41662 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Proposed Rules 

variation (Thomas 2009, pers. comm.). 

Because of the reduction in genetic 

exchange it faces in the wild, the 

species is less capable of withstanding 

other environmental stressors like 

drought, or climate change (Thomas 

2009, pers. comm.). 

Based on our evaluation of the 

information provided in the petition 

and in our files, we have determined 

that the petition presents substantial 

information to indicate that listing of 

Sisyrinchium sarmentosum may be 

warranted due to the present or 

threatened destruction, modification, or 

curtailment of its habitat or range 

resulting from development, livestock 

trampling, plant succession, and 

possibly ORV use; and due to other 

natural or manmade factors affecting its 

continued existence resulting from 

genetic reduction, drought, and effects 

of climate change. 

Trifolium friscanum (Frisco clover) 

Trifolium friscanum is a narrow 

endemic with small populations 

(Evenden 1998, p. 6). The two element 

occurrences are restricted to limestone 

outcrops on Grampian Hill in Beaver 

County, Utah (Evenden 1998, appendix 

C), and in the nearby Tunnel Spring 

Mountains (Evenden 1999, pp. 6–7). 

Estimates of the area of occupied habitat 

vary from 30 ha (75 ac) (Evenden 1998, 

appendix C; Evenden 1999, appendix B) 

to 225 ha (560 ac) (Kass 1992, pp. 7–8). 

Estimates of the species’ total 

population vary from 2,000 individuals 

(Kass 1992, p. 7) to approximately 3,500 

individuals (Evenden 1998, appendix C; 

Evenden 1999, appendix B). 

Factor A: Mineralized limestone 

substrates that sustain the species were 

historically subjected to habitat 

destruction from precious metals 

mining. Over 80 percent of the species’ 

habitat is located on lands having 

private, patented mining claims 

(Evenden 1998, p. 9; Kass 1992, p. 9). 

Factors B, C, D, and E: No information 

was presented in the petition 

concerning threats to this species from 

the factors. 

Based on our evaluation of the 

information provided in the petition 

and in our files, we have determined 

that the petition presents substantial 

information to indicate that listing of 

Trifolium friscanum may be warranted 

due to the present or threatened 

destruction, modification, or 

curtailment of its habitat or range 

resulting from mining. 

Finding 

We reviewed and evaluated 38 of the 

206 petitioned species, based on the 

information in the petition and the 

literature cited in the petition, and we 

have evaluated the information to 

determine whether the sources cited 

support the claims made in the petition 

relating to the five listing factors. We 

also reviewed reliable information in 

our files. 

We find that the petition does not 

present substantial information that 

listing may be warranted for nine 

species: Washington duskysnail 

(Amnicola sp. 2), Camissonia exilis 

(Cottonwood Spring suncup), lake disc 

(Discus brunsoni), Frasera gypsicola 

(Sunnyside green-gentian), Lomatium 

latilobum (Canyonlands lomatium), 

Lygodesmia doloresensis (Dolores river 

skeletonplant), Drummond 

mountainsnail (Oreohelix sp. 4), 

Bitterroot mountainsnail (Oreohelix 

amariradix), and keeled mountainsnail 

(Oreohelix carinifera). 

We find that the petition presents 

substantial scientific or commercial 

information that listing the remaining 

29 of the 38 species that we evaluated 

as threatened or endangered under the 

Act may be warranted. Therefore, we are 

initiating a status review to determine 

whether listing these 29 species under 

the Act is warranted. 

We previously determined that 

emergency listing of any of the 38 

species is not warranted. However, if at 

any time we determine that emergency 

listing of any of the species is 

warranted, we will initiate an 

emergency listing. 

The petitioners also request that 

critical habitat be designated for the 

species concurrent with final listing 

under the Act. If we determine in our 

12-month finding, following the status 

review of the species, that listing is 

warranted, we will address the 

designation of critical habitat in the 

subsequent proposed rule. 

References Cited 

A complete list of references cited is 

available on the Internet at Docket No. 

FWS–R2–ES–2008–0131 at http:// 

www.regulations.gov and upon request 

from the Mountain-Prairie Region 

Ecological Services Office (see 

ADDRESSES). 

Author 

The primary authors of this document 

are the staff members of the MountainPrairie Region Ecological Services 

Offices (see ADDRESSES). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (U.S.C. 1531 et seq.). 

Dated: August 6, 2009. 

Jerome Ford, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–19494 Filed 8–17–09; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0044; 

92210–1117–0000–FY09–B4] 

RIN 1018–AU23 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Sonoma County Distinct 

Population Segment of California Tiger 

Salamander (Ambystoma 

californiense) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; public hearing 

announcement. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the Sonoma 

County distinct population segment 

(DPS) of the California tiger salamander 

(Ambystoma californiense) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

74,223 acres (30,037 hectares) are being 

proposed for designation as critical 

habitat. The proposed critical habitat is 

located in Sonoma County, California. 

DATES: We will accept comments 

received or postmarked on or before 

October 19, 2009. We must receive 

requests for public hearings, in writing, 

at the address shown in FOR FURTHER

INFORMATION CONTACT by October 2, 

2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS–R8–ES–2009–0044. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0044; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 


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FOR FURTHER INFORMATION CONTACT: 

Susan Moore, Field Supervisor, U.S. 

Fish and Wildlife Service, Sacramento 

Fish and Wildlife Office, Cottage Way, 

W–2605, Sacramento, CA 95825; 

telephone 916–414–6600; facsimile 

916–414–6713. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from the public, other 

concerned governmental agencies, the 

scientific community, industry, or other 

interested party concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.) 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation 

such that the designation of critical 

habitat is not prudent; 

(2) Specific information on: 

• The amount and distribution of 

California tiger salamander (CTS) 

habitat, 

• What areas occupied at the time of 

listing and that contain features 

essential to the conservation of the 

species we should include in the 

designation and why, and 

• What areas not occupied at the time 

of listing are essential for the 

conservation of the species and why. 

(3) Additional information concerning 

the range, distribution, and population 

size of this species, including the 

locations of any additional populations 

of this species that would help us 

further refine boundaries of critical 

habitat; 

(4) Information that may assist us in 

clarifying the primary constituent 

elements; 

(5) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(6) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation. We 

are particularly interested in any 

impacts on small entities or families, 

and the benefits of including or 

excluding areas that exhibit these 

impacts; 

(7) Information on whether the benefit 

of exclusion of any particular area, such 

as areas covered by habitat conservation 

plans or other types of management 

agreements, outweighs the benefit of 

inclusion under section 4(b)(2) of the 

Act; and 

(8) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not 

consider hand-delivered comments that 

we do not receive, or mailed comments 

that are not postmarked, by the date 

specified in the DATES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If you provide 

personal identifying information, such 

as your street address, phone number, or 

e-mail address, you may request at the 

top of your document that we withhold 

this information from public review. 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Sacramento Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

the California tiger salamander, a 

physical description of the California 

tiger salamander and other information 

about its taxonomy, distribution, life 

history, and biology is included in the 

Background section of the final rule to 

list California tiger salamander as a 

threatened species, published in the 

Federal Register on August 4, 2004 (69 

FR 47212). Additional relevant 

information may be found in the final 

rules to list the Santa Barbara County 

Distinct Population Segment (DPS) (65 

FR 57242; September 21, 2000) and the 

Sonoma County DPS of California tiger 

salamander (68 FR 13498; March 19, 

2003); the proposed rules to designate 

critical habitat for the California tiger 

salamander in Santa Barbara County (69 

FR 3064; January 22, 2004) and the 

Central population of the species range 

(69 FR 48570; August 10, 2004); and the 

final rules to designate critical habitat 

for the California tiger salamander in 

Santa Barbara County (69 FR 68568; 

November 24, 2004) and the Central 

population (70 FR 49380; August 23, 

2005). The information contained in 

those previous Federal Register 

documents was used in developing this 

rule. 

Previous Federal Actions 

On August 4, 2004, we listed the 

Central California population of the 

California tiger salamander as a DPS as 

threatened (69 FR 47211). At that time 

we reclassified the California tiger 

salamander as threatened throughout its 

range (69 FR 47211), removing the Santa 

Barbara County and Sonoma County 

populations as separately listed DPSs 

(69 FR 47241). 

On August 18, 2005, as a result of 

litigation of the August 4, 2004, final 

rule (69 FR 47211) on the 

reclassification of the California tiger 

salamander DPSs (Center for Biological 

Diversity et al. v. United States Fish and 

Wildlife Service et al. (Case No. C–04 

4324 WHA (N.D. Cal. 2005))), the 

District Court of Northern California 

sustained the portion of the 2004 final 

rule pertaining to listing the Central 

California tiger salamander as 

threatened with a special rule, vacated 

the 2004 rule with regard to the Santa 

Barbara County and Sonoma County 

DPSs, and reinstated their prior listing 

as endangered. We are making the 

necessary changes to the information 

included in the Code of Federal 

Regulations (CFR) in the Regulatory 

section of this rule and will finalize the 

changes in the final critical habitat for 

the Sonoma County DPS of the 

California tiger salamander. 

With respect to critical habitat, on 

October 13, 2004, a complaint was filed 

in the U.S. District Court for the 

Northern District of California (Center 

for Biological Diversity et al. v. U.S. Fish 

and Wildlife Service et al. (Case No. C– 

04 4324 FMS (N.D. Cal. 2005)), which 

in part challenged the failure of 

designating critical habitat for the 

California tiger salamander in Sonoma 

County. On February 3, 2005, the 

District Court approved a settlement 

agreement that required the Service to 

submit a final determination on the 

proposed critical habitat designation for 

publication in the Federal Register on 

or before December 1, 2005. On August 

2, 2005 (70 FR 44301), the Service 


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published a proposed rule to designate 

approximately 74,223 acres (ac) (30,037 

hectares (ha)) of critical habitat, and on 

November 17, 2005, we published a 

revised proposed rule indicating we 

were considering approximately 21,298 

acres for the final designation (70 FR 

69717). On December 14, 2005, the 

Service published a final rule in the 

Federal Register (70 FR 74138), which 

excluded all proposed critical habitat, 

resulting in a designation of zero acres 

of critical habitat. 

On February 29, 2008, we received a 

notice of intent to sue from the Center 

for Biological Diversity that challenged 

the Service’s final designation of critical 

habitat claiming that it was not based on 

the best available scientific information. 

On May 5, 2009, the Court approved a 

stipulated settlement agreement where 

the Service agreed to publish a revised 

proposed rule within 90 days that 

encompasses the same geographic area 

as the August 2005 proposal. This 

revised proposed rule complies with the 

May 1, 2009, stipulated agreement. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(I) Essential to the conservation of the 

species and 

(II) Which may require special 

management considerations or 

protection; and 

(ii) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) requires 

consultation on Federal actions that 

may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

non-Federal landowners. Where a 

landowner seeks or requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the obligation of the Federal 

action agency and the applicant is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features essential to the conservation of 

the species, and be included only if 

those features may require special 

management considerations or 

protection. Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life-cycle needs of the species 

(areas on which are found the physical 

and biological features laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species). Under the Act and regulations 

at 50 CFR 424.12, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed only when 

we determine that those areas are 

essential for the conservation of the 

species and that designation limited to 

those areas occupied at the time of 

listing would be inadequate to ensure 

the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat designated at a particular 

point in time may not include all of the 

habitat areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 


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Primary Constituent Elements (PCEs) 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

occupied by the species at the time of 

listing to propose as critical habitat, we 

consider those physical and biological 

features that are essential to the 

conservation of the species that may 

require special management 

considerations or protection. We 

consider the physical and biological 

features to be the primary constituent 

elements (PCEs) laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species. The PCEs include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We derive the specific PCEs from the 

California tiger salamander’s biological 

needs. The physical and biological 

features are those PCEs essential to the 

conservation of the species, laid out in 

the appropriate quantity and spatial 

arrangement. All areas proposed as 

critical habitat for the Sonoma 

population are within the species’ 

historical range and contain one or more 

of the PCEs identified as essential for 

the conservation of the species. Critical 

habitat for the Sonoma population 

includes aquatic habitat, upland 

nonbreeding habitat with underground 

refugia, and dispersal habitat connecting 

occupied California tiger salamander 

locations. The critical habitat we have 

proposed is designed to allow for an 

increase in the size of California tiger 

salamander populations in Sonoma 

County. 

Standing bodies of fresh water 

(including natural and manmade (e.g., 

stock)) ponds, vernal pools, and other 

ephemeral or permanent water bodies 

that typically support inundation during 

winter rains and hold water for a 

minimum of 12 consecutive weeks in a 

year of average rainfall, are features that 

are essential for Sonoma population 

breeding and for providing space, food, 

and cover necessary to sustain early lifehistory stages of larval and juvenile 

California tiger salamander. The 12 

consecutive week timeframe includes 

the timing of winter rains initially fill 

pools or ponds and signal adults to 

move to these areas for breeding. Spring 

rains then maintain pool inundation 

which allows larvae time needed to 

grow into metamorphosed juveniles so 

they can become capable of surviving in 

upland habitats. During periods of 

drought or less-than-average rainfall, 

these sites may not hold water long 

enough for individuals to complete 

metamorphosis; however, these sites 

still meet the definition of critical 

habitat for the species because they 

constitute breeding habitat in years of 

average rainfall. Without areas that have 

these essential features, the Sonoma 

population would not survive, 

reproduce, and develop juveniles that 

could grow into adult individual 

salamanders that can complete their life 

cycles. 

Stock ponds and vernal pools provide 

a significant amount of habitat for the 

Sonoma population remaining in the 

Santa Rosa Plain. Manmade stock ponds 

have joined or, in some areas, replaced 

vernal pools as breeding habitat. A 

landscape that supports a California 

tiger salamander population is typically 

interspersed with vernal pools or 

stockponds that remain inundated for at 

least 12 weeks in a year with average 

rainfall. 

Upland habitats containing 

underground refugia have features that 

are essential for the survival of adult 

salamanders and juvenile salamanders 

that have recently undergone 

metamorphosis. Adult and juvenile 

California tiger salamanders are 

primarily terrestrial. Adult California 

tiger salamanders enter aquatic habitats 

only for relatively short periods of time 

to breed. For the majority of their life 

cycle, California tiger salamanders 

depend on upland habitats containing 

underground refugia in the form of 

small mammal burrows or other 

underground structures for their 

survival. These burrows provide 

protection from the hot, dry weather 

typical of California in the nonbreeding 

season. California tiger salamanders also 

find food in these refugia and rely on 

them for protection from predators. The 

presence of small burrowing mammal 

populations is a key element for the 

survival of the California tiger 

salamander because they construct 

burrows used by California tiger 

salamanders. Because California tiger 

salamanders do not construct burrows 

of their own, without the continuing 

presence of small mammal burrows in 

upland habitats, California tiger 

salamanders would not be able to 

survive. 

Upland areas associated with the 

water bodies are an important source of 

nutrients to stock ponds or vernal pools 

(Swanson 1974, p. 406). These nutrients 

provide the foundation for the aquatic 

community’s food chain, which 

includes invertebrate and vertebrate 

animals constituting important food 

sources for salamanders (Morin 1987, p. 

184). 

Dispersal habitats for this species are 

generally upland areas adjacent to 

aquatic habitats which provide 

connectivity among California tiger 

salamander suitable aquatic and upland 

habitats. While California tiger 

salamander can bypass many obstacles, 

and do not require a particular type of 

habitat for dispersal, the habitats 

connecting essential aquatic and upland 

habitats need to be accessible (no 

physical or biological attributes that 

prevent access to adjacent areas) to 

function effectively. Agricultural lands 

such as row crops, orchards, vineyards, 

and pastures do not constitute barriers 

to the dispersal of California tiger 

salamanders, however, a busy highway 

or interstate may constitute a barrier. 

The extent to which any attribute is a 

barrier is a function of the specific 

geography of the area and its 

contribution to limiting salamander 

access to a greater or lesser extent. 

Dispersal habitats are needed for the 

conservation of the California tiger 

salamander. Protecting the ability of 

California tiger salamanders to move 

freely across the landscape in search of 

suitable aquatic and upland habitats is 

essential in maintaining gene flow and 

for recolonization of sites that may 

become temporarily extirpated. Lifetime 

reproductive success for the California 

tiger salamander and other tiger 

salamanders may be naturally low. 

Trenham et al. (2000, p. 372) found the 

average female bred 1.4 times and 

produced 8.5 young that survived to 

metamorphosis per reproductive effort. 

This reproduction resulted in roughly 

12 metamorphic offspring over the 

lifetime of a female. In part, this low 

reproductive rate may be due to the 

extended time it takes for California 

tiger salamanders to reach sexual 

maturity; most do not breed until 4 or 

5 years of age. While individuals may 

survive for more than 10 years, it is 

possible that many breed only once. 

This presumed low breeding rate, 

combined with a hypothesized low 

survivorship of metamorphosed 

individuals, indicates that reproductive 

output may not be sufficient to maintain 

populations. 

Dispersal habitats help to preserve the 

population structure of the California 

tiger salamander. The life history and 


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ecology of the California tiger 

salamander make it likely that this 

species has a metapopulation structure. 

A metapopulation is a set of breeding 

sites within an area, where typical 

migration from one local occurrence or 

breeding site to other areas containing 

suitable habitat is possible, but not 

routine. Movement between areas 

containing suitable upland and aquatic 

habitats (i.e., dispersal) is restricted due 

to inhospitable conditions around and 

between areas of suitable habitats. 

Because many of the areas of suitable 

habitats may be small and support small 

numbers of salamanders, local 

extinction of these small units may be 

common. The persistence of a 

metapopulation depends on the 

combined dynamics of these local 

extinctions and the subsequent 

recolonization of these areas through 

dispersal (Hanski and Gilpin 1991, pp. 

7–9; Hanski 1994, p. 151). 

Based on the above needs and our 

knowledge of the life history, biology, 

and ecology of the species and the 

requirements of the habitat to sustain 

the essential life-history functions of the 

species, we have determined that the 

primary constituent elements for the 

California tiger salamander in Sonoma 

County are: 

(1) Standing bodies of fresh water 

(including natural and manmade (e.g., 

stock)) ponds, vernal pools and other 

ephemeral or permanent water bodies 

that typically support inundation during 

winter/early spring and hold water for 

a minimum of 12 consecutive weeks in 

a year of average rainfall. 

(2) Upland habitats adjacent and 

accessible to and from breeding ponds 

that contain small mammal burrows or 

other underground refugia that 

California tiger salamanders depend 

upon for food, shelter, and protection 

from the elements and predation. 

(3) Accessible upland dispersal 

habitat between occupied locations that 

allow for movement between such sites. 

Methods 

This proposal is an updating of the 

2005 proposed critical habitat 

designation for the Sonoma County DPS 

of the California tiger salamander. As 

required by section 4(b)(1)(A) of the Act, 

we used the best scientific and 

commercial data available in 

determining areas that contain the 

features that are essential to the 

conservation of the California tiger 

salamander in Sonoma County. We 

reviewed the overall approach to the 

conservation of the California tiger 

salamander undertaken by local, State, 

and Federal agencies operating within 

the species’ range within Sonoma 

County and those efforts related to the 

conservation strategy being undertaken 

by the resource agencies, local 

governments, and representatives from 

the environmental and building 

communities. 

We based the extent of the proposed 

critical habitat for the California tiger 

salamander in Sonoma County on 

historical and current range of the 

species as well as the Santa Rosa Plain 

conservation strategy. Historical records 

for the species and/or its habitat have 

been documented throughout the Santa 

Rosa Plain and into the Petaluma River 

watershed. Additional criteria used in 

refining the extent of the critical habitat 

were the specific soil types associated 

with habitat for the species and below 

the 200-foot (61-meter) elevation. Major 

water courses or floodplains were used 

to delineate boundaries where 

information on their location and extent 

was available. In addition, we used 

aerial photography to examine historic 

and current habitat as well as land use 

patterns. 

We have also reviewed available 

information that pertains to the upland 

and aquatic habitat requirements of this 

species. Based on the best available 

information, we included areas where 

the species historically occurred, or 

currently occurs, or has the potential to 

occur based on the suitability of habitat. 

We identified areas that represent the 

range of environmental, ecological, and 

genetic variation of the California tiger 

salamander in Sonoma County and 

contain the primary constituent 

elements (see Primary Constituent 

Elements). 

After identifying the PCEs, we used 

the PCEs in combination with 

information on California tiger 

salamander locations, geographic 

distribution, vegetation, topography, 

geology, soils, distribution of California 

tiger salamander occurrences within 

and between vernal pool types, 

watersheds, current land uses, scientific 

information on the biology and ecology 

of the California tiger salamander, and 

conservation principles to identify 

essential habitat. As a result of this 

process, the proposed critical habitat 

unit possesses a combination of 

occupied and potential aquatic and 

upland habitat types, including 

topography, landscape features, and 

surrounding land uses, and represents 

the geographical range and 

environmental variability of habitat for 

the California tiger salamander. 

This proposed unit was delineated by 

digitizing a polygon (map unit) using 

ArcView (Environmental Systems 

Research Institute, Inc.) GIS program. 

The polygon was created by modifying 

the Potential Range of the California 

tiger salamander polygon as identified 

in the Santa Rosa Plain Conservation 

Strategy Map (California Department of 

Fish and Game 2005, p. 1). We 

evaluated the historic and current 

geographic range and potential suitable 

habitat, and identified areas of 

nonessential habitat (i.e., not containing 

PCEs) (see Primary Constituent 

Elements). Those undeveloped areas 

within and adjacent to developed areas 

that contain the PCEs are considered 

potential critical habitat for the species. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas within the 

geographical area occupied at the time 

of listing contain features essential to 

the conservation of the species that may 

require special management 

considerations or protection. 

Within the single unit proposed as 

critical habitat, we find that the features 

essential to the conservation of the 

California tiger salamander may require 

special management considerations or 

protection because of the threats 

outlined below: 

(1) Activities that would threaten the 

utility of California tiger salamander 

breeding ponds in Sonoma County, such 

as introduction of nonnative predators, 

including bullfrogs and nonnative fish; 

(2) Activities that could disturb 

aquatic breeding habitats during the 

breeding season, such as heavy 

equipment operation, ground 

disturbance, maintenance projects (e.g., 

pipelines, roads, powerlines), off-road 

travel, or recreation; 

(3) Activities that impair the water 

quality of aquatic breeding habitat; 

(4) Activities that would reduce small 

mammal populations to the point that 

there are insufficient underground 

refugia used by California tiger 

salamander in Sonoma County for 

foraging, protection from predators, and 

shelter from the elements; 

(5) Activities that create barriers 

impassable for salamanders or increase 

mortality in upland habitat between 

extant occurrences in breeding habitat; 

and 

(6) Activities that disrupt vernal pool 

complexes’ ability to support California 

tiger salamander breeding function. 

In the case of the California tiger 

salamander in Sonoma County, natural 

repopulation is likely not possible 

without human assistance and 

landowner cooperation. Examples of 

such proactive activities that benefit the 

California tiger salamander include 

enhancement or creation of breeding 

ponds and control of nonnative 


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predators. These are the types of 

proactive, voluntary conservation efforts 

that are necessary to prevent the 

extinction and promote the recovery of 

many other species (Wilcove and Lee 

2004, p. 639; Shogren et al. 1999, p. 

1260; Wilcove and Chen 1998, p. 1260; 

Wilcove et al., 1996, pp. 3–5). 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act 

and according to section 424.12 of our 

implementing regulations in the Code of 

Federal Regulations, we used the best 

scientific data available in determining 

areas within the geographical area 

occupied at the time of listing that 

contain the features essential to the 

conservation of the California tiger 

salamander, and areas outside of the 

geographical area occupied at the time 

of listing that are essential for the 

conservation of the California tiger 

salamander. We are proposing for 

designation of critical habitat lands that 

we have determined were occupied at 

the time of listing and contain the 

features essential to the conservation of 

the California tiger salamander in 

Sonoma County. 

When determining proposed critical 

habitat boundaries within this proposed 

rule, we made every effort to avoid 

including developed areas such as lands 

covered by buildings, pavement, and 

other structures because such lands lack 

PCEs for the California tiger salamander. 

The scale of the map we prepared under 

the parameters for publication within 

the Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the maps of this proposed rule have 

been excluded by text in the proposed 

rule and are not proposed for 

designation as critical habitat. 

Therefore, if the critical habitat is 

finalized as proposed, a Federal action 

involving these undesignated lands 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent designated 

critical habitat. 

Proposed Critical Habitat Designation 

We are proposing to designate as a 

single unit critical habitat for the 

California tiger salamander in the Santa 

Rosa Plain Region. The critical habitat 

area described below constitutes our 

current best assessment of the areas that 

meet the definition of critical habitat for 

the California tiger salamander. 

The approximate area encompassed 

within the proposed critical habitat is 

74,223 acres (ac) (30,037 hectares (ha)), 

including approximately 887 ac (359 ha) 

of State lands (676 ac (274 ha) California 

Department of Fish and Game lands and 

211 ac (85 ha) State Commission lands), 

26 ac (10.5 ha) of County Regional Park 

land, and 73,336 ac (29,678 ha) of 

private and other lands. The area 

estimate reflects all land within the 

critical habitat unit boundary. No 

Federal lands are included in this 

proposed unit. 

We present a brief unit description 

below and an explanation why it meets 

the definition of critical habitat for 

California tiger salamander in Sonoma 

County. The unit is located in central 

Sonoma County, bordered on the west 

by the Laguna de Santa Rosa, on the 

south by Skillman Road northwest of 

Petaluma, on the east by the foothills, 

and on the north by Windsor Creek. 

The Santa Rosa Plain and adjacent 

areas are characterized by vernal pools, 

seasonal wetlands, and associated 

grassland habitat. This proposed 

designation represents the northernmost 

part of the geographic distribution of 

California tiger salamander and includes 

lands that support California tiger 

salamander breeding in various vernal 

pool complexes. This unit contains the 

physical and biological features 

essential to the conservation of the 

California tiger salamander in Sonoma 

County. The proposed designation 

encompasses nine vernal pool 

complexes, each of which contains 

wetlands that currently support 

breeding California tiger salamander in 

Sonoma County. At the time of listing 

(2003), eight of these complexes were 

known breeding sites, a ninth breeding 

location was determined subsequent to 

listing. 

The physical and biological features 

essential to the conservation of the 

California tiger salamander in Sonoma 

County may require special 

management considerations or 

protections to minimize impacts from: 

nonnative predators; disturbance of 

aquatic breeding habitats; activities that 

impair the water quality of aquatic 

breeding habitat; activities that reduce 

underground refugia; creation of 

impassable barriers; and disruption of 

vernal pool complex processes (see 

Special Management Considerations or 

Protections section above). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. 

Decisions by the Fifth and Ninth 

Circuits Court of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F. 3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 442 

(5th Cir. 2001)), and we do not rely on 

this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain those PCEs that relate to the 

ability of the area to periodically 

support the species) to serve its 

intended conservation role for the 

species. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action; 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction; 

• Are economically and 

technologically feasible; and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 


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destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

California tiger salamander or its 

designated critical habitat require 

section 7 consultation under the Act. 

Activities on State, Tribal, local, or 

private lands requiring a Federal permit 

(such as a permit from the U.S. Army 

Corps of Engineers under section 404 of 

the Clean Water Act (33 U.S.C. 1251 et 

seq.) or a permit from us under section 

10 of the Act) or involving some other 

Federal action (such as funding from the 

Federal Highway Administration, 

Federal Aviation Administration, or the 

Federal Emergency Management 

Agency) are subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

Federally funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or retain those PCEs that relate 

to the ability of the area to periodically 

support the species. Activities that may 

destroy or adversely modify critical 

habitat are those that alter the PCEs to 

an extent that appreciably reduces the 

conservation value of critical habitat for 

the California tiger salamander. As 

discussed above, the role of critical 

habitat is to support the life-history 

needs of the species and provide for the 

conservation of the species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the California tiger salamander 

include, but are not limited to: 

(1) Actions that would significantly 

compromise the function of vernal 

pools, swales, ponds, and other seasonal 

wetlands as described in the Primary 

Constituent Elements section (see PCE 

number 1). Such activities could 

include, but are not limited to, 

constructing new structures, vineyards, 

and roads; disking; grading; and water 

diversion. These activities could destroy 

California tiger salamander breeding 

sites, reduce the hydrological regime 

necessary for successful larval 

metamorphosis, and/or eliminate or 

reduce the habitat necessary for the 

growth and reproduction of the 

California tiger salamander. 

(2) Actions that would significantly 

fragment and isolate aquatic and upland 

habitat. Such activities could include, 

but are not limited to, constructing new 

structures and new roads. These 

activities could limit or prevent the 

dispersal of California tiger salamanders 

from breeding sites to upland habitat or 

vice versa due to obstructions to 

movement composed of structures, 

certain types of curbs, or increased 

traffic density. These activities could 

compromise the metapopulation 

structure of the Sonoma population by 

reducing opportunities for 

recolonization of some sites that may 

have experienced natural local 

extinctions. 

All lands proposed for designation as 

critical habitat are within the geographic 

area occupied by the species, and may 

be used by the California tiger 

salamander, whether for foraging, 

breeding, growth of larvae and 

juveniles, dispersal, migration, genetic 

exchange, or sheltering. Areas within 

the Santa Rosa Plain proposed critical 

habitat unit that contain the PCEs are 

essential to the conservation of the 

California tiger salamander. Federal 

agencies already consult with us on 

activities in areas currently occupied by 

the species or if the species may be 

affected by the action to ensure that 

their actions do not jeopardize the 

continued existence of the species. 

Consultations could arise if a project is 

proposed within a currently unoccupied 

portion of a critical habitat unit and the 

PCEs of the designated critical habitat 

may be adversely affected by the project. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resource management 

plan (INRMP) by November 17, 2001. 

An INRMP integrates implementation of 

the military mission of the installation 

with stewardship of the natural 

resources found on the base. Each 

INRMP includes: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP must, 

to the extent appropriate and applicable, 

provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands within the proposed critical 

habitat designation; therefore, there are 

no exemptions in this proposed rule. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 


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critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we make the determination 

that the benefits of exclusion outweigh 

the benefits of inclusion, we can 

exclude the area only if such exclusion 

would not result in the extinction of the 

species. 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we are preparing an analysis of 

the economic impacts of the proposed 

critical habitat designation and related 

factors. 

We will announce the availability of 

the draft economic analysis in the 

Federal Register as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at 

http://www.regulations.gov, or by 

contacting the Sacramento Fish and 

Wildlife Office directly (see FOR

FURTHER INFORMATION CONTACT). During 

the development of a final designation, 

we will consider economic impacts, 

public comments, and other new 

information, and areas may be excluded 

from the final critical habitat 

designation under section 4(b)(2) of the 

Act and our implementing regulations at 

50 CFR 424.19. 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense (DOD) where a national security 

impact might exist. In preparing this 

proposal, we have determined that the 

lands within the proposed designation 

of critical habitat for the California tiger 

salamander are not owned or managed 

by the DOD, and therefore, anticipate no 

impact to national security. There are no 

areas proposed for exclusion based on 

impacts on national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors including 

whether the landowners have developed 

any HCPs or other management plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at any Tribal issues, 

and consider the government-togovernment relationship of the United 

States with Tribal entities. We also 

consider any social impacts that might 

occur because of the designation. 

In preparing this proposal, we are 

requesting comments on the benefit to 

the California tiger salamander from the 

Sonoma County Office of Education’s 

Low-Effect HCP, which covers 

approximately 4.42 ac (1.79 ha) in Santa 

Rosa, California; however, at this time, 

we are not proposing the exclusion of 

any areas in the proposed revised 

critical habitat for the Sonoma 

population of the California tiger 

salamander. We also request comments 

or information on any other 

management plans for the California 

tiger salamander within the proposed 

critical habitat unit. We have 

determined that the proposed 

designation does not include any Tribal 

lands or trust resources, and we 

anticipate no impact to Tribal lands or 

trust resources from this proposed 

critical habitat designation. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We have 

invited these peer reviewers to comment 

during this public comment period on 

the data used, specific assumptions, and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final rule 

may differ from this proposed rule. 

Public Hearing 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received 

within 45 days after the date of 

publication of this proposed rule in the 

Federal Register. Such requests must be 

sent to the address shown in FOR

FURTHER INFORMATION CONTACT. We will 

schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. 

Required Determinations 

Regulatory Planning and Review 

Executive Order 12866 requires 

Federal agencies to submit proposed 

and final significant rules to the Office 

of Management and Budget (OMB) prior 

to publication in the FR. The Executive 

Order defines a rule as significant if it 

meets one of the following four criteria: 

(a) The rule will have an annual effect 

of $100 million or more on the economy 

or adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of the government; 

(b) The rule will create 

inconsistencies with other Federal 

agencies’ actions; 

(c) The rule will materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients; or 

(d) The rule raises novel legal or 

policy issues. 

It has been determined that this rule 

is not ‘‘significant.’’ 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 


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organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, we lack the available 

economic information necessary to 

provide an adequate factual basis for the 

required RFA finding. Therefore, we 

defer the RFA finding until completion 

of the draft economic analysis prepared 

under section 4(b)(2) of the Act and E.O. 

12866. This draft economic analysis will 

provide the required factual basis for the 

RFA finding. Upon completion of the 

draft economic analysis, we will 

announce availability of the draft 

economic analysis of the proposed 

designation in the Federal Register and 

reopen the public comment period for 

the proposed designation. We will 

include with this announcement, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. We have concluded that 

deferring the RFA finding until 

completion of the draft economic 

analysis is necessary to meet the 

purposes and requirements of the RFA. 

Deferring the RFA finding in this 

manner will ensure that we make a 

sufficiently informed determination 

based on adequate economic 

information and provide the necessary 

opportunity for public comment. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and [T]ribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or 

[T]ribal governments ‘‘lack authority’’ to 

adjust accordingly. At the time of 

enactment, these entitlement programs 

were: Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments. The lands being 

proposed for critical habitat are mostly 

private lands with some other local 

government lands. Given the 

distribution of this species, small 

governments will not be uniquely 

affected by this proposed rule. Small 

governments will not be affected at all 

unless they propose an action requiring 

Federal funds, permits, or other 

authorization. Any such activity will 

require that the involved Federal agency 

ensure that the action is not likely to 

adversely modify or destroy designated 

critical habitat. However, as discussed 

above, Federal agencies are currently 

required to ensure that any such activity 

is not likely to jeopardize the species, 

and no further regulatory impacts from 

the designation of critical habitat are 

anticipated. Because we believe this 

rule will not significantly or uniquely 

affect small governments, a Small 

Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment if appropriate. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the California tiger 

salamander in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of critical habitat for the 

California tiger salamander does not 

pose significant takings implications for 

lands within or affected by the 

designation. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State of California 

resource agencies. The designation may 

have some benefit to these governments 

in that the areas essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of the species 

are specifically identified. This 

information does not alter where and 

what Federally sponsored activities may 

occur. However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 


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authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This proposed 

rule uses standard property descriptions 

and identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the California tiger 

salamander. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA (42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s Manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’, we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

Tribal lands essential for the 

conservation of the California tiger 

salamander. Therefore, designation of 

critical habitat for the Sonoma 

population of the California tiger 

salamander has not been designated on 

Tribal lands. 

Energy Supply, Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. Based on the previous 

proposal and final designation of critical 

habitat in this area, we do not expect it 

to significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http://www.regulations.gov 

and upon request from the Field 

Supervisor, Sacramento Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this package 

are the staff members of the Sacramento 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.11(h), revise the entry for 

‘‘Salamander, California tiger’’ under 

‘‘AMPHIBIANS’’ in the List of 

Endangered and Threatened Wildlife to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 


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Species 

Historic range 

Vertebrate population 

where endangered or 

threatened 

Status When 

listed 

Critical 

habitat Special rules 

Common name Scientific name 

* * * * * * * 

AMPHIBIANS 

* * * * * * * 

Salamander, California tiger.Ambystoma 

californiense.

U.S.A. (CA) .... U.S.A. (CA–Santa 

Barbara County).

E ............ 667E, 702 17.95(d) ....... NA. 

Do ....................... ......do ....................... ......do ............. U.S.A. (CA–Sonoma 

County).

E ............ 729E, 734 ......do .......... ......do 

Do ....................... ......do ....................... ......do ............. ................................... T ............ .................. ......do .......... 17.43(c). 

* * * * * * * 

U.S.A. (CA–Central) 744 

3. Amend § 17.95(d) by revising 

critical habitat for the California tiger 

salamander (Ambystoma californiense) 

in Sonoma County to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

California Tiger Salamander 

(Ambystoma californiense) 

* * * * * 

California Tiger Salamander in Sonoma 

County 

(52) The critical habitat unit for 

Sonoma County, CA, is depicted on the 

map below. 

(53) The primary constituent elements 

of critical habitat for the Sonoma 

County population of the California 

tiger salamander are the habitat 

components that provide: 

(i) Standing bodies of fresh water 

(including natural and manmade (e.g., 

stock)) ponds, vernal pools, and other 

ephemeral or permanent water bodies 

that typically support inundation during 

winter and early spring and hold water 

for a minimum of 12 weeks in a year of 

average rainfall. 

(ii) Upland habitats adjacent and 

accessible to and from breeding ponds 

that contain small mammal burrows, or 

other underground refugia that 

California tiger salamanders depend 

upon for food, shelter, and protection 

from the elements and predation. 

(iii) Accessible upland dispersal 

habitat between occupied locations that 

allow for movement between such sites. 

(54) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. 

(55) Critical Habitat Unit: Santa Rosa 

Plain Unit, Sonoma County, CA. Data 

layers defining the map unit were 

created on a base of USGS 7.5′ 

quadrangles, and the critical habitat unit 

was then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(56) Santa Rosa Plain Unit, Sonoma 

County, CA. From USGS 1:24,000 

quadrangle map Healdsburg, 

Sebastopol, Santa Rosa, Two Rock, 

Cotati, Petaluma, and Mark West 

Springs, CA. Note: Map of Santa Rosa 

Plain Unit follows: 

BILLING CODE 4310–55–P 


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* * * * * Dated: August 3, 2009. 

Jane Lyder, 

Deputy Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E9–18885 Filed 8–17–09; 8:45 am] 

BILLING CODE 4310–55–C 


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