Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58933

EFFECTIVE DATE: October 1, 2000. PART 1837ÐSERVICE CONTRACTING Alameda whipsnakes range from 91 to FOR FURTHER INFORMATION CONTACT: 122 centimeters (3 to 4 feet) in length. James H. Dolvin, NASA Headquarters, 2. Subpart 1837.70 is removed. The dorsal surface is sooty black in Office of Procurement, Contract [FR Doc. 00–25249 Filed 10–2–00; 8:45 am] color with a distinct yellow-orange Management Division (Code HK), BILLING CODE 7510±01±M stripe down each side. The forward Washington, DC 20546. (202) 358–1279, portion of the bottom surface is orange- email: [email protected]. rufous colored, the midsection is cream colored, and the rear portion and tail are SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR pinkish. The adult Alameda whipsnake A. Background Fish and Wildlife Service virtually lacks black spotting on the In 1991, Subpart 1837.70, Acquisition bottom surface of the head and neck. of Training, was added to the NFS. 50 CFR Part 17 Juveniles may show very sparse or weak black spots. Another common name for Section 1837.7000, Acquisition of off- RIN 1018±AF98 the-shelf training courses, provided that the Alameda whipsnake is the ‘‘Alameda striped racer’’ (Riemer 1954, the Government Employees Training Endangered and Threatened Wildlife Act of 1958, 5 U.S.C. 4101 et seq., could Jennings 1983, Stebbins 1985). and Plants; Final Determination of The Alameda whipsnake is one of two be used as the authority for acquisition Critical Habitat for the Alameda subspecies of the California whipsnake of ‘‘non-Governmental off-the-shelf Whipsnake (Masticophis lateralis (Masticophis lateralis). The chaparral training courses which are available to euryxanthus) whipsnake (Masticophis lateralis the public.’’ Subpart 1837.7001, lateralis) is distributed from northern Acquisition of new training courses, AGENCY: Fish and Wildlife Service, California, west of the Sierran crest and provided that acquisition of new Interior. desert, to central Baja California. The ACTION: Final rule. training courses ‘‘developed to fill a Alameda whipsnake is restricted to a specific NASA need’’ must be SUMMARY: We, the U.S. Fish and small portion of this range, primarily conducted in accordance with the FAR. Wildlife Service (Service), designate the inner Coast Range in western and This subpart is being removed because critical habitat under the Endangered central Contra Costa and Alameda it has caused confusion within NASA Species Act of 1973, as amended (Act), Counties. about the relevance of the FAR to for the Alameda whipsnake The distribution in California, of both training service procurement. subspecies, coincides closely with A proposed rule was published in the (Masticophis lateralis euryxanthus). A total of approximately 164,150 hectares chaparral (Jennings 1983, Stebbins Federal Register at 65 FR 43730, dated 1985). Recent telemetry data indicate July 14, 2000. No comments were (406,598 acres) of land fall within the boundaries of designated critical that, although home ranges of Alameda received, and this final rule adopts the whipsnakes are centered on shrub proposed rule without change. habitat. Critical habitat for the Alameda whipsnake is located in Contra Costa, communities, whipsnakes frequently B. Regulatory Flexibility Act Alameda, San Joaquin, and Santa Clara venture into adjacent habitats, including grassland, oak savanna, and NASA certifies that this rule will not counties, California. Section 7 of the Act requires Federal agencies to ensure that occasionally oak-bay woodland. Most have a significant economic impact on telemetry locations are within 50 meters a substantial number of small business actions they authorize, fund, or carry out are not likely to destroy or adversely (m) (170 feet (ft)) of scrub habitat, but entities within the meaning of the distances of greater than 150 m (500 ft) Regulatory Flexibility Act (5 U.S.C. 601 modify designated critical habitat. As required by section 4 of the Act, we occur (Swaim 1994). Initial data et seq.) because the deletion of this indicate that adjacent habitats may play subpart will not alter the manner in considered economic and other relevant impacts prior to making a final decision a crucial role in certain life history and which NASA is required to acquire physiological needs of the Alameda training. on the size and configuration of critical habitat. whipsnake, but the full extent has yet to be determined. Telemetry data indicate C. Paperwork Reduction Act EFFECTIVE DATE: This final rule is that whipsnakes remain in grasslands The Paperwork Reduction Act does effective November 2, 2000. for periods ranging from a few hours to not apply because the changes to the ADDRESSES: The complete several weeks at a time. Grassland NFS do not impose recordkeeping or administrative record for this rule is on habitats are used by male whipsnakes information collection requirements, or file at the U.S. Fish and Wildlife most extensively during the mating collections of information from offerors, Service, Sacramento Fish and Wildlife season in spring. Female whipsnakes contractors, or members of the public Office, 2800 Cottage Way, Suite W– use grassland areas most extensively which require the approval of the Office 2605, Sacramento, California 95825. The after mating, possibly in their search for of Management and Budget under 44 complete file for this rule is available for suitable egg-laying sites (Swaim 1994). U.S.C. 3501, et seq. public inspection, by appointment, Rock outcrops can be an important List of Subjects in 48 CFR Part 1837 during normal business hours at the feature of Alameda whipsnake habitat above address. because they provide retreat Government Procurement FOR FURTHER INFORMATION CONTACT: opportunities for whipsnakes and Anne Guenther, Jason Davis or Heather Bell, at the above support lizard populations. Lizards, Acting Associate Administrator for address (telephone 916/414–6600, especially the western fence lizard Procurement. facsimile 916/414–6713). (Sceloporus occidentalis), appear to be SUPPLEMENTARY INFORMATION: the most important prey item of Accordingly, 48 CFR Part 1837 is whipsnakes (Stebbins 1985; Swaim proposed to be amended as follows: Background 1994; Harry Green, Museum of 1. The authority citation for 48 CFR The Alameda whipsnake is a slender, Vertebrate Zoology, U.C. Berkeley, pers. Part 1837 continues to read as follows: fast-moving, diurnal snake with a broad comm. 1998), although other prey items Authority: 42 U.S.C. 2473(c)(1) head, large eyes, and slender neck. are taken, including skinks, frogs,

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 58934 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations snakes, and birds (Stebbins 1985, hibernaculum, where mating occurs. toad (Bufo microscaphus californicus), Swaim 1994). Most radio telemetry Suspected egg-laying sites for two the San Bernardino kangaroo rat locations for whipsnakes were within females were located in grassland with (Dipodomys merriami parvus), the the distribution of major rock scattered shrub habitat. Male home spectacled eider (Somateria fischeri), outcroppings and talus (a sloping mass ranges of 1.9 to 8.7 hectares (ha) (4.7 to and the Steller’s eider (Polysticta of rock debris at the base of a cliff) 21.5 acres (ac)) (mean of 5.5 ha or 13.6 stelleri) (Southwest Center for Biological (Swaim 1994). ac) were recorded, and showed a high Diversity v. U.S. Fish and Wildlife, CIV Alameda whipsnakes have been degree of spatial overlap. Several 99–1003 MMC). found in association with a variety of individual snakes monitored for nearly On November 5, 1999, William Alsup, shrub communities including diablan an entire activity season appeared to U.S. District Judge, dismissed the sage scrub, coyote bush scrub, and maintain a stable home range. plaintiffs’ lawsuit under a settlement chamise chaparral (Swaim 1994), also Movements of these individuals were agreement entered into by the parties. classified as coastal scrub, mixed multi-directional, and individual snakes On March 8, 2000, (65 FR 12155) we chaparral, and chamise-redshank returned to specific areas and retreat proposed the designation of 7 areas chaparral (Mayer and Laudenslayer sites after long intervals of non-use. within Alameda, Contra Costa, San 1988). However, the type of vegetation Snakes had one or more core areas Joaquin, and Santa Clara Counties as may have less to do with preference by within their home range, while large critical habitat for the Alameda the whipsnake than the extent of the areas of the home range received little whipsnake. canopy, slope exposure, the availability use (Swaim 1994). Critical Habitat of retreats such as rock outcrops and rodent burrows, and prey species Previous Federal Action Critical habitat is defined in section 3 composition and abundance (Swaim The September 18, 1985, Notice of of the Act as—(i) the specific areas 1994; K. Swaim, Swaim Biological Review (50 FR 37958) included the within the geographic area occupied by Consulting, pers. comm. 1999). Alameda Alameda whipsnake as a category 2 a species, at the time it is listed under whipsnakes have been sighted or found candidate species for possible future the Act, on which are found those dead a significant distance from the listing as endangered or threatened. physical or biological features (I) nearest shrub community (K. Swaim, Category 2 candidates were those taxa essential to the conservation of the pers. comm. 1999). The reasons for such for which listing as threatened or species and (II) that may require special movements are unknown. endangered might be warranted, but for management consideration or Initial studies indicated that Alameda which adequate data on biological protection; and (ii) specific areas whipsnakes occurred where the canopy vulnerability and threats were not outside the geographic area occupied by was open (less than 75 percent of the available to support issuance of listing a species at the time it is listed, upon total area within the scrub or chaparral proposals. The January 6, 1989, Notice determination that these areas are community was covered by shrub of Review (54 FR 554) solicited essential for the conservation of the crown) or partially open (between 75 information on its status as a category 2 species. ‘‘Conservation’’ means the use and 90 percent of the total area was candidate species. The Alameda of all methods and procedures that are covered with shrub crown), and only whipsnake was moved to category 1 in necessary to bring an endangered seldom did whipsnakes occur in closed the November 21, 1991, Notice of species or a threatened species to the canopy (greater than 90 percent of the Review (56 FR 58804) on the basis of point at which listing under the Act is area was covered by shrub crown). significant increases in habitat loss and no longer necessary. However, trapping efforts may have threats occurring throughout its range. Section 4(b)(2) of the Act requires that been biased due to the difficulty of Category 1 candidates were defined as we base critical habitat proposals upon setting traps in dense scrub (Swaim taxa for which we had on file the best scientific and commercial data 1994; K. Swaim, pers. comm. 1999). substantial information on biological available, after taking into consideration Core areas (areas of concentrated use) vulnerability and threats to support the economic impact, and any other of the Alameda whipsnake most preparation of listing proposals. On relevant impact, of specifying any commonly occur on east, south, February 4, 1994, we published a particular area as critical habitat. We southeast, and southwest facing slopes proposed rule in the Federal Register may exclude areas from critical habitat (Swaim 1994). However, recent (59 FR 5377) to list the Alameda designation when the benefits of information indicates that whipsnakes whipsnake as an endangered species. exclusion outweigh the benefits of do make use of north facing slopes in On December 5, 1997, we published a including the areas within critical more open stands of scrub habitat (K. final rule listing the Alameda habitat, provided the exclusion will not Swaim, pers. comm. 1999). whipsnake as threatened (62 FR 64306). result in extinction of the species Adult snakes appear to have a On March 4, 1999, the Southwest (section 4(b)(2) of the Act). bimodal (two times of the year) seasonal Center for Biological Diversity, the Designation of critical habitat can activity pattern with peaks during the Center for Biological Diversity, and help focus conservation activities for a spring mating season and a smaller peak Christians Caring for Creation filed a listed species by identifying areas that during late summer and early fall. lawsuit in the Northern District of contain the physical and biological Although short above-ground California against the U.S. Fish and features that are essential for movements may occur during the Wildlife Service and Bruce Babbitt, conservation of that species. winter, Alameda whipsnakes generally Secretary of the Department of the Designation of critical habitat alerts the retreat in November into a Interior (Secretary), for failure to public as well as land-managing hibernaculum (shelter used during the designate critical habitat for seven agencies to the importance of these snake’s dormancy period) and emerge in species: The Alameda whipsnake areas. March. Courtship and mating occur (Masticophis lateralis euryxanthus), the Critical habitat also identifies areas from late-March through mid-June. Zayante band-winged grasshopper that may require special management During this time, males move around (Trimerotropis infantilis), the Morro considerations or protection, and may throughout their home ranges, while shoulderband snail (Helminthoglypta provide protection to areas where females appear to remain at or near their walkeriana), the Arroyo southwestern significant threats to the species have

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58935 been identified. Critical habitat receives the periphery of whipsnake would result in a determination that the protection from destruction or adverse populations. In addition, we believed species be removed from the list, and modification through required that the need for active fire management (iii) estimates of the time required and consultation under section 7 of the Act programs at this urban-wildland cost to carry out those measures needed with regard to actions carried out, interface would preclude those private to achieve the plan’s goal. funded, or authorized by a Federal lands from being considered habitat We are currently drafting a recovery agency. Aside from the protection that essential to the conservation of the plan for the Alameda whipsnake. This may be provided under section 7, the species. We found that critical habitat draft recovery plan will include a more Act does not provide other forms of designation was not prudent due to lack thorough analysis of recovery needs of protection to lands designated as critical of any significant benefit beyond that the Alameda whipsnake. Therefore, we habitat. conferred by listing. may amend critical habitat at a later Section 7(a)(2) of the Act requires Since the Alameda whipsnake was date based on information gained Federal agencies to consult with us to listed, we have found that there are a through the recovery planning process. ensure that any action they authorize, greater number of Federal actions that Primary Constituent Elements fund, or carry out is not likely to could trigger the need for an interagency jeopardize the continued existence of a consultation than was believed at the Under section 3(5)(A)(i) of the Act threatened or endangered species, or time the Alameda whipsnake was listed. and regulations at 50 CFR 424.12, we result in the destruction or adverse We are now aware of federally owned are required to base critical habitat modification of critical habitat. lands that occur within the range of the determinations on the best scientific ‘‘Jeopardize the continued existence’’ (of Alameda whipsnake, including Bureau and commercial data available and to a species) is defined as an appreciable of Land Management parcels in the consider those physical and biological reduction in the likelihood of survival Mount Diablo-Black Hills population features that are essential to and recovery of a listed species. area. In addition, an Alameda conservation of the species and that may ‘‘Destruction or adverse modification’’ whipsnake was recently captured on require special management (of critical habitat) is defined as a direct land owned by the U.S. Department of considerations or protection. Such or indirect alteration that appreciably Energy at their Site 300 facility, a requirements include, but are not diminishes the value of critical habitat Federal site not previously known to be limited to, space for individual and for the survival and recovery of the inhabited by Alameda whipsnakes. We population growth, and for normal listed species for which critical habitat are also aware of a number of activities behavior; food, water, air, light, was designated. Thus, the definitions of with a Federal connection on private minerals, or other nutritional or ‘‘jeopardy’’ to the species and ‘‘adverse lands within the range of the physiological requirements; cover or modification’’ of critical habitat are whipsnake, including activities shelter; sites for breeding, reproduction, nearly identical (50 CFR 402.02). When associated with the issuance of Clean or rearing of offspring, germination, or multiple units of critical habitat are Water Act section 404 permits and seed dispersal; and habitats that are designated, each unit may serve as the Federal Emergency Management Agency protected from disturbance or are basis of an adverse modification fire protection projects. representative of the historic analysis if protection of different facets We now believe that private lands geographical and ecological of the species’ life cycle or its play a more important role in distributions of a species. distribution are essential to the species whipsnake conservation than we The primary constituent elements for as a whole for both its survival and originally believed. An increasing the Alameda whipsnake are those recovery. amount of private land has been found habitat components that are essential for Designating critical habitat does not, to be occupied by the Alameda the primary biological needs of foraging, in itself, lead to recovery of a listed whipsnake, comprising more than 20 sheltering, breeding, maturation, and species. Designation does not create or percent of land within the five dispersal. The primary constituent mandate a management plan, establish whipsnake populations. High-value elements are in areas that support scrub numerical population goals, prescribe Alameda whipsnake habitat occurs on communities, including mixed specific management actions (inside or private lands that are evenly distributed chaparral, chamise-redshank chaparral, outside of critical habitat), or directly throughout all five whipsnake coastal scrub, and annual grassland and affect areas not designated as critical population areas. We now believe that oak woodlands that lie adjacent to scrub habitat. Specific management private lands are essential to the habitats. In addition, the primary recommendations for critical habitat are conservation of the species. constituent elements for the Alameda most appropriately addressed in whipsnake may be found in grasslands recovery plans and management plans, Relationship to Recovery and various oak woodlands that are and through section 7 consultation. The ultimate purpose of listing a linked to scrub habitats by substantial We did not propose to designate species as threatened or endangered rock outcrops or river corridors. Other critical habitat for the Alameda under the Act is to recover the species habitat features that provide a source of whipsnake within the proposed or final to the point at which it no longer needs cover for the whipsnake during listing rulemaking because, at the time the protections provided to the listed dispersal or are near scrub habitats and of listing, we knew of no Federal lands species. The Act mandates the contain habitat features (e.g., rock within the five whipsnake populations. conservation of listed species through outcrops) that support adequate prey We also believed that the possibility of different mechanisms. Section 4(f) of the populations may also contain primary Federal agency involvement on private Act authorizes the Service to develop constituent elements for the Alameda and public, non-Federal lands was recovery plans for listed species. A whipsnake. Within these communities, remote. Based on information available recovery plan includes (i) a description Alameda whipsnakes require plant at the time of listing, we believed that of such site-specific management canopy covers that supply a suitable only 20 percent of known whipsnake actions as may be necessary to achieve range of temperatures for the species’ habitat occurred on private lands, and the plan’s goal for the conservation and normal behavioral and physiological anticipated that urban development on survival of the species, (ii) objective, requirements (including but not limited private lands would occur only along measurable criteria which, when met, to foraging, breeding, and maturation).

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Openings in the plant canopy or scrub/ westernmost extent of the inner Coastal such as towns, intensive agricultural grassland edge provide sunning and Range; and in the east, to the areas such as vineyards, and other lands foraging areas. Corridors of plant cover easternmost extent of suitable habitat. unlikely to contribute to Alameda and retreats (including rock outcrops) We could not depend solely on federally whipsnake conservation. Given the sufficient to provide for dispersal owned lands for critical habitat short period of time in which we were between areas of habitat, and plant designation as they are limited in required to complete this rule and the community patches of sufficient size to geographic location, size, and habitat lack of fine-scale mapping data, we were prevent the deleterious effects of quality. In addition to federally owned unable to map critical habitat in isolation (such as inbreeding or the loss lands, we propose to designate critical sufficient detail to exclude all such of a subpopulation due to a catastrophic habitat on non-Federal public lands and areas. Existing features and structures event) are also essential. Within these privately owned lands, including within the critical habitat boundary, plant communities, specific habitat California Department of Parks and such as buildings, roads, canals, features needed by whipsnakes include, Recreation lands, regional and local railroads, large water bodies, and other but are not limited to, small mammal park lands, and water district lands. features not currently containing or burrows, rock outcrops, talus, and other Areas designated as critical habitat likely to develop these habitat forms of cover to provide temperature meet the definition of critical habitat components, will not contain one or regulation, shelter from predators, egg under section 3 of the Act in that they more of the primary constituent laying sites, and winter hibernaculum. are within the geographical areas elements. Federal actions limited to Many of these same elements are occupied by the species, contain the these areas, therefore, would not trigger important in maintaining prey species. physical and biological features that are a section 7 consultation, unless they Adequate insect populations are essential to conservation of the species, affect the species and/or primary necessary to sustain prey populations. and are in need of special management constituent elements in adjacent critical considerations or protection. habitat. Two areas, the north and south Criteria Used To Identify Critical In determining areas that are essential Habitat corridors (unit 6 connecting units 1 and for the survival and recovery of the 2; and unit 7 connecting units 3 and 5), We considered several qualitative species, we used the best scientific contain some urban development. These criteria in the selection and proposal of information available. This information two corridors are extremely narrow, specific areas or units for Alameda included habitat suitability and species and, therefore, maintaining as much whipsnake critical habitat. These site-specific information. To date, only area within these corridors as possible criteria focused on designating units (1) initial research has been done to to ensure the long-term connectivity throughout the geographic and elevation identify and define specific habitat between whipsnake populations is range of the species; (2) within various needs of Alameda whipsnakes, and no important. These two units may not occupied plant communities, such as comprehensive surveys have been provide sufficient habitat necessary to diablan sage scrub, coyote bush scrub, conducted to quantify their distribution allow for breeding, and offer limited and chamise chaparral; (3) in areas of or abundance. Limited and preliminary opportunities for foraging and large, contiguous blocks of geographical habitat assessment and whipsnake sheltering. However, these areas provide areas occupied by the species; and (4) in presence work has been conducted on for the vital function of dispersal among areas that link contiguous blocks of the Department of Energy’s Lawrence other critical habitat units. geographical areas occupied by the Livermore National Laboratory Site 300, species (i.e., linkage areas). East Bay Regional Park District’s Tilden We considered the existing status of Park, San Francisco Public Utilities lands in designating areas as critical Methods Commission’s San Antonio Reservoir, habitat. Section 10(a) of the Act In developing critical habitat for the Contra Costa Water District’s Los authorizes us to issue permits for the Alameda whipsnake, we used data on Vaqueros Reservoir, East Bay Municipal taking of listed species incidental to known Alameda whipsnake locations to Utility District’s San Leandro Watershed otherwise lawful activities. Incidental initially identify important areas. and Siesta Valley, Pleasanton Ridge take permit applications must be Through the use of 1998 and 1999 aerial Conservation Bank, and Signature supported by a habitat conservation photos (1:12,000 scale) and 1994 digital Properties’ Bailey Ranch. Some small plan (HCP) that identifies conservation orthophotos, we examined the extent of parcels have also been surveyed; measures that the permittee agrees to suitable habitat that was in the vicinity however, these surveys were in implement for the species to minimize of known whipsnake locations. Critical conjunction with development and, in and mitigate the impacts of the habitat includes both suitable habitat most cases, that habitat has been requested incidental take. Currently, no and areas that link suitable habitat, as destroyed. - approved HCPs cover the Alameda these links or corridors facilitate We emphasized areas containing most whipsnake or its habitat. However, we movement of individuals between of the verified Alameda whipsnake expect critical habitat may be used as a habitat areas and are important for occurrences, especially recently tool to help identify areas within the dispersal and gene flow (Beier and Noss identified locations. To maintain genetic range of the Alameda whipsnake that 1998). We have determined seven and demographic interchange that will are most critical for the conservation of separate units of critical habitat, five of help maintain the viability of a regional the species. Development of HCPs for which represent primary breeding, metapopulation, we included corridor such areas on non-Federal lands should feeding, and sheltering areas, while the areas that allow movement between not be precluded, as we consider HCPs other two represent corridors (See areas supporting Alameda whipsnakes. to be one of the most important methods attached figures). The range of these These corridors or connecting areas, through which non-Federal landowners critical habitat units extends in the while supporting some habitat suitable can resolve endangered species south from Wauhab Ridge in the Del for foraging, shelter, breeding, and conflicts. We provide technical Valle area to Cedar Mountain Ridge, in maturation, were primarily included to assistance and work closely with Santa Clara County; north to the facilitate dispersal. applicants throughout development of northernmost extent of suitable habitat In identifying areas of critical habitat, HCPs to help identify special in Contra Costa County; west to the we attempted to avoid developed areas management considerations for the

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Alameda whipsnake. We intend for Critical Habitat Designation Counties, California). Lands designated HCPs to provide a package of protection The approximate area of critical as critical habitat are under private, and management measures sufficient to habitat by county and land ownership is State, and Federal ownership, with address the conservation needs of the shown in Table 1. Critical habitat Federal lands including lands managed species. includes Alameda whipsnake habitat by the Bureau of Land Management and throughout the species’ range in the the U.S. Department of Energy. Lands United States (i.e., Contra Costa, designated as critical habitat have been Alameda, San Joaquin, and Santa Clara divided into seven critical habitat units.

TABLE 1. APPROXIMATE AREA ENCOMPASSING DESIGNATED CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) BY COUNTY AND LAND OWNERSHIP

* Local/State County Federal land land Private land Total

Alameda ...... 310 ha 26,440 ha 56,045 ha 82,795 ha (767 ac) (65,492 ac) (138,824 ac) (205,083 ac) Contra Costa ...... 32 ha 31,970 ha 35,245 ha 67,247 ha (80 ac) (79,189 ac) (87,301 ac) (166,570 ac) San Joaquin ...... 606 ha 525 ha 4,834 ha 5,965 ha (1,500 ac) (1,300 ac) (11,975 ac) (14,775 ac) Santa Clara ...... NA 4,037 ha 4,106 ha 8,143 ha (10,000 ac) (10,170 ac) (20,170 ac) Total ...... 948 ha 62,972 ha 100,230 ha 164,150 ha (2,347 ac) (155,981 ac) (248,270 ac) (406,598 ac) * Includes the Bureau of Land Management and Department of Energy land.

A brief description of each critical City of Castro Valley; to the West by Unit 4 Mount Diablo-Black Hills Unit habitat unit and our reasons designating State Highway 13 and Interstate Unit 4 encompasses approximately those areas as critical habitat for the Highway 580 and the cities of Oakland 40,257 ha (99,717 ac) and completely Alameda whipsnake are given below: and San Leandro; and to the east by encompasses Mount Diablo State Park Interstate Highway 680 and the cities of Unit 1 Tilden-Briones Unit and surrounding lands. The Mount Danville, San Ramon, and Dublin. The Unit 1 encompasses approximately Diablo-Black Hills Unit provides Oakland-Las Trampas unit also contains primary Alameda whipsnake breeding, 16,074 ha (39,815 ac) within the Tilden- substantial amounts of public land Briones unit and is the most feeding, and sheltering habitat. A including East Bay Regional Park majority of this unit is in Contra Costa northwestern unit of the five Alameda District’s Redwood and Anthony Chabot whipsnake metapopulations, and County; however, the southern tip of Regional Parks, Las Trampas Regional this unit is in Alameda County. This provides primary breeding, feeding, and Wilderness, and additional East Bay sheltering habitat for the whipsnake. unit is surrounded by State Highway 4 Municipal Utilities District watershed and the cities of Clayton, Pittsburgh and This entire unit occurs in Contra Costa lands. County. This unit is bordered to the Antioch to the north; open grassland north by State Highway 4 and the cities Unit 3 Hayward-Pleasanton Ridge Unit within Tassajara Valley just below the of Pinole, Hercules, and Martinez; to the Alameda/Contra Costa County line to south by State Highway 24 and the City Unit 3 encompasses approximately the south; the cities of Concord, Walnut of Orinda Village; to the west by 12,923 ha (32,011 ac) south of the Creek, and Danville to the west; and, to Interstate 80 and the cities of Berkeley, Oakland-Las Trampas unit and the east, by large expanses of grassland El Cerrito, and Richmond; and to the northwest of the Sunol-Cedar Mountain occurring west of State Highway 4, near east by Interstate 680 and the City of unit, and provides primary breeding, the cities of Oakley and Brentwood. Pleasant Hill. A substantial amount of feeding, and sheltering habitat for the This unit contains large expanses of public land exists within this unit, Alameda whipsnake. This unit occurs public lands, including two small including East Bay Regional Park solely in Alameda County and is Bureau of Land Management parcels; District’s Tilden, Wildcat, and Briones surrounded by Interstate Highway 580 Mount Diablo State Park; Contra Costa Regional Parks and East Bay Municipal to the north; Niles Canyon Road (State Water District’s Los Vaqueros Reservoir Utilities District watershed lands. Highway 84) to the south; the cities of watershed; and Contra Loma, Black Hayward and Union City to the west, Diamond Mines, Morgan Territory, and Unit 2 Oakland-Las Trampas Unit and Interstate Highway 680 and the City Round Valley Regional Parks, and other Unit 2 encompasses approximately of Pleasanton to the east. This unit is East Bay Regional Park District 21,869 ha (54,170 ac) south of the bisected by Palomares Canyon Road, holdings. Other public lands include Tilden-Briones unit and north of the which runs from Interstate Highway 580 lands owned by the City of Walnut Hayward-Pleasanton Ridge unit, and to Niles Canyon Road. Greater than 30 Creek. Two large, privately owned provides primary breeding, feeding, and percent of this unit is in public gravel quarries occur within this unit. sheltering habitat for the Alameda ownership, including Garin, Dry Creek, whipsnake. This unit is split evenly and Pleasanton Ridge Regional Parks Unit 5 Sunol-Cedar Mountain Unit between Alameda and Contra Costa and other East Bay Regional Park Unit 5 encompasses approximately Counties. This unit is surrounded to the District holdings. The privately owned 69,168 ha (171,328 ac) and is the largest north by State Highway 24 and the cities Pleasanton Ridge Conservation Bank and the southernmost of the seven of Orinda, Moraga, and Lafayette; to the also occurs in the northeastern section critical habitat units. It provides south by Interstate Highway 580 and the of this unit. primary breeding, feeding, and

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 58938 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations sheltering habitat for the Alameda Effects of Critical Habitat Designation Regulations at 50 CFR 402.16 require whipsnake. A majority of this unit is in Federal agencies to reinitiate Section 7 Consultation Alameda County; however, it does also consultation on previously reviewed extend into western San Joaquin and Section 7(a) of the Act requires actions in instances where critical northern Santa Clara Counties. The Federal agencies, including the Service, habitat is subsequently designated and northern boundary of this unit runs to ensure that actions they fund, the Federal agency has retained parallel to State Highway 84 and Corral authorize, or carry out do not destroy or discretionary involvement or control Hollow Road, south of the cities of adversely modify critical habitat to the over the action or such discretionary Pleasanton and Livermore and Tesla extent that the action appreciably involvement or control is authorized by Road. The southern boundary lies below diminishes the value of the critical law. Consequently, some Federal Calaveras Reservoir and captures all of habitat for the survival and recovery of agencies may request reinitiation with Wauhab and Cedar Ridges in Santa the species. Individuals, organizations, us on actions for which formal Clara County and stretches to the east, States, local governments, and other consultation has been completed if north of the Alameda-San Joaquin-Santa non-Federal entities are affected by the those actions may affect designated Clara-Stanislaus County intersection. designation of critical habitat only if critical habitat. The western boundary lies east of their actions occur on Federal lands, Activities on Federal lands that may Interstate Highway 680 and the greater require a Federal permit, license, or affect the Alameda whipsnake or its San Jose urban areas. The eastern other authorization, or involve Federal critical habitat will require section 7 boundary lies within San Joaquin funding. consultation. Activities on private or State lands requiring a permit from a County a few miles east of the Alameda Section 7(a) of the Act requires Federal agency, such as a permit from County line. This unit includes East Bay Federal agencies, to evaluate their the U.S. Army Corps of Engineers (Army Regional Park District’s Sunol, Mission actions with respect to any species that Corps) under section 404 of the Clean Peak, Ohlone, Camp Ohlone, and Del is proposed or listed as endangered or Water Act, or some other Federal action, Valle complex, and State Water Project’s threatened and with respect to its including funding (e.g., Federal Del Valle Reservoir watershed. In critical habitat, if any is designated. Regulations implementing this Highway Administration, Federal addition, the Department of Energy’s Aviation Administration, or Federal Site 300 and California Department of interagency cooperation provision of the Act are codified at 50 CFR part 402. If Emergency Management Agency) will Parks and Recreation’s Carnegie also continue to be subject to the section a species is listed or critical habitat is Recreation Area occur within the unit. 7 consultation process. Federal actions designated, section 7(a)(2) requires not affecting listed species or critical Unit 6 Caldecott Tunnel Unit Federal agencies to ensure that actions habitat and actions on non-Federal they authorize, fund, or carry out are not Unit 6 encompasses approximately lands that are not federally funded or likely to jeopardize the continued 2,185 ha (5,412 ac) and occurs between regulated do not require section 7 existence of such a species or to destroy units 1 and 2 where State Highway 24 consultation. or adversely modify its critical habitat. tunnels under the Berkeley Hills for Section 4(b)(8) of the Act requires us If a Federal action may affect a listed approximately 1.2 kilometers (4,000 to describe in any proposed or final species or its critical habitat, the feet). It provides a connector between regulation that designates critical responsible Federal agency (action units 1 and 2. This unit is in Alameda habitat those activities involving a agency) must enter into consultation and Contra Costa Counties. This unit Federal action that may destroy or with us. Through this consultation, adversely modify such habitat or that encompasses lands owned by East Bay Federal agencies ensure that their Municipal Utilities District, East Bay may be affected by such designation. actions do not destroy or adversely Activities that may destroy or adversely Regional Park District, Lawrence modify critical habitat. Berkeley Laboratory, the Cities of modify critical habitat include those When we issue a biological opinion Berkeley and Oakland, and some private that alter the primary constituent concluding that a project is likely to holdings. elements to the extent that the value of result in the destruction or adverse critical habitat for both the survival and Unit 7 Niles Canyon/Sunol Unit modification of critical habitat, we also recovery of the Alameda whipsnake is provide reasonable and prudent appreciably diminished. We note that Unit 7 encompasses approximately alternatives to the project, if any are such activities may also jeopardize the 1,673 ha (4,145 ac) and occurs between identifiable. Reasonable and prudent continued existence of the species. units 3 and 5 and lies south of State alternatives are defined at 50 CFR Where they appreciably reduce the Highway 84 (Niles Canyon Road); north 402.02 as alternative actions identified value of critical habitat, such activities and west of Interstate 680; and east of during consultation that can be may include, but are not limited to: the City of Fremont. It provides a implemented in a manner consistent (1) Removing, thinning, or destroying connector between units 3 and 5. This with the intended purpose of the action, vegetation, whether by burning or unit is solely in Alameda County. This that are consistent with the scope of the mechanical, chemical, or other means unit includes East Bay Regional Park Federal agency’s legal authority and (e.g., fuels management, bulldozing, District’s Vargas Plateau and San jurisdiction, that are economically and herbicide application, overgrazing, etc.) Francisco Public Utilities watershed technologically feasible, and that the that have not been approved by the lands. Impediments to whipsnake Director believes would avoid Service, exclusive of routine clearing of movement between units 3 and 7 destruction or adverse modification of fuel breaks around urban boundaries include Alameda Creek, a 0.3–0.6-meter critical habitat. Reasonable and prudent that were constructed before the listing (12–24-inch) high concrete barrier that alternatives can vary from slight project of the whipsnake on December 5, 1997; lies south of Niles Canyon Road and modifications to extensive redesign or (2) Water transfers, diversion, or north of Alameda Creek, railroad tracks relocation of the project. Costs impoundment, groundwater pumping, that run along both sides of Alameda associated with implementing a irrigation, or other activity that causes Creek, and heavy vehicular traffic along reasonable and prudent alternative are barriers or deterrents to dispersal, Niles Canyon Road. similarly variable. inundates habitat, or significantly

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58939 converts habitat (e.g., conversion to Designation of critical habitat could adverse modification of critical habitat urban development, vineyards, affect Federal agency activities where designated for the Alameda whipsnake. landscaping); they appreciably reduce the value of In the event that future HCPs covering (3) Recreational activities that critical habitat. Some of these activities the Alameda whipsnake are developed significantly deter the use of suitable include, but are not limited to: within the boundaries of designated habitat areas by Alameda whipsnakes or (1) Sale, exchange, or lease of lands critical habitat, we will work with alter habitat through associated owned by the Bureau of Land applicants to ensure that the HCPs maintenance activities (e.g., off-road Management or the Department of provide for protection and management vehicle parks, golf courses, and hiking, Energy; of habitat areas essential for the mountain biking, and horseback riding (2) Regulation of activities affecting conservation of the Alameda whipsnake trails); waters of the United States by the Army by either directing development and (4) Sale, exchange, or lease of Federal Corps of Engineers under section 404 of habitat modification to nonessential land containing suitable habitat that is the Clean Water Act; areas or appropriately modifying likely to result in the habitat being (3) Regulation of water flows, water activities within essential habitat areas destroyed or appreciably degraded; and delivery, damming, diversion, and so that such activities will not adversely (5) Construction activities that destroy channelization by the Bureau of modify the primary constituent or appreciably degrade suitable habitat Reclamation and the Army Corps of elements. The HCP development (e.g., urban development, building of Engineers; process provides an opportunity for recreational facilities such as off-road (4) Regulation of grazing, recreation, more intensive data collection and vehicle parks and golf courses, road or mining by the Bureau of Land analysis regarding the use of particular building, drilling, mining, quarrying, Management; habitat areas by the Alameda and associated reclamation activities). whipsnake. The process also enables us To properly portray the effects of (5) Funding and implementation of disaster relief projects by the Federal to conduct detailed evaluations of the critical habitat designation, we must importance of such lands to the long- Emergency Management Agency; first compare the section 7 requirements term survival of the species in the (6) Funding and regulation of new for actions that may affect critical context of constructing a biologically road construction by the Federal habitat with the requirements for configured system of interlinked habitat Highways Administration; actions that may affect a listed species. blocks. Section 7 prohibits actions funded, (7) Clearing of vegetation by the We will provide technical assistance authorized, or carried out by Federal Department of Energy; and work closely with applicants agencies from jeopardizing the (8) The cleanup of toxic waste and throughout the development of future continued existence of a listed species superfund sites under the Resource HCPs to identify lands essential for the or destroying or adversely modifying the Conservation and Recovery Act (RCRA) long-term conservation of the Alameda listed species’ critical habitat. Actions and the Comprehensive Environmental whipsnake and appropriate likely to ‘‘jeopardize the continued Response, Compensation, and Liability management for those lands. The take existence’’ of a species are those that Act (CERCLA) by the U.S. minimization and mitigation measures would appreciably reduce the Environmental Protection Agency; and provided under these HCPs are expected likelihood of the species’ survival and Relationship to Incidental Take Permits to protect the essential habitat lands recovery. Actions likely to ‘‘destroy or Issued Under Section 10 designated as critical habitat in this adversely modify’’ critical habitat are rule. those that would appreciably reduce the There are no approved HCPs within value of critical habitat for the survival the designated critical habitat area. Summary of Comments and and recovery of the listed species. However, future HCPs are probable. Recommendations Common to both definitions is an We anticipate that future HCPs will In the March 8, 2000, proposed rule, appreciable detrimental effect on both include the Alameda whipsnake as a all interested parties were requested to survival and recovery of a listed species. covered species and provide for its long- submit comments and suggestions Given the similarity of these definitions, term conservation. We expect that HCPs relative to the proposed designation of actions likely to destroy or adversely undertaken by local jurisdictions (e.g., critical habitat for the Alameda modify critical habitat would almost counties and cities) and other parties whipsnake, including our economic always result in jeopardy to the species will identify, protect, and provide analysis and the relationship of the concerned, particularly when the area of appropriate management for those designation to future HCP’s (65 FR the proposed action is in the specific lands within the boundaries of 12155). On May 15, 2000, we published geographical areas occupied by the the plans that are essential for the long- a notice in the Federal Register (65 FR species concerned. In those cases, term conservation of the species. 30951) to reopen the comment period critical habitat provides little additional Section 10(a)(1)(B) of the Act states that and announce a public hearing on the protection to a species, and the HCPs must meet issuance criteria, proposed determination. We published ramifications of its designation are few. including minimizing and mitigating a notice of availability and request for However, if an area now occupied by any take of the listed species covered by comments on the draft economic the species were to become unoccupied the permit to the maximum extent analysis on June 23, 2000 (65 FR 39117), in the future, critical habitat designation practicable, and that the taking must not and subsequently, extended the may provide additional protection than appreciably reduce the likelihood of the comment periods for the proposed is available through a jeopardy analysis. survival and recovery of the species in designation of critical habitat and the If you have questions regarding the wild. We fully expect that our future draft economic analysis to July 24, 2000. whether specific activities will analysis of HCPs and Section 10(a)(1)(B) Comments received from March 8 constitute destruction or adverse permits under section 7 will show that through July 24, 2000, were entered into modification of critical habitat, contact covered activities carried out in the administrative record. the Field Supervisor, Sacramento Fish accordance with the provisions of the All appropriate State and Federal and Wildlife Office (see ADDRESSES HCPs and Section 10(a)(1)(B) permits agencies, county governments, scientific section). will not result in the destruction or organizations, and other interested

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 58940 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations parties were contacted and invited to habitat and areas that reported negative Service Response: The Service comment. Legal notices inviting public Alameda whipsnake survey results. reviewed the information prepared by comment were published in the Response: Section 4(b)(2) of the Act the Alameda-Contra Costa Biodiversity Oakland Tribune. In addition, the states ‘‘The Secretary shall designate Working Group. The working group following news releases were issued: (1) critical habitat, and make revisions used the Alameda whipsnake as an a March 8, 2000, news release thereto, under subsection (a)(3) on the umbrella species for chaparral and announcing the proposed designation of basis of the best scientific data coastal scrub habitats. The working critical habitat and soliciting public available.’’ Our recommendation is group did not define any other habitats, review and comment; (2) a May 15, based on the available body of including grasslands, woodlands, or 2000, news release announcing public information on the biology and status of riparian areas, as potential whipsnake hearings; and (3) a June 23, 2000, news this subspecies, as well as the effects of habitat. These habitat types were release announcing the availability of land-use practices on its continued mapped using false-color infrared color the draft economic analysis to the existence. We also utilized information aerial photographs and subsequently public for review and comment and the on related species, including the mapped on 7.5-minute extension of the comment period. chaparral whipsnake, if information on orthophotographs. As explained under We held one public hearing on the the Alameda whipsnake was lacking. No the ‘‘Methods’’ section above, the proposed rule at San Ramon, Contra new information on the life history of Service used a similar approach for Costa County, California, on June 1, the whipsnake was provided during the mapping critical habitat for the Alameda 2000. A notice of the hearing and its public comment periods. We agree that whipsnake. However, in addition to location was published in the Federal much remains to be learned about this chaparral and coastal scrub habitats, the Register on May 15, 2000 (65 FR 30951). species, and should credible, new Service defined whipsnake habitat to A total of 45 people provided verbal information become available that include grassland, oak woodland, and comments at the public hearing. contradicts the basis for this riparian habitats that lie adjacent to and Transcripts of this hearings are available designation, we shall reevaluate our provide corridors between areas of scrub for inspection at the Sacramento Fish analysis and, if appropriate, propose to and chaparral habitat. Native grassland, and Wildlife Office (see ADDRESSES modify this critical habitat designation. oak woodland, and riparian habitats that section). We have considered the best scientific lie adjacent to chaparral and scrub We received a total of 45 oral and 551 information available at this time, as habitats provide important feeding, written comments during the comment required by the Act. breeding, and sheltering sites. In addition, these habitat types facilitate period. Of those oral comments, 14 In selecting areas to be included in movement of whipsnakes between scrub supported critical habitat designation, the designation, we identified the and chaparral habitat areas to ensure 23 were opposed to designation, and 7 historic range of the whipsnake, as well adequate dispersal and gene flow provided additional information but did as important components related to between subpopulations. not support or oppose the proposal. Of survival and recovery, including areas (1c) Comment: Many local fire the written comments, 456 supported that provide sufficient breeding, prevention agencies commented that designation, 72 were opposed to it, and feeding, and sheltering, as well as ongoing fuel reduction and modification 23 provided additional information providing adequate movement corridors that occurred before the Alameda only, or were nonsubstantive or not to maintain genetic connectivity and whipsnake was formally listed on relevant to the proposed designation. In adequate space for population December 5, 1997, should be exempt total, oral and written comments were fluctuations. Because of the nature of from this rulemaking, including the received from 5 Federal agencies, 5 the whipsnake (fast, secretive, mobile, Lafayette Reservoir watershed. In State agencies, 11 local governments, burrow dwelling, with periods of addition, these agencies requested that and 532 private organizations, hibernation) negative whipsnake survey fire prevention techniques such as companies, or individuals. results may not provide sufficient prescribed burning and ongoing All comments received were reviewed evidence that the site is not used by vegetative clearing should be permitted for substantive issues and new data Alameda whipsnakes during some point when there is a threat to human health regarding critical habitat and the in their life cycle. In addition, and property. Mount Diablo State Park Alameda whipsnake. Comments of a whipsnake surveys do not characterize specifically requested that the similar nature are grouped into 6 issues whether the site provides one or all of designation of critical habitat not relating specifically to critical habitat. the primary constituent elements preclude the use of prescribed fire to These are addressed in the following needed by the whipsnake for survival improve the biological health of the summary. and recovery. Because the primary vegetative community and reduce the constituent elements are linked to risk of a catastrophic wildfire. Issue 1: Biological and Physical various stages of the whipsnake’s life Concerns Service Response: As stated in the history (breeding, dispersal) or to ‘‘Section 7 Consultation’’ section above, (1a) Comment: One commenter stated certain physiological requirements routine clearing of fuel breaks around that not enough information is known (temperature regulation for foraging), urban boundaries that were constructed about the total habitat requirements of and the whipsnake would not before the listing of the whipsnake on the species to define critical habitat. necessarily be engaged in all these December 5, 1997, including the Layette One additional commenter stated that activities concurrently, not all elements Reservoir Watershed, would not be Unit 5 was far too large and not based need be present for the site to be affected by this designation. In addition, on the best available scientific evidence. considered for designation. the designation of critical habitat for the Several commenters questioned the (1b) Comment: A few commenters Alameda whipsnake will have no effect scientific basis for designating specific stated that the Service neglected to on activities that occur on private areas as critical habitat and include species information and habitat property unless the activity is federally recommended excluding areas that did data that was developed by the funded or requires a Federal permit. For not provide all of the primary Alameda-Contra Costa Biodiversity projects that receive Federal (i.e. Federal constituent elements for whipsnake Working Group. Emergency Management Agency

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(FEMA)) funding, the Service is actively critical habitat unit and are best the western section of unit 5 because of working with the Federal agency and addressed in recovery plans, the lack of information regarding the the local representative to ensure that management plans, and section 7 zones of intergradation between untimely delays in project consultations. federally-listed Alameda whipsnake and implementation do not occur. The (1f) Comment: Many commenters the non-listed chaparral whipsnake. Service agrees that Mount Diablo State were concerned about how designation Service Response: A live-trapping Park’s concerns regarding their of critical habitat would affect grazing survey for the Alameda whipsnake was prescribed burn program are significant. and recreation activities including conducted within the eastern section of The designation of critical habitat will biking, hiking, and horseback riding. unit 5 on the Department of Energy’s not require any additional restrictions Service Response: Designation of Lawrence Livermore Lab’s Site 300 in for carrying out prescribed burn projects critical habitat does not prescribe 1998. During that survey, 14 individual above and beyond the restrictions specific management actions, but does California whipsnakes were captured, currently in effect due to the listing of identify areas that are in need of special one of which had more taxonomic the Alameda whipsnake as a threatened management considerations. In regards characteristics of the Alameda species. Furthermore, the Service will to grazing, the Service does not foresee whipsnake than the chaparral assist Mount Diablo State Park staff with any change in the ability of private whipsnake. The Service also has records the development of a Habitat landowners to graze their property. In of pure Alameda whipsnake Conservation Plan, or any other addition, we anticipate that many occurrences that occur throughout unit measures required so the Park can activities, including grazing and 5, including two occurrences that lie continue vegetation enhancement recreational trail use, presently just north of Calavaras Reservoir, within measures such as prescribed burn occurring on critical habitat areas can be 10 miles of the western boundary of unit projects. managed so as to be compatible with the 5. (1d) Comment: Several commenters whipsnake’s needs. (1j) Comment: One of the peer review stated that the maps supplied with the (1g) Comment: One commenter asked commenters stated that zone of proposed rule designating critical whether existing utility features and the intergradation between the Alameda habitat did not exclude existing maintenance of these features are whipsnake and the chaparral whipsnake infrastructure including housing covered under the definition of critical occurs in the Del Puerto Canyon and developments, reservoirs, and other habitat for the Alameda whipsnake. San Antonio Valley areas of San manmade features that are not suitable Service Response: Yes, however, the Joaquin, Santa Clara, and Stanislaus habitat for the Alameda whipsnake. designation of critical habitat will not Counties. He suggested that critical Service Response: As stated in the require any additional restrictions for habitat be extended south and southeast ‘Methods’ section above, given the short carrying out maintenance projects above of Unit 5 to encompasses additional period of time in which we were and beyond the restrictions currently in areas within western San Joaquin and required to complete this rule, and the effect due to the listing of the Alameda Stanislaus Counties and northern Santa lack of fine-scale mapping data, we were whipsnake as a threatened species. Clara County to capture this zone of unable to map critical habitat in Furthermore, the Service will assist intergradation. sufficient detail to exclude all such utility companies with the development Service Response: The Service will areas. Existing features and structures of a Habitat Conservation Plan or any investigate these areas of intergradation within the critical habitat boundary, other measures required so that to determine their extent and their such as buildings, roads, canals, maintenance projects can continue. relationship to the Alameda whipsnake railroads, large water bodies, and other (1h) Comment: One commenter was population that occurs in Unit 5. Based features not currently containing or concerned that, given the extensive on this investigation, we will decide likely to develop these habitat amount of land designated as critical whether critical habitat in unit 5 should components, will not contain one or habitat, the Service might not require be extended further south and southeast more of the primary constituent surveys for whipsnake presence, to include the Del Puerto Canyon and elements. eliminating a source for locality San Antonia Valley areas. (1e) Comment: Several commenters information. (1k) Comment: One commenter stated that activities such as recreational Service Response: The Service does claimed that the proposed rule is biking, hiking, horseback riding, and not foresee a decrease in the number of internally inconsistent as it states that off-road highway vehicle use were future Alameda whipsnake surveys. critical habitat was proposed on land unfairly placed in the same category of Future Alameda whipsnake surveys that is occupied by the Alameda impacts with more significant threats to may be conducted to determine the whipsnake, while it appears that the species including urban relative abundance of Alameda unoccupied habitat has been proposed development and golf course whipsnakes at specific sites and to for designation. construction and use. determine appropriate minimization Service Response: A range-wide Service Response: In the proposed measures. In addition, the draft recovery survey has not been conducted for this rule and here in the final rule, we list plan will identify the need to conduct species. As described in ‘Methods’ activities that could adversely modify surveys in association with a variety of above, we used data on known Alameda critical habitat without placing specific recovery tasks. whipsnake locations to initially identify emphasis on the relative contribution of (1i) Comment: A few commenters important areas. We have also made the any one activity. The use of existing stated that the Service incorrectly reasonable assumption that areas trails for recreational hiking, biking, and proposed critical habitat in the eastern adjacent to these locations are also horseback riding do not pose the same section of unit 5 because there are no within the geographical area occupied level of threats to the species as the verified Alameda whipsnake records in by the species based on the suitability construction and use of new trails that the area. Additional commenters stated of the habitat. In addition, knowledge of modify critical habitat for the there are no known Alameda whipsnake the species biology and the need for whipsnake. The specific threats that occurrences throughout unit 5. Also, genetic connectivity to assure species result from the construction and use of one commenter stated the Service persistence directs the inclusion of new trails are likely unique to each should not designate critical habitat in movement corridors where possible.

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The Service, therefore, maintains that throughout the current range of the provide the whipsnake the protection all seven critical habitat units are species. The loss of all remaining afforded by the Act on both public and geographical areas occupied by the private lands that provide suitable private lands. Critical habitat has Alameda whipsnake. habitat for the whipsnake would further possible effects on activities by private fragment the five whipsnake landowners only if the activity involves Issue 2: General Selection of Designated populations and result in significant Federal funding, a Federal permit, or Critical Habitat Areas losses of breeding, feeding, and other Federal action. If such a Federal (2a) Comment: Several commenters sheltering habitats, as well as the nexus exists, we will work with the stated that private lands should be connectivity corridors. The Service landowner and the appropriate Federal excluded from critical habitat believes that both public and private agency to develop a project that can be designation. These commenters stated lands are essential to the survival and completed without jeopardizing the that the publication of maps with recovery of the species. The critical species or destroying or adversely threatened or endangered species habitat designation, therefore, includes modifying critical habitat. In this case, locations overlaid upon private land both private and public lands. reclamation activities upon facilities could subject private property owners to closure may require Federal funding, a increased exposure to litigation, Issue 3: Comments on Selection of Specific Sites Federal permit, or other Federal action. liability, trespass, or other activities that (3d) Several commenters pointed out could interfere with privacy, and with (3a) Comment: Several commenters errors in locations or descriptions in the the lawful beneficial uses of the expressed concern with the lack of proposed rule. property. connectivity between individual units, Service Response: Corrections have Service Response: Section 4(b)(2) of especially between units 2 and 3. been made in the final rule to reflect the Act states ‘‘The Secretary shall Service Response: The Service agrees these comments, where appropriate. designate critical habitat, and make that there is currently limited potential revisions thereto, under subsection for movement between these two units. Issue 4: Legal and Procedural Comments (a)(3) on the basis of the best scientific However, through recovery efforts, the (4a) Comment: Several commenters data available and after taking into Service proposes to research ways to stated that the proposed critical habitat consideration the economic impact, and promote connectivity and to determine designation is based on insufficient data any other relevant impact, of specifying the level of connectivity needed to and the Service should withdraw its any particular area as critical habitat.’’ prevent genetic bottlenecking. The proposal given the limited amount of The Act does not require nor suggest Alameda whipsnake populations that time it had to adequately map that private lands should be excluded occupy units 2 and 3 are the most whipsnake critical habitat. from designation, unless we find that threatened with extinction due to their Service Response: As explained in the economic or other relevant impacts small sizes and the continued 1(a) above, Section 4(b)(2) of the Act outweigh the benefit of critical habitat encroachment of urban development states ‘‘The Secretary shall designate designation. that is further fragmenting these critical habitat, and make revisions (2b) Comment: Several commenters populations and directly removing thereto, under subsection (a)(3) on the recommended excluding from suitable whipsnake habitat. The Service basis of the best scientific data available designation as critical habitat areas agrees with the commenters that all . . .’’. At this time, the Service has used where there were plans being future opportunities for reconnecting the best available data to formulate the formulated to construct urban these two populations with each other designation. improvements within or in proximity to and with other whipsnake populations (4b) Comment: Several commenters the areas proposed as critical habitat. should be explored to ensure recovery stated the designation of critical habitat Service Response: We did not exclude of the species. For example, there may constitutes a major Federal action any areas because of speculative or be opportunities for reestablishing significantly affecting the quality of the proposed developments. We are connectivity between units 2 and 3 human environment. An Environmental available to work with project associated with any alterations of Impact Statement (EIS) should be proponents to develop project Interstate 580. prepared. alternatives that will avoid and (3b) Comment: A few commenters Service Response: We have minimize adverse effects to whipsnakes, wanted clarification as to whether their determined that Environmental and not result in destruction or adverse properties were included in the Assessments (EAs) and EISs, as defined modification of critical habitat. proposed critical habitat designation. under the authority of the National (2c) Comment: One commenter stated Service Response: Service staff Environmental Policy Act of 1969 that, given the fact that 60 percent of the discussed with the landowners their (NEPA), need not be prepared in known range of the Alameda whipsnake properties’ relationship to the critical connection with regulations adopted occurs in public ownership, the loss of habitat designation. pursuant to section 4(a) of the Act. We the 40 percent that is held in private (3c) Comment: One commenter was published a notice outlining our reasons ownership would not lead to the demise concerned that the designation of for this determination in the Federal of the snake. Therefore, private lands critical habitat would prevent the Register in October 1983 (48 FR 49244). should not be included as critical extraction and processing of aggregate (4c) Comment: Several commenters habitat. materials at four separate facilities that stated the maps and descriptions Service Response: The range of the occur within the critical habitat provided were vague and violate the Alameda whipsnake has been boundaries. Act. fragmented by urban development and Service Response: The designation of Service Response: This final rule associated roadway construction. What critical habitat has no effect on non- contains the required legal descriptions remains are five distinct populations Federal actions taken on private land, of areas designated as critical habitat. If that continue to suffer significant even if the private land is within the additional clarification is necessary, habitat loss due to urban encroachment mapped boundary of designated critical contact the Sacramento Fish and and related activities. Public and private habitat. The listing of the Alameda Wildlife Office (see ADDRESSES section). lands are randomly distributed whipsnake as threatened, however, does As described under the ‘‘Critical Habitat

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Designation’’ section above, we consultation if the project may destroy regarding the issuance of HCP’s within identified specific areas referenced by or adversely modify critical habitat. the critical habitat boundary. Although specific legal description, roads, (4g) Comment: Several commenters there are no authorized or completed waterways, and other landmarks, which asked whether it is prudent to designate HCP’s that occur within the boundary of are found on standard topographic private land as critical habitat when Alameda whipsnake critical habitat maps. there is no Federal nexus. designation, future HCPs are probable. (4d) Comment: The critical habitat Service Response: As stated under the If, consistent with available funding and proposal represents virtually all suitable ‘‘Critical Habitat’’ section above, program priorities, we elect to revise or potentially suitable habitat within the designation of critical habitat can help this designation to reflect future HCPs, species’ historic range. The Act focus conservation activities for a listed our Solicitors have advised that prohibits such broad designation. species by identifying areas that contain modifying the designation will require a Service Response: Section 3(5)(C) of the physical and biological features that subsequent rulemaking. are essential for conservation of that the Act states that, except in those Issue 6: Economic Issues circumstances determined by the species. Designation of critical habitat Secretary, critical habitat shall not alerts the public as well as land- (6a) Comment: Many commenters include the entire geographical areas management agencies to the importance expressed concern that the draft which can be occupied by an of these areas. economic analysis failed to quantify the endangered or threatened species. The (4h) Comment: One commenter stated effects of proposed critical habitat Alameda whipsnake population has that the Service lacks the authority designation. Service Response: Given the been fragmented into five distinct under the Commerce Clause of the circumstances surrounding the populations from urban development Constitution to designate critical habitat preparation of the draft economic and associated highway construction. on State and private land for a species analysis, we were only able to identify The loss of any one of these five that has no commercial utility. Service Response: The Service the types of impacts likely to occur populations could lead to the extinction regarding proposed critical habitat of the entire species. Therefore, we have maintains that it does have the authority to designate critical habitat for the designation. Impacts we identified that determined that the areas designated are could result from critical habitat essential to conserve this species. Alameda whipsnake on private and State lands pursuant to the Act. Several designation include new section 7 (4e) Comment: Several commenters court cases have confirmed this consultations, re-initiation of asked whether projects that have authority (e.g., Nat. Ass’n of Home consultations, and perhaps some obtained a biological opinion pursuant Builders of the U.S. v. Babbitt, 130 F.3d prolongment of ongoing consultations to to section 7 of the Act would be 1041 (D.C. Cir. 1997). address critical habitat concerns, as required to reinitiate consultation to (4i) Comment: Several commenters required under section 7 of the Act. In address the designation of critical stated that critical habitat should not be some of these cases, it is possible that habitat. designated until a recovery plan is we might suggest reasonable and Service Response: For all projects that completed. prudent alternatives to the proposed have completed section 7 consultation Service Response: Although having a activity that triggered the consultation, where that consultation did not address recovery plan in place is extremely which would also be an impact. Also potential destruction or adverse helpful in identifying areas as critical associated with consultations is the modification of critical habitat for the habitat, the Act does not require a length of time required to carry out Alameda whipsnake, and have not been recovery plan to be prepared prior to consultations, which may result in constructed, section 7 consultation must such designation of critical habitat. opportunity costs associated with be reinitiated. We expect that projects Section 4(a)(3) of the Act specifically project delays. that do not jeopardize the continued requires that critical habitat be In the case of proposed critical habitat existence of the Alameda whipsnake are designated at the time a species is listed, for the Alameda whipsnake, however, not likely to destroy or adversely modify or within 1 year if not determinable at we have only designated habitat that is its critical habitat. listing. Once a recovery plan is within the geographical areas occupied (4f) Comment: Several commenters finalized, we may revise the critical by the whipsnake. As a result, few of have asked what specifically constitutes habitat described in this final rule, if these impacts are likely to occur a federal nexus on private land. appropriate, to reflect the goals and because Federal agencies are already Service response: A Federal nexus is recovery strategies of the recovery plan. required to consult with us on activities invoked when a Federal agency is taking place on these lands that have the funding, permitting, or in some way Issue 5: The incorporation of Habitat potential to may adversely affect the authorizing a project. For the purposes Conservation Plans (HCPs) Into the whipsnake. We believe that the only of this rulemaking, a Federal nexus that Critical Habitat Designation impacts to landowners whose property was invoked prior to the rulemaking for Comment: In response to the Service’s lies within critical habitat boundaries a project that has been constructed or request that the public comment on are due to reinitiation of completed completed, would not require a section critical habitat designation relative to consultations for projects not yet 7 consultation under the Act. If the future HCP’s, 2 commenters support the completed, and the designations project has not to date received Federal approach that critical habitat be temporary affect on real estate values. funding, a Federal permit, or Federal removed entirely from within the While the Act requires agencies to authorization, but will require such in boundaries of HCP’s automatically upon consult with us on activities that the future, and the project might destroy the issuance of the incidental take adversely modify critical habitat, we do or adversely modify critical habitat, the permit. One commenter stated that not believe that within proposed critical action would require a section 7 critical habitat should be retained habitat for the Alameda whipsnake consultation. In addition, projects that within the boundaries of approved there are likely to be any actions of have been federally funded, permitted, HCP’s. concern that adversely modify critical or authorized, but have not been fully Service Response: The Service has habitat without also jeopardizing the constructed would require a section 7 considered several different approaches whipsnake.

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We also recognize that, in some are due to reinitiation of completed exclude developed lands from proposed instances, the designation of critical consultations for projects not yet critical habitat designation when habitat could affect real estate market completed, and the designations possible. In selecting areas of proposed value, because participants may temporary affect on real estate values. critical habitat, we attempted to avoid incorrectly perceive that land within (6d) Comment: Several commenters developed areas such as towns, critical habitat designation to be subject voiced concern that, while their intensive agricultural areas such as to additional constraints. However, we property was within proposed critical vineyards, and other lands unlikely to believe that this affect will be habitat boundaries, they have never contribute to the Alameda whipsnake temporary. found any whipsnakes on their conservation. While we have been (6b) Comment: Some commenters property, and that in many cases their unable to avoid all such areas, actions were concerned that, while we property did not contain the physical limited to these areas will not require discussed impacts that are more elements described in the proposed rule consultations. appropriately attributable to the listing that are required by the whipsnake. (6g) Comment: Many landowners of the Alameda whipsnake than to the Service Response: We recognize that expressed concern about how critical proposed designation of critical habitat, not all parcels within proposed critical habitat designation may affect their we did not provide quantified estimates habitat designation will contain the particular properties and what they associated with the listing (62 FR primary constituent elements needed by would and would not be allowed to do 64306). the whipsnake. Given the short period in the future because of the designation. Service Response: We are prohibited of time in which we were required to Some of these landowners expressed from considering economic impacts complete this proposed rule, and the concerns that they would need to seek when determining whether or not a lack of fine scale mapping data, we were incidental take authorization from the species should be added to the list of unable to map critical habitat in Service for every type of action taken on Federally protected species. As a result, sufficient detail to exclude all such their property. we have not estimated these impacts in areas. Within the proposed critical Service Response: While the Service the past, nor were we able to do so for habitat boundaries, only areas that is sensitive to the concerns of the draft economic analysis on proposed contain or are likely to develop those individuals concerning their property critical habitat. habitat components essential for the rights, we believe that the designation of (6c) Comment: Several commenters primary biological needs of the Alameda critical habitat, for the Alameda voiced concern that they were not whipsnake may be subject to section 7 whipsnake does not impose any directly contacted for their opinions on consultation should a Federal nexus additional conditions on property the economic impacts of critical habitat exist in those areas. Activities that do owners within those areas designated as designation. not involve a Federal nexus would not critical habitat, beyond those imposed Service Response: It was not feasible require section 7 consultation, even if due to the Alameda whipsnake being a to contact every potential stakeholder in primary constituent elements are Federally protected species. All order for us to develop a draft economic present. landowners are responsible to ensure analysis. We believe that we were able (6e) Comment: Some commenters felt that their actions do not result in the to understand the issues of concern to that the economic analysis is flawed unauthorized take of a listed species, the local community based on public because it is based on the premise that and all Federal agencies are responsible comments submitted on the proposed the Service has proposed designating to ensure that the actions they fund, rule, on transcripts from public only occupied habitat as critical habitat. permit, or carry out do not result in hearings, and from detailed discussions Service Response: The determination jeopardizing the continued existence of with Service representatives. To clarify of whether or not proposed critical a listed species, regardless of where the issues, we did contact representatives habitat is occupied by the whipsnake activity takes place. We will work with from other Federal, State, and local lies beyond the scope of an economic any covered landowners to identify government agencies, as well as some analysis. See also our response to issue actions that would or would not likely landowners. 1(k), above. result in take of Alameda whipsnakes, In regard to consultations, the Act and (6f) Comment: Critical habitat to identify measures to conserve the its implementing regulations only designation is so broad that some whipsnake, and, where appropriate, to requires Federal agencies to consult landowners will be forced to survey for develop HCPs and associated permits with us on activities that they fund, whipsnake presence under Federal and under section 10 of the Act to authorize authorize, or carry out that may affect a State environmental laws when incidental take of the Alameda listed species or adversely modify undertaking a project, even though some whipsnake. critical habitat. As a result, only Federal sites within designated critical habitat (6h) Comment: The draft economic agency representatives are in a position do not contain whipsnakes or the analysis failed to adequately estimate to characterize whether or not any primary constituent elements needed by the potential economic impacts to additional or re-initiated consultations whipsnakes to occupy an area. In effect, agricultural lands and how these effects might occur as a result of critical habitat the Service has shifted the economic would ripple through the local designation. The Act prohibits anyone, burden of determining what lands are economy. including private landowners, from take occupied by the Alameda whipsnake Service Response: In conducting our of a listed species without Service within the designated units to economic analysis, we acknowledged authorization; however, the impacts landowners within these units, that we had received incomplete associated with this requirement are irrespective of whether the lands in information from the agricultural attributable to the listing of the species. question have ever been occupied by the industry and awaited their comments. Based on what we have learned and snake. We received several comments that because critical habitat was designated Service Response: We have suggested that we failed to adequately only in areas occupied by the determined that the geographical areas consider effects to the agricultural whipsnake, we believe that the only that have been identified as critical community of designating critical impacts to landowners whose property habitat are occupied by the Alameda habitat. We have read through these lies within critical habitat boundaries whipsnake. We have attempted to comments but have concluded that the

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However, because we of critical habitat could have some effect data available and to consider the have only designated geographical areas on property values. economic and other relevant impacts of that are occupied by the snake, Service Response: We acknowledged designating a particular area as critical landowners and associated action in our economic analysis that the habitat. We may exclude areas from agencies would still be required to designation of critical habitat could critical habitat upon a determination consult with us on such activities have some effect on property values. that the benefits of such exclusions regardless of critical habitat designation. Most of this effect, we believe, is short- outweigh the benefits of specifying such As a result, contrary to one term and occurs as a result of the areas as critical habitat. We cannot commenter’s suggestion, we chose not market’s uncertainty as to what critical exclude such areas from critical habitat when such exclusion will result in the to consider agriculture multiplier effects habitat designation requires. extinction of the species. in performing our economic analysis (6l) Comment: A commenter The economic effects already caused because our primary interest is in questioned whether habitat designation would provide the following benefits: by the listing of the Alameda whipsnake determining whether or not critical as threatened is the baseline upon habitat designation could affect (1) Preservation of a resource; (2) existence value; (3) enhancement of which we analyze the economic effects landowner activities. Because of how of critical habitat. The critical habitat critical habitat was defined and the scenic beauty; and (4) bequest value. Service Response: In some instances economic analysis examined the current restrictions on jeopardizing an the designation of critical habitat may incremental economic and conservation endangered or threatened species, we result in additional benefits associated effects of designating a particular area. have determined that we are not adding with the preservation of the species and The economic effects of a designation any additional burden to the industry its associated habitat. Economists have were evaluated by measuring changes in and as a result we do not find it traditionally recognized that such national, regional, or local indicators in necessary to fully explore the benefits can be broken down into the the area considered for designation. We importance of the agriculture industry, above categories. However, in the prepared an analysis of the economic to the local economy in the economic particular case of the designation of effects of the proposed Alameda analysis concerning proposed critical critical habitat for the Alameda whipsnake critical habitat designation habitat for the Alameda whipsnake. whipsnake, these additional benefits are in draft form and made the draft (6i) Comment: The draft economic unlikely to occur because the available for public review (June 23, analysis failed to adequately estimate designation of critical habitat does not 2000; 65 FR 39117). We concluded in the potential economic impacts to provide any additional protection to the the final analysis, which included landowners regarding fire management species beyond that provided by the review and incorporation of public practices. listing of the whipsnake as a Federally comments, that no economic impacts Service Response: The economic protected species. are expected from critical habitat analysis does address fire/fuel (6m) Comment: The San Francisco designation above and beyond that management concerns that were voiced Public Utilities Commission believes already imposed by listing the Alameda by some of the stakeholders. It raises the that designation of critical habitat will whipsnake. Potential economic effects concern that these programs are subject lead to additional costs as they will of critical habitat designation are to a clear Federal nexus because the need to determine presence/absence on limited to impacts on activities funded, practice relies in part on funding from new project areas. authorized, or carried out by a Federal the Federal Emergency Management Service Response: The Service does agency. These activities would be Agency (FEMA). However, because we not anticipate any additional subject to section 7 consultation if they have only designated geographical areas requirements beyond those required may affect critical habitat. However, by the species as critical habitat for the upon listing the Alameda whipsnake as activities that may affect an area whipsnake, this activity is subject to no threatened. considered for critical habitat usually further scrutiny by us than it normally affect listed species, and would thus would be because the whipsnake is a Summary of Changes From the already be subject to section 7 federally protected species and is Proposed Rule consultation. Also, changes or protected both from any actions Based on comments we received on minimizing measures that might resulting in an unlawful take and from the proposed rule, we made minor increase the cost of the project would be Federal actions that could result in modifications to the critical habitat imposed only as a result of critical jeopardizing the species. boundary to more adequately reflect the habitat if the project would adversely (6j) Comment: Some landowners existence of urban development modify or destroy that critical habitat. In expressed concern that, because their occurring along the periphery of the most cases, a project that would property was located within critical critical habitat boundary. Specifically, adversely modify or destroy critical habitat boundaries, they would be we made minor changes to the southern habitat would also likely jeopardize the subject to additional constraints under boundary of unit 4 to exclude two continued existence of the species. In the California Environmental Quality existing ranchettes that occur in the such a case, reasonable and prudent Act (CEQA). northern section of Tassajara Valley. In alternatives to avoid jeopardizing the

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TABLE 2.ÐIMPACTS OF ALAMEDA WHIPSNAKE LISTING AND CRITICAL HABITAT DESIGNATION

Additional Activities po- tentially af- Categories of activities Activities potentially affected by Species Listing Only 1 fected by critical habi- tat designa- tion 2

Federal Activities Potential Af- Activities such as removing, thinning, or destroying Alameda whipsnake habitat (as defined in None fected 3. the primary constituent elements discussion), whether by burning or mechanical, chemical, or other means (e.g. fuels management, bulldozing, herbicide application, grazing, etc.); water transfers, diversion, or impoundment, groundwater pumping, irrigation, or other activity that causes barriers or deterrents to dispersal, inundates habitat, or significantly converts habitat (e.g., conversion to urban development, vineyards, landscaping); recreational activi- ties that significantly deter the use of suitable habitat areas by Alameda whipsnakes or alter habitat through associated maintenance activities (e.g., off-road vehicle parks, golf courses, and hiking, mountain biking, and horseback riding trails); sale, exchange, or lease of Fed- eral land that contains suitable habitat that is likely to result in the habitat being destroyed or appreciably degraded; and construction activities that destroy or appreciably degrade suitable habitat (e.g., urban development, building of recreational facilities such as off-road vehicle parks and golf courses, road building, drilling, mining, quarrying and associated rec- lamation activities) that the Federal Government carries out.

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TABLE 2.ÐIMPACTS OF ALAMEDA WHIPSNAKE LISTING AND CRITICAL HABITAT DESIGNATIONÐContinued

Additional Activities po- tentially af- Categories of activities Activities potentially affected by Species Listing Only 1 fected by critical habi- tat designa- tion 2

Private and other non-Federal Activities such as removing, thinning, or destroying Alameda whipsnake habitat (as defined in None. Activities Potentially Affected 4. the primary constituent elements discussion), whether by burning or mechanical, chemical, or other means (e.g., fuels management, bulldozing, herbicide application, grazing, etc.); water transfers, diversion, or impoundment, groundwater pumping, irrigation, or other activity that causes barriers or deterrents to dispersal, inundates habitat, or significantly converts habitat (e.g., conversion to urban development, vineyards, landscaping, etc.); recreational activities that significantly deter the use of suitable habitat areas by Alameda whipsnakes or alter habitat through associated maintenance activities (e.g., off-road vehicle parks, golf courses, and hiking, mountain biking, and horseback riding trails); and construction activities that destroy or appreciably degrade suitable habitat (e.g., urban development, building of recreational facilities such as off-road vehicle parks and golf courses, road building, drilling, mining, quarrying and associated reclamation activities) that require a Federal action (per- mit, authorization, or funding). 1 This column represents the activities potentially affected by listing the Alameda whipsnake as a threatened species (December 5, 1997; 62 FR 64306) under the Endangered Species Act. 2 This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by listing the species. 3 Activities initiated by a Federal agency. 4 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601 (7) Clearing of vegetation by the of U.S.-based enterprises to compete et seq.) Department of Energy; and with foreign-based enterprises. (8) The cleanup of toxic waste and In the economic analysis (under superfund sites under the Resource Unfunded Mandates Reform Act (2 section 4 of the Act), we determined Conservation and Recovery Act (RCRA) U.S.C. 1501 et seq.) that designation of critical habitat will and the Comprehensive Environmental Under the Unfunded Mandates not have a significant effect on a Response, Compensation, and Liability Reform Act (2 U.S.C. 1501 et seq.): substantial number of small entities. As Act by the U.S. Environmental (a) This rule will not ‘‘significantly or discussed under Regulatory Planning Protection Agency. uniquely’’ affect small governments. A and Review above, this rule is not Many of these activities sponsored by Small Government Agency Plan is not expected to result in any restrictions in Federal agencies within designated required. Small governments will be addition to those currently in existence. critical habitat areas are carried out by affected only to the extent that any of As indicated on Table 1 (see Critical small entities (as defined by the their actions involving Federal funding Habitat section), we designated property Regulatory Flexibility Act) through or authorization must not destroy or owned by Federal, State, and local contract, grant, permit, or other Federal adversely modify the critical habitat. governments, and private property. authorization. As discussed above, these However, as discussed above, these Within these areas, the types of actions are currently required to comply actions are currently subject to Federal actions or authorized activities with the listing protections of the Act, equivalent restrictions through the that we have identified as potential and the designation of critical habitat is listing protections of the species, and no concerns are: not anticipated to have any additional further restrictions are anticipated to (1) Sale, exchange, or lease of lands effects on these activities. result from critical habitat designation. owned by the Bureau of Land For actions on non-Federal property (b) This rule will not produce a Management or the Department of that do not have a Federal connection Federal mandate of $100 million or Energy; (such as funding or authorization), the greater in any year, i.e., it is not a (2) Regulation of activities affecting current restrictions concerning take of ‘‘significant regulatory action’’ under waters of the United States by the Army the species remain in effect, and this the Unfunded Mandates Reform Act. Corps of Engineers under section 404 of rule will have no additional restrictions. the Clean Water Act; Takings (3) Regulation of water flows, water Small Business Regulatory Enforcement Under Executive Order 12630, the delivery, damming, diversion, and Fairness Act (5 U.S.C. 804(2)) rule does not have significant takings channelization by the Bureau of In the economic analysis, we implications. A takings implication Reclamation and the Army Corps of determined that designation of critical assessment is not required. As discussed Engineers; habitat will not cause (a) any effect on above, the designation of critical habitat (4) Regulation of grazing, recreation, the economy of $100 million or more, affects only Federal agency actions. The or mining by the Bureau of Land (b) any increases in costs or prices for rule will not increase or decrease the Management; consumers, individual industries, current restrictions on private property (5) Funding and implementation of Federal, State, or local government concerning take of the Alameda disaster relief projects by FEMA; agencies, or geographic regions, or (c) whipsnake. Due to current public (6) Funding and regulation of road any significant adverse effects on knowledge of the species’ protection, construction by the Federal Highways competition, employment, investment, the prohibition against take of the Administration; productivity, innovation, or the ability species both within and outside of the

VerDate 112000 17:36 Oct 02, 2000 Jkt 194001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\03OCR1.SGM pfrm04 PsN: 03OCR1 58948 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations designated areas, and the fact that Civil Justice Reform Tribes must be related to on a Government-to-Government basis. The critical habitat provides no incremental Under Executive Order 12988, the designation of critical habitat for the restrictions, we do not anticipate that Office of the Solicitor has determined Alameda whipsnake does not contain long-term property values will be that the rule does not unduly burden the any Tribal lands or lands that we have affected by the critical habitat judicial system and meets the identified as impacting Tribal trust designation. requirements of sections 3(a) and 3(b)(2) resources. Federalism of the Order. We have made every effort to ensure that this final determination References Cited Under Executive Order 13132, the contains no drafting errors, provides A complete list of all references cited rule does not have significant clear standards, simplifies procedures, Federalism effects. A Federalism in this rule is available upon request reduces burden, and is clearly written from the Sacramento Fish and Wildlife assessment is not required. In keeping so that litigation risk is minimized. with Department of the Interior and Office (see ADDRESSES section). Paperwork Reduction Act of 1995 (44 Department of Commerce policy, the Authors Service requested information from and U.S.C. 3501 et seq.) The primary authors of this notice are coordinated development of this critical This rule does not contain any Jason Davis and Heather Bell, habitat proposal with appropriate State information collection requirements for Sacramento Fish and Wildlife Office resource agencies in California, as well which Office of Management and (see ADDRESSES section). as during the listing process. We will Budget approval under the Paperwork continue to coordinate any future Reduction Act is required. List of Subjects in 50 CFR Part 17 designation of critical habitat for the National Environmental Policy Act Endangered and threatened species, Alameda whipsnake with the Exports, Imports, Reporting and appropriate State agencies. The We have determined that we do not recordkeeping requirements, designation of critical habitat for the need to prepare an Environmental Transportation. Alameda whipsnake imposes no Assessment and/or an Environmental For the reasons given in the preamble, additional restrictions to those currently Impact Statement as defined by the we amend 50 CFR part 17 as set forth in place and, therefore, has little National Environmental Policy Act of below: incremental impact on State and local 1969 in connection with regulations governments and their activities. The adopted under section 4(a) of the Act. PART 17Ð[AMENDED] designation may have some benefit to We published a notice outlining our these governments in that the areas reasons for this determination in the 1. The authority citation for part 17 essential to the conservation of the Federal Register on October 25, 1983 continues to read as follows: species are more clearly defined, and (48 FR 49244). Authority: 16 U.S.C. 1361–1407; 16 U.S.C. the primary constituent elements of the Government-to-Government 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– habitat necessary to the survival of the Relationship With Tribes 625, 100 Stat. 3500; unless otherwise noted. species are specifically identified. While 2. In § 17.11(h) revise the entry for making this definition and Under the President’s memorandum ‘‘Whipsnake, Alameda’’ under identification does not alter where and of April 29, 1994, ‘‘Government-to- ‘‘REPTILES’’ to read as follows: what federally sponsored activities may Government Relations with Native occur, doing so may assist these local American Tribal Governments’’ (59 FR § 17.11 Endangered and threatened governments in long-range planning 22951) and the Department of the wildlife. (rather than waiting for case-by-case Interior’s requirement at 512 DM 2 we * * * * * section 7 consultations to occur). understand that recognized Federal (h) * * *

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Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* REPTILES

******* Whipsnake, Alameda Masticophis lateralis U.S.A. (CA) ...... Entire ...... T 628 17.95(c) NA (=striped racer). euryxanthus.

*******

3. Amend § 17.95(c) by adding critical Santa Clara Counties, California, on the maps are linked to scrub habitats by substantial habitat for the Alameda whipsnake below. rock outcrops or riparian corridors. Other (Masticophis lateralis euryxanthus) in 2. Within these areas, the primary habitat features that provide a source of cover the same alphabetical order as this constituent elements are those habitat for the whipsnake during dispersal or lie in species occurs in § 17.11(h). components that are essential for the primary reasonable proximity to scrub habitats and biological needs of foraging, sheltering, contain habitat features (e.g., rock outcrops) § 17.95 Critical habitatÐfish and wildlife. breeding, maturation, and dispersal. The that support adequate prey populations may primary constituent elements are in areas also contain primary constituent elements for * * * * * that support scrub communities including the Alameda whipsnake. (c) Reptiles. mixed chaparral, chamise-redshank 3. Critical habitat does not include existing features and structures, such as buildings, * * * * * chaparral, and coastal scrub and annual grassland and various oak woodlands that lie roads, railroads, large water bodies, and ALAMEDA WHIPSNAKE (Masticophis adjacent to scrub habitats. In addition, the similar features and structures not containing lateralis euryxanthus) primary constituent elements for the one or more of the primary constituent 1. Critical habitat units are depicted for Alameda whipsnake may be found in elements. Alameda, Contra Costa, San Joaquin, and grasslands and various oak woodlands that BILLING CODE 4310±55±P

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Map Unit 1: Contra Costa County, Mount Diablo Base Meridian, California: T. 2 SE1⁄4 sec. 24, sec. 25, N1⁄2 SE1⁄4 sec. 26, E1⁄2 California. From 1992 Orthophoto quads, N., R. 4 W., S1⁄2 sec. 13, SE1⁄4 sec. 23, N1⁄2 sec. 27, E1⁄2 sec. 34 secs. 35–36; T. 2 N., R.

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3 W., S1⁄2 sec. 15, S1⁄2 sec. 16, SW1⁄4 sec. 18, sec. 8, secs. 9–15, N1⁄2 sec. 16, N1⁄2 SE1⁄4 sec. NW1⁄4 sec. 8, W1⁄2 sec. 17, secs. 18–19, W1⁄2 1 1 1 1 1 1 secs. 19–22, S ⁄2 NW ⁄4 sec., 23, SW ⁄4 sec. 21, secs. 22–26, NE ⁄4 sec. 27, N ⁄2 SE ⁄4 sec. sec. 29; sec. 30; T. 1. S., R. 3 W., N1⁄2 sec. 1 1 24, secs. 25–36; T. 2 N., R. 2 W., S ⁄2 sec. 30, 36; T. 1 N., R. 3 W., secs. 1–24, N ⁄2 sec. 25, 5, N1⁄2 sec. 6. sec. 31, SW1⁄4 sec. 32; T. 1 N., R. 4 W., secs. N1⁄2 sec. 26, N1⁄2 sec. 27, S1⁄2 NW1⁄4 sec. 28, 1–2, S1⁄2 sec. 3, sec. 4, SE1⁄4 sec. 5, N1⁄2 SE1⁄4 secs. 29–32; T. 1. N., R. 2 W., secs. 5–7, S1⁄2

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Map Unit 2: Alameda and Contra Costa quads, Mount Diablo Base Meridian, NW1⁄4 sec. 36; T. 1. N., R. 2 W., SW1⁄4 sec. Counties, California. From 1992 Orthophoto California: T. 1 N., R. 3 W., SE1⁄4 sec. 35, S1⁄2 31, S1⁄2 sec. 33, SW1⁄4 sec. 34; T. 1 S., R. 3

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W., sec. 1, E1⁄2 sec. 2, NE1⁄4 sec. 12, SW1⁄2 sec. NE1⁄4 sec. 19, secs, 20–36; T.1 S., R. 1 W., 33, N1⁄2 sec. 34, N1⁄2 SW1⁄4 sec. 35, sec. 36; 13, S1⁄2 sec. 14, S1⁄2 sec. 15, secs. 22–27, SE1⁄4 SW1⁄4 sec. 19, SW1⁄4 sec. 29, S1⁄2 NW1⁄4 sec. T. 2 S., R. 1 W., W1⁄4 sec. 4, secs. 5–6, S1⁄2 sec. 28, NE1⁄4 sec. 34, N1⁄2 SE1⁄4 sec. 35, sec. 30, secs. 31–32; T. 2 S., R. 3 W., N1⁄2 SE1⁄4 sec. 16, secs. 17–21, S1⁄2 NW1⁄4 sec. 22, W1⁄2 36; T. 1 S., R. 2 W., S1⁄2 sec. 2, secs. 3–6, N1⁄2 sec. 1, NE1⁄4 sec. 12, S1⁄2 sec. 13, N1⁄2 sec. 24; sec. 26, secs. 27–34, W1⁄2 sec. 35; T. 3 S., R. SE1⁄4 sec. 7, secs. 8–11, SW1⁄4 sec. 12, S1⁄2 T. 2 S., R. 2 .W., secs. 1–18, E1⁄2 sec. 19, secs. 1 W., NW1⁄4 sec. 2, secs. 3–4, N1⁄2 SE1⁄4 sec. NW sec. 13, secs. 14–17, SE1⁄4 sec. 18, S1⁄2 20–30, N1⁄2 SE 1⁄4 sec. 31, sec. 32, N1⁄2 sec. 5, N1⁄2 sec. 6; T. 3 S., R. 2 W., N1⁄2 sec. 1.

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Map Unit 3: Alameda County, California. Base Meridian, California: T. 3 S., R. 2 W., 25, NE1⁄4 sec. 26, secs. 35–36; T. 3 S., R. 1 From 1992 Orthophoto quads, Mount Diablo sec. 1, sec. 12, E1⁄2 sec. 13, SW1⁄4 sec. 24, sec. W., SW1⁄4 sec. 2, S1⁄2 sec. 3, S1⁄2 sec. 4, S1⁄2

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NW1⁄4 sec. 5, S1⁄2 NE1⁄4 sec. 6, secs. 7–11, sec. 32; T. 4 S., R. 2 W., NE1⁄4 sec. 1; T. 4 N1⁄2 SE1⁄4 sec. 17, NE1⁄4 sec. 21; T. 4 S., R. SW1⁄4 sec. 12, secs. 13–36; T. 3 S., R. 1 E., S., R. 1 W., secs. 1–6, NE1⁄4 sec. 7, secs. 8– 1 E., W1⁄2 sec. 4, secs. 5–8, W1⁄2 sec. 9, NW1⁄4 W1⁄2 sec. 19, S1⁄2 NW1⁄4 sec. 30, sec. 31, S1⁄2 12, NE1⁄4 sec. 14, N1⁄2 SW1⁄4 sec. 15, sec. 16, sec. 16.

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Map Unit 4: Alameda and Contra Costa quads, Mount Diablo Base Meridian, 2 N., R. 1 E., S1⁄2 NW1⁄4 sec. 27, S1⁄2 NE1⁄4 Counties, California. From 1992 Orthophoto California: T. 2 N., R. 1 W., SE1⁄4 sec. 36; T. sec. 28, S1⁄2 sec. 29, SE1⁄4 sec. 30, S1⁄2 NE1⁄4

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sec. 31, secs. 32–34, S1⁄2 sec. 35; T. 1 N., R E., W1⁄2 sec. 1, secs. 2–11, sec. 12, secs. 13– R. 1 E., secs. 1–29, N1⁄2 sec. 30, NE1⁄4 sec. 32, 2 W., S1⁄2 sec. 25, SE1⁄4 sec. 26, N1⁄2 sec. 36; 36; T. 1 N., R. 2 E., SW1⁄4 sec. 7, W1⁄2 sec. sec. 33–36; T. 1 S., R. 2 E., SW1⁄4 sec. 2, secs. T. 1 N., R. 1 W., sec. 1, SE1⁄4 sec. 2, SE1⁄4 sec. 18, sec. 19, S1⁄2 sec. 20, SW1⁄4 sec. 21, secs. 3–10, S1⁄2 NW1⁄4 sec. 11, W1⁄2 sec. 13, secs. 8, S1⁄2 sec. 9, sec. 12, N1⁄2 SE1⁄4 sec.13, W1⁄2 28–33, S1⁄2 sec. 34; T.1 S., R. 1 W., secs. 1– 14–36; T. 2 S., R. 1 E., secs. 1–3, N1⁄2 sec. 10, sec. 14, S1⁄2 NE1⁄4 sec. 15, sec. 17, N/12 SE1⁄4 5, N1⁄2 SE1⁄4 sec. 6, sec. 8, N1⁄2 SW1⁄4 sec. 9, N1⁄2 sec. 11, sec. 12; T. 2 S., R. 2 E., NW1⁄4 sec. 20, secs. 21–28, E1⁄2 SW1⁄4 sec. 29, S1⁄2 secs. 10–15, NW1⁄4 sec. 16, NE1⁄4 sec. 17, N1⁄2 sec. 1, secs. 2–10, W1⁄2 sec. 11, N1⁄2 sec. 15, sec. 30, sec. 31, secs. 32–36; T. 1 N., R. 1. SE1⁄4 sec. 23, sec. 24, N1⁄2 sec. 25; T. 1 S., sec. 16–17, E1⁄2 sec. 18.

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Map Unit 5: Alameda, Contra Costa, San Base Meridian, California: T. 3 N., R. 1 E., SW1⁄4 sec. 24, S1⁄2 NW1⁄4 sec. 25, secs. 26– Joaquin, and Santa Clara Counties, California. SE1⁄4 sec. 21, S1⁄2 sec. 22, S1⁄2 NW1⁄4 sec. 23, From 1992 Orthophoto quads, Mount Diablo

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27, E1⁄2 sec. 28, SE1⁄4 sec. 29, NE1⁄4 sec. 32, S., R. 1 W., E1⁄2 sec. 25, E1⁄2 sec. 36; T. 4 S, sec. 33, N1⁄2 SE1⁄4 sec. 34, secs. 35–36; T. 5 secs. 33–36; T. 3 S., R. 2 E., SW1⁄4 sec. 19, R. 1 E., secs. 1–4, E1⁄2 sec. 9, secs. 10–15, E1⁄2 S., R. 2 E., secs. 1–35, N1⁄2 SW1⁄4 sec. 36; T. SE1⁄4 sec. 21, S1⁄2 NE1⁄4 sec. 22, S1⁄2 NW1⁄4 sec. 16, SE1⁄4 sec. 19, S1⁄2 sec. 20, S1⁄2 NE1⁄4 5 S., R. 3 E., secs. 1–24, N1⁄2 sec. 26, N1⁄2 sec. 23, SE1⁄4 sec. 24, secs. 25–36; T. 3 S., R. sec. 21, secs. 22–36; T. 4 S., R. 2 E., secs. 1– SW1⁄4 sec. 27, secs. 28–30, N1⁄2 sec. 31, N1⁄2 3 E., S1⁄2 sec. 24, secs. 25–26, S1⁄2 NE1⁄4 sec. 36; T. 4 S., R. 3 E., secs. 1–36; T. 4 S., R. 4 sec. 32; T. 5. S., R. 4 E., W1⁄2 sec. 2, secs. 3– 27, S1⁄2 NW1⁄4 sec. 28, S1⁄2 NE1⁄4 sec. 29, S1⁄2 E., W1⁄2 sec. 2, secs. 3–10, W1⁄2 sec. 11, W1⁄2 9, N1⁄2 SW1⁄4 sec. 10, N1⁄2 SW1⁄4 sec. 16, secs. NW1⁄4 sec. 30, secs. 31–36; T. 3 S., R. 4 E., sec. 11, W1⁄2 sec. 14, secs. 15–22,W1⁄2 sec. 23, 17–18, N1⁄2 sec. 19; T. 6 S., R. 1 E., sec. 1, S1⁄2 sec. 19, S1⁄2 sec. 20, S1⁄2 sec. 21, SW1⁄4 W1⁄2 sec. 26, secs. 27–34, W1⁄2 sec. 35; T. 5 N1⁄2 sec. 2; T. 6 S., R. 2 E., N1⁄2 sec. 3, N1⁄2 sec. 27, secs. 28–33, S1⁄2 NW1⁄4 sec. 34; T. 4 S., R. 1 E., secs. 1–29, N1⁄2 SE1⁄4 sec. 30, N1⁄2 sec. 4, N1⁄2 sec. 5, N1⁄2 sec.6.

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Map Unit 6: Alameda and Contra Costa California: T. 1 N., R. 4 W., SE1⁄4 sec. 36; T. T. 1 S., R. 3 W., W1⁄2 sec. 3, secs. 4–6, N1⁄2 Counties, California. From 1992 Orthophoto 1 N., R. 3 W., SW1⁄4 sec. 31, S1⁄2 sec. 33; T. SE1⁄4 sec. 7, secs. 8-10, secs. 14–15, N1⁄2 SE1⁄4 quads, Mount Diablo Base Meridian, 1 S., R. 4 W., S1⁄2 NE 1⁄4 sec. 1, NE1⁄4 sec. 12; sec. 16, N1⁄2 sec. 17, NE1⁄4 sec. 18.

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BILLING CODE 4310±55±C

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Map Unit 7: Alameda County, California. 24; T. 4 S., R. 1 E., S1⁄2 sec. 7, S1⁄2 sec. 8, Dated: September 21, 2000. From 1992 Orthophoto quads, Mount Diablo sec. 9, secs. 16–18, NE1⁄4 sec. 19, NE1⁄4 sec. Stephen C. Saunders, Base Meridian, California: T. 4 S., R. 1 W., 20, sec. 21, W1⁄2 sec. 27, N1⁄2 sec. 28. Acting Assistant Secretary for Fish and 1 1 1 SE ⁄4 sec. 10, S ⁄2 sec. 11, S ⁄2 sec. 12, secs. Wildlife and Parks. 13–14, E1⁄2 sec. 15, NE1⁄4 sec. 23, NW1⁄4 sec. [FR Doc. 00–24763 Filed 10–2–00; 8:45 am] BILLING CODE 4310±55±P

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