[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21920-21936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8806]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2012-0003; 4500030113]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Eastern or Southern Rocky Mountain Population of 
the Boreal Toad as an Endangered or Threatened Distinct Population 
Segment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list either the Eastern population or 
the Southern Rocky Mountain (SRM) population of the boreal toad 
(Anaxyrus boreas boreas) as a distinct population segment (DPS) that is 
endangered or threatened under the Endangered Species Act of 1973, as 
amended (Act), and to designate critical habitat. Based on our review, 
we find that the petition presents substantial scientific or commercial 
information indicating that listing the Eastern population of the 
boreal toad as a DPS may be warranted. We did not find substantial 
information that listing the SRM population of the boreal toad as a DPS 
may be warranted. Therefore, with the publication of this notice, we 
are initiating a review of the status of the Eastern population to 
determine if listing it as a DPS is warranted. To ensure that this 
status review is comprehensive, we are requesting scientific and 
commercial data and other information regarding the potential DPS. 
Based on the status review, we will issue a 12-month finding on the 
petition, which will address whether the petitioned action is 
warranted, as provided in the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before June 11, 2012. The deadline 
for submitting an electronic comment using the Federal eRulemaking 
Portal (see ADDRESSES section, below) is 11:59 p.m. Eastern Time on 
this date. After June 11, 2012, you must submit information directly to 
the Field Office (see FOR FURTHER INFORMATION CONTACT section below). 
Please note that we might not be able to address or incorporate 
information that we receive after the above requested date.

[[Page 21921]]


ADDRESSES: You may submit information by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter Docket No. 
FWS-R6-ES-2012-0003, which is the docket number for this action. Then 
click on the Search button. You may submit a comment by clicking on 
``Send a Comment or Submission.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2012-0003; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all information we 
receive on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Request for 
Information section below for more details).

FOR FURTHER INFORMATION CONTACT: Western Colorado Supervisor, Western 
Colorado Ecological Services Office, Grand Junction, CO; by telephone 
at 970-243-2778; or by facsimile at 970-245-6933. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
Eastern population of the boreal toad from governmental agencies, 
Native American tribes, the scientific community, industry, and any 
other interested parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    If, after the status review, we determine that listing the Eastern 
population of the boreal toad is warranted, we will propose critical 
habitat (see definition in section 3(5)(A) of the Act) under section 4 
of the Act, to the maximum extent prudent and determinable at the time 
we propose to list the species. Therefore, we also request data and 
information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (2) Where these features are currently found;
    (3) Whether any of these features may require special management 
considerations or protection;
    (4) Specific areas outside the geographical area occupied by the 
species that are ``essential for the conservation of the species''; and
    (5) What, if any, critical habitat you think we should propose for 
designation if the species is proposed for listing, and why such 
habitat meets the requirements of section 4 of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If your submission is made via a hardcopy that includes 
personal identifying information, you may request at the top of your 
document that we withhold this personal identifying information from 
public review. However, we cannot guarantee that we will be able to do 
so. We will post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, 
at the U.S. Fish and Wildlife Service, Western Colorado Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly conduct a species status review, which we subsequently 
summarize in our 12-month finding.

Petition History

    On May 25, 2011, we received a petition of the same date from the 
Center for Biological Diversity, the Center for Native Ecosystems, and 
the Biodiversity Conservation Alliance, requesting that either the 
Eastern or SRM population of the boreal toad be listed as an endangered 
or threatened DPS and that critical habitat be designated under the 
Act. The petitioners also requested that if boreal toads in either the 
Eastern or SRM population are designated as separate species during 
consideration of the petition (based on recent and ongoing genetic 
studies) that both species be listed under the Act. We note the request 
to list either population as a DPS, or, if the two populations are

[[Page 21922]]

found to be separate species, to list each as a separate species; 
however, there are currently no scientific papers calling for species 
designations for these two populations. Consequently, this 90-day 
finding examines only the possibility of listing the Eastern or SRM 
population as a DPS or two DPSs, and not the species question.
    The petitioners included the requisite information in the petition, 
as required at 50 CFR 424.14(a). In a June 23, 2011, letter to the 
petitioners, we responded that we reviewed the information presented in 
the petition and determined that issuing an emergency regulation 
temporarily listing the species as endangered under section 4(b)(7) of 
the Act was not warranted. We also stated that we would initiate 
response to the petition in Fiscal Year 2011 and would finalize a 
response in Fiscal Year 2012 (approximately March 2012). This finding 
addresses the petition.

Previous Federal Action(s)

    On September 30, 1993, the Service received a petition from the 
Biodiversity Legal Foundation of Boulder, Colorado, and Dr. Peter 
Hovingh, a researcher at the University of Utah, Salt Lake City, Utah. 
The petitioners requested that the Service list the SRM population of 
the ``western boreal toad'' (a common name sometimes used in the past 
for Anaxyrus boreas boreas) as endangered throughout its range in 
northern New Mexico, Colorado, and southeastern Wyoming. The 
petitioners also requested that the Service designate critical habitat. 
We published a notice of a 90-day finding for the petition in the 
Federal Register on July 22, 1994 (59 FR 37439), indicating that the 
petition and other readily available scientific and commercial 
information presented substantial information that the petitioned 
action may be warranted.
    On March 23, 1995, the Service announced a 12-month finding that 
listing the SRM population of the boreal toad as an endangered DPS was 
warranted but precluded by other higher priority actions (60 FR 15281). 
At that time, a listing priority number of 3 was assigned. When we find 
that a species is warranted but precluded for listing, we refer to it 
as a candidate species. Section 4(b)(3)(B) of the Act directs that when 
we make a ``warranted but precluded'' finding on a petition, we are to 
treat the petition as being one that is resubmitted annually on the 
date of the finding; thus, the Act requires us to reassess the 
petitioned actions and to publish a finding on the resubmitted petition 
on an annual basis. Several resubmitted candidate assessments for the 
boreal toad were completed. The most recent assessment was published in 
the Federal Register on May 11, 2005 (70 FR 24870).
    On October 7, 2002, as part of an agreement regarding multiple 
species, the U.S. Department of the Interior reached an out-of-court 
settlement with several conservation organizations and agreed to make a 
final determination for listing the SRM population of the boreal toad 
by no later than September 30, 2005. In the 2005 Annual Notice of 
Findings on Resubmitted Petitions, we noted that a determination for 
the boreal toad would be funded in Fiscal Year 2005 (70 FR 24870). On 
September 29, 2005, we reached a determination in the revised 12-month 
Finding that the SRM population of the boreal toad did not warrant 
listing because it was not a listable entity according to the DPS 
criteria and, therefore, should be withdrawn from the candidate list 
(70 FR 56880). When the boreal toad was put on the candidate list in 
1995, the DPS policy did not yet exist, so current criteria were not 
used to determine whether the toad was a listable entity. The 
combination of using the DPS criteria developed in1996 and genetic and 
other information available during development of the 2005 finding led 
to determinations that the SRM population of the boreal toad was 
discrete based on DPS discreteness criteria but was not significant 
based on DPS significance criteria. Therefore, it was not considered a 
listable entity.
    On September 2, 2008, we received a notice of intent to sue from 
the Center for Biological Diversity (dated August 28, 2008) for 
violations of the Act (i.e., failure to issue a proposed rule in 2005 
or subsequently list the toad), but a lawsuit never followed.

Species Information

Taxonomy
    The Anaxyrus boreas (formerly Bufo boreas) group of toads, of which 
the boreal toad is a subspecies, are amphibians that occur throughout 
much of the western United States. The species was first described from 
specimens collected on the Columbia River (Washington or Oregon) and 
Puget Sound (Washington) by Baird and Girard (1852). The genus for the 
boreal toad was revised from Bufo to Anaxyrus in 2006 (Frost et al. 
2006, pp. 10, 213, 218, 222, 281, 329, 350, 363), and the Service 
accepts this revision.
    Two subspecies of the boreal toad have been recognized for many 
years, the boreal toad (A. b. boreas, the subject of this finding) and 
the California toad (A. b. halophilus) (Camp 1917, p. 116). Other 
authors recognize up to four subspecies, with the Amargosa toad (A. 
nelsoni or A. b. nelsoni) and black toad (A. exsul) or (A. b. exsul) 
being the other two potential subspecies (Crother 2000 (2001), p. 7; 
2008, pp. 2-4; Stebbins 2003, pp. 208-209, map 32). The Yosemite toad 
(A. canorus) also is considered to be a distinct but closely related 
species (Stebbins 2003, p. 210-211). All of the toad species and 
subspecies mentioned above are considered by Goebel et al. (2009, pp. 
221, 223) and Switzer et al. (2009, pp. 25-26) to comprise the A. 
boreas group. Deoxyribonucleic acid (DNA) analyses by these two sets of 
authors suggest that a taxonomic change to the A. boreas group could be 
appropriate.
    Two different studies analyzing mitochondrial DNA (mtDNA) from 
boreal toads and other closely related species and subspecies conclude 
that toads within the SRM population (southeastern Wyoming, Colorado, 
and New Mexico) and southwestern Wyoming, southeastern Idaho, 
northeastern Nevada, and Utah form a population of genetically similar 
toads termed the Eastern Major Clade (Goebel et al. 2009, p. 210, fig. 
1) or Clade 3-1 (Switzer et al. 2009, p. 8). The combination of these 
two clades (populations of genetically similar toads), the Eastern 
Major Clade and Clade 3-1, primarily form the Eastern population (see 
the map in this notice). Switzer et al. (2009, fig. 3) also identify a 
smaller clade (named Clade BO by Switzer et al.) based on a distinct 
haplotype in southern Utah that constitutes a small part of the Eastern 
population (see the map in this Federal Register notice). Also examined 
within this finding are boreal toads found within the part of the 
Northwest Major Clade that overlaps with the Eastern Major Clade 
(Goebel 2003, p. 2; Goebel et al. 2009, p. 210, fig. 1). This overlap 
is further supported by Switzer et al. (2009, fig. 3), who found that 
the area they designated as Clade 3-2 overlaps with Clade 3-1 (see the 
map in this notice). Clade 3-2 is a weakly supported clade that, in 
combination with Clade 3-3 and sister Clade 3-4, constitutes the larger 
Clade 4-1 discussed in Switzer et al. (2009, pp. 9-10, fig. 2).
    The Northwest Major Clade extends from western Wyoming and 
northwestern Utah over to west-central California and up to 
southeastern Alaska, including ranges of both the boreal toad and the 
California toad (Goebel et al. 2009, p. 215). The Eastern Major Clade 
extends from central Colorado to northeastern Nevada, and from southern 
Wyoming to northern New Mexico and Arizona (see the map

[[Page 21923]]

in this notice). All of the toads within the Eastern Major Clade and 
overlap area of the Northwest Major Clade (or Clades 3-1 and 3-2) are 
considered to be boreal toads (Goebel et al. 2009, p. 215; Switzer et 
al. 2009, p. 3) (see the map in this notice).
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP12AP12.006


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BILLING CODE 4310-55-C
    As illustrated in the map in this notice, the combination of the 
outermost extent of both 2009 genetic articles' clade boundaries 
primarily form the boundaries of the Eastern population. Two exceptions 
occur in west-central Utah and eastern Nevada, where the Eastern 
population boundary extends beyond the clade boundaries (see map). The 
petitioners based the Eastern population boundaries on gross range maps 
drawn by the International Union for Conservation of Nature, creating 
the two exceptions. Reduction in size of the Eastern population from 
clade boundaries also occurs in Arizona, northwestern New Mexico, and 
the other States, based on lack of habitat and no records of boreal 
toads ever occurring in the excluded areas (see map).
    Portions of Goebel et al.'s (2009, p. 210, fig. 1) Northwest Major 
Clade and Switzer et al.'s (2009, fig. 3) Clade 3-2 are illustrated in 
the map in this notice, and discussed in the ``Evaluation of Listable 
Entities'' section below, because of their geographic and genetic 
overlap with the Eastern Major Clade and Clade 3-1 and their necessary 
consideration in making a determination on whether the Eastern 
population is a listable entity. The other petitioned entity, the SRM 
population of the boreal toad, is a subset of the Eastern population 
(see map).
Biology
    Boreal toads may reach a length (snout to vent) of 12.7 centimeters 
(5 inches) (Hammerson 1999, p. 90; Stebbins 2003, p. 208). They possess 
warty skin, oval parotoid glands, and often have a distinctive light 
mid-dorsal stripe. During the breeding season, males develop a dark 
patch on the inner surface of the innermost digit. Unlike many other 
toad species, the boreal toad has no vocal sac and, therefore, produces 
no mating call (Hammerson 1999, p. 90). Tadpoles are black or dark 
brown.
    Boreal toads in the SRM population typically occupy habitat at 
elevations between 2,440 meters (m) (8,000 feet (ft)) and 3,350 m 
(11,000 ft) (Loeffler 2001, p. 6). However, within the Eastern 
population, they have been recorded as low as 1,570 m (5,150 ft) and as 
high as 3,661 m (12,000 ft) (Livo and Yeakley 1997, p. 143; Thompson et 
al. 2004, p. 256; Hogrefe et al. 2005, p. 7). Boreal toads occurring 
further north and west from the SRM population occupy lower elevations 
and are found down to sea level on the Pacific coast (Stebbins 2003, p. 
209). At higher elevations, adult boreal toads emerge from winter 
refugia when snowmelt has cleared an opening from their burrows and 
daily temperatures remain above freezing (Campbell 1970a, pp. 22, 99; 
Campbell 1970b, p. 281). Breeding can occur from late January to July, 
depending on latitude, elevation, and local conditions (Stebbins 2003, 
p. 209). Breeding occurs during a 2- to 4-week period from mid-May to 
mid-June at lower elevations, and as late as mid-July at higher 
elevations in the SRM population (Hammerson 1999, p. 96). Suitable 
breeding sites are large bodies of water or small pools, beaver ponds, 
glacial kettle ponds, roadside ditches, human-made ponds, and slow-
moving streams (Campbell 1970a, pp. 24-25; Hammerson 1999, p. 95).
    Boreal toads have been observed to lay up to 16,500 eggs (Campbell 
1970a, p. 24), and, in Colorado they have been observed laying up to 
10,900 eggs (Hammerson 1999, p. 96), with an overall mean clutch size 
of 6,661 eggs (Carey et al. 2005, p. 224). The eggs are black and are 
deposited in long double-layer jelly strings, with one to three rows of 
eggs (Hammerson 1999, p. 90). Eggs hatch 1 to 2 weeks after being laid. 
Egg and tadpole development is temperature-dependent, and reproductive 
efforts may fail if tadpoles do not have sufficient time to 
metamorphose before the onset of winter. Persistent, shallow bodies of 
water are critical to breeding success, and if the breeding site dries 
before metamorphosis is complete, desiccation of the tadpoles or eggs 
will occur. Tadpoles typically metamorphose by late July to late 
August, but at higher elevations metamorphosis may not be complete 
until late September (Loeffler 2001, p. 7). Recently metamorphosed 
toadlets (metamorphs) aggregate within a few meters of the water and 
move into nearby moist habitats later in summer.
    After mating, adults often disperse to upland, terrestrial 
habitats, where they are mostly active during the day in early and late 
summer (Mullally 1958, entire; Campbell 1970a, pp. 84-86; Carey 1978, 
pp. 203, 206, 211), foraging primarily on ants, beetles, spiders, and 
other invertebrates (Schonberger 1945, p. 121; Campbell 1970a, p. 69-
71). Late in the summer the toads will expand their home ranges, 
generally in the direction of wintering habitats, which include 
cavities among streamside boulders, ground squirrel burrows, and beaver 
lodges and dams (Campbell 1970a, pp. 50, 87; Hammerson 1999, p. 94).
    Survival of embryos from laying to hatching is normally high, but 
catastrophic mortality has been observed (Blaustein and Olson 1991, 
entire). Survival of tadpoles and juveniles is low, with predation and 
adverse environmental conditions primarily responsible for mortality at 
these life stages (Campbell 1970a, p. 61). Between 95 and 99 percent of 
juveniles die before reaching their second year of life (Samollow 1980, 
p. 33). The minimum age of breeding boreal toads is about 4 years in 
males and 6 years in females (Hammerson 1999, p. 97). Females may skip 
1 to 3 years between breeding attempts, and individuals may live 
approximately 11 or 12 years (Olson 1991, pp. 7, 14).
Distribution, Abundance, and Trends
    The range of the boreal toad subspecies (Anaxyrus boreas boreas) 
extends from coastal Alaska south and east through the Yukon Territory, 
the extreme southwest corner of the Northwest Territory, British 
Columbia, western Alberta, Washington, Oregon, northern California, 
northern Nevada, Idaho, western Montana, western and southeastern 
Wyoming, central and northern Utah, central to western Colorado, and 
extreme north-central New Mexico (Stebbins 2003, map 32; Goebel et al. 
2009, p 210). No records of the boreal toad exist from Arizona or 
northwestern New Mexico, and, therefore, we do not consider the range 
of the boreal toad to include Arizona or northwestern New Mexico.
    The range of the SRM population includes southeastern Wyoming 
through the mountainous region of central to west-central Colorado, and 
into extreme north-central New Mexico. The range of the Eastern 
population encompasses the SRM population and also includes 
southwestern Wyoming, southeastern Idaho, northeastern Nevada, and Utah 
(Goebel et al. 2009, p. 210; Switzer et al. 2009, p. 8, figure 3; 
Greenwald et al. 2011, pp. 17, 56-72) (see the map in this notice).

SRM Population

Southeastern Wyoming
    In southeastern Wyoming, the boreal toad was once widespread and 
numerous in the Medicine Bow, Pole, Snowy, and Sierra Madre Mountain 
Ranges (Baxter and Stone 1985, p. 31; Keinath and Bennett 2000, p. 4). 
Declines in populations were documented in southeastern Wyoming from 
1986 through 1988 (Corn et al. 1989, pp. iv, 26), and the subspecies is 
now rare in southeastern Wyoming (Keinath and Bennett 2000, p. 4; 
Jackson 2008, p. 4). Distribution, abundance, and trends of SRM toads 
are based on field monitoring from 1997 through 2011, but the latest 
written report ends with the 2007 field season (Jackson

[[Page 21925]]

2008, entire). In 2003, toads were observed in only seven southeastern 
Wyoming locations (in Albany and Carbon Counties). Only one breeding 
population is known to occur in southeastern Wyoming (Jackson 2008, pp. 
91-92; Colorado Division of Wildlife 2010, p. 1). However, this 
population does not meet the population viability criteria established 
in the SRM conservation plan that was written by the State-led Boreal 
Toad Recovery Team (composition of Team described in Factor D) 
(Loeffler 2001, p. 17-18). The viability criteria specify the number of 
adults required at a breeding site, the frequency of breeding activity, 
and the amount of egg production and recruitment needed to maintain a 
viable population. The criteria also specify that a viable population 
must face no known significant and imminent threats to its habitat, 
health, or environmental conditions.
Colorado
    In Colorado, the boreal toad was historically known to occur in 25 
counties, and was common throughout the higher elevations (Burger and 
Bragg 1947, pp. 61-62; Smith et al. 1965, p. 5; Keinath and McGee 2005, 
p. 22), except for the Sangre de Cristo Mountains, Wet Mountains, and 
Pikes Peak region (Hammerson 1999, p. 90). Disappearances of 11 
populations in the West Elk Mountains were documented between 1974 and 
1982 (Carey 1993, pp. 357-358). Surveys of 59 historically occupied 
localities in Colorado between 1986 and 1988 failed to find individuals 
in 83 percent (49 locations) of the sites (Corn et al. 1989, p. iv). 
Surveys conducted in 1989 (249 locations) and 1991 (377 locations) in 
suitable habitat and historical locations resulted in finding boreal 
toads at 2 and 1 location, respectively (Hammerson 1989, pp. 41, 46, 
50, 52, 53; Hammerson 1992, pp. 2, 142). The number of known breeding 
populations increased from 1996 to 2007, from the high teens to mid-
40s; however, the number of individuals in some breeding populations 
have declined significantly from large numbers in the late 1990s or 
early 2000s to relatively few individuals as of 2007. Many more 
breeding sites and breeding populations have had very few toads 
observed since their initial discovery (Jackson 2008, pp. 12-91, 94). 
Despite knowledge of increased numbers of locations of boreal toads, 
the Boreal Toad Recovery Team identified only one population meeting 
the SRM conservation plan definition of viable in 2006 and 2007, versus 
a high of six populations in 1999 (Loeffler 2001, p. 17-18; Jackson 
2008, p. 11). The lower number of viable populations is primarily due 
to detection of chytrid fungus (Batrachochytrium dendrobatidis), 
hereafter abbreviated ``Bd,'' a threat suspected in decline of boreal 
toad numbers and distribution (Jackson 2008, pp. 6, 10). The above 
information suggests boreal toad populations are declining in Colorado.
New Mexico
    The boreal toad was known to occur in three Rio Arriba County, New 
Mexico, localities: Lagunitas, Canjilon, and Trout Lakes (Campbell and 
Degenhardt 1971, entire; Jones 1978, p. 3; New Mexico Department of 
Game and Fish (NMDGF) 1988, p. 1; Degenhardt et al. 1996, p. 49). 
Declines were first documented in New Mexico in the mid-1980s (Woodward 
and Mitchell 1985, p. 5; Carey 1987, pp. 1, 3). Surveys in 1993 
revealed no populations at the three previously known locations (Stuart 
and Painter 1994, p. 115). No boreal toads were observed during surveys 
of the Trout Lakes and Lagunitas areas of New Mexico in 2004 (Jackson 
2005, p. 41). Consequently, in 2008 a repatriation program was started 
at Trout Lakes with over 4,000 Colorado-reared tadpoles being released 
(NMDGF 2008, p. 2; USFWS 2009, p. 3). In 2009, over 3,400 tadpoles were 
released at Trout Lakes (NMDGF 2010, p. 4-5; USFWS 2010, p. 3). In 
2009, only seven boreal toads from the 2008 release were recaptured 
(NMDGF 2010, p. 3).
    In summary, based on currently available data, the distribution and 
abundance of boreal toads in the SRM population appears to be 
declining.

Eastern Population, Excluding the SRM Portion of the Population (see 
above)

Southwestern Wyoming
    Relatively recent records (1993-2003) and historical records (pre-
1993) of boreal toad locations were compiled for southwestern Wyoming 
(McGee and Keinath 2004, pp. 65-66). Historically, boreal toads 
occurred in Uinta and Lincoln Counties in the southwestern corner and 
west-central edge of Wyoming. One (nonbreeding) record from far eastern 
Lincoln County was recorded in the 1993-2003 time period. Other recent 
records in the region are from Sublette County bordering the eastern 
side of Lincoln County. Juvenile or recently metamorphosed toads and 
tadpoles were collected in Sublette County, Wyoming, for genetic 
analysis. The most southerly of the three toad samples was grouped with 
the Eastern population by Goebel (2003, p. 7). We do not have more 
recent distribution or status information in our files for southwestern 
Wyoming.
Southeastern Idaho
    Two genetic sample sites in southeastern Idaho occur within the 
Eastern population (Switzer et al. 2009, fig. 3 and table 8). We do not 
currently have additional information on boreal toad distribution or 
status in southeastern Idaho.
Northeastern Nevada
    One boreal toad genetic sample has been collected in northeastern 
Nevada (Goebel et al. 2009, pp. 210 and 212). We currently have no 
additional information on the distribution or status of boreal toads in 
northeastern Nevada.
Utah
    The petition states that boreal toads are largely distributed 
throughout most of their historical range in Utah, which includes 
northern and central Utah (referencing Thompson et al. 2004, entire). 
Toads were considered to be irregularly distributed, and not all 
historical areas were occupied at the time of the Utah Boreal Toad 
Conservation Plan's development (Hogrefe et al. 2005, p. 5). The Utah 
Conservation Plan states that between 1995 and 2004, toads were 
recorded at a minimum of 102 localities (Hogrefe et al. 2005, p. 5), 
and eight populations were considered viable (Hogrefe et al. 2005, p. 
1). Ten populations in 2009 were considered viable according to the 
definition in the Utah Conservation Plan (Utah Division of Wildlife 
Resources (UDWR) 2010, pp. I-16, I-17, II-10, III-5, IV-12).
    In summary, based on currently available data, the number of viable 
populations appears stable in Utah, but little information exists to 
evaluate the current distribution or trend in abundance in the Eastern 
population outside of the boundaries of the SRM population.

Evaluation of Listable Entities

    Under section 3(16) of the Act, we may consider for listing any 
species, including subspecies, of fish, wildlife, or plants, or any DPS 
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 
1532(16)). Such entities are considered eligible for listing under the 
Act (and, therefore, are referred to as listable entities) if we 
determine that they meet the definition of an endangered or threatened 
species. The petitioners have requested that either the SRM population 
of the boreal toad or the Eastern population of the boreal toad be 
considered a DPS and listed as endangered or threatened under the Act.

[[Page 21926]]

Distinct Vertebrate Population Segment

    In determining whether an entity constitutes a DPS, and is 
therefore listable under the Act, we follow the Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments Under the 
Endangered Species Act (DPS Policy) (61 FR 4722; February 7, 1996). 
Under our DPS Policy, we analyze three elements prior to listing a 
possible DPS: (1) The discreteness of the population segment in 
relation to the remainder of the taxon; (2) the significance of the 
population segment to the taxon to which it belongs; and (3) the 
population segment's conservation status in relation to the Act's 
standards for listing (e.g., is the population segment, when treated as 
if it were a species, endangered or threatened?) (61 FR 4722). This 
finding considers whether the petitioned SRM population or Eastern 
population of the boreal toad may be a DPS.
Discreteness
    Under our DPS Policy, a population segment of a vertebrate species 
may be considered discrete if it satisfies either one of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation); or (2) it is 
delimited by international governmental boundaries within which 
significant differences in control of exploitation, management of 
habitat, conservation status, or regulatory mechanisms exist (61 FR 
4722).
Significance
    Under our DPS Policy, in addition to our consideration that a 
population segment is discrete, we consider its biological and 
ecological significance to the taxon to which it belongs. This 
consideration may include, but is not limited to, the following:
    (1) Evidence of the persistence of the discrete population segment 
in an ecological setting that is unusual or unique for the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historical range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics 
(61 FR 4722).

Discreteness Information Provided in the Petition

    The petition cites two genetic studies (Goebel et al. 2009, entire; 
Switzer et al. 2009, entire) that the petitioners believe support 
either that (1) the Eastern population, which would include the SRM 
population, is markedly separate from other boreal toad populations 
because of genetic differences and geographic separation, or (2) the 
SRM population is markedly separate from the rest of the Eastern 
population, as well as all other boreal toad populations, due to 
geographic separation. The petitioners recognize there may be overlap 
in genetics and geography between the Eastern and SRM populations, as 
well as with other populations within the range of the species, but 
they believe that the level of overlap is within the bounds allowed by 
the DPS policy in that the DPS policy does not ``require absolute 
reproductive isolation as a prerequisite to recognizing a distinct 
population segment'' (61 FR 4722).

Significance Information Provided in the Petition

    The petition states that both the Eastern population and SRM 
population occur in an unusual or unique ecological setting. The 
petition also states that a significant gap in the range could occur if 
boreal toads are extirpated from either the Eastern population (a 20 
percent (or 161,422 square miles) loss of the species' range in the 
conterminous United States) or SRM population (a 5 percent (or 38,894 
square miles) loss of the species' range in the conterminous United 
States). Furthermore, the petition states that the Eastern population 
is significant based on Goebel et al. (2009, entire) and Switzer et al. 
(2009, entire). The petition further states that evidence shows that 
the SRM population may be significant based on the potential for the 
SRM population to be its own evolutionary unit as evidenced by 
geographic separation and greater diversity than currently recognized 
species (Goebel et al. 2009, pp. 213, 221).
Evaluation of Information Provided in the Petition and Available in 
Service Files on Discreteness of the SRM Population
    Based on evidence of feasible dispersal distances, the SRM 
population is likely geographically (physically) separated from other 
populations of the boreal toad, including the western portion of the 
Eastern population (Keinath and McGee 2005, p. 16, fig. 7 and pp. 26-
27) (see the map in this notice). The greatest recorded distance of 
movement for a boreal toad in the southern Rocky Mountains is 8 
kilometers (km) (5 miles (mi)) (Lambert 2003, p. 88). The map in this 
notice illustrates the gross range of the western part of the Eastern 
population and the SRM population. We used complete hydrologic units to 
develop the eastern boundary of the western part of the Eastern 
population. The petition maps did not use complete hydrologic units, 
particularly in northeastern Utah, but rather cut them off at State 
boundaries. The Red Desert separates these two portions of the Eastern 
population in Wyoming by about 126 km (78 mi), and arid habitat in 
western Colorado and eastern Utah create separation of at least 84 km 
(52 mi). However, boreal toads are not known to actually occupy the 
outer extent (lower elevations) of the gross hydrologic units in the 
map in this notice. Maps in the petition can be referred to in order to 
see hydrologic units known to be occupied by boreal toads (Greenwald et 
al. 2011, pp. 56-72). Looking at these hydrologic unit of occurrences, 
and based on relatively current ranges described in Keinath and McGee 
(2005, p. 16, fig. 7), approximately 210 km (130 mi) of separation 
occurs in Wyoming. At least 200 km (125 mi) of separation occurs in 
eastern Utah and western Colorado (Greenwald et al. 2011, pp. 9, 56-
72). Therefore, the large size and arid, inhospitable habitat of the 
Red Desert and arid lands to the south in Colorado and Utah likely 
create a geographic barrier to migrating toads.
    Mitochondrial DNA analysis indicates that the SRM population is 
part of a more widespread evolutionary lineage that includes boreal 
toad populations from Utah, northeastern Nevada, southeastern Idaho, 
and southwestern Wyoming (Goebel et al. 2009; Switzer et al. 2009). 
However, since mtDNA evolves slowly, taxonomic separation based solely 
on mtDNA may not provide clear taxonomic distinctions. For example, a 
single haplotype from boreal toads in the Uinta Mountains of Utah also 
occurs in boreal toads in the SRM population (Goebel et al. 2009, p. 
221). Discovery of this haplotype common to both areas led to the 
combination of the SRM population and the Uinta Mountain site as a 
minor clade--that clade is named the Eastern Rocky Mountain Minor Clade 
(Goebel et al. 2009, p. 217, figure 4). However, due to the long 
distance separating the sites, the occurrence of this haplotype in both 
areas may be a result of incomplete lineage sorting commonly found in 
recently isolated groups (Goebel et al.

[[Page 21927]]

2009, p. 221). In other words, boreal toads from the Uinta Mountain 
site and the SRM population may have interbred at one time thousands to 
millions of years ago, but are not likely to have interbred since then, 
and the similar haplotype detection is simply a feature of the slow 
evolutionary changes that can occur in portions of mtDNA. These 
statements lend support to the idea that the geographic separation of 
the SRM population has eliminated genetic interbreeding and the SRM 
population is discrete. However, further DNA (particularly nuclear DNA 
(nDNA)) studies are needed to provide clarification on taxonomy, before 
genetic evidence could be used to support genetic discreteness of the 
SRM population.
    Nonetheless, based on its current geographic separation from other 
boreal toad populations, we believe there is substantial information to 
indicate that the SRM population may meet the DPS Policy definition of 
discreteness.
Evaluation of Information Provided in the Petition and Available in 
Service Files on Discreteness for the Eastern Population (which 
includes the SRM population)
    As referenced above, two different studies analyzing mtDNA from 
boreal toads and other closely related species and subspecies conclude 
that toads within the SRM population and southwestern Wyoming, 
southeastern Idaho, northeastern Nevada, and Utah form a population of 
genetically similar toads termed the Eastern Major Clade (Goebel et al. 
2009, p. 210, fig. 1) or Clade 3-1 (Switzer et al. 2009, p. 8, and fig. 
3), which we refer to in this document as the Eastern population of the 
boreal toad (see the map in this notice). Both studies acknowledge that 
the Eastern population overlaps with areas identified as the 
Northwestern Major Clade (Goebel et al. 2009, p. 210, fig. 1) or Clade 
3-2 (Switzer et al. 2009, fig. 3) (see the map in this notice). 
Therefore, absolute reproductive isolation may not currently be 
occurring between the Eastern population and other populations of 
boreal toads. However, studies suggest that the Eastern Major Clade and 
the Northwestern Major Clade are sufficiently different that they may 
represent different species (Goebel 2003 p. 7). There is a need to 
examine additional nDNA further north in Wyoming, in the Yellowstone 
area and surrounding regions, to determine if nDNA divergence parallels 
mtDNA divergence in boreal toads (Goebel 2003, p. 8).
    Through mtDNA analysis, Goebel (2003, pp. 8-9) found greater 
differences between boreal toads in the Eastern Major Clade versus the 
Northwest Major Clade than mtDNA differences found between the Canadian 
toad (Bufo hemiophrys) and American toad (B. americanus), which are 
considered to be two separate species. Goebel et al. (2009, p. 15) 
provides further support for genetic differences, identifying the 
Eastern and Northwest Major Clades of boreal toads as having different 
haplotype groups. This mtDNA separation suggests the Eastern population 
of boreal toads may be a distinct species (or subspecies) from toads in 
the Northwest Major Clade or other taxonomic entities of boreal toads 
to the north and west. Haplotypes found through mtDNA analysis and 
microsatellite DNA analysis are differentiated enough between Clade 3-1 
(corresponding to the Eastern population) and Clade 3-2 to the north 
that Switzer et al. (2009, p. 8, 23, 25) hypothesized Clade 3-1 could 
be its own taxonomic entity.
    The petition states that the Snake River Plain in Idaho 
geographically separates the boreal toad populations. Boreal toads 
might not cross the Snake River Plain itself; however, based on genetic 
samples, it does not appear that the Plain is a genetic barrier 
(Switzer et al. 2009, fig 3). Genetic samples from Clade 3-2 (Switzer 
et al. 2009, fig. 3) and the Northwest Major Clade (Goebel et al. 2009, 
p. 210, fig. 1) occur north and south of the Plain, which suggests 
boreal toad gene flow around the Snake River Plain. The petition 
erroneously states that the Hell's Canyon portion of the Snake River 
separates boreal toads along the Idaho-Wyoming border. Although the 
upper end of the Snake River does occur on the Idaho-Wyoming border, 
Hell's Canyon is on the Idaho-Oregon border.
    The petition also states that gene flow may occur to the west of 
the northeastern Nevada site where samples were obtained by Goebel et 
al. (2009, pp. 210, 212). However, the petition cites Noles (2010, 
entire), who reviewed and studied genetic and historical geologic 
processes (phylogeography) to explain distribution of boreal toad 
clades in Nevada. The study identifies some genetic sample sites and 
clade names for boreal toads in Nevada and states that it is reasonable 
to suspect that boreal toads in the Bonneville Basin are discernible 
from boreal toads in the Relict Dace Basin and the Lahontan Basin 
immediately to the west (Noles 2010, pp. 24, 50, 51). These statements 
lend support to the idea that the western edge of the Bonneville Basin 
is the northwesternmost extension of the Eastern population, as 
asserted by the petition. However, limited boreal toad genetic sampling 
in the Bonneville Basin, Relict Dace Basin, Lahontan Basin, and an 
unnamed basin on the northern border of Nevada make the genetic overlap 
issue unclear in western Utah, northern Nevada, southwestern Idaho, and 
eastern Oregon (Noles 2010, pp. 12, 38, 39, 50, 51).
    Based on genetic data, there appears to be a continuum of boreal 
toad distribution from southeastern Idaho into western Wyoming and all 
the way to Alaska, as well as a continuum from northwestern Utah, 
northern Nevada, southwestern Idaho, and eastern Oregon all the way to 
Alaska (Goebel et al. 2009, p. 210, 217; Switzer et al. 2009, figure 
3). However, the DPS policy allows for some overlap of interbreeding 
and states that animals do not ``require absolute reproductive 
isolation as a prerequisite to recognizing a distinct population 
segment'' and that ``recognized species * * * are known to sustain a 
low frequency of interbreeding with related species'' (61 FR 4722). 
Furthermore, as the DPS Policy explains, discreteness ``does not 
require absolute separation of a DPS from other members of its species, 
because this can rarely be demonstrated in nature for any population of 
organisms. This standard [adopted by the DPS Policy] is believed to 
allow entities recognized under the Act to be identified without 
requiring an unreasonably rigid test of distinctness'' (61 FR 4722). 
Consequently, based primarily on mtDNA genetic evidence and 
phylogeographic evidence, we find that the petition and our files 
contain substantial information that the Eastern population of the 
boreal toad may be discrete, despite some genetic and geographic 
overlap with other boreal toad populations. We will further examine 
this information during the status review for the 12-month finding.

Evaluation of Information Provided in the Petition and Available in 
Service Files on Significance for the SRM Population

Unusual or Unique Ecological Setting

    The petition asserts that boreal toads in the SRM population could 
be significant based on unusual or unique ecological settings as 
described in a map of ecoregions (areas with common vegetation, soils, 
geology, precipitation levels, hydrology, etc.) (U.S. Environmental 
Protection Agency (EPA) 2011, entire). The petitioners assert that 
ecoregions in the SRM population are distinct from ecoregions in the 
Eastern population, as well as distinct from

[[Page 21928]]

ecoregions in other areas occupied by the boreal toad. For the purposes 
of determining significance in a DPS analysis, we look at whether the 
ecological settings occupied in the area under consideration are unique 
or unusual to the taxon in question, not whether the setting is unique 
from other settings. The petitioner did not provide substantial 
information to indicate that the geographic area occupied by the SRM 
population is unique or unusual for the boreal toad taxon, as required 
by the DPS policy. Additionally, we found no information in our files 
that these settings were unique to the SRM population of the boreal 
toad.
    The petition referenced a study that indicates that boreal toads 
may occur at lower elevations in Utah than in the SRM population 
(Hogrefe et al. 2005, p. 7). However, there is still overlap in 
elevational range of occupied habitats between boreal toads in the SRM 
population and in Utah; therefore, elevation does not appear to 
differentiate a unique ecological setting for boreal toads in the SRM 
population. Also, the petition notes that the ecoregions have varying 
(but overlapping) levels of precipitation and vary in dominant 
vegetation types, but again, specific habitats that boreal toads 
actually occupy (for example, mesic subalpine habitats) appear similar 
across all ecoregions. Consequently, there is not substantial evidence 
in the petition or in our files to support unusual or unique ecological 
settings as a significant factor in differentiating the SRM population 
from the western part of the Eastern population or from other areas 
throughout the range of the boreal toad.

Significant Gap in Range

    The petition states the SRM population constitutes about 5 percent 
(or 38,894 square miles) of the range in the conterminous United States 
and that its loss could pose a significant gap in the range of the 
boreal toad. This loss, which would occur at the southeastern edge of 
the range, would create a gap in the range of the boreal toad in the 
conterminous United States. However, we do not believe this gap would 
be significant, due to the combination of the area being on the edge of 
the range and covering a relatively small area. We do not believe there 
is substantial information that the loss of SRM would be significant to 
the taxon.

Marked Differences in Genetic Characteristics

    The petition suggests that boreal toads in the SRM population are 
significant under the DPS Policy because they comprise more diversity 
than currently recognized species, such as in the Canadian toad and 
American toad example used above by Goebel et al. (2009, p. 215). 
However, in order to be considered significant under the DPS criteria, 
it is not important how diverse the population is, but rather whether 
that diversity (e.g., that of haplotypes) differs markedly from other 
populations of boreal toads. Also, although Goebel et al.'s (2009, p. 
221) statement about incomplete lineage sorting may prove accurate, we 
do not find there is currently enough genetic data to support the 
statement. Goebel et al. (2009, p. 15) conclude that the SRM population 
shares haplotypes with boreal toads in the western part of the Eastern 
Major Clade. Switzer et al. (2009, p. 26) also conclude that boreal 
toads within the SRM population share haplotypes with boreal toads in 
the western portion of Clade 3-1. In fact, both studies group boreal 
toads in the SRM population genetically with other toads in the Eastern 
population, concluding that they are part of a more widespread 
evolutionary lineage. Consequently, we find that current genetic 
analyses do not provide substantial information that the SRM population 
may be significant, because the SRM population does not have markedly 
different genes compared to the rest of the Eastern population.

Evaluation of Information Provided in the Petition and Available in 
Service Files on Significance for the Eastern Population

Unusual or Unique Ecological Setting

    The petition asserts that boreal toads in the Eastern population 
could be significant based on unusual or unique ecological settings as 
described in a map of ecoregions (EPA 2011, entire). They assert that 
ecoregions in the Eastern population are distinct from other ecoregions 
outside of the Eastern population. For the purposes of determining 
significance in a DPS analysis, we look at whether the settings 
occupied in the area under consideration are unique or unusual to the 
taxon in question, not whether the setting is unique from other 
settings. We do not agree with the petition's assertion that ecoregions 
in the Eastern population are unique. Some areas within the range of 
the taxon may in fact be unique because of elevation, precipitation 
levels, and vegetative characteristics. However, we find that many of 
the ecoregions, and areas actually occupied by the boreal toad within 
the range of the taxon, are similar enough that the Eastern population 
cannot be characterized as unusual or unique (i.e., they occupy 
relatively high elevation, moist, subalpine, or boreal forest habitat). 
Consequently, there is not substantial evidence in the petition or in 
our files to support unusual or unique ecological settings as a 
significant factor in differentiating the Eastern population from other 
areas throughout the range of the boreal toad taxon.

Significant Gap in Range

    The petition states the Eastern population (which includes the SRM 
population) constitutes approximately 20 percent of the subspecies' 
range in the conterminous United States and that this should be 
considered a significant gap in the range should boreal toads in the 
Eastern population become extirpated. Based on a review of the 
information in the petition and available in our files, there appears 
to be sufficient information to indicate that there may be a 
significant gap in the range of the species if the Eastern population 
were lost. We will further investigate this in our 12-month status 
review.

Marked Differences in Genetic Characteristics

    For the Eastern population, two studies suggest through mtDNA 
analysis that the combination of the clades that make up the Eastern 
population of the boreal toad could be considered a separate species or 
subspecies. These hypotheses are based on different haplotypes between 
the clades that make up the Eastern population (Eastern Major and Clade 
3-1) and the clades to its north (Northwest Major and Clade 3-2) 
(Goebel et al. 2009, pp. 215, 223; Switzer et al. 2009, pp. 18-26). A 
phylogeographic study in Nevada also suggests that boreal toads in the 
Bonneville Basin could be distinct from toads further to the west in 
Nevada, thereby supporting the idea that the Eastern population is a 
genetically distinct population (Noles 2010, pp. 24, 50, 51). Based on 
information provided in the petition and in our files on differing 
haplotypes between the Eastern population and clades to the north, we 
find that the Eastern population of boreal toad may be significant.

DPS Determination for the SRM Population

    For the reasons described above, we determine that there is not 
substantial information in the petition and in our files to suggest 
that the SRM population of boreal toads may be a valid listable entity 
(DPS). Although this population appears geographically discrete, we did

[[Page 21929]]

not find substantial information to suggest that it may be significant 
according to the standard in our DPS Policy. Therefore, we will not 
evaluate the status of this population further in this finding.

DPS Determination for the Eastern Population

    Based on current knowledge from genetic studies and distribution 
information, there appears to be some genetic and geographic overlap of 
the Eastern population with populations of boreal toads to the north of 
the Eastern population. However, some genetic and geographic overlap is 
allowed by the DPS Policy, and we have determined that the extent of 
this overlap may be within the bounds of the DPS Policy. Therefore, 
considering information in the petition and readily available in our 
files, we find there is substantial information that the Eastern 
population of boreal toads may be a valid DPS based on sufficient 
genetic and geographic discreteness from the other boreal toad 
populations, and based on evidence of significance, including the 
significant gap in the range of the boreal toad that would be created 
if the Eastern population should become extirpated. In addition, marked 
(significant) genetic haplotype differences between the Eastern 
population and other populations of boreal toads to the north also 
support our determination that there is substantial information that 
the Eastern population may be a valid listable entity (DPS). We will 
further analyze the validity of this potential DPS with respect to our 
DPS policy during the 12-month finding.

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR part 424 set forth the procedures for adding a 
species to, or removing a species from, the Federal Lists of Endangered 
and Threatened Wildlife and Plants. A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species may warrant 
listing as threatened or endangered as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively may not be sufficient to 
compel a finding that listing may be warranted. The information shall 
contain evidence sufficient to suggest that these factors may be 
operative threats that act on the species to the point that the species 
may meet the definition of threatened or endangered under the Act.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the Eastern population of the boreal toad, as 
presented in the petition and other information available in our files, 
is substantial, thereby indicating that the petitioned action may be 
warranted. Our evaluation of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

Information Provided in the Petition
    The petition states that water management, roads, livestock 
grazing, recreation, timber harvest, residential and commercial 
development, pollutants, and energy and minerals management are all 
activities that destroy, modify, or curtail the boreal toad's habitat 
or range. The petitioners believe that any of these activities could 
contribute to the decline of the boreal toad.
    Water Management--The petition cites several studies to show that 
water management can lead to direct habitat loss, habitat 
fragmentation, and detrimental alteration of natural hydrological 
regimes, through a number of activities, including draining or filling 
of wetlands, water diversion for municipal or agricultural purposes, 
dam and reservoir construction, dewatering of habitats, bank 
stabilization, and stream channelization (Loeffler 2001, p. 12 ; McGee 
and Keinath 2004, p. 37; Hogrefe et al. 2005, p. 19; Stoddard et al. 
2005, p. 6). The petition also states that extended hydroperiods of 
wetlands can increase densities of invertebrate predators and 
establishment of predatory fishes (Scott 1996, pp. 45-46; Skelly 1996, 
pp. 599-604).
    Roads--The petition states that roads cause habitat fragmentation, 
prevent migration, cause mortality, and alter water flow that sustains 
aquatic habitats (Lehtinen et al. 1999, p. 2; Loeffler 2001, p. 12; 
Hogrefe et al. 2005 p. 17). The petition also states that amphibians in 
general are particularly vulnerable to road mortality. The petition 
states that other detrimental factors may include pollutants, erosion 
and sedimentation, vibrations, and noise. The petition cites several 
additional studies to support these claims, but these references were 
not provided to us or readily available in our files. One article and 
one personal communication referenced in the petition state that 
several boreal toad mortalities have been observed, but other 
references either do not provide specific information or appear to be 
general and would not provide information specific to the boreal toad.
    Livestock Grazing--The petition states that livestock trample 
boreal toads and their habitat. Trampling of habitat could cause 
further mortality to boreal toads from loss of vegetative cover 
resulting in desiccation (Bartelt 2000, pp. 98; Hogrefe et al. 2005, p. 
15). The petition also provides information to suggest that livestock 
grazing may cause declines in water quality from excess nutrients, 
reduction in vegetation that helps filter water, and reduced survival 
of eggs and tadpoles from increased siltation, water temperatures, and 
fecal contamination (Loeffler 1998, p. 54; McGee and Keinath 2004, pp. 
33-34; Hogrefe et al. 2005, p. 15). The petitioners argue that insect 
abundance (toad prey) also may be reduced by livestock grazing 
(Fleischner 1994, pp. 631-632). The petitioners state that prairie-dog 
or other rodent control programs for livestock management reduce 
availability of burrows for overwintering toads (Sharps and Uresk 1990, 
pp. 339-345). The petition also suggests that compaction of soils may 
potentially limit the availability of burrows that help prevent 
desiccation and freezing of toads, that overutilization of tall 
herbaceous cover may make adult toads more susceptible to predation, 
and that grazing contributes to a decline in beaver populations that 
may, in turn, result in less boreal toad habitat. The petitioners

[[Page 21930]]

did not provide references to support most of the above claims, and we 
do not have data readily available in our files to support such claims.
    Recreation--Recreation is cited in the petition as impacting 
amphibians through loss of eggs, tadpoles, metamorphs, and adults due 
to trampling, vehicle impacts, habitat degradation, an increase in 
predators attracted to human refuse, and transfer of pathogens between 
boreal toad populations (Hogrefe et al. 2005, p. 17). The petition 
states that human handling and pet-related mortality of boreal toads 
also may occur. The petition provides examples of where some of these 
activities have impacted boreal toads, and cites references that were 
not available to us in our files.
    Timber Harvest--The petition states timber harvest may cause (1) 
mortality through crushing by equipment, (2) interruption of dispersal 
from breeding sites, or of late-summer dispersal of adults into 
uplands, (3) soil compaction that limits the availability of burrows 
used for overwintering hibernacula, (4) a reduction of available 
refugia through burning of slash piles and downed woody materials, (5) 
sedimentation that could disturb habitat, and (6) the spread of 
nuisance species. The petition states that any timber harvest activity 
that affects wetlands could have negative impacts to the boreal toad 
(Loeffler 1998, pp. 56-57; Bartelt 2000, pp. 20-27, 74-77; McGee and 
Keinath 2004, pp. 32-33). However, only one of the references available 
to us on this topic was specific to the species, showing that effects 
to boreal toads from interruption of dispersal by timber harvest have 
been documented (Bartelt 2000, pp. 20-27, 74-77).
    Residential and Commercial Development--The petition states that 
residential and commercial development have potentially caused 
extirpation of boreal toads in several areas in Utah and Colorado 
(Thompson et al. 2004, p. 257).
    Pollutants--The petition states that pollutants including 
herbicides, insecticides, and piscicides are harmful to amphibians 
(Loeffler 2001, p. 13; Hayes et al. 2002, pp. 5476-5479). The petition 
also states that high salinity concentrations may affect toad 
equilibrium and that a high proportion of streams in the range of the 
Eastern population of boreal toad have high salinity (Dole et al. 1985, 
pp. 645-648; Stoddard et al. 2005, p. 40).
    Energy and Minerals Management--The petition states that energy and 
minerals management causes habitat loss and fragmentation from new 
roads, well pads, pumps and other facilities, and utility lines, and an 
increase in human presence from vehicle traffic and construction 
activity (U.S. Bureau of Land Management (BLM) 2005, pp. 3-29).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Water Management--Alteration of natural hydrology and hydrologic 
processes, such as removal of water sources, shortening or lengthening 
water availability, and flooding large areas of habitat or dispersal 
corridors could cause impacts to the boreal toad (Loeffler 2001, p. 12; 
Hogrefe et al. 2005, p. 19). It is possible that extended hydroperiods 
of water bodies could increase densities of invertebrate predators and 
allow establishment of predatory fishes. It also is possible that water 
manipulation could decrease rates of boreal toad reproduction and 
recruitment (Scott 1996, pp. 45-46; Skelly 1996, pp. 599-604; Semlitsch 
2002, pp. 621-623; McGee and Keinath 2004, p. 37). The creation of 
Lefthand Reservoir in Boulder County, Colorado, flooded a large 
wetland, forcing boreal toads to its margins where habitat may not have 
been as suitable (Campbell 1970a, p. 7; Hammerson 1999, p. 92). 
Reservoirs may not have suitable shallow water for breeding, and open 
water replaces foraging habitat around previously existing wetlands 
(Hammerson 1999, p. 92). However, the information in the petition and 
in our files did not provide any substantial information or analyses to 
suggest that these effects are occurring in a widespread basis in the 
Eastern population of boreal toads.
    The petition states that a substantial proportion of streams 
located within the range of the Eastern population of boreal toads have 
been impacted by disturbance, and cites a study illustrating an average 
30-40 percent disturbance of stream corridor riparian areas, about 10 
percent disturbance of riparian vegetation, and 10-20 percent 
disturbance of streambed stability by stressors in the Southern Rockies 
and Northern Rockies ecoregions (Stoddard 2005, p. 40, fig. 15). The 
stream corridor riparian area category does indicate a moderate amount 
of disturbance to potential boreal toad habitat loss and fragmentation. 
However, the number and extent of streams in this study that were 
occupied by boreal toads is unknown, so the extent of impact is 
indeterminable.
    The petitioners state that wetland losses have occurred throughout 
Utah and are expected to continue due to human population growth (Lee 
2001, p. 4). There are numerous wetlands and water sources within the 
range of the boreal toad that have not been impacted, but there has 
been alteration of riparian and wetland habitat and hydroperiods due to 
water development and use. We believe this issue is the most likely 
activity under Factor A to cause impacts to the boreal toad. However, 
the petition and the information in our files does not detail the 
extent of wetland or riparian habitat alteration as it corresponds to 
effects on boreal toad habitat. The petition does not provide an 
analysis of water management impacts to boreal toads. Consequently, we 
find that localized impacts from water management activities may occur, 
but the petition and information in our files does not present 
substantial scientific or commercial information indicating that water 
management activities are a threat for the Eastern population of the 
boreal toad.
    Roads--Roads could cause direct mortality by vehicle strike as well 
as direct loss of habitat, fragmentation, sedimentation, and alteration 
of hydrology, and could potentially limit dispersal and gene flow 
(Lehtinen et al. 1999, pp. 1-12; Loeffler 2001, p. 12; Hogrefe et al. 
2005, p. 17). However, while the petitioners mapped major roads in the 
range of the boreal toad, they provided limited specific evidence of 
road impacts to boreal toad populations (Hogrefe 2005, p. 17; Greenwald 
et al. 2011, pp. 26, 72). The references referred to by the petition as 
supporting impacts from roads were general in nature and did not speak 
directly to the boreal toad or its habitat. Although there are some 
heavily traveled roads in or near boreal toad habitat, the majority of 
roads are less-traveled dirt roads that we do not believe cause a high 
level of mortality or other impacts to boreal toads. We find that 
localized impacts from roads may occur but the petition and information 
in our files does not present substantial scientific or commercial 
information indicating that roads may threaten the Eastern population 
of the boreal toad.
    Livestock Grazing--Livestock grazing can occasionally cause direct 
mortality to boreal toads (Bartelt and Peterson 1996, p. 14; Bartelt 
2000, p. 98; Hogrefe et al. 2005, p. 15). Additionally, grazing can 
cause boreal toad habitat destruction and degradation through eating 
and trampling of vegetation and possible water quality reduction 
through bank erosion and water contamination (Fleischner 1994, pp. 631-
632; Loeffler 1998, p. 54; Bartelt 2000, pp. 98, 20-27, 74-77; McGee 
and Keinath 2004, pp. 33-34; Hogrefe et al.

[[Page 21931]]

2005, p. 15). Clear-cutting (removal of all trees in an area) has been 
shown to adversely affect boreal toads by creating open spaces that are 
too dry (and presumably too cold at night) for toads (Bartelt 2000, pp. 
20-27, 74-77). If livestock are removing vegetation in large areas, 
adverse conditions similar to those resulting from clear-cuts could 
occur. However, the references in the petition and additional 
references in our files (Bartelt and Peterson 1996, entire) only 
mention occasional direct effects to the boreal toad and only the 
possibility of widespread habitat threats. We find that localized 
impacts from grazing may occur, but the petition and information in our 
files do not present substantial scientific or commercial information 
indicating that grazing may be a threat to the Eastern population of 
boreal toad.
    Recreation--Recreation from camping, hiking, biking, fishing, and 
off-highway vehicle use could impact boreal toad habitat and bring 
increased predation and the chance of pathogen introduction (Loeffler 
1998, p. 51). Potential effects from these activities include transfer 
of disease, including Bd, into uninfected habitats, along with 
trampling, loss of vegetation, reduced water quality, and loss of 
habitat (Hogrefe et al. 2005, pp. 15, 17). Human activities around 
boreal toad breeding sites could increase the presence of ravens and 
jays, which could increase predation on boreal toads. However, we are 
not aware of studies that specifically researched effects of recreation 
on boreal toads. We find that localized impacts from recreation may 
occur, but the petition and information in our files do not present 
substantial scientific or commercial information indicating that 
recreation may be a threat to the Eastern population of boreal toad.
    Timber Harvest--Timber harvest activities, especially clear-cuts, 
can have detrimental effects to the boreal toad by interrupting 
dispersal corridors, causing sedimentation of streams, causing impacts 
to wetland and riparian vegetation used by toads, and affecting habitat 
by prescribed burning of slash piles or downed woody material (Bartelt 
and Peterson 1994, pp. 18-19; Loeffler 1998, pp. 56-57; Bartelt 2000, 
pp. 20-27, 74-77; McGee and Keinath 2004, pp. 32-33). Timber harvest 
equipment can cause direct mortality and compaction of soils that 
reduce burrow availability for shelter or overwintering (Loeffler 1998, 
pp. 56-57; McGee and Keinath 2004, pp. 32-33). Although local impacts 
to habitat may occur from slash pile or downed woody material burning 
in timber harvest areas, prescribed burning or wildfires can promote 
longevity of wetland areas that boreal toads need by preventing build-
up of vegetation and subsequent succession to other habitat types 
(Russell et al. 1999, pp. 374-384). We find that localized impacts from 
timber harvest activities may occur, but the petition and information 
in our files does not present substantial scientific or commercial 
information indicating that timber harvest activities occur frequently 
enough that they may be a threat to the Eastern population of boreal 
toad.
    Residential and Commercial Development--Some boreal toad habitat 
loss could be attributed to development on the Wasatch Front between 
Salt Lake City and Provo, Utah; rapid population growth in this area 
has likely contributed to boreal toad habitat impacts and possible 
extirpations (Lee 2001, p. 4; Thompson 2004, p. 257). Ski areas and 
associated residential development in Colorado also were identified in 
the petition as causing habitat loss or degradation. The petition did 
not cite any references on the effects of ski areas, but an article on 
home ranges of boreal toads documents the potential impacts of ski area 
development by mentioning ski area proximity and related county 
setbacks in Summit County, Colorado (Muths 2003, p. 163). Ski area 
development and associated housing have likely impacted localized 
areas, but boreal toads currently face little threat from residential 
and commercial development due to the higher elevation habitat they 
occupy. We find that localized impacts from residential and commercial 
development may occur, but the petition and information in our files do 
not present substantial scientific or commercial information indicating 
that residential or commercial development may be a threat to the 
Eastern population of boreal toad.
    Pollutants--There are observations and studies describing potential 
impacts to the boreal toad from mine runoff and acidification (Porter 
and Hakanson 1976, pp. 327-331; Corn et al. 1989, entire; Corn and 
Vertucci 1992, entire; Loeffler 1999, pp. 31-32; Jackson 2006, pp. 58-
59). However, impacts are likely localized. Although it was 
hypothesized that a short-term acidic pulse from snowmelt could produce 
effects to amphibians, acidification was not found to be a factor in 
regional amphibian declines in the Rocky Mountains (Corn and Vertucci 
1992, p. 367). Another study demonstrated that pH would have to be 
below 4.9 to produce negative effects to boreal toad embryo survival, 
but pH in the elevations common for boreal toad occurrence is typically 
between 7 and 6 (Corn et al. 1989, pp. 19, 20, 28). Therefore, 
information in the petition and in our files suggests that localized 
impacts from pollutants may occur, but there is not substantial 
information to demonstrate that the impacts are pervasive enough that 
they may be a threat to the Eastern population of the boreal toad.
    Studies have illustrated the effects of pesticides and herbicides 
on amphibians, and deposition by drift can occur (Berrill et al. 1994, 
p. 663; Hayes et al. 2002, pp. 5476-5479; Fellers et al. 2004, p. 2176; 
Relyea 2005, p. 626). However, to our knowledge there is limited 
application of pesticides or herbicides in or near boreal toad habitat. 
Forest management activities such as fire retardant drops are 
infrequent, and piscicide application also is infrequent. In addition, 
we do not agree with the petitioners that a high proportion of streams 
in the range of the Eastern population of the boreal toad have high 
salinity levels (Stoddard 2005, p. 40, fig. 15). In fact, we believe 
they misinterpreted information in their reference source, because 
ecoregion locations (described in the reference) where boreal toads 
primarily occur (Southern Rockies, Northern Rockies, and Northern Xeric 
Basins) have very low salinity (Stoddard 2005, p. 40, fig. 15). 
Salinity from road salts could impact localized breeding sites, but we 
expect the occurrence of these impacts is rare across the range and 
would likely occur along heavily traveled roads only. Overall, we find 
that localized impacts from pollutants may occur, but the petition and 
information in our files do not present substantial scientific or 
commercial information indicating that pollutants may be a threat to 
the Eastern population of boreal toad.
    Energy and Minerals Management--Energy and mineral development can 
cause habitat loss and fragmentation from roads, utility lines, and 
other facilities, and can increase human presence in mining areas. As 
the petition points out, hardrock mines in Colorado may impact boreal 
toads, but boreal toads continued to inhabit the Urad/Henderson Mine in 
large numbers until Bd arrived there in 1999 (Loeffler 1999, pp. 31-32; 
Jackson 2006, pp. 27, 58-59). In fact, there is speculation that Bd-
infected boreal toads at the Urad/Henderson Mine may have had better 
survival from the infection due to inhabiting water with mine effluent 
than boreal toads not inhabiting waters in the effluent area (Jackson 
2006, pp. 58-59). Mining may increase human presence in boreal toad 
habitat and some mortality may occur from vehicles or people, but with 
the general decline in hardrock mining activity over the last several 
decades, we believe the risk of

[[Page 21932]]

mortality from mining-related activities is low.
    We also are not aware that oil and gas development is a widespread 
activity in boreal toad habitat. In Colorado, where extensive oil and 
gas development has occurred, an extremely small amount of oil and gas 
development occurs in boreal toad habitat and the majority of boreal 
toad habitat is located in areas that have low to no potential for oil 
and gas development (Gunnison Sage-grouse Rangewide Steering Committee 
2005, p. 130; Colorado Greater Sage-grouse Steering Committee 2008, p. 
112). We find that localized impacts from energy and minerals 
management may occur, but the petition and information in our files do 
not present substantial scientific or commercial information indicating 
that energy and minerals management may be a threat to the Eastern 
population of the boreal toad.
Summary for Factor A
    Based on the information provided in the petition, as well as other 
information readily available in our files, we find that the petition 
does not present substantial scientific or commercial information 
indicating that the Eastern population of the boreal toad may warrant 
listing due to the present or threatened destruction, modification, or 
curtailment of the species' habitat or range. Although each of the 
issues evaluated under Factor A may impact the Eastern population of 
the boreal toad locally, the information in the petition and in our 
files does not indicate that these rise to the level of a threat to the 
population. There is no information presented in the petition or 
contained in our files that the threats described under Factor A 
cumulatively threaten the Eastern population of the boreal toad. 
However, we will evaluate this factor and cumulative effects of the 
threats described under this factor more thoroughly during the 12-month 
status review if we determine that a valid DPS of boreal toad exists.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition states there is little information on the extent of 
boreal toad collection or harvesting (McGee and Keinath 2004, p. 37). 
Some boreal toads, eggs, or tadpoles have been collected by 
universities, State wildlife agencies, zoos, and other institutions for 
propagation, translocation, genetic research or other scientific study, 
or educational purposes. However, information in our files shows that 
entities involved in these activities in the SRM population area have 
developed protocols to avoid or minimize mortality or injury to boreal 
toads (Scherff-Norris 1997, entire; Loeffler 2001, pp. 36-53). 
Additionally, the Utah Conservation Plan provides general procedures to 
minimize impact of collection activities and outlines plans for 
development of protocols (Hogrefe et al. 2005, pp. 28-38). Due to 
collection and handling procedures implemented by these entities, and 
the lack of known collection pressure from the public, we do not 
consider overutilization of the boreal toad to be occurring. Based on 
our evaluation, neither the petition nor information in our files 
presents substantial scientific or commercial information to indicate 
that overutilization for commercial, recreational, scientific, or 
educational purposes may present a threat to the Eastern population of 
the boreal toad such that the petitioned action may be warranted. 
However, we will evaluate this factor more thoroughly during the 12-
month status review if we determine that a valid DPS of boreal toad 
exists.

C. Disease or Predation

Information Provided in the Petition
    Disease--The petition states that the chytrid fungus (Bd) is the 
primary pathogen of concern for the Eastern population of the boreal 
toad (Fellers et al. 2001, pp. 945, 952; McGee and Keinath 2004, pp. 
23-24; Hogrefe et al. 2005, p. 13). The petition states that Bd attacks 
the skin of boreal toads and can cause chytridiomycosis (the disease 
that can result from Bd infection), resulting in 90-100 percent 
mortality (McGee and Keinath 2004, pp. 43-44). The exact mechanism of 
mortality caused by Bd infection is not understood, but possible 
mechanisms include disruption of water, oxygen, and ion exchange and 
secretion of toxins from the Bd associated with chytridiomycosis 
(Berger et al. 1998, p. 9036).
    The petition also claims that red-leg disease (Aeromonas 
hydrophila), a fungus called Saprolegnia ferax, and a trematode 
(Ribeiroia ondatrae) have all been documented to cause mortality or 
malformations in amphibians and also could impact the Eastern 
population of boreal toads (Johnson et al. 2001, pp. 370-379; Kiesecker 
et al. 2001, entire; Hogrefe et al. 2005, p. 14). The petition states 
that nonnative species, such as bullfrogs (Rana catesbeiana) and 
certain species of fish, may impact the boreal toad by transmitting 
pathogens, including Bd and Saprolegnia ferax (Kiesecker et al. 2001, 
p. 1069; Schloegel et al. 2010, p. 53).
    Predation--The petition states that, despite boreal toad adults' 
having toxic skin secretions, boreal toads have many native predators 
that are suspected of depressing toad populations (Arnold and Wassersug 
1978, entire; Flier et al. 1980, entire; Beiswenger 1981, entire; 
Brodie and Formanowicz 1987, entire; Olson 1989, entire). The petition 
states that nonnative predators, such as trout or bullfrogs, also may 
reduce populations of boreal toads (Bahls 1992, pp. 183, 191; McGee and 
Keinath 2004, pp. 38-39).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Disease--Bd was first identified in the late 1990s from a captive 
blue poison dart frog (Dendrobatis azureus) (Longcore et al. 1999, 
entire). Since then, Bd has been reported in numerous species of 
amphibians worldwide and is most likely a recent introduction to North 
America (Berger et al. 1999, p. 29; Lips et al. 2003, entire). However, 
Bd has been present since at least the early 1970s in America. A 
specimen from Colorado preserved in 1974 was tested for Bd and was 
found to have the fungus present (Hogrefe et al. 2005, p. 14). As 
stated above, Bd attacks the skin of boreal toads and may cause 
chytridiomycosis, which can result in serious disruption of cutaneous 
respiration and osmoregulation (Berger et al. 1998, p. 9036).
    Boreal toads on the Paunsaugunt Plateau in southern Utah were 
reported to be infected with Bd in 2005, and chytridiomycosis is the 
suspected cause of boreal toad mortalities in this population (Hogrefe 
et al. 2005, pp. 14, 26). The Paunsaugunt Plateau (represented by up to 
seven sites comprising one or two breeding populations) was the only 
area out of six areas in the UDWR's Southern Region that was positive 
for Bd infection as of 2009 (UDWR 2010, p. III-3). The Paunsaugunt 
Plateau had only one adult toad observed in 2009 at one out of seven 
sites monitored on the Plateau, although a couple of other sites on the 
Paunsaugunt Plateau had tadpoles observed (UDWR 2010, pp. III-3, 5). 
The low number of toads suggests that Bd has affected toads on the 
Paunsaugunt Plateau.
    In 2008, 77 Bd swabs (DNA samples taken for analysis of Bd presence 
or absence) were taken from boreal toads at Strawberry Reservoir in the 
Central Region of the Utah Division of Wildlife Resources, with 38 of 
those samples (49 percent) testing positive for Bd (UDWR 2010, p. II-
4). In 2009, 105 toads were detected at 3 sites at Strawberry 
Reservoir; however, the impacts of Bd on boreal toad recent population 
trends

[[Page 21933]]

are uncertain (UDWR 2010, pp. II-3, II-10). In the Northeast Region of 
the UDWR, only 1 of 27 Bd swabs taken in 2008 tested positive for Bd 
(UDWR 2010, p. IV-4). Although some swabs are positive for Bd 
infection, Bd test results among regions in Utah are variable, and it 
is unknown whether or not Bd is causing declines in boreal toad 
populations there. However, it is clear that the infection is present 
across Utah.
    Surveyors and researchers in the SRM population collected 417 
samples from 46 sites across Colorado in 2003, and subsequent analysis 
detected 33 toads at 8 sites with Bd (Jungwirth, 2004, p. 53). It also 
was discovered from the study that, at sites with Bd, adult and 
juvenile toads had a 77 percent prevalence rate of infection (Jungwirth 
2004, p. 54). Metamorphs often do not test positive at known Bd 
positive sites, and it is theorized that metamorphs may not have enough 
exposure time to the terrestrial environment to become infected with Bd 
(Jungwirth 2004, p. 54). Furthermore, at toad breeding sites tested 
through the 2007 field season, 22 breeding sites tested positive for 
Bd, 35 tested negative, and 22 additional sites were not tested 
(Jackson 2008, p. 6).
    Even though Rocky Mountain National Park (RMNP) is one of the most 
protected environments within Colorado, boreal toad populations have 
declined in the park (Corn et al. 1997, pp. 40, 42). Four sites were 
monitored in RMNP from 1990 to 2001, and significant declines of boreal 
toads were noted at two of the sites (Kettle Tarn and Lost Lake), 
although all sites declined (Muths et al. 2003, p. 5). Six adult toads 
that were suitable for histologic analysis all had Bd detected on them, 
and another four of six that had preliminary molecular analysis 
conducted on them were also determined to have Bd infections (Muths et 
al. 2003, p. 8). Based on analysis for other diseases, it was 
determined that Bd was the certain cause of decline (Muths et al. 2003, 
pp. 8-9). Evidence of the decline is supported by monitoring data 
showing that Lost Lake had 100-300 toads present from 1991 to 1998, but 
fell to 30 or fewer since then (Jackson 2008, p. 57). Kettle Tarn had a 
hundred or more toads from 1991 through 1995 but exhibited a similar 
precipitous decline afterwards (Jackson, 2008, p. 58).
    Bd testing has not been conducted in the remaining population in 
southeastern Wyoming (Jackson 2008, p. 91). However, as with the rest 
of the SRM population, Bd is the suspected cause of declines in 
southeastern Wyoming (Jackson 2008, p. 4). As stated above, boreal 
toads were extirpated in New Mexico for many years, but reintroduced 
there in 2008 and 2009. However, in 2009 seven boreal toads from the 
2008 release were recaptured, but six of the seven tested positive for 
Bd (NMDGF 2010, p. 3). This indicates that chytridiomycosis probably 
extirpated them in the past, and chance of survival of reintroduced 
toads is low. We currently have no information on Bd occurrence in 
southeastern Idaho, northeastern Nevada, or southwestern 
Wyoming.Overall, Bd appears to be widespread, and is known to occur in 
the SRM and Utah.
    Given its widespread distribution in the SRM area, Utah, and around 
the world, it is likely present in the rest of the Eastern population 
and is almost assuredly the primary reason for declines observed in 
boreal toads in the Eastern population.
    The fungal disease Saprolegnia ferax was spread to boreal toads 
from rainbow trout (Oncorhynchus mykiss) experimentally infected with 
S. ferax (Kiesecker et al. 2001, p. 1064). Although transmission of the 
disease from fish to boreal toads can occur, we have no information 
indicating that S. ferax is prevalent in the wild or has caused boreal 
toad declines in the wild.
    We also have no information in our files to suggest that the 
trematode Ribeiroia ondatrae poses a threat to the boreal toad. The 
petitioners provided one article cited in the petition that found high 
frequencies (40-85 percent) of severe limb malformations in surviving 
western toads (Anaxyrus boreas) and decreased survivorship (42 percent) 
in toads with the heaviest treatment of trematodes in an induced 
laboratory experiment (Johnson et al. p. 370). However, effects of the 
trematode to wild boreal toads is not known, and the petition admits 
that further study is needed before any conclusions can be drawn on 
effects of the trematode to the boreal toad. Consequently, the petition 
did not present substantial information to suggest that the trematode 
may be a threat.
    In conclusion, studies and information presented above illustrate 
that Bd may be the major factor in the decline of the boreal toad and 
that it poses a significant threat to the Eastern population of the 
boreal toad (Loeffler 2001, p. 13; Hogrefe et al. 2005, pp. 13-14). We 
find that the petition and information in our files present substantial 
scientific or commercial information indicating that disease, 
specifically Bd resulting in chytridiomycosis, may be a threat to the 
Eastern population of the boreal toad.
    Predation--The petition and information in our files show that 
adult boreal toads have several avian, mammalian, and reptilian 
predators (Olson 1989, entire; Hammerson 1999, p. 97; Livo 1999, p. 1). 
Avian, reptilian, insect, and even other amphibian predators of 
tadpoles and newly metamorphosed boreal toads also have been recorded 
(Beiswenger 1981, entire; Hammerson 1999, p. 98). Both garter snakes 
(Thamnophis elegans) and spotted sandpipers (Actitis macularia) are 
often encountered at boreal toad breeding sites in Colorado (Lambert 
2003, pp. 22, 24, 77). At Brown's Creek in Colorado, garter snakes are 
suspected to be responsible for poor survivorship of boreal toad 
tadpoles (Lambert 2003, pp. 24, 77). It is likely that poor 
survivorship from predation occasionally results, but other than 
Lambert (2003, p. 22, 24, 77), we have no evidence that this occurs 
often enough or to an extent that it suppresses survival at breeding 
sites or breeding populations to a point that it may threaten the 
Eastern population of the boreal toad.
    Nonnative predators, such as bullfrogs or stocked trout, were 
asserted by the petitioners to cause impacts to the boreal toad. We do 
not have any information that suggests that bullfrogs prey on boreal 
toads, since bullfrogs have never been documented in boreal toad 
habitat. Trout have been stocked in many lakes in the western United 
States, many of which were fishless prior to stocking (Bahls 1992, p. 
183). The presence of stocked trout has been found to exclude frogs 
from lakes in the Sierra Nevada Mountains (Bradford 1989, pp. 776-777). 
However, laboratory experiments have indicated that American toad (Bufo 
americanus) tadpoles may be less palatable than chorus frog tadpoles 
(Pseudacris triseriata) to certain species of fish (Voris and Bacon 
1966, p. 597) and we suspect that boreal toad tadpoles have similar 
toxins as the American toad. Additional evidence is that cutthroat 
trout (Salmo clarkii) mouthed then rejected boreal toad eggs that were 
fed to them (Licht 1969, p. 296). Although trout may injure boreal toad 
eggs or tadpoles by mouthing them, it appears that predation on boreal 
toads may be limited, due to the trout's avoidance of toxins in the 
eggs and tadpoles.
    Localized predation from native or nonnative predators may 
sporadically occur and could occasionally cause declines or extirpation 
of breeding sites or breeding populations. However, we find that the 
petition and information in our files does not present substantial 
scientific or commercial information indicating that predation may rise 
to the

[[Page 21934]]

level of a threat to the Eastern population of the boreal toad.
Summary for Factor C
    Based on our evaluation, the petition and information in our files 
present substantial information that listing the Eastern population of 
the boreal toad due to disease may be warranted. Localized predation 
may cause effects to breeding sites or breeding populations, but the 
petition and information in our files do not present substantial 
information that listing the Eastern population due to predation may be 
warranted. However, we will evaluate this factor more thoroughly during 
the 12-month status review if we determine that a valid DPS of boreal 
toad exists.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petition states that the boreal toad has been State-listed as 
endangered in Colorado and New Mexico (NMDGF 1988, p. 1; CDOW 1993, p. 
2). The petition also states that the toads are designated as a State 
Sensitive Species in Utah. In Wyoming, the boreal toad is designated as 
a Native Species Status 1, which means the species and habitat are 
declining (McGee and Keinath 2004, p. 46). The petition states that the 
designations in Utah and Wyoming garner no legal or regulatory weight. 
The petition also states that boreal toads are designated as nongame 
species in Idaho, protecting them from collection. There is no 
designation for the boreal toad in Nevada.
    The petition states that a Colorado recovery plan was completed in 
1994, and a recovery plan for New Mexico was completed in 2006 (Nesler 
and Goettle 1994, entire; Pierce 2006, entire). The petition states 
that in Utah a conservation plan for the toad also has been completed 
(Hogrefe et al. 2005, entire). The petition adds that Idaho and Nevada 
do not have conservation plans for the boreal toad.
    The petition states that the majority of boreal toad habitat in the 
Southern Rocky Mountains is on U.S. Forest Service (USFS) land. The 
petition also points out that the USFS in both Region 2 (Colorado and 
southeast Wyoming) and Region 3 (New Mexico) classifies the toad as a 
sensitive species. However, USFS Region 4 (western Wyoming, southern 
Idaho, Nevada, and Utah) does not classify the toad as a sensitive 
species. The petition mentions that only two forests, the White River 
National Forest and Medicine Bow National Forest (in Colorado and 
Colorado/Wyoming, respectively), have forest plans that contain 
standards and guidelines for managing the boreal toad. However, the 
petition notes that the two forests only cover a small portion of the 
range of the toad and the forest plans do not adequately address all 
the threats to the toad. The petition also states that the Uintah 
National Forest, which covers a small area of the range of the Eastern 
population of the boreal toad, has a voluntary guideline to protect 
boreal toad habitat from disturbance (trampling) during the breeding 
season.
    The BLM classifies the boreal toad as a sensitive species in 
Wyoming, Colorado, Utah, and Idaho. The petition points out that a 
State-led Boreal Toad Recovery Team comprised of State and Federal 
agencies, and an associated Technical Advisory Group comprised of 
university, State, Federal, and local government staff was formed and 
produced a conservation plan for the boreal toad in the Southern Rocky 
Mountains in 1998 (Loeffler 1998, entire) and revised the plan in 2001 
(Loeffler 2001, entire).
    The petition states that none of the State, USFS, or BLM 
classifications or recovery or conservation plans are adequate to 
protect the boreal toad, because they do not protect habitat, they 
carry no legal or regulatory weight, and they have not been shown to 
have improved the status of the toad. For example, the petition states 
that the Utah Conservation Plan does not address all threats to the 
boreal toad, such as Bd, and Bd has been detected in toads in Utah. The 
petitioners also considered conservation agreements, and found the 
specified actions to be implemented by involved parties within the SRM 
conservation plan were vague and provided little protection to the 
boreal toad. The petition states that even if all actions in the SRM 
conservation plan were accomplished, it still would not adequately 
address the impacts of Bd on boreal toads.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    State listings in Colorado and New Mexico mean that possession of 
the boreal toads is prohibited. In Idaho, the nongame regulations 
prohibit possession of more than four boreal toads (Idaho 
Administration Procedures Act 2010, p. 4). The boreal toad was 
designated as a State Sensitive Species in Utah in 1997 (Hogrefe et al. 
2005, p. 2). However, neither the Utah nor Wyoming sensitive species 
designations protect the toad from possession. Obviously, the lack of 
status in Nevada does not prevent possession of the toad there. 
However, we have no information on whether collection and possession of 
the boreal toad in any of the States is impacting the toad.
    The Colorado Department of Parks and Wildlife (formerly Division of 
Wildlife), Wyoming Game and Fish, NMDGF, and UDWR have led or been 
instrumental in development of the State and SRM conservation plans, 
along with the USFS, U.S. Geological Survey, National Park Service, and 
BLM. Since the boreal toad was State listed in Colorado, considerable 
effort and funding have gone towards research, management, captive 
breeding, and translocation or repatriation of boreal toads in 
Colorado, Wyoming, and New Mexico (the SRM population). University 
staff, the U.S. Geological Service, zoos, and others also have been 
instrumental in research into declines of the boreal toad and 
propagation of the toad.
    Despite development of the conservation plans (which are voluntary 
and not regulatory in nature), and the designations by different State 
and Federal agencies, the research and management actions that have 
occurred, and the standards and guidelines put into place by the USFS, 
there has been little success in conserving the boreal toad because of 
the difficulty of arresting Bd-caused declines. However, the 
overwhelming factor in the boreal toad's decline is chytridiomycosis 
caused by Bd, which will likely affect the toads regardless of what 
regulatory protections are in place.
Summary for Factor D
    Even though the Federal agencies have not addressed or implemented 
boreal toad management through all of their forest plans or resource 
management plans, they do have guidance through their sensitive species 
designations to manage for the toad. There have been management actions 
for the toad carried out on Federal lands, but the Service does not 
currently have information on the extent of implementation and 
effectiveness of these actions. The States within the Eastern 
population lack regulatory authority to protect the toad's habitat. 
However, as stated above in Factor A, we did not find substantial 
information to show that habitat destruction, modification, or 
curtailment currently threaten the toad. Consequently, there is not 
substantial information to indicate that regulations protecting habitat 
are inadequate. Similarly, issues under Factors B, C, and E do not 
currently appear to need further regulatory mechanisms or would not be 
resolved by further regulatory mechanisms. Some of the States have 
regulations that

[[Page 21935]]

prohibit or limit possession of boreal toads; however, there is no 
information to suggest that collection and possession of the boreal 
toad in any of the States is impacting the toad. Consequently, there is 
not substantial information to indicate that State regulations 
prohibiting collection and possession, or lack thereof, are inadequate.
    Nonetheless, as both we and the petitioners recognize, Bd may be 
the overriding threat to the boreal toad, and we believe regulatory 
mechanisms are not capable or have limited capability to reduce the 
existing threat from Bd. Based on our evaluation, neither the petition 
nor information in our files presents substantial information that 
listing the Eastern population of boreal toad due to inadequacy of 
existing regulatory mechanisms may be warranted. However, we will 
evaluate this factor more thoroughly during the 12-month status review 
if we determine that a valid DPS of boreal toad exists.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Information Provided in the Petition
    Isolation--The petition states that many populations of boreal toad 
are small and isolated (Hogrefe et al. 2005, p. 15). Isolation and 
small population size can preclude genetic interchange and 
recolonization of habitat in the face of impacts such as Bd or long-
term land management changes (Carey et al. 2005, pp. 235, 236). Lack of 
gene flow also may cause loss of genetic variability (Wright 1931, pp. 
98-102), causing inbreeding depression. The petition states that random 
events, environmental factors, or human impacts may cause extirpation 
of small, isolated populations.
    Climate Change--The petition states that since boreal toads are 
ectotherms (require heat from the sun or outside sources to warm 
selves), their body temperature varies with their surroundings. The 
petition states (?) boreal toad reproductive behavior and boreal toad 
abundance may be affected by temperature changes resulting from climate 
change (Blaustein and Wake 1995, pp. 2-4; Blaustein et al. 2001, p. 
1808). The petition also states that warmer temperatures may allow for 
the spread of disease, especially in higher elevations where currently 
disease may not be as prevalent. The petition states drought and early 
or late season freezing temperatures caused by climate change may dry 
up breeding pools and cause mortality before or after hibernation 
(McGee and Keinath 2004, p. 41). The petition states that warming will 
limit activity of toads in different habitats (Bartelt et al. 2010, p. 
2675). The petition also states that effects of climate change may have 
already been observed through increasingly earlier breeding due to 
warmer temperatures or reduced precipitation (Blaustein et al. 2001, p. 
1806; Corn 2003, p. 624).
    Ultraviolet Radiation--The petition states that degradation of the 
ozone may be causing increases in ultraviolet-B (UV-B) radiation 
(Stolarski et al. 1992, p. 342; Blumthaler et al. 1997, p. 130). The 
petition states the boreal toad may be susceptible to UV-B radiation 
due to not having protective hair or feathers, and not having 
protective shells on their eggs, which are laid in shallow water 
(Blaustein et al. 1994, p. 1791; Corn 1998, p. 19). Additionally, the 
petition states that photolyase, an enzyme that repairs UV-B damage, is 
lower in boreal toads than in some frogs and may cause lower hatching 
success in boreal toads (Blaustein et al. 1994, p. 1794). However, the 
petition also acknowledges that some studies show UV-B radiation is not 
a factor in hatching success of red-legged frogs (Rana aurora) or 
boreal toads (Blaustein et al. 1996, p. 1401; Corn 1998, pp. 22-23; 
Loeffler 2001, p. 12).
    Invasive Species--The petition discusses invasive species under 
Factor E, but since the discussion focuses on disease transmission and 
predation by invasive species, we address this under Factor C, Disease 
or Predation, above.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Isolation--Isolation or small population size could cause 
extirpation of boreal toad breeding colonies through habitat loss or 
fragmentation or other human or environmental factors (such as Bd 
infection), random events, or genetic problems. Microsatellite nDNA 
analysis suggests that populations of boreal toads within the Eastern 
population are isolated from one another, with little gene flow, and 
that this could potentially cause genetic problems (Switzer et al. 
2009, pp. 23, 25). Additional information suggests that boreal toad 
populations in Utah are separated from each other due to long-term 
climate change (over the last 10,000 years) and human development at 
lower elevations resulting in genetic problems or loss of smaller 
populations through random events (Hogrefe et al. 2005, pp. 14-15).
    Diseases, such as chytridiomycosis, which is caused by Bd, also 
could cause extirpation of these small populations. The SRM 
conservation plan gives a general idea of a large ``population'' in the 
viability criteria as 20 or more adult toads in a breeding ``locality'' 
(in this context ``locality'' is the same as a breeding population). 
Monitoring in Colorado and southeastern Wyoming in 2009 revealed that 
only 5 out of 47 breeding populations (11 percent), or 8 breeding sites 
out of 73 (about 9 percent), had more than 20 adults (CDOW 2010, 
entire). These statistics illustrate that very few populations in the 
SRM portion of the Eastern population are large. Consequently, we 
determine that the petition and information in our files present 
substantial scientific or commercial information indicating that 
isolation and small population size may be a threat to the Eastern 
population of the boreal toad.
    Climate Change--Ray et al. (2008, p. 1) predict that Colorado will 
warm by about 1 [deg]C (2.5 [deg]F) by 2025 and by about 2 [deg]C (4.0 
[deg]F) by 2050. Most of the observed snowpack loss in Colorado has 
occurred below 2,500 m (8,200 ft), with snowpack loss above this 
elevation predicted at between 10 and 20 percent (Ray et al. 2008, p. 
2). With the range of the boreal toad largely above 2,500 m (8,200 ft) 
in the southern Rocky Mountains, it is likely that they will be 
shielded from extensive droughts. However, some drought effects were 
noted in boreal toads in the southern Rocky Mountains in 2002 during a 
drought cycle (Livo and Loeffler 2003, p. 11). Several breeding sites 
either remained dry throughout the breeding season or dried up prior to 
metamorphosis, reducing toad abundance. However, based on subsequent 
years with more precipitation, the 2002 drought may have been within 
normal variation and not related to climate change. Drought could 
exacerbate the decline of localized boreal toad populations, but is not 
considered a major factor in the widespread decline of the species.
    There is a possibility that some diseases, such as 
chytridiomycosis, could expand their range into higher elevation boreal 
toad habitats if warmer temperatures occur due to climate change. 
However, references on this subject listed in the petition are not 
currently available to us and we have no information in our files to 
support this hypothesis. Warming temperatures could affect evaporative 
water loss from boreal toads, which could affect toad movement, 
breeding, and genetic interchange (Bartelt et al. 2010, p. 2675). 
Conversely, warmer temperatures could potentially help boreal toads by 
lengthening the growing season and increasing the rate of growth, 
leading to earlier metamorphosis and greater survival (Carey et al. 
2005, p. 236). We

[[Page 21936]]

find that the petition and information in our files does not present 
substantial scientific or commercial information indicating that 
climate change may be a threat to the Eastern population of the boreal 
toad.
    Ultraviolet Radiation--The effect of increased UV-B radiation 
resulting from ozone depletion has been implicated as a contributing 
factor in amphibian declines, particularly on species inhabiting 
mountainous regions. However, studies are conflicting as to whether UV-
B radiation has any effect on boreal toads and other frog species. A 
correlation was demonstrated between increased levels of UV-B and 
amphibian mortality in boreal toads and the Cascades frog (Rana 
cascadae), but there was no effect of ambient UV-B radiation on red-
legged frog (R. aurora) hatching success (Blaustein et al. 1994, pp. 
1791, 1793-1794). No evidence linking UV-B levels to the decline of the 
boreal toad was found in another study (Corn 1998, pp. 18, 21-25). 
Another study suggested that UV-B and pH could have synergistic effects 
on embryonic success (Long et al. 1995, entire). However, as stated in 
the ``Pollutants'' section under Factor A, pH does not appear to be an 
issue for boreal toads, and, consequently, the synergistic effects of 
UV-B and pH on boreal toads are not expected to occur in the wild. 
Therefore, we determine that the petition and information in our files 
do not present substantial scientific or commercial information 
indicating that UV-B radiation may be a threat to the Eastern 
population of the boreal toad.
Summary for Factor E
    Based on our evaluation, the petition and information in our files 
present substantial information that listing the Eastern population of 
the boreal toad due to isolation and small population size may be 
warranted. Based on our evaluation, neither the petition nor 
information in our files presents substantial information that listing 
the Eastern population of the boreal toad due to climate change or UV-B 
radiation may be warranted. However, we will evaluate the potential 
threat of climate change and UV-B radiation more thoroughly during the 
12-month status review if we determine that a valid DPS of boreal toad 
exists.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we determine that the petition presents substantial scientific or 
commercial information indicating that listing the Eastern population 
of the boreal toad as a DPS may be warranted. This finding is based on 
information provided under Factors C and E.
    Because we have found that the petition presents substantial 
information indicating that listing the Eastern population of the 
boreal toad as a DPS may be warranted, we are initiating a status 
review to determine whether listing the Eastern population of the 
boreal toad under the Act is warranted. During the status review, we 
will fully address the cumulative effects of threats discussed under 
each factor. Additionally, if during the status review period the 
Eastern population of the boreal toad is classified as its own species, 
the Service will determine if listing the newly classified species is 
warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

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

Author

    The primary authors of this notice are the staff members of the 
Colorado Field Office in Grand Junction and Lakewood, Colorado.

    Authority:  The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 27, 2012.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-8806 Filed 4-11-12; 8:45 am]
BILLING CODE 4310-55-P