[Federal Register Volume 65, Number 192 (Tuesday, October 3, 2000)]
[Rules and Regulations]
[Pages 58933-58962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24763]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF98


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Alameda Whipsnake 
(Masticophis lateralis euryxanthus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat under the Endangered Species Act of 1973, as amended 
(Act), for the Alameda whipsnake (Masticophis lateralis euryxanthus). A 
total of approximately 164,150 hectares (406,598 acres) of land fall 
within the boundaries of designated critical habitat. Critical habitat 
for the Alameda whipsnake is located in Contra Costa, Alameda, San 
Joaquin, and Santa Clara counties, California. Section 7 of the Act 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to destroy or adversely modify designated 
critical habitat. As required by section 4 of the Act, we considered 
economic and other relevant impacts prior to making a final decision on 
the size and configuration of critical habitat.

EFFECTIVE DATE: This final rule is effective November 2, 2000.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife 
Office, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825. 
The complete file for this rule is available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jason Davis or Heather Bell, at the 
above address (telephone 916/414-6600, facsimile 916/414-6713).

SUPPLEMENTARY INFORMATION:

Background

    The Alameda whipsnake is a slender, fast-moving, diurnal snake with 
a broad head, large eyes, and slender neck. Alameda whipsnakes range 
from 91 to 122 centimeters (3 to 4 feet) in length. The dorsal surface 
is sooty black in color with a distinct yellow-orange stripe down each 
side. The forward portion of the bottom surface is orange-rufous 
colored, the midsection is cream colored, and the rear portion and tail 
are pinkish. The adult Alameda whipsnake virtually lacks black spotting 
on the bottom surface of the head and neck. Juveniles may show very 
sparse or weak black spots. Another common name for the Alameda 
whipsnake is the ``Alameda striped racer'' (Riemer 1954, Jennings 1983, 
Stebbins 1985).
    The Alameda whipsnake is one of two subspecies of the California 
whipsnake (Masticophis lateralis). The chaparral whipsnake (Masticophis 
lateralis lateralis) is distributed from northern California, west of 
the Sierran crest and desert, to central Baja California. The Alameda 
whipsnake is restricted to a small portion of this range, primarily the 
inner Coast Range in western and central Contra Costa and Alameda 
Counties.
    The distribution in California, of both subspecies, coincides 
closely with chaparral (Jennings 1983, Stebbins 1985). Recent telemetry 
data indicate that, although home ranges of Alameda whipsnakes are 
centered on shrub communities, whipsnakes frequently venture into 
adjacent habitats, including grassland, oak savanna, and occasionally 
oak-bay woodland. Most telemetry locations are within 50 meters (m) 
(170 feet (ft)) of scrub habitat, but distances of greater than 150 m 
(500 ft) occur (Swaim 1994). Initial data indicate that adjacent 
habitats may play a crucial role in certain life history and 
physiological needs of the Alameda whipsnake, but the full extent has 
yet to be determined. Telemetry data indicate that whipsnakes remain in 
grasslands for periods ranging from a few hours to several weeks at a 
time. Grassland habitats are used by male whipsnakes most extensively 
during the mating season in spring. Female whipsnakes use grassland 
areas most extensively after mating, possibly in their search for 
suitable egg-laying sites (Swaim 1994).
    Rock outcrops can be an important feature of Alameda whipsnake 
habitat because they provide retreat opportunities for whipsnakes and 
support lizard populations. Lizards, especially the western fence 
lizard (Sceloporus occidentalis), appear to be the most important prey 
item of whipsnakes (Stebbins 1985; Swaim 1994; Harry Green, Museum of 
Vertebrate Zoology, U.C. Berkeley, pers. comm. 1998), although other 
prey items are taken, including skinks, frogs,

[[Page 58934]]

snakes, and birds (Stebbins 1985, Swaim 1994). Most radio telemetry 
locations for whipsnakes were within the distribution of major rock 
outcroppings and talus (a sloping mass of rock debris at the base of a 
cliff) (Swaim 1994).
    Alameda whipsnakes have been found in association with a variety of 
shrub communities including diablan sage scrub, coyote bush scrub, and 
chamise chaparral (Swaim 1994), also classified as coastal scrub, mixed 
chaparral, and chamise-redshank chaparral (Mayer and Laudenslayer 
1988). However, the type of vegetation may have less to do with 
preference by the whipsnake than the extent of the canopy, slope 
exposure, the availability of retreats such as rock outcrops and rodent 
burrows, and prey species composition and abundance (Swaim 1994; K. 
Swaim, Swaim Biological Consulting, pers. comm. 1999). Alameda 
whipsnakes have been sighted or found dead a significant distance from 
the nearest shrub community (K. Swaim, pers. comm. 1999). The reasons 
for such movements are unknown.
    Initial studies indicated that Alameda whipsnakes occurred where 
the canopy was open (less than 75 percent of the total area within the 
scrub or chaparral community was covered by shrub crown) or partially 
open (between 75 and 90 percent of the total area was covered with 
shrub crown), and only seldom did whipsnakes occur in closed canopy 
(greater than 90 percent of the area was covered by shrub crown). 
However, trapping efforts may have been biased due to the difficulty of 
setting traps in dense scrub (Swaim 1994; K. Swaim, pers. comm. 1999).
    Core areas (areas of concentrated use) of the Alameda whipsnake 
most commonly occur on east, south, southeast, and southwest facing 
slopes (Swaim 1994). However, recent information indicates that 
whipsnakes do make use of north facing slopes in more open stands of 
scrub habitat (K. Swaim, pers. comm. 1999).
    Adult snakes appear to have a bimodal (two times of the year) 
seasonal activity pattern with peaks during the spring mating season 
and a smaller peak during late summer and early fall. Although short 
above-ground movements may occur during the winter, Alameda whipsnakes 
generally retreat in November into a hibernaculum (shelter used during 
the snake's dormancy period) and emerge in March. Courtship and mating 
occur from late-March through mid-June. During this time, males move 
around throughout their home ranges, while females appear to remain at 
or near their hibernaculum, where mating occurs. Suspected egg-laying 
sites for two females were located in grassland with scattered shrub 
habitat. Male home ranges of 1.9 to 8.7 hectares (ha) (4.7 to 21.5 
acres (ac)) (mean of 5.5 ha or 13.6 ac) were recorded, and showed a 
high degree of spatial overlap. Several individual snakes monitored for 
nearly an entire activity season appeared to maintain a stable home 
range. Movements of these individuals were multi-directional, and 
individual snakes returned to specific areas and retreat sites after 
long intervals of non-use. Snakes had one or more core areas within 
their home range, while large areas of the home range received little 
use (Swaim 1994).

Previous Federal Action

    The September 18, 1985, Notice of Review (50 FR 37958) included the 
Alameda whipsnake as a category 2 candidate species for possible future 
listing as endangered or threatened. Category 2 candidates were those 
taxa for which listing as threatened or endangered might be warranted, 
but for which adequate data on biological vulnerability and threats 
were not available to support issuance of listing proposals. The 
January 6, 1989, Notice of Review (54 FR 554) solicited information on 
its status as a category 2 candidate species. The Alameda whipsnake was 
moved to category 1 in the November 21, 1991, Notice of Review (56 FR 
58804) on the basis of significant increases in habitat loss and 
threats occurring throughout its range. Category 1 candidates were 
defined as taxa for which we had on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. On February 4, 1994, we published a proposed rule in the 
Federal Register (59 FR 5377) to list the Alameda whipsnake as an 
endangered species. On December 5, 1997, we published a final rule 
listing the Alameda whipsnake as threatened (62 FR 64306).
    On March 4, 1999, the Southwest Center for Biological Diversity, 
the Center for Biological Diversity, and Christians Caring for Creation 
filed a lawsuit in the Northern District of California against the U.S. 
Fish and Wildlife Service and Bruce Babbitt, Secretary of the 
Department of the Interior (Secretary), for failure to designate 
critical habitat for seven species: The Alameda whipsnake (Masticophis 
lateralis euryxanthus), the Zayante band-winged grasshopper 
(Trimerotropis infantilis), the Morro shoulderband snail 
(Helminthoglypta walkeriana), the Arroyo southwestern toad (Bufo 
microscaphus californicus), the San Bernardino kangaroo rat (Dipodomys 
merriami parvus), the spectacled eider (Somateria fischeri), and the 
Steller's eider (Polysticta stelleri) (Southwest Center for Biological 
Diversity v. U.S. Fish and Wildlife, CIV 99-1003 MMC).
    On November 5, 1999, William Alsup, U.S. District Judge, dismissed 
the plaintiffs' lawsuit under a settlement agreement entered into by 
the parties. On March 8, 2000, (65 FR 12155) we proposed the 
designation of 7 areas within Alameda, Contra Costa, San Joaquin, and 
Santa Clara Counties as critical habitat for the Alameda whipsnake.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed under the Act, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) that may require special management consideration or 
protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon determination that 
these areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
exclusion outweigh the benefits of including the areas within critical 
habitat, provided the exclusion will not result in extinction of the 
species (section 4(b)(2) of the Act).
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for conservation of 
that species. Designation of critical habitat alerts the public as well 
as land-managing agencies to the importance of these areas.
    Critical habitat also identifies areas that may require special 
management considerations or protection, and may provide protection to 
areas where significant threats to the species have

[[Page 58935]]

been identified. Critical habitat receives protection from destruction 
or adverse modification through required consultation under section 7 
of the Act with regard to actions carried out, funded, or authorized by 
a Federal agency. Aside from the protection that may be provided under 
section 7, the Act does not provide other forms of protection to lands 
designated as critical habitat.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with us to ensure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat. ``Jeopardize the continued 
existence'' (of a species) is defined as an appreciable reduction in 
the likelihood of survival and recovery of a listed species.
    ``Destruction or adverse modification'' (of critical habitat) is 
defined as a direct or indirect alteration that appreciably diminishes 
the value of critical habitat for the survival and recovery of the 
listed species for which critical habitat was designated. Thus, the 
definitions of ``jeopardy'' to the species and ``adverse modification'' 
of critical habitat are nearly identical (50 CFR 402.02). When multiple 
units of critical habitat are designated, each unit may serve as the 
basis of an adverse modification analysis if protection of different 
facets of the species' life cycle or its distribution are essential to 
the species as a whole for both its survival and recovery.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create or mandate a 
management plan, establish numerical population goals, prescribe 
specific management actions (inside or outside of critical habitat), or 
directly affect areas not designated as critical habitat. Specific 
management recommendations for critical habitat are most appropriately 
addressed in recovery plans and management plans, and through section 7 
consultation.
    We did not propose to designate critical habitat for the Alameda 
whipsnake within the proposed or final listing rulemaking because, at 
the time of listing, we knew of no Federal lands within the five 
whipsnake populations. We also believed that the possibility of Federal 
agency involvement on private and public, non-Federal lands was remote. 
Based on information available at the time of listing, we believed that 
only 20 percent of known whipsnake habitat occurred on private lands, 
and anticipated that urban development on private lands would occur 
only along the periphery of whipsnake populations. In addition, we 
believed that the need for active fire management programs at this 
urban-wildland interface would preclude those private lands from being 
considered habitat essential to the conservation of the species. We 
found that critical habitat designation was not prudent due to lack of 
any significant benefit beyond that conferred by listing.
    Since the Alameda whipsnake was listed, we have found that there 
are a greater number of Federal actions that could trigger the need for 
an interagency consultation than was believed at the time the Alameda 
whipsnake was listed. We are now aware of federally owned lands that 
occur within the range of the Alameda whipsnake, including Bureau of 
Land Management parcels in the Mount Diablo-Black Hills population 
area. In addition, an Alameda whipsnake was recently captured on land 
owned by the U.S. Department of Energy at their Site 300 facility, a 
Federal site not previously known to be inhabited by Alameda 
whipsnakes. We are also aware of a number of activities with a Federal 
connection on private lands within the range of the whipsnake, 
including activities associated with the issuance of Clean Water Act 
section 404 permits and Federal Emergency Management Agency fire 
protection projects.
    We now believe that private lands play a more important role in 
whipsnake conservation than we originally believed. An increasing 
amount of private land has been found to be occupied by the Alameda 
whipsnake, comprising more than 20 percent of land within the five 
whipsnake populations. High-value Alameda whipsnake habitat occurs on 
private lands that are evenly distributed throughout all five whipsnake 
population areas. We now believe that private lands are essential to 
the conservation of the species.

Relationship to Recovery

    The ultimate purpose of listing a species as threatened or 
endangered under the Act is to recover the species to the point at 
which it no longer needs the protections provided to the listed 
species. The Act mandates the conservation of listed species through 
different mechanisms. Section 4(f) of the Act authorizes the Service to 
develop recovery plans for listed species. A recovery plan includes (i) 
a description of such site-specific management actions as may be 
necessary to achieve the plan's goal for the conservation and survival 
of the species, (ii) objective, measurable criteria which, when met, 
would result in a determination that the species be removed from the 
list, and (iii) estimates of the time required and cost to carry out 
those measures needed to achieve the plan's goal.
    We are currently drafting a recovery plan for the Alameda 
whipsnake. This draft recovery plan will include a more thorough 
analysis of recovery needs of the Alameda whipsnake. Therefore, we may 
amend critical habitat at a later date based on information gained 
through the recovery planning process.

Primary Constituent Elements

    Under section 3(5)(A)(i) of the Act and regulations at 50 CFR 
424.12, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features that are essential to conservation of 
the species and that may require special management considerations or 
protection. Such requirements include, but are not limited to, space 
for individual and population growth, and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing of offspring, germination, or seed dispersal; and habitats that 
are protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    The primary constituent elements for the Alameda whipsnake are 
those habitat components that are essential for the primary biological 
needs of foraging, sheltering, breeding, maturation, and dispersal. The 
primary constituent elements are in areas that support scrub 
communities, including mixed chaparral, chamise-redshank chaparral, 
coastal scrub, and annual grassland and oak woodlands that lie adjacent 
to scrub habitats. In addition, the primary constituent elements for 
the Alameda whipsnake may be found in grasslands and various oak 
woodlands that are linked to scrub habitats by substantial rock 
outcrops or river corridors. Other habitat features that provide a 
source of cover for the whipsnake during dispersal or are near scrub 
habitats and contain habitat features (e.g., rock outcrops) that 
support adequate prey populations may also contain primary constituent 
elements for the Alameda whipsnake. Within these communities, Alameda 
whipsnakes require plant canopy covers that supply a suitable range of 
temperatures for the species' normal behavioral and physiological 
requirements (including but not limited to foraging, breeding, and 
maturation).

[[Page 58936]]

Openings in the plant canopy or scrub/grassland edge provide sunning 
and foraging areas. Corridors of plant cover and retreats (including 
rock outcrops) sufficient to provide for dispersal between areas of 
habitat, and plant community patches of sufficient size to prevent the 
deleterious effects of isolation (such as inbreeding or the loss of a 
subpopulation due to a catastrophic event) are also essential. Within 
these plant communities, specific habitat features needed by whipsnakes 
include, but are not limited to, small mammal burrows, rock outcrops, 
talus, and other forms of cover to provide temperature regulation, 
shelter from predators, egg laying sites, and winter hibernaculum. Many 
of these same elements are important in maintaining prey species. 
Adequate insect populations are necessary to sustain prey populations.

Criteria Used To Identify Critical Habitat

    We considered several qualitative criteria in the selection and 
proposal of specific areas or units for Alameda whipsnake critical 
habitat. These criteria focused on designating units (1) throughout the 
geographic and elevation range of the species; (2) within various 
occupied plant communities, such as diablan sage scrub, coyote bush 
scrub, and chamise chaparral; (3) in areas of large, contiguous blocks 
of geographical areas occupied by the species; and (4) in areas that 
link contiguous blocks of geographical areas occupied by the species 
(i.e., linkage areas).

Methods

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

[[Page 58937]]

Alameda whipsnake. We intend for HCPs to provide a package of 
protection and management measures sufficient to address the 
conservation needs of the species.

Critical Habitat Designation

    The approximate area of critical habitat by county and land 
ownership is shown in Table 1. Critical habitat includes Alameda 
whipsnake habitat throughout the species' range in the United States 
(i.e., Contra Costa, Alameda, San Joaquin, and Santa Clara Counties, 
California). Lands designated as critical habitat are under private, 
State, and Federal ownership, with Federal lands including lands 
managed by the Bureau of Land Management and the U.S. Department of 
Energy. Lands designated as critical habitat have been divided into 
seven critical habitat units.

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

    A brief description of each critical habitat unit and our reasons 
designating those areas as critical habitat for the Alameda whipsnake 
are given below:

Unit 1  Tilden-Briones Unit

    Unit 1 encompasses approximately 16,074 ha (39,815 ac) within the 
Tilden-Briones unit and is the most northwestern unit of the five 
Alameda whipsnake metapopulations, and provides primary breeding, 
feeding, and sheltering habitat for the whipsnake. This entire unit 
occurs in Contra Costa County. This unit is bordered to the north by 
State Highway 4 and the cities of Pinole, Hercules, and Martinez; to 
the south by State Highway 24 and the City of Orinda Village; to the 
west by Interstate 80 and the cities of Berkeley, El Cerrito, and 
Richmond; and to the east by Interstate 680 and the City of Pleasant 
Hill. A substantial amount of public land exists within this unit, 
including East Bay Regional Park District's Tilden, Wildcat, and 
Briones Regional Parks and East Bay Municipal Utilities District 
watershed lands.

Unit 2  Oakland-Las Trampas Unit

    Unit 2 encompasses approximately 21,869 ha (54,170 ac) south of the 
Tilden-Briones unit and north of the Hayward-Pleasanton Ridge unit, and 
provides primary breeding, feeding, and sheltering habitat for the 
Alameda whipsnake. This unit is split evenly between Alameda and Contra 
Costa Counties. This unit is surrounded to the north by State Highway 
24 and the cities of Orinda, Moraga, and Lafayette; to the south by 
Interstate Highway 580 and the City of Castro Valley; to the West by 
State Highway 13 and Interstate Highway 580 and the cities of Oakland 
and San Leandro; and to the east by Interstate Highway 680 and the 
cities of Danville, San Ramon, and Dublin. The Oakland-Las Trampas unit 
also contains substantial amounts of public land including East Bay 
Regional Park District's Redwood and Anthony Chabot Regional Parks, Las 
Trampas Regional Wilderness, and additional East Bay Municipal 
Utilities District watershed lands.

Unit 3  Hayward-Pleasanton Ridge Unit

    Unit 3 encompasses approximately 12,923 ha (32,011 ac) south of the 
Oakland-Las Trampas unit and northwest of the Sunol-Cedar Mountain 
unit, and provides primary breeding, feeding, and sheltering habitat 
for the Alameda whipsnake. This unit occurs solely in Alameda County 
and is surrounded by Interstate Highway 580 to the north; Niles Canyon 
Road (State Highway 84) to the south; the cities of Hayward and Union 
City to the west, and Interstate Highway 680 and the City of Pleasanton 
to the east. This unit is bisected by Palomares Canyon Road, which runs 
from Interstate Highway 580 to Niles Canyon Road. Greater than 30 
percent of this unit is in public ownership, including Garin, Dry 
Creek, and Pleasanton Ridge Regional Parks and other East Bay Regional 
Park District holdings. The privately owned Pleasanton Ridge 
Conservation Bank also occurs in the northeastern section of this unit.

Unit 4  Mount Diablo-Black Hills Unit

    Unit 4 encompasses approximately 40,257 ha (99,717 ac) and 
completely encompasses Mount Diablo State Park and surrounding lands. 
The Mount Diablo-Black Hills Unit provides primary Alameda whipsnake 
breeding, feeding, and sheltering habitat. A majority of this unit is 
in Contra Costa County; however, the southern tip of this unit is in 
Alameda County. This unit is surrounded by State Highway 4 and the 
cities of Clayton, Pittsburgh and Antioch to the north; open grassland 
within Tassajara Valley just below the Alameda/Contra Costa County line 
to the south; the cities of Concord, Walnut Creek, and Danville to the 
west; and, to the east, by large expanses of grassland occurring west 
of State Highway 4, near the cities of Oakley and Brentwood. This unit 
contains large expanses of public lands, including two small Bureau of 
Land Management parcels; Mount Diablo State Park; Contra Costa Water 
District's Los Vaqueros Reservoir watershed; and Contra Loma, Black 
Diamond Mines, Morgan Territory, and Round Valley Regional Parks, and 
other East Bay Regional Park District holdings. Other public lands 
include lands owned by the City of Walnut Creek. Two large, privately 
owned gravel quarries occur within this unit.

Unit 5  Sunol-Cedar Mountain Unit

    Unit 5 encompasses approximately 69,168 ha (171,328 ac) and is the 
largest and the southernmost of the seven critical habitat units. It 
provides primary breeding, feeding, and

[[Page 58938]]

sheltering habitat for the Alameda whipsnake. A majority of this unit 
is in Alameda County; however, it does also extend into western San 
Joaquin and northern Santa Clara Counties. The northern boundary of 
this unit runs parallel to State Highway 84 and Corral Hollow Road, 
south of the cities of Pleasanton and Livermore and Tesla Road. The 
southern boundary lies below Calaveras Reservoir and captures all of 
Wauhab and Cedar Ridges in Santa Clara County and stretches to the 
east, north of the Alameda-San Joaquin-Santa Clara-Stanislaus County 
intersection. The western boundary lies east of Interstate Highway 680 
and the greater San Jose urban areas. The eastern boundary lies within 
San Joaquin County a few miles east of the Alameda County line. This 
unit includes East Bay Regional Park District's Sunol, Mission Peak, 
Ohlone, Camp Ohlone, and Del Valle complex, and State Water Project's 
Del Valle Reservoir watershed. In addition, the Department of Energy's 
Site 300 and California Department of Parks and Recreation's Carnegie 
Recreation Area occur within the unit.

Unit 6  Caldecott Tunnel Unit

    Unit 6 encompasses approximately 2,185 ha (5,412 ac) and occurs 
between units 1 and 2 where State Highway 24 tunnels under the Berkeley 
Hills for approximately 1.2 kilometers (4,000 feet). It provides a 
connector between units 1 and 2. This unit is in Alameda and Contra 
Costa Counties. This unit encompasses lands owned by East Bay Municipal 
Utilities District, East Bay Regional Park District, Lawrence Berkeley 
Laboratory, the Cities of Berkeley and Oakland, and some private 
holdings.

Unit 7  Niles Canyon/Sunol Unit

    Unit 7 encompasses approximately 1,673 ha (4,145 ac) and occurs 
between units 3 and 5 and lies south of State Highway 84 (Niles Canyon 
Road); north and west of Interstate 680; and east of the City of 
Fremont. It provides a connector between units 3 and 5. This unit is 
solely in Alameda County. This unit includes East Bay Regional Park 
District's Vargas Plateau and San Francisco Public Utilities watershed 
lands. Impediments to whipsnake movement between units 3 and 7 include 
Alameda Creek, a 0.3-0.6-meter (12-24-inch) high concrete barrier that 
lies south of Niles Canyon Road and north of Alameda Creek, railroad 
tracks that run along both sides of Alameda Creek, and heavy vehicular 
traffic along Niles Canyon Road.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies, to evaluate 
their actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. If a 
species is listed or critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to jeopardize the continued existence of 
such a species or to destroy or adversely modify its critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, Federal agencies 
ensure that their actions do not destroy or adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives can vary from slight 
project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation with us on 
actions for which formal consultation has been completed if those 
actions may affect designated critical habitat.
    Activities on Federal lands that may affect the Alameda whipsnake 
or its critical habitat will require section 7 consultation. Activities 
on private or State lands requiring a permit from a Federal agency, 
such as a permit from the U.S. Army Corps of Engineers (Army Corps) 
under section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., Federal Highway Administration, Federal 
Aviation Administration, or Federal Emergency Management Agency) will 
also continue to be subject to the section 7 consultation process. 
Federal actions not affecting listed species or critical habitat and 
actions on non-Federal lands that are not federally funded or regulated 
do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat those activities 
involving a Federal action that may destroy or adversely modify such 
habitat or that may be affected by such designation. Activities that 
may destroy or adversely modify critical habitat include those that 
alter the primary constituent elements to the extent that the value of 
critical habitat for both the survival and recovery of the Alameda 
whipsnake is appreciably diminished. We note that such activities may 
also jeopardize the continued existence of the species. Where they 
appreciably reduce the value of critical habitat, such activities may 
include, but are not limited to:
    (1) Removing, thinning, or destroying vegetation, whether by 
burning or mechanical, chemical, or other means (e.g., fuels 
management, bulldozing, herbicide application, overgrazing, etc.) that 
have not been approved by the Service, exclusive of routine clearing of 
fuel breaks around urban boundaries that were constructed before the 
listing of the whipsnake on December 5, 1997;
    (2) Water transfers, diversion, or impoundment, groundwater 
pumping, irrigation, or other activity that causes barriers or 
deterrents to dispersal, inundates habitat, or significantly

[[Page 58939]]

converts habitat (e.g., conversion to urban development, vineyards, 
landscaping);
    (3) Recreational activities that significantly deter the use of 
suitable habitat areas by Alameda whipsnakes or alter habitat through 
associated maintenance activities (e.g., off-road vehicle parks, golf 
courses, and hiking, mountain biking, and horseback riding trails);
    (4) Sale, exchange, or lease of Federal land containing suitable 
habitat that is likely to result in the habitat being destroyed or 
appreciably degraded; and
    (5) Construction activities that destroy or appreciably degrade 
suitable habitat (e.g., urban development, building of recreational 
facilities such as off-road vehicle parks and golf courses, road 
building, drilling, mining, quarrying, and associated reclamation 
activities).
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned, particularly when the area of the proposed action is in the 
geographical areas occupied by the species concerned. In those cases, 
critical habitat provides little additional protection to a species, 
and the ramifications of its designation are few. However, if an area 
now occupied by the species were to become unoccupied in the future, 
critical habitat designation may provide additional protection than is 
available through a jeopardy analysis.
    If you have questions regarding whether specific activities will 
constitute destruction or adverse modification of critical habitat, 
contact the Field Supervisor, Sacramento Fish and Wildlife Office (see 
ADDRESSES section).
    Designation of critical habitat could affect Federal agency 
activities where they appreciably reduce the value of critical habitat. 
Some of these activities include, but are not limited to:
    (1) Sale, exchange, or lease of lands owned by the Bureau of Land 
Management or the Department of Energy;
    (2) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (3) Regulation of water flows, water delivery, damming, diversion, 
and channelization by the Bureau of Reclamation and the Army Corps of 
Engineers;
    (4) Regulation of grazing, recreation, or mining by the Bureau of 
Land Management;
    (5) Funding and implementation of disaster relief projects by the 
Federal Emergency Management Agency;
    (6) Funding and regulation of new road construction by the Federal 
Highways Administration;
    (7) Clearing of vegetation by the Department of Energy;
    (8) The cleanup of toxic waste and superfund sites under the 
Resource Conservation and Recovery Act (RCRA) and the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) by the 
U.S. Environmental Protection Agency; and

Relationship to Incidental Take Permits Issued Under Section 10

    There are no approved HCPs within the designated critical habitat 
area. However, future HCPs are probable.
    We anticipate that future HCPs will include the Alameda whipsnake 
as a covered species and provide for its long-term conservation. We 
expect that HCPs undertaken by local jurisdictions (e.g., counties and 
cities) and other parties will identify, protect, and provide 
appropriate management for those specific lands within the boundaries 
of the plans that are essential for the long-term conservation of the 
species. Section 10(a)(1)(B) of the Act states that HCPs must meet 
issuance criteria, including minimizing and mitigating any take of the 
listed species covered by the permit to the maximum extent practicable, 
and that the taking must not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. We fully expect that 
our future analysis of HCPs and Section 10(a)(1)(B) permits under 
section 7 will show that covered activities carried out in accordance 
with the provisions of the HCPs and Section 10(a)(1)(B) permits will 
not result in the destruction or adverse modification of critical 
habitat designated for the Alameda whipsnake.
    In the event that future HCPs covering the Alameda whipsnake are 
developed within the boundaries of designated critical habitat, we will 
work with applicants to ensure that the HCPs provide for protection and 
management of habitat areas essential for the conservation of the 
Alameda whipsnake by either directing development and habitat 
modification to nonessential areas or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development process provides an opportunity for more intensive data 
collection and analysis regarding the use of particular habitat areas 
by the Alameda whipsnake. The process also enables us to conduct 
detailed evaluations of the importance of such lands to the long-term 
survival of the species in the context of constructing a biologically 
configured system of interlinked habitat blocks.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the Alameda whipsnake and 
appropriate management for those lands. The take minimization and 
mitigation measures provided under these HCPs are expected to protect 
the essential habitat lands designated as critical habitat in this 
rule.

Summary of Comments and Recommendations

    In the March 8, 2000, proposed rule, all interested parties were 
requested to submit comments and suggestions relative to the proposed 
designation of critical habitat for the Alameda whipsnake, including 
our economic analysis and the relationship of the designation to future 
HCP's (65 FR 12155). On May 15, 2000, we published a notice in the 
Federal Register (65 FR 30951) to reopen the comment period and 
announce a public hearing on the proposed determination. We published a 
notice of availability and request for comments on the draft economic 
analysis on June 23, 2000 (65 FR 39117), and subsequently, extended the 
comment periods for the proposed designation of critical habitat and 
the draft economic analysis to July 24, 2000. Comments received from 
March 8 through July 24, 2000, were entered into the administrative 
record.
    All appropriate State and Federal agencies, county governments, 
scientific organizations, and other interested

[[Page 58940]]

parties were contacted and invited to comment. Legal notices inviting 
public comment were published in the Oakland Tribune. In addition, the 
following news releases were issued: (1) a March 8, 2000, news release 
announcing the proposed designation of critical habitat and soliciting 
public review and comment; (2) a May 15, 2000, news release announcing 
public hearings; and (3) a June 23, 2000, news release announcing the 
availability of the draft economic analysis to the public for review 
and comment and the extension of the comment period.
    We held one public hearing on the proposed rule at San Ramon, 
Contra Costa County, California, on June 1, 2000. A notice of the 
hearing and its location was published in the Federal Register on May 
15, 2000 (65 FR 30951). A total of 45 people provided verbal comments 
at the public hearing. Transcripts of this hearings are available for 
inspection at the Sacramento Fish and Wildlife Office (see ADDRESSES 
section).
    We received a total of 45 oral and 551 written comments during the 
comment period. Of those oral comments, 14 supported critical habitat 
designation, 23 were opposed to designation, and 7 provided additional 
information but did not support or oppose the proposal. Of the written 
comments, 456 supported designation, 72 were opposed to it, and 23 
provided additional information only, or were nonsubstantive or not 
relevant to the proposed designation. In total, oral and written 
comments were received from 5 Federal agencies, 5 State agencies, 11 
local governments, and 532 private organizations, companies, or 
individuals.
    All comments received were reviewed for substantive issues and new 
data regarding critical habitat and the Alameda whipsnake. Comments of 
a similar nature are grouped into 6 issues relating specifically to 
critical habitat. These are addressed in the following summary.

Issue 1: Biological and Physical Concerns

    (1a) Comment: One commenter stated that not enough information is 
known about the total habitat requirements of the species to define 
critical habitat. One additional commenter stated that Unit 5 was far 
too large and not based on the best available scientific evidence. 
Several commenters questioned the scientific basis for designating 
specific areas as critical habitat and recommended excluding areas that 
did not provide all of the primary constituent elements for whipsnake 
habitat and areas that reported negative Alameda whipsnake survey 
results.
    Response: Section 4(b)(2) of the Act states ``The Secretary shall 
designate critical habitat, and make revisions thereto, under 
subsection (a)(3) on the basis of the best scientific data available.'' 
Our recommendation is based on the available body of information on the 
biology and status of this subspecies, as well as the effects of land-
use practices on its continued existence. We also utilized information 
on related species, including the chaparral whipsnake, if information 
on the Alameda whipsnake was lacking. No new information on the life 
history of the whipsnake was provided during the public comment 
periods. We agree that much remains to be learned about this species, 
and should credible, new information become available that contradicts 
the basis for this designation, we shall reevaluate our analysis and, 
if appropriate, propose to modify this critical habitat designation. We 
have considered the best scientific information available at this time, 
as required by the Act.
    In selecting areas to be included in the designation, we identified 
the historic range of the whipsnake, as well as important components 
related to survival and recovery, including areas that provide 
sufficient breeding, feeding, and sheltering, as well as providing 
adequate movement corridors to maintain genetic connectivity and 
adequate space for population fluctuations. Because of the nature of 
the whipsnake (fast, secretive, mobile, burrow dwelling, with periods 
of hibernation) negative whipsnake survey results may not provide 
sufficient evidence that the site is not used by Alameda whipsnakes 
during some point in their life cycle. In addition, whipsnake surveys 
do not characterize whether the site provides one or all of the primary 
constituent elements needed by the whipsnake for survival and recovery. 
Because the primary constituent elements are linked to various stages 
of the whipsnake's life history (breeding, dispersal) or to certain 
physiological requirements (temperature regulation for foraging), and 
the whipsnake would not necessarily be engaged in all these activities 
concurrently, not all elements need be present for the site to be 
considered for designation.
    (1b) Comment: A few commenters stated that the Service neglected to 
include species information and habitat data that was developed by the 
Alameda-Contra Costa Biodiversity Working Group.
    Service Response: The Service reviewed the information prepared by 
the Alameda-Contra Costa Biodiversity Working Group. The working group 
used the Alameda whipsnake as an umbrella species for chaparral and 
coastal scrub habitats. The working group did not define any other 
habitats, including grasslands, woodlands, or riparian areas, as 
potential whipsnake habitat. These habitat types were mapped using 
false-color infrared color aerial photographs and subsequently mapped 
on 7.5-minute orthophotographs. As explained under the ``Methods'' 
section above, the Service used a similar approach for mapping critical 
habitat for the Alameda whipsnake. However, in addition to chaparral 
and coastal scrub habitats, the Service defined whipsnake habitat to 
include grassland, oak woodland, and riparian habitats that lie 
adjacent to and provide corridors between areas of scrub and chaparral 
habitat. Native grassland, oak woodland, and riparian habitats that lie 
adjacent to chaparral and scrub habitats provide important feeding, 
breeding, and sheltering sites. In addition, these habitat types 
facilitate movement of whipsnakes between scrub and chaparral habitat 
areas to ensure adequate dispersal and gene flow between 
subpopulations.
    (1c) Comment: Many local fire prevention agencies commented that 
ongoing fuel reduction and modification that occurred before the 
Alameda whipsnake was formally listed on December 5, 1997, should be 
exempt from this rulemaking, including the Lafayette Reservoir 
watershed. In addition, these agencies requested that fire prevention 
techniques such as prescribed burning and ongoing vegetative clearing 
should be permitted when there is a threat to human health and 
property. Mount Diablo State Park specifically requested that the 
designation of critical habitat not preclude the use of prescribed fire 
to improve the biological health of the vegetative community and reduce 
the risk of a catastrophic wildfire.
    Service Response: As stated in the ``Section 7 Consultation'' 
section above, routine clearing of fuel breaks around urban boundaries 
that were constructed before the listing of the whipsnake on December 
5, 1997, including the Layette Reservoir Watershed, would not be 
affected by this designation. In addition, the designation of critical 
habitat for the Alameda whipsnake will have no effect on activities 
that occur on private property unless the activity is federally funded 
or requires a Federal permit. For projects that receive Federal (i.e. 
Federal Emergency Management Agency

[[Page 58941]]

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

[[Page 58942]]

The Service, therefore, maintains that all seven critical habitat units 
are geographical areas occupied by the Alameda whipsnake.

Issue 2: General Selection of Designated Critical Habitat Areas

    (2a) Comment: Several commenters stated that private lands should 
be excluded from critical habitat designation. These commenters stated 
that the publication of maps with threatened or endangered species 
locations overlaid upon private land could subject private property 
owners to increased exposure to litigation, liability, trespass, or 
other activities that could interfere with privacy, and with the lawful 
beneficial uses of the property.
    Service Response: Section 4(b)(2) of the Act states ``The Secretary 
shall designate critical habitat, and make revisions thereto, under 
subsection (a)(3) on the basis of the best scientific data available 
and after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' The Act does not require nor suggest that private lands 
should be excluded from designation, unless we find that the economic 
or other relevant impacts outweigh the benefit of critical habitat 
designation.
    (2b) Comment: Several commenters recommended excluding from 
designation as critical habitat areas where there were plans being 
formulated to construct urban improvements within or in proximity to 
the areas proposed as critical habitat.
    Service Response: We did not exclude any areas because of 
speculative or proposed developments. We are available to work with 
project proponents to develop project alternatives that will avoid and 
minimize adverse effects to whipsnakes, and not result in destruction 
or adverse modification of critical habitat.
    (2c) Comment: One commenter stated that, given the fact that 60 
percent of the known range of the Alameda whipsnake occurs in public 
ownership, the loss of the 40 percent that is held in private ownership 
would not lead to the demise of the snake. Therefore, private lands 
should not be included as critical habitat.
    Service Response: The range of the Alameda whipsnake has been 
fragmented by urban development and associated roadway construction. 
What remains are five distinct populations that continue to suffer 
significant habitat loss due to urban encroachment and related 
activities. Public and private lands are randomly distributed 
throughout the current range of the species. The loss of all remaining 
private lands that provide suitable habitat for the whipsnake would 
further fragment the five whipsnake populations and result in 
significant losses of breeding, feeding, and sheltering habitats, as 
well as the connectivity corridors. The Service believes that both 
public and private lands are essential to the survival and recovery of 
the species. The critical habitat designation, therefore, includes both 
private and public lands.

Issue 3: Comments on Selection of Specific Sites

    (3a) Comment: Several commenters expressed concern with the lack of 
connectivity between individual units, especially between units 2 and 
3.
    Service Response: The Service agrees that there is currently 
limited potential for movement between these two units. However, 
through recovery efforts, the Service proposes to research ways to 
promote connectivity and to determine the level of connectivity needed 
to prevent genetic bottlenecking. The Alameda whipsnake populations 
that occupy units 2 and 3 are the most threatened with extinction due 
to their small sizes and the continued encroachment of urban 
development that is further fragmenting these populations and directly 
removing suitable whipsnake habitat. The Service agrees with the 
commenters that all future opportunities for reconnecting these two 
populations with each other and with other whipsnake populations should 
be explored to ensure recovery of the species. For example, there may 
be opportunities for reestablishing connectivity between units 2 and 3 
associated with any alterations of Interstate 580.
    (3b) Comment: A few commenters wanted clarification as to whether 
their properties were included in the proposed critical habitat 
designation.
    Service Response: Service staff discussed with the landowners their 
properties' relationship to the critical habitat designation.
    (3c) Comment: One commenter was concerned that the designation of 
critical habitat would prevent the extraction and processing of 
aggregate materials at four separate facilities that occur within the 
critical habitat boundaries.
    Service Response: The designation of critical habitat has no effect 
on non-Federal actions taken on private land, even if the private land 
is within the mapped boundary of designated critical habitat. The 
listing of the Alameda whipsnake as threatened, however, does provide 
the whipsnake the protection afforded by the Act on both public and 
private lands. Critical habitat has possible effects on activities by 
private landowners only if the activity involves Federal funding, a 
Federal permit, or other Federal action. If such a Federal nexus 
exists, we will work with the landowner and the appropriate Federal 
agency to develop a project that can be completed without jeopardizing 
the species or destroying or adversely modifying critical habitat. In 
this case, reclamation activities upon facilities closure may require 
Federal funding, a Federal permit, or other Federal action.
    (3d) Several commenters pointed out errors in locations or 
descriptions in the proposed rule.
    Service Response: Corrections have been made in the final rule to 
reflect these comments, where appropriate.

Issue 4: Legal and Procedural Comments

    (4a) Comment: Several commenters stated that the proposed critical 
habitat designation is based on insufficient data and the Service 
should withdraw its proposal given the limited amount of time it had to 
adequately map whipsnake critical habitat.
    Service Response: As explained in 1(a) above, Section 4(b)(2) of 
the Act states ``The Secretary shall designate critical habitat, and 
make revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available . . .''. At this time, the Service has 
used the best available data to formulate the designation.
    (4b) Comment: Several commenters stated the designation of critical 
habitat constitutes a major Federal action significantly affecting the 
quality of the human environment. An Environmental Impact Statement 
(EIS) should be prepared.
    Service Response: We have determined that Environmental Assessments 
(EAs) and EISs, as defined under the authority of the National 
Environmental Policy Act of 1969 (NEPA), need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register in October 1983 (48 FR 49244).
    (4c) Comment: Several commenters stated the maps and descriptions 
provided were vague and violate the Act.
    Service Response: This final rule contains the required legal 
descriptions of areas designated as critical habitat. If additional 
clarification is necessary, contact the Sacramento Fish and Wildlife 
Office (see ADDRESSES section). As described under the ``Critical 
Habitat

[[Page 58943]]

Designation'' section above, we identified specific areas referenced by 
specific legal description, roads, waterways, and other landmarks, 
which are found on standard topographic maps.
    (4d) Comment: The critical habitat proposal represents virtually 
all suitable or potentially suitable habitat within the species' 
historic range. The Act prohibits such broad designation.
    Service Response: Section 3(5)(C) of the Act states that, except in 
those circumstances determined by the Secretary, critical habitat shall 
not include the entire geographical areas which can be occupied by an 
endangered or threatened species. The Alameda whipsnake population has 
been fragmented into five distinct populations from urban development 
and associated highway construction. The loss of any one of these five 
populations could lead to the extinction of the entire species. 
Therefore, we have determined that the areas designated are essential 
to conserve this species.
    (4e) Comment: Several commenters asked whether projects that have 
obtained a biological opinion pursuant to section 7 of the Act would be 
required to reinitiate consultation to address the designation of 
critical habitat.
    Service Response: For all projects that have completed section 7 
consultation where that consultation did not address potential 
destruction or adverse modification of critical habitat for the Alameda 
whipsnake, and have not been constructed, section 7 consultation must 
be reinitiated. We expect that projects that do not jeopardize the 
continued existence of the Alameda whipsnake are not likely to destroy 
or adversely modify its critical habitat.
    (4f) Comment: Several commenters have asked what specifically 
constitutes a federal nexus on private land.
    Service response: A Federal nexus is invoked when a Federal agency 
is funding, permitting, or in some way authorizing a project. For the 
purposes of this rulemaking, a Federal nexus that was invoked prior to 
the rulemaking for a project that has been constructed or completed, 
would not require a section 7 consultation under the Act. If the 
project has not to date received Federal funding, a Federal permit, or 
Federal authorization, but will require such in the future, and the 
project might destroy or adversely modify critical habitat, the action 
would require a section 7 consultation. In addition, projects that have 
been federally funded, permitted, or authorized, but have not been 
fully constructed would require a section 7 consultation if the project 
may destroy or adversely modify critical habitat.
    (4g) Comment: Several commenters asked whether it is prudent to 
designate private land as critical habitat when there is no Federal 
nexus.
    Service Response: As stated under the ``Critical Habitat'' section 
above, designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for conservation of 
that species. Designation of critical habitat alerts the public as well 
as land-management agencies to the importance of these areas.
    (4h) Comment: One commenter stated that the Service lacks the 
authority under the Commerce Clause of the Constitution to designate 
critical habitat on State and private land for a species that has no 
commercial utility.
    Service Response: The Service maintains that it does have the 
authority to designate critical habitat for the Alameda whipsnake on 
private and State lands pursuant to the Act. Several court cases have 
confirmed this authority (e.g., Nat. Ass'n of Home Builders of the U.S. 
v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
    (4i) Comment: Several commenters stated that critical habitat 
should not be designated until a recovery plan is completed.
    Service Response: Although having a recovery plan in place is 
extremely helpful in identifying areas as critical habitat, the Act 
does not require a recovery plan to be prepared prior to such 
designation of critical habitat. Section 4(a)(3) of the Act 
specifically requires that critical habitat be designated at the time a 
species is listed, or within 1 year if not determinable at listing. 
Once a recovery plan is finalized, we may revise the critical habitat 
described in this final rule, if appropriate, to reflect the goals and 
recovery strategies of the recovery plan.

Issue 5: The incorporation of Habitat Conservation Plans (HCPs) Into 
the Critical Habitat Designation

    Comment: In response to the Service's request that the public 
comment on critical habitat designation relative to future HCP's, 2 
commenters support the approach that critical habitat be removed 
entirely from within the boundaries of HCP's automatically upon the 
issuance of the incidental take permit. One commenter stated that 
critical habitat should be retained within the boundaries of approved 
HCP's.
    Service Response: The Service has considered several different 
approaches regarding the issuance of HCP's within the critical habitat 
boundary. Although there are no authorized or completed HCP's that 
occur within the boundary of Alameda whipsnake critical habitat 
designation, future HCPs are probable. If, consistent with available 
funding and program priorities, we elect to revise this designation to 
reflect future HCPs, our Solicitors have advised that modifying the 
designation will require a subsequent rulemaking.

Issue 6: Economic Issues

    (6a) Comment: Many commenters expressed concern that the draft 
economic analysis failed to quantify the effects of proposed critical 
habitat designation.
    Service Response: Given the circumstances surrounding the 
preparation of the draft economic analysis, we were only able to 
identify the types of impacts likely to occur regarding proposed 
critical habitat designation. Impacts we identified that could result 
from critical habitat designation include new section 7 consultations, 
re-initiation of consultations, and perhaps some prolongment of ongoing 
consultations to address critical habitat concerns, as required under 
section 7 of the Act. In some of these cases, it is possible that we 
might suggest reasonable and prudent alternatives to the proposed 
activity that triggered the consultation, which would also be an 
impact. Also associated with consultations is the length of time 
required to carry out consultations, which may result in opportunity 
costs associated with project delays.
    In the case of proposed critical habitat for the Alameda whipsnake, 
however, we have only designated habitat that is within the 
geographical areas occupied by the whipsnake. As a result, few of these 
impacts are likely to occur because Federal agencies are already 
required to consult with us on activities taking place on these lands 
that have the potential to may adversely affect the whipsnake. We 
believe that the only impacts to landowners whose property lies within 
critical habitat boundaries are due to reinitiation of completed 
consultations for projects not yet completed, and the designations 
temporary affect on real estate values. While the Act requires agencies 
to consult with us on activities that adversely modify critical 
habitat, we do not believe that within proposed critical habitat for 
the Alameda whipsnake there are likely to be any actions of concern 
that adversely modify critical habitat without also jeopardizing the 
whipsnake.

[[Page 58944]]

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

[[Page 58945]]

commenters have failed to adequately explain the rationale for why they 
believe critical habitat designation impacts their industry.
    In designated critical habitat, landowners, if subject to a Federal 
nexus, will have to consult with us, through the representative Federal 
action agency, concerning any actions that may adversely affect the 
Alameda whipsnake or adversely modify its critical habitat. However, 
because we have only designated geographical areas that are occupied by 
the snake, landowners and associated action agencies would still be 
required to consult with us on such activities regardless of critical 
habitat designation.
    As a result, contrary to one commenter's suggestion, we chose not 
to consider agriculture multiplier effects in performing our economic 
analysis because our primary interest is in determining whether or not 
critical habitat designation could affect landowner activities. Because 
of how critical habitat was defined and the current restrictions on 
jeopardizing an endangered or threatened species, we have determined 
that we are not adding any additional burden to the industry and as a 
result we do not find it necessary to fully explore the importance of 
the agriculture industry, to the local economy in the economic analysis 
concerning proposed critical habitat for the Alameda whipsnake.
    (6i) Comment: The draft economic analysis failed to adequately 
estimate the potential economic impacts to landowners regarding fire 
management practices.
    Service Response: The economic analysis does address fire/fuel 
management concerns that were voiced by some of the stakeholders. It 
raises the concern that these programs are subject to a clear Federal 
nexus because the practice relies in part on funding from the Federal 
Emergency Management Agency (FEMA). However, because we have only 
designated geographical areas by the species as critical habitat for 
the whipsnake, this activity is subject to no further scrutiny by us 
than it normally would be because the whipsnake is a federally 
protected species and is protected both from any actions resulting in 
an unlawful take and from Federal actions that could result in 
jeopardizing the species.
    (6j) Comment: Some landowners expressed concern that, because their 
property was located within critical habitat boundaries, they would be 
subject to additional constraints under the California Environmental 
Quality Act (CEQA).
    Service Response: To the extent that the CEQA places additional 
constraints on property owners within designated critical habitat such 
constraints would be a direct effect of CEQA and not a direct result of 
the designation of critical habitat for the Alameda whipsnake.
    (6k) Comment: Some commenters agreed with the statement in the 
economic analysis that the designation of critical habitat could have 
some effect on property values.
    Service Response: We acknowledged in our economic analysis that the 
designation of critical habitat could have some effect on property 
values. Most of this effect, we believe, is short-term and occurs as a 
result of the market's uncertainty as to what critical habitat 
designation requires.
    (6l) Comment: A commenter questioned whether habitat designation 
would provide the following benefits: (1) Preservation of a resource; 
(2) existence value; (3) enhancement of scenic beauty; and (4) bequest 
value.
    Service Response: In some instances the designation of critical 
habitat may result in additional benefits associated with the 
preservation of the species and its associated habitat. Economists have 
traditionally recognized that such benefits can be broken down into the 
above categories. However, in the particular case of the designation of 
critical habitat for the Alameda whipsnake, these additional benefits 
are unlikely to occur because the designation of critical habitat does 
not provide any additional protection to the species beyond that 
provided by the listing of the whipsnake as a Federally protected 
species.
    (6m) Comment: The San Francisco Public Utilities Commission 
believes that designation of critical habitat will lead to additional 
costs as they will need to determine presence/absence on new project 
areas.
    Service Response: The Service does not anticipate any additional 
requirements beyond those required upon listing the Alameda whipsnake 
as threatened.

Summary of Changes From the Proposed Rule

    Based on comments we received on the proposed rule, we made minor 
modifications to the critical habitat boundary to more adequately 
reflect the existence of urban development occurring along the 
periphery of the critical habitat boundary. Specifically, we made minor 
changes to the southern boundary of unit 4 to exclude two existing 
ranchettes that occur in the northern section of Tassajara Valley. In 
addition, we made minor adjustments to the critical habitat boundary in 
the northwestern section of unit 6 to exclude existing facilities that 
are owned by Lawrence Berkeley National Laboratory.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    The economic effects already caused by the listing of the Alameda 
whipsnake as threatened is the baseline upon which we analyze the 
economic effects of critical habitat. The critical habitat economic 
analysis examined the incremental economic and conservation effects of 
designating a particular area. The economic effects of a designation 
were evaluated by measuring changes in national, regional, or local 
indicators in the area considered for designation. We prepared an 
analysis of the economic effects of the proposed Alameda whipsnake 
critical habitat designation in draft form and made the draft available 
for public review (June 23, 2000; 65 FR 39117). We concluded in the 
final analysis, which included review and incorporation of public 
comments, that no economic impacts are expected from critical habitat 
designation above and beyond that already imposed by listing the 
Alameda whipsnake. Potential economic effects of critical habitat 
designation are limited to impacts on activities funded, authorized, or 
carried out by a Federal agency. These activities would be subject to 
section 7 consultation if they may affect critical habitat. However, 
activities that may affect an area considered for critical habitat 
usually affect listed species, and would thus already be subject to 
section 7 consultation. Also, changes or minimizing measures that might 
increase the cost of the project would be imposed only as a result of 
critical habitat if the project would adversely modify or destroy that 
critical habitat. In most cases, a project that would adversely modify 
or destroy critical habitat would also likely jeopardize the continued 
existence of the species. In such a case, reasonable and prudent 
alternatives to avoid jeopardizing the

[[Page 58946]]

species should also avoid adverse modification of critical habitat. The 
areas designated as critical habitat are considered occupied by the 
Alameda whipsnake. Since the habitat is in geographical areas occupied 
by the species, Federal agencies are already required to consult with 
us due to the listing of the species. Thus, regulatory burdens or 
additional cost due to the critical habitat designation for the 
whipsnake are not likely to exceed those already resulting from the 
species' listing.
    A copy of the economic analysis is included in our administrative 
record and may be obtained by contacting the Sacramento Fish and 
Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    Under Executive Order 12866, this document is a significant rule 
and has been reviewed by the Office of Management and Budget (OMB), 
under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government.
    The areas designated as critical habitat are currently occupied by 
the Alameda whipsnake. Under the Endangered Species Act, critical 
habitat may not be destroyed or adversely modified by a Federal agency 
action; the Act does not impose any restrictions on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency (see Table 2 below). Section 7 requires 
Federal agencies to ensure that they do not jeopardize the continued 
existence of the species. Based upon our experience with the species 
and its needs, we conclude that any Federal action or authorized action 
that could potentially cause an adverse modification of critical 
habitat would currently be considered as ``jeopardy'' under the Act. 
Accordingly, the designation of currently occupied areas as critical 
habitat does not have any incremental impacts on what actions may or 
may not be conducted by Federal agencies or non-Federal persons that 
receive Federal authorization or funding. Non-Federal persons that do 
not have a Federal ``sponsorship'' of their actions are not restricted 
by the designation of critical habitat (however, they continue to be 
bound by the provisions of the Act concerning ``take'' of the species).
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the Alameda whipsnake since the listing in 1997. The prohibition 
against adverse modification of critical habitat is not expected to 
impose any additional restrictions to those that currently exist 
because all designated critical habitat is occupied. Because of the 
potential for impacts on other Federal agencies activities, we will 
continue to review this action for any inconsistencies with other 
Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species and, as 
discussed above, we do not anticipate that the adverse modification 
prohibition (from critical habitat designation) will have any 
incremental effects.
    (d) This rule will not raise novel legal or policy issues. The rule 
follows the requirements for determining critical habitat contained in 
the Endangered Species Act.

                 Table 2.--Impacts of Alameda whipsnake listing and critical habitat designation
----------------------------------------------------------------------------------------------------------------
                                                                                        Additional Activities
                                              Activities potentially affected by       potentially affected by
        Categories of activities                   Species Listing Only \1\                critical habitat
                                                                                           designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potential Affected     Activities such as removing, thinning, or  None
 \3\.                                      destroying Alameda whipsnake habitat (as
                                           defined in the primary constituent
                                           elements discussion), whether by burning
                                           or mechanical, chemical, or other means
                                           (e.g. fuels management, bulldozing,
                                           herbicide application, grazing, etc.);
                                           water transfers, diversion, or
                                           impoundment, groundwater pumping,
                                           irrigation, or other activity that
                                           causes barriers or deterrents to
                                           dispersal, inundates habitat, or
                                           significantly converts habitat (e.g.,
                                           conversion to urban development,
                                           vineyards, landscaping); recreational
                                           activities that significantly deter the
                                           use of suitable habitat areas by Alameda
                                           whipsnakes or alter habitat through
                                           associated maintenance activities (e.g.,
                                           off-road vehicle parks, golf courses,
                                           and hiking, mountain biking, and
                                           horseback riding trails); sale,
                                           exchange, or lease of Federal land that
                                           contains suitable habitat that is likely
                                           to result in the habitat being destroyed
                                           or appreciably degraded; and
                                           construction activities that destroy or
                                           appreciably degrade suitable habitat
                                           (e.g., urban development, building of
                                           recreational facilities such as off-road
                                           vehicle parks and golf courses, road
                                           building, drilling, mining, quarrying
                                           and associated reclamation activities)
                                           that the Federal Government carries out.

[[Page 58947]]

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

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis (under section 4 of the Act), we 
determined that designation of critical habitat will not have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above, this rule is not 
expected to result in any restrictions in addition to those currently 
in existence. As indicated on Table 1 (see Critical Habitat section), 
we designated property owned by Federal, State, and local governments, 
and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Sale, exchange, or lease of lands owned by the Bureau of Land 
Management or the Department of Energy;
    (2) Regulation of activities affecting waters of the United States 
by the Army Corps of Engineers under section 404 of the Clean Water 
Act;
    (3) Regulation of water flows, water delivery, damming, diversion, 
and channelization by the Bureau of Reclamation and the Army Corps of 
Engineers;
    (4) Regulation of grazing, recreation, or mining by the Bureau of 
Land Management;
    (5) Funding and implementation of disaster relief projects by FEMA;
    (6) Funding and regulation of road construction by the Federal 
Highways Administration;
    (7) Clearing of vegetation by the Department of Energy; and
    (8) The cleanup of toxic waste and superfund sites under the 
Resource Conservation and Recovery Act (RCRA) and the Comprehensive 
Environmental Response, Compensation, and Liability Act by the U.S. 
Environmental Protection Agency.
    Many of these activities sponsored by Federal agencies within 
designated critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we determined that designation of 
critical habitat will not cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat. However, as discussed above, 
these actions are currently subject to equivalent restrictions through 
the listing protections of the species, and no further restrictions are 
anticipated to result from critical habitat designation.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    Under Executive Order 12630, the rule does not have significant 
takings implications. A takings implication assessment is not required. 
As discussed above, the designation of critical habitat affects only 
Federal agency actions. The rule will not increase or decrease the 
current restrictions on private property concerning take of the Alameda 
whipsnake. Due to current public knowledge of the species' protection, 
the prohibition against take of the species both within and outside of 
the

[[Page 58948]]

designated areas, and the fact that critical habitat provides no 
incremental restrictions, we do not anticipate that long-term property 
values will be affected by the critical habitat designation.

Federalism

    Under Executive Order 13132, the rule does not have significant 
Federalism effects. A Federalism assessment is not required. In keeping 
with Department of the Interior and Department of Commerce policy, the 
Service requested information from and coordinated development of this 
critical habitat proposal with appropriate State resource agencies in 
California, as well as during the listing process. We will continue to 
coordinate any future designation of critical habitat for the Alameda 
whipsnake with the appropriate State agencies. The designation of 
critical habitat for the Alameda whipsnake imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, doing so may assist these 
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that the rule does not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order. We 
have made every effort to ensure that this final determination contains 
no drafting errors, provides clear standards, simplifies procedures, 
reduces burden, and is clearly written so that litigation risk is 
minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted under section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    Under the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR 22951) and the Department of the Interior's requirement at 512 DM 2 
we understand that recognized Federal Tribes must be related to on a 
Government-to-Government basis. The designation of critical habitat for 
the Alameda whipsnake does not contain any Tribal lands or lands that 
we have identified as impacting Tribal trust resources.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the Sacramento Fish and Wildlife Office (see 
ADDRESSES section).

Authors

    The primary authors of this notice are Jason Davis and Heather 
Bell, Sacramento Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.
    For the reasons given in the preamble, we amend 50 CFR part 17 as 
set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.11(h) revise the entry for ``Whipsnake, Alameda'' 
under ``REPTILES'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 58949]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
            Reptiles
 
                   *                  *                  *                  *                  *                  *                  *
Whipsnake, Alameda (=striped      Masticophis          U.S.A. (CA).......  Entire............  T                      628  17.95(c)                   NA
 racer).                           lateralis
                                   euryxanthus.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(c) by adding critical habitat for the Alameda 
whipsnake (Masticophis lateralis euryxanthus) in the same alphabetical 
order as this species occurs in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (c) Reptiles.
* * * * *

ALAMEDA WHIPSNAKE (Masticophis lateralis euryxanthus)

    1. Critical habitat units are depicted for Alameda, Contra 
Costa, San Joaquin, and Santa Clara Counties, California, on the 
maps below.
    2. Within these areas, the primary constituent elements are 
those habitat components that are essential for the primary 
biological needs of foraging, sheltering, breeding, maturation, and 
dispersal. The primary constituent elements are in areas that 
support scrub communities including mixed chaparral, chamise-
redshank chaparral, and coastal scrub and annual grassland and 
various oak woodlands that lie adjacent to scrub habitats. In 
addition, the primary constituent elements for the Alameda whipsnake 
may be found in grasslands and various oak woodlands that are linked 
to scrub habitats by substantial rock outcrops or riparian 
corridors. Other habitat features that provide a source of cover for 
the whipsnake during dispersal or lie in reasonable proximity to 
scrub habitats and contain habitat features (e.g., rock outcrops) 
that support adequate prey populations may also contain primary 
constituent elements for the Alameda whipsnake.
    3. Critical habitat does not include existing features and 
structures, such as buildings, roads, railroads, large water bodies, 
and similar features and structures not containing one or more of 
the primary constituent elements.

BILLING CODE 4310-55-P

[[Page 58950]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.000

    Map Unit 1: Contra Costa County, California. From 1992 
Orthophoto quads, Mount Diablo Base Meridian, California: T. 2 N., 
R. 4 W., S\1/2\ sec. 13, SE\1/4\ sec. 23, N\1/2\ SE\1/4\ sec. 24, 
sec. 25, N\1/2\ SE\1/4\ sec. 26, E\1/2\ sec. 27, E\1/2\ sec. 34 
secs. 35-36; T. 2 N., R.

[[Page 58951]]

3 W., S\1/2\ sec. 15, S\1/2\ sec. 16, SW\1/4\ sec. 18, secs. 19-22, 
S\1/2\ NW\1/4\ sec., 23, SW\1/4\ sec. 24, secs. 25-36; T. 2 N., R. 2 
W., S\1/2\ sec. 30, sec. 31, SW\1/4\ sec. 32; T. 1 N., R. 4 W., 
secs. 1-2, S\1/2\ sec. 3, sec. 4, SE\1/4\ sec. 5, N\1/2\ SE\1/4\ 
sec. 8, secs. 9-15, N\1/2\ sec. 16, N\1/2\ SE\1/4\ sec. 21, secs. 
22-26, NE\1/4\ sec. 27, N\1/2\ SE\1/4\ sec. 36; T. 1 N., R. 3 W., 
secs. 1-24, N\1/2\ sec. 25, N\1/2\ sec. 26, N\1/2\ sec. 27, S\1/2\ 
NW\1/4\ sec. 28, secs. 29-32; T. 1. N., R. 2 W., secs. 5-7, S\1/2\ 
NW\1/4\ sec. 8, W\1/2\ sec. 17, secs. 18-19, W\1/2\ sec. 29; sec. 
30; T. 1. S., R. 3 W., N\1/2\ sec. 5, N\1/2\ sec. 6.

[[Page 58952]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.001

    Map Unit 2: Alameda and Contra Costa Counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 1 
N., R. 3 W., SE\1/4\ sec. 35, S\1/2\ NW\1/4\ sec. 36; T. 1. N., R. 2 
W., SW\1/4\ sec. 31, S\1/2\ sec. 33, SW\1/4\ sec. 34; T. 1 S., R. 3

[[Page 58953]]

W., sec. 1, E\1/2\ sec. 2, NE\1/4\ sec. 12, SW\1/2\ sec. 13, S\1/2\ 
sec. 14, S\1/2\ sec. 15, secs. 22-27, SE\1/4\ sec. 28, NE\1/4\ sec. 
34, N\1/2\ SE\1/4\ sec. 35, sec. 36; T. 1 S., R. 2 W., S\1/2\ sec. 
2, secs. 3-6, N\1/2\ SE\1/4\ sec. 7, secs. 8-11, SW\1/4\ sec. 12, 
S\1/2\ NW sec. 13, secs. 14-17, SE\1/4\ sec. 18, S\1/2\ NE\1/4\ sec. 
19, secs, 20-36; T.1 S., R. 1 W., SW\1/4\ sec. 19, SW\1/4\ sec. 29, 
S\1/2\ NW\1/4\ sec. 30, secs. 31-32; T. 2 S., R. 3 W., N\1/2\ SE\1/
4\ sec. 1, NE\1/4\ sec. 12, S\1/2\ sec. 13, N\1/2\ sec. 24; T. 2 S., 
R. 2 .W., secs. 1-18, E\1/2\ sec. 19, secs. 20-30, N\1/2\ SE \1/4\ 
sec. 31, sec. 32, N\1/2\ sec. 33, N\1/2\ sec. 34, N\1/2\ SW\1/4\ 
sec. 35, sec. 36; T. 2 S., R. 1 W., W\1/4\ sec. 4, secs. 5-6, S\1/2\ 
sec. 16, secs. 17-21, S\1/2\ NW\1/4\ sec. 22, W\1/2\ sec. 26, secs. 
27-34, W\1/2\ sec. 35; T. 3 S., R. 1 W., NW\1/4\ sec. 2, secs. 3-4, 
N\1/2\ SE\1/4\ sec. 5, N\1/2\ sec. 6; T. 3 S., R. 2 W., N\1/2\ sec. 
1.

[[Page 58954]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.002

    Map Unit 3: Alameda County, California. From 1992 Orthophoto 
quads, Mount Diablo Base Meridian, California: T. 3 S., R. 2 W., 
sec. 1, sec. 12, E\1/2\ sec. 13, SW\1/4\ sec. 24, sec. 25, NE\1/4\ 
sec. 26, secs. 35-36; T. 3 S., R. 1 W., SW\1/4\ sec. 2, S\1/2\ sec. 
3, S\1/2\ sec. 4, S\1/2\

[[Page 58955]]

NW\1/4\ sec. 5, S\1/2\ NE\1/4\ sec. 6, secs. 7-11, SW\1/4\ sec. 12, 
secs. 13-36; T. 3 S., R. 1 E., W\1/2\ sec. 19, S\1/2\ NW\1/4\ sec. 
30, sec. 31, S\1/2\ sec. 32; T. 4 S., R. 2 W., NE\1/4\ sec. 1; T. 4 
S., R. 1 W., secs. 1-6, NE\1/4\ sec. 7, secs. 8-12, NE\1/4\ sec. 14, 
N\1/2\ SW\1/4\ sec. 15, sec. 16, N\1/2\ SE\1/4\ sec. 17, NE\1/4\ 
sec. 21; T. 4 S., R. 1 E., W\1/2\ sec. 4, secs. 5-8, W\1/2\ sec. 9, 
NW\1/4\ sec. 16.

[[Page 58956]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.003

    Map Unit 4: Alameda and Contra Costa Counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 2 
N., R. 1 W., SE\1/4\ sec. 36; T. 2 N., R. 1 E., S\1/2\ NW\1/4\ sec. 
27, S\1/2\ NE\1/4\ sec. 28, S\1/2\ sec. 29, SE\1/4\ sec. 30, S\1/2\ 
NE\1/4\

[[Page 58957]]

sec. 31, secs. 32-34, S\1/2\ sec. 35; T. 1 N., R 2 W., S\1/2\ sec. 
25, SE\1/4\ sec. 26, N\1/2\ sec. 36; T. 1 N., R. 1 W., sec. 1, SE\1/
4\ sec. 2, SE\1/4\ sec. 8, S\1/2\ sec. 9, sec. 12, N\1/2\ SE\1/4\ 
sec.13, W\1/2\ sec. 14, S\1/2\ NE\1/4\ sec. 15, sec. 17, N/12 SE\1/
4\ sec. 20, secs. 21-28, E\1/2\ SW\1/4\ sec. 29, S\1/2\ sec. 30, 
sec. 31, secs. 32-36; T. 1 N., R. 1. E., W\1/2\ sec. 1, secs. 2-11, 
sec. 12, secs. 13-36; T. 1 N., R. 2 E., SW\1/4\ sec. 7, W\1/2\ sec. 
18, sec. 19, S\1/2\ sec. 20, SW\1/4\ sec. 21, secs. 28-33, S\1/2\ 
sec. 34; T.1 S., R. 1 W., secs. 1-5, N\1/2\ SE\1/4\ sec. 6, sec. 8, 
N\1/2\ SW\1/4\ sec. 9, secs. 10-15, NW\1/4\ sec. 16, NE\1/4\ sec. 
17, N\1/2\ SE\1/4\ sec. 23, sec. 24, N\1/2\ sec. 25; T. 1 S., R. 1 
E., secs. 1-29, N\1/2\ sec. 30, NE\1/4\ sec. 32, sec. 33-36; T. 1 
S., R. 2 E., SW\1/4\ sec. 2, secs. 3-10, S\1/2\ NW\1/4\ sec. 11, 
W\1/2\ sec. 13, secs. 14-36; T. 2 S., R. 1 E., secs. 1-3, N\1/2\ 
sec. 10, N\1/2\ sec. 11, sec. 12; T. 2 S., R. 2 E., NW\1/4\ sec. 1, 
secs. 2-10, W\1/2\ sec. 11, N\1/2\ sec. 15, sec. 16-17, E\1/2\ sec. 
18.

[[Page 58958]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.004

    Map Unit 5: Alameda, Contra Costa, San Joaquin, and Santa Clara 
Counties, California. From 1992 Orthophoto quads, Mount Diablo Base 
Meridian, California: T. 3 N., R. 1 E., SE\1/4\ sec. 21, S\1/2\ sec. 
22, S\1/2\ NW\1/4\ sec. 23, SW\1/4\ sec. 24, S\1/2\ NW\1/4\ sec. 25, 
secs. 26-

[[Page 58959]]

27, E\1/2\ sec. 28, SE\1/4\ sec. 29, NE\1/4\ sec. 32, secs. 33-36; 
T. 3 S., R. 2 E., SW\1/4\ sec. 19, SE\1/4\ sec. 21, S\1/2\ NE\1/4\ 
sec. 22, S\1/2\ NW\1/4\ sec. 23, SE\1/4\ sec. 24, secs. 25-36; T. 3 
S., R. 3 E., S\1/2\ sec. 24, secs. 25-26, S\1/2\ NE\1/4\ sec. 27, 
S\1/2\ NW\1/4\ sec. 28, S\1/2\ NE\1/4\ sec. 29, S\1/2\ NW\1/4\ sec. 
30, secs. 31-36; T. 3 S., R. 4 E., S\1/2\ sec. 19, S\1/2\ sec. 20, 
S\1/2\ sec. 21, SW\1/4\ sec. 27, secs. 28-33, S\1/2\ NW\1/4\ sec. 
34; T. 4 S., R. 1 W., E\1/2\ sec. 25, E\1/2\ sec. 36; T. 4 S, R. 1 
E., secs. 1-4, E\1/2\ sec. 9, secs. 10-15, E\1/2\ sec. 16, SE\1/4\ 
sec. 19, S\1/2\ sec. 20, S\1/2\ NE\1/4\ sec. 21, secs. 22-36; T. 4 
S., R. 2 E., secs. 1-36; T. 4 S., R. 3 E., secs. 1-36; T. 4 S., R. 4 
E., W\1/2\ sec. 2, secs. 3-10, W\1/2\ sec. 11, W\1/2\ sec. 11, W\1/
2\ sec. 14, secs. 15-22,W\1/2\ sec. 23, W\1/2\ sec. 26, secs. 27-34, 
W\1/2\ sec. 35; T. 5 S., R. 1 E., secs. 1-29, N\1/2\ SE\1/4\ sec. 
30, N\1/2\ sec. 33, N\1/2\ SE\1/4\ sec. 34, secs. 35-36; T. 5 S., R. 
2 E., secs. 1-35, N\1/2\ SW\1/4\ sec. 36; T. 5 S., R. 3 E., secs. 1-
24, N\1/2\ sec. 26, N\1/2\ SW\1/4\ sec. 27, secs. 28-30, N\1/2\ sec. 
31, N\1/2\ sec. 32; T. 5. S., R. 4 E., W\1/2\ sec. 2, secs. 3-9, 
N\1/2\ SW\1/4\ sec. 10, N\1/2\ SW\1/4\ sec. 16, secs. 17-18, N\1/2\ 
sec. 19; T. 6 S., R. 1 E., sec. 1, N\1/2\ sec. 2; T. 6 S., R. 2 E., 
N\1/2\ sec. 3, N\1/2\ sec. 4, N\1/2\ sec. 5, N\1/2\ sec.6.

[[Page 58960]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.005

    Map Unit 6: Alameda and Contra Costa Counties, California. From 
1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 1 
N., R. 4 W., SE\1/4\ sec. 36; T. 1 N., R. 3 W., SW\1/4\ sec. 31, 
S\1/2\ sec. 33; T. 1 S., R. 4 W., S\1/2\ NE \1/4\ sec. 1, NE\1/4\ 
sec. 12; T. 1 S., R. 3 W., W\1/2\ sec. 3, secs. 4-6, N\1/2\ SE\1/4\ 
sec. 7, secs. 8-10, secs. 14-15, N\1/2\ SE\1/4\ sec. 16, N\1/2\ sec. 
17, NE\1/4\ sec. 18.

[[Page 58961]]

[GRAPHIC] [TIFF OMITTED] TR03OC00.006

BILLING CODE 4310-55-C

[[Page 58962]]

    Map Unit 7: Alameda County, California. From 1992 Orthophoto 
quads, Mount Diablo Base Meridian, California: T. 4 S., R. 1 W., 
SE\1/4\ sec. 10, S\1/2\ sec. 11, S\1/2\ sec. 12, secs. 13-14, E\1/2\ 
sec. 15, NE\1/4\ sec. 23, NW\1/4\ sec. 24; T. 4 S., R. 1 E., S\1/2\ 
sec. 7, S\1/2\ sec. 8, sec. 9, secs. 16-18, NE\1/4\ sec. 19, NE\1/4\ 
sec. 20, sec. 21, W\1/2\ sec. 27, N\1/2\ sec. 28.

    Dated: September 21, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-24763 Filed 10-2-00; 8:45 am]
BILLING CODE 4310-55-P