavy construction businesses with less small entities may participate in section Review). OMB bases its determination than $27.5 million in annual business, 7 consultation as a third party. It is, upon the following four criteria: special trade contractors doing less than therefore, possible that the small entities (1) Whether the rule will have an $11.5 million in annual business, and may spend additional time considering annual effect of $100 million or more on agricultural businesses with annual critical habitat during section 7 the economy or adversely affect an sales less than $750,000. To determine consultation for the gopher frog. The economic sector, productivity, jobs, the if potential economic impacts to these DEA indicates that the incremental environment, or other units of the small entities are significant, we impacts potentially incurred by small government. considered the types of activities that entities are limited to development (2) Whether the rule will create might trigger regulatory impacts under activities on Tradition Properties in inconsistencies with other Federal this designation as well as types of Subunits 2a and 2b (where 10 acres of agencies’ actions. project modifications that may result. In proposed critical habitat overlap a (3) Whether the rule will materially general, the term ‘‘significant economic planning area for a large-scale affect entitlements, grants, user fees, impact’’ is meant to apply to a typical development), and potential future loan programs, or the rights and small business firm’s business development within 1,649-acre Unit 1 obligations of their recipients. operations. owned by four small businesses and an (4) Whether the rule raises novel legal To determine if this proposed individual. The five small businesses, or policy issues. designation of critical habitat for the considered small Land Subdividers, Regulatory Flexibility Act (5 U.S.C. 601 Mississippi gopher frog would affect a represent approximately 3.9 percent of et seq.) substantial number of small entities, we the total (129 small businesses in this considered the number of small entities sector) small Land Subdividers within Under the Regulatory Flexibility Act affected within particular types of the counties containing proposed (RFA; 5 U.S.C. 601 et seq.), as amended economic activities, such as timber critical habitat for the Mississippi by the Small Business Regulatory operations, and residential and gopher frog. Incremental costs of gopher Enforcement Fairness Act of 1996 commercial development, along with frog critical habitat to Tradition (SBREFA; 5 U.S.C. 801 et seq.), the accompanying infrastructure Properties are anticipated to result in an whenever an agency is required to associated with such projects, including annualized impact of $127 (which publish a notice of rulemaking for any road, storm water drainage, and bridge would represent less than 0.01 percent proposed or final rule, it must prepare and culvert construction and of Tradition Properties’ average annual and make available for public comment maintenance. In order to determine revenues). Annualized impacts to the a regulatory flexibility analysis that whether it is appropriate for our agency four small businesses in Unit 1were describes the effects of the rule on small to certify that this rule would not have evaluated according to the three entities (i.e., small businesses, small a significant economic impact on a Scenarios described above in the Draft organizations, and small government substantial number of small entities, we Economic Analysis section. Under jurisdictions). However, no regulatory considered each industry or category Scenario 1, there would be no impact to flexibility analysis is required if the individually. In estimating the numbers small businesses. Under Scenario 2, an head of an agency certifies the rule will of small entities potentially affected, we impact of $2.05 million was calculated, not have a significant economic impact also considered whether their activities approximately 28.6 percent of annual on a substantial number of small have any Federal involvement. Critical revenues; under Scenario 3, an impact entities. The SBREFA amended the RFA habitat designation will not affect of $3.43 million was calculated, to require Federal agencies to provide a activities that do not have any Federal approximately 47.8 percent of annual certification statement of the factual involvement; designation of critical revenues. basis for certifying that the rule will not habitat only affects activities conducted, Our analysis constitutes an evaluation have a significant economic impact on funded, permitted, or authorized by of not only potentially directly affected a substantial number of small entities. Federal agencies. parties, but those also potentially Based on our DEA of the proposed If we finalize this proposed critical indirectly affected. Under the RFA and designation, we provide our analysis for habitat designation, Federal agencies following recent case law, we are only determining whether the proposed rule must consult with us under section 7 of required to evaluate the direct effects of would result in a significant economic the Act if their activities may affect a regulation to determine compliance. impact on a substantial number of small designated critical habitat. In areas Since the regulatory effect of critical entities. Based on comments we receive where the Mississippi gopher frog is habitat is through section 7 of the Act during the open comment period, we present, Federal agencies are already which applies only to Federal agencies, may revise this determination as part of required to consult with us under we have determined that only Federal a final rulemaking. section 7 of the Act, due to the agencies are directly affected by this According to the Small Business endangered status of the species. rulemaking. Other entities, such as Administration, small entities include Consultations to avoid the destruction small businesses, are only indirectly small organizations such as or adverse modification of critical affected. However, to better understand

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the potential effects of a designation of this action is not a significant energy by the designation of critical habitat, the critical habitat, we frequently evaluate action, and no Statement of Energy legally binding duty to avoid the potential impact to those entities Effects is required. destruction or adverse modification of that may be indirectly affected, as was critical habitat rests squarely on the Unfunded Mandates Reform Act (2 the case for this rulemaking. In doing so, Federal agency. Furthermore, to the U.S.C. 1501 et seq.) we focus on the specific areas being extent that non-Federal entities are designated as critical habitat and In accordance with the Unfunded indirectly impacted because they compare the number of small business Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate entities potentially affected in that area seq.), we make the following findings: in a voluntary Federal aid program, the with other small business entities in the (1) This rule will not produce a Unfunded Mandates Reform Act would regional area, versus comparing the Federal mandate. In general, a Federal not apply; nor would critical habitat entities in the area of designation with mandate is a provision in legislation, shift the costs of the large entitlement entities nationally—which is more statute, or regulation that would impose programs listed above onto State commonly done. This results in an an enforceable duty upon State, local, or governments. estimation of a higher proportion of Tribal governments, or the private (2) We do not believe that this rule small businesses potentially affected. In sector, and includes both ‘‘Federal will significantly or uniquely affect this rulemaking, we calculate that the intergovernmental mandates’’ and small governments because the proportion of small businesses ‘‘Federal private sector mandates.’’ Mississippi gopher frog occurs primarily potentially affected is 3.9 percent of These terms are defined in 2 U.S.C. on Federal and privately owned lands. those regionally. If we were to calculate 658(5)–(7). ‘‘Federal intergovernmental None of these government entities fit the that value based on the proportion mandate’’ includes a regulation that definition of ‘‘small governmental nationally, then our estimate would be ‘‘would impose an enforceable duty jurisdiction.’’ Therefore, a Small significantly lower than 1 percent. upon State, local, or tribal Government Agency Plan is not Following our evaluation of potential governments,’’ with two exceptions. It required. effects to small business entities from excludes ‘‘a condition of Federal Takings—Executive Order 12630 this rulemaking, we do not believe that assistance.’’ It also excludes ‘‘a duty the 5 small businesses or 3.9 percent of arising from participation in a voluntary In accordance with E.O. 12630 the small businesses in the affected Federal program,’’ unless the regulation (Government Actions and Interference sector represents a substantial number. ‘‘relates to a then-existing Federal with Constitutionally Protected Private However, we recognize that the program under which $500,000,000 or Property Rights), we have analyzed the potential effects to these small more is provided annually to State, potential takings implications of businesses under Scenarios 2 and 3 may local, and tribal governments under designating critical habitat for the be significant. We will further evaluate entitlement authority,’’ if the provision Mississippi gopher frog in a takings the potential effects to these small would ‘‘increase the stringency of implications assessment. The takings businesses as we develop our final conditions of assistance’’ or ‘‘place caps implications assessment concludes that rulemaking. upon, or otherwise decrease, the Federal this designation of critical habitat for In summary, we have considered Government’s responsibility to provide the Mississippi gopher frog does not whether this proposed designation funding,’’ and the State, local, or tribal pose significant takings implications for would result in a significant economic governments ‘‘lack authority’’ to adjust lands within or affected by the impact on a substantial number of small accordingly. At the time of enactment, designation. Critical habitat designation entities. Information for this analysis these entitlement programs were: does not affect landowner actions that was gathered from the Small Business Medicaid; Aid for Families with do not require Federal funding or Administration, stakeholders, and the Dependent Children work programs; permits, nor does it preclude Service. For the reasons discussed Child Nutrition; Food Stamps; Social development of habitat conservation above, and based on currently available Services Block Grants; Vocational programs or issuance of incidental take information, we certify that if Rehabilitation State Grants; Foster Care, permits to permit actions that do require promulgated, the proposed designation Adoption Assistance, and Independent Federal funding or permits to go would not directly have a significant Living; Family Support Welfare forward. effect on a substantial number of small Services; and Child Support Federalism—Executive Order 13132 business entities. Therefore, an initial Enforcement. ‘‘Federal private sector regulatory flexibility analysis is not mandate’’ includes a regulation that In accordance with E. O. 13132 required. However, as we develop the ‘‘would impose an enforceable duty (Federalism), this proposed rule does final rule we will further evaluate the upon the private sector, except (i) a not have significant Federalism effects. potential indirect effects on this condition of Federal assistance or (ii) a A Federalism assessment is not designation on small business entities. duty arising from participation in a required. In keeping with Department of voluntary Federal program.’’ the Interior and Department of Energy Supply, Distribution, or Use— The designation of critical habitat Commerce policy, we requested Executive Order 13211 does not impose a legally binding duty information from, and coordinated Executive Order 13211 (Actions on non-Federal government entities or development of, this proposed critical Concerning Regulations That private parties. Under the Act, the only habitat designation with appropriate Significantly Affect Energy Supply, regulatory effect is that Federal agencies State resource agencies in Louisiana and Distribution, or Use) requires agencies must ensure that their actions do not Mississippi. The designation of critical to prepare Statements of Energy Effects destroy or adversely modify critical habitat in areas currently occupied by when undertaking certain actions. Based habitat under section 7. While non- the Mississippi gopher frog imposes no on an analysis of areas included in this Federal entities that receive Federal additional restriction to those currently proposal, we do not expect the funding, assistance, or permits, or that in place and, therefore, has little designation of this proposed critical otherwise require approval or incremental impact on State and local habitat to significantly affect energy authorization from a Federal agency for governments and their activities. The supplies, distribution, or use. Therefore, an action, may be indirectly impacted designation may have some benefit to

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these governments because the areas National Environmental Policy Act (42 with tribes in developing programs for that contain the physical and biological U.C.C. 4321 et seq.) healthy ecosystems, to acknowledge that features essential to the conservation of It is our position that, outside the tribal lands are not subject to the same the species are more clearly defined, jurisdiction of the U.S. Court of Appeals controls as Federal public lands, to and the elements of the features for the Tenth Circuit, we do not need to remain sensitive to Indian culture, and necessary to the conservation of the prepare environmental analyses to make information available to tribes. species are specifically identified. This pursuant to the National Environmental We have determined that there are no information does not alter where and Policy Act (NEPA; 42 U.S.C. 4321 et tribal lands that were occupied by the what federally sponsored activities may seq.) in connection with designating Mississippi gopher frog at the time of occur. However, it may assist local critical habitat under the Act. We listing that contain the features essential governments in long-range planning published a notice outlining our reasons for the conservation of the species, and (rather than having them wait for case- for this determination in the Federal no tribal lands unoccupied by the Mississippi gopher frog that are by-case section 7 consultations to Register on October 25, 1983 (48 FR essential for the conservation of the occur). 49244). This position was upheld by the species. Therefore, we are not proposing Where State and local governments U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 to designate critical habitat for the require approval or authorization from a F.3d 1495 (9th Cir. 1995), cert. denied Mississippi gopher frog on tribal lands. Federal agency for actions that may 516 U.S. 1042 (1996)). References Cited affect critical habitat, consultation under section 7(a)(2) would be required. Clarity of the Rule A complete list of all references cited in this rulemaking is available on the While non-Federal entities that receive We are required by Executive Orders Internet at http://www.regulations.gov Federal funding, assistance, or permits, 12866 and 12988 and by the and upon request from the Mississippi or that otherwise require approval or Presidential Memorandum of June 1, Fish and Wildlife Office (see FOR authorization from a Federal agency for 1998, to write all rules in plain FURTHER INFORMATION CONTACT). an action, may be indirectly impacted language. This means that each rule we by the designation of critical habitat, the publish must: Author legally binding duty to avoid (1) Be logically organized; The primary author of this package is destruction or adverse modification of (2) Use the active voice to address Linda LaClaire of the Mississippi Fish critical habitat rests squarely on the readers directly; and Wildlife Office. Federal agency. (3) Use clear language rather than jargon; List of Subjects in 50 CFR Part 17 Civil Justice Reform—Executive Order (4) Be divided into short sections and 12988 Endangered and threatened species, sentences; and Exports, Imports, Reporting and In accordance with E.O. 12988 (Civil (5) Use lists and tables wherever recordkeeping requirements, possible. Justice Reform), the Office of the Transportation. If you feel that we have not met these Solicitor has determined that the rule requirements, send us comments by one Proposed Regulation Promulgation does not unduly burden the judicial of the methods listed in ADDRESSES. To system and that it meets the Accordingly, we propose to further better help us revise the rule, your amend part 17, subchapter B of chapter requirements of sections 3(a) and 3(b)(2) comments should be as specific as I, title 50 of the Code of Federal of the Order. We have proposed possible. For example, you should tell Regulations, as proposed to be amended designating critical habitat in us the numbers of the sections or at 75 FR 31387, June 3, 2010, as follows: accordance with the provisions of the paragraphs that are unclearly written, Act. This proposed rule uses standard which sections or sentences are too PART 17—ENDANGERED AND property descriptions and identifies the long, the sections where you feel lists or THREATENED WILDLIFE AND PLANTS elements of physical and biological tables would be useful, etc. features essential to the conservation of 1. The authority citation for part 17 Government-to-Government the Mississippi gopher frog within the continues to read as follows: Relationship With Tribes designated areas to assist the public in Authority: 16 U.S.C. 1361–1407; 16 U.S.C. understanding the habitat needs of the In accordance with the President’s 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– species. memorandum of April 29, 1994, 625, 100 Stat. 3500; unless otherwise noted. (Government-to-Government Relations 2. In § 17.95(d), revise the entry for Paperwork Reduction Act of 1995 (44 with Native American Tribal ‘‘Mississippi gopher frog’’ (Rana sevosa) U.S.C. 3501 et seq.) Governments; (59 FR 22951)), Executive in the same alphabetical order as the Order 13175 (Consultation and This rule does not contain any new species appears in § 17.11(h), to read as Coordination with Indian Tribal follows: collections of information that require Governments), and the Department of approval by OMB under the Paperwork Interior’s manual at 512 DM 2, we § 17.95 Critical habitat—fish and wildlife. Reduction Act of 1995 (44 U.S.C. 3501 readily acknowledge our responsibility * * * * * et seq.). This rule will not impose to communicate meaningfully with (d) Amphibians. recordkeeping or reporting requirements recognized Federal Tribes on a * * * * * on State or local governments, government-to-government basis. In individuals, businesses, or accordance with Secretarial Order 3206 Mississippi gopher frog (Rana sevosa) organizations. An agency may not of June 5, 1997 (American Indian Tribal (1) Critical habitat units are depicted conduct or sponsor, and a person is not Rights, Federal-Tribal Trust for St. Tammany Parish, Louisiana, and required to respond to, a collection of Responsibilities, and the Endangered Forrest, Harrison, Jackson, and Perry information unless it displays a Species Act), we readily acknowledge Counties in Mississippi, on the maps currently valid OMB control number. our responsibilities to work directly below.

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(2) Within these areas, the primary pesticides or chemicals and sediment nonbreeding habitats to allow for constituent elements of the physical and associated with road runoff; and Mississippi gopher frog movements biological features essential to the (D) Surface water that lasts for a between and among such sites. It is conservation of the Mississippi gopher minimum of 195 days during the characterized by an open canopy and frog consist of three components: breeding season to allow a sufficient abundant native herbaceous species and (i) Primary Constituent Element 1— period for larvae to hatch, mature, and subsurface structure which provides Ephemeral wetland habitat. Breeding metamorphose. shelter for Mississippi gopher frogs ponds, geographically isolated from (ii) Primary Constituent Element 2— during seasonal movements, such as other waterbodies and embedded in Upland forested nonbreeding habitat. that created by deep litter cover, clumps forests historically dominated by Forests historically dominated by of grass, or burrows. longleaf pine communities, that are longleaf pine, adjacent and accessible to (3) Critical habitat does not include small (generally <0.4 to 4.0 hectares (<1 and from breeding ponds, that is manmade structures (such as buildings, to 10 acres), ephemeral, and acidic. maintained by fires frequent enough to aqueducts, runways, roads, and other Specific conditions necessary in support an open canopy and abundant paved areas) and the land on which they breeding ponds to allow for successful herbaceous ground cover and gopher are located existing within the legal reproduction of Mississippi gopher frogs tortoise burrows, small mammal boundaries on the effective date of this are: burrows, stump holes, or other rule. (A) An open canopy with emergent underground habitat that the (4) Critical habitat unit maps. Maps herbaceous vegetation for egg Mississippi gopher frog depends upon were developed from USGS 7.5′ attachment; for food, shelter, and protection from quadrangles, and critical habitat units (B) An absence of large, predatory fish the elements and predation; and were then mapped using Universal that prey on frog larvae; (iii) Primary Constituent Element 3— Transverse Mercator (UTM) coordinates. (C) Water quality such that frogs, their Upland connectivity habitat. Accessible (5) Note: Index Map (Map 1) follows: eggs, or larvae are not exposed to upland habitat between breeding and BILLING CODE 4310–55–P

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(6) Unit 1: St. Tammany Parish, (i) [Reserved for textual description of (ii) Note: Map of Unit 1: St. Tammany Louisiana Unit 1: St. Tammany Parish, Louisiana] Parish, Louisiana, follows:

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(7) Unit 2: Harrison County, (ii) [Reserved for textual description (8) Unit 3: Harrison County, Mississippi. of Unit 2, Subunit B: Harrison County, Mississippi. (i) [Reserved for textual description of Mississippi] (i) [Reserved for textual description of Unit 2, Subunit A: Harrison County, (iii) Note: Map depicting Unit 2 is Unit 3: Harrison County, Mississippi] Mississippi] provided at paragraph (8)(ii) of this (ii) Note: Map of Units 2 and 3 entry. follows:

(9) Unit 4: Jackson County, (i) [Reserved for textual description of (ii) [Reserved for textual description Mississippi. Unit 4, Subunit A: Jackson County, of Unit 4, Subunit B: Jackson County, Mississippi] Mississippi]

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(iii) Note: Map depicting Unit 4 is (ii) [Reserved for textual description (i) [Reserved for textual description of provided at paragraph (11)(ii) of this of Unit5, Subunit B: Jackson County, Unit 6: Jackson County, Mississippi] entry. Mississippi] (ii) Note: Map of Unit 4: Jackson (10) Unit 5: Jackson County, (iii) Note: Map depicting Unit 5 is County, Mississippi; Unit 5: Jackson Mississippi. provided at paragraph (11)(ii) of this (i) [Reserved for textual description of entry. County, Mississippi; and Unit 6: Jackson Unit5, Subunit A: Jackson County, (11) Unit 6: Jackson County, County, Mississippi follows: Mississippi] Mississippi.

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(12) Unit 7: Jackson County, (i) [Reserved for textual description of (ii) Note: Map of Unit 7: Jackson Mississippi. Unit 7: Jackson County, Mississippi] County, Mississippi follows:

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(13) Unit 8: Forrest County, (ii) Note: Map depicting Unit 8 is (i) [Reserved for textual description of Mississippi. provided at paragraph (14)(ii) of this Unit 9: Forrest County, Mississippi] (i) [Reserved for textual description of entry. (ii) Note: Map of Unit 8: Forrest Unit 8: Forrest County, Mississippi] (14) Unit 9: Forrest County, County, Mississippi and Unit 9: Forrest Mississippi. County, Mississippi follows:

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(15) Unit 10: Perry County, (16) Unit 11: Perry County, (17) Unit 12: Perry County, Mississippi. Mississippi. Mississippi. (i) [Reserved for textual description of (i) [Reserved for textual description of (i) [Reserved for textual description of Unit 10: Perry County, Mississippi] Unit 11: Perry County, Mississippi] Unit 12: Perry County, Mississippi] (ii) Note: Map of Unit 10, Perry (ii) Note: Map depicting Unit 10 is (ii) Note: Map depicting Unit 11 is County, Mississippi; Unit 11, Perry provided at paragraph (17)(ii) of this provided at paragraph (17)(ii) of this County, Mississippi; and Unit 12, Perry entry. entry. County, Mississippi follows:

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* * * * * Dated: September 12, 2011. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011–24046 Filed 9–26–11; 8:45 am] BILLING CODE 4310–55–C

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