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

EFFECTIVE DATE: October 1, 2000.

FOR FURTHER INFORMATION CONTACT:

James H. Dolvin, NASA Headquarters,

Office of Procurement, Contract

Management Division (Code HK),

Washington, DC 20546. (202) 358–1279,

email: jdolvin1@mail.hq.nasa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

In 1991, Subpart 1837.70, Acquisition

of Training, was added to the NFS.

Section 1837.7000, Acquisition of offthe-shelf training courses, provided that

the Government Employees Training

Act of 1958, 5 U.S.C. 4101 et seq., could

be used as the authority for acquisition

of ‘‘non-Governmental off-the-shelf

training courses which are available to

the public.’’ Subpart 1837.7001,

Acquisition of new training courses,

provided that acquisition of new

training courses ‘‘developed to fill a

specific NASA need’’ must be

conducted in accordance with the FAR.

This subpart is being removed because

it has caused confusion within NASA

about the relevance of the FAR to

training service procurement.

A proposed rule was published in the

Federal Register at 65 FR 43730, dated

July 14, 2000. No comments were

received, and this final rule adopts the

proposed rule without change.

B. Regulatory Flexibility Act

NASA certifies that this rule will not

have a significant economic impact on

a substantial number of small business

entities within the meaning of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.) because the deletion of this

subpart will not alter the manner in

which NASA is required to acquire

training.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

NFS do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 1837

Government Procurement

Anne Guenther,

Acting Associate Administrator for

Procurement.

Accordingly, 48 CFR Part 1837 is

proposed to be amended as follows:

1. The authority citation for 48 CFR

Part 1837 continues to read as follows:

Authority: 42 U.S.C. 2473(c)(1)

PART 1837—SERVICE CONTRACTING

2. Subpart 1837.70 is removed.

[FR Doc. 00–25249 Filed 10–2–00; 8:45 am]

BILLING CODE 7510–01–M

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.

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 orangerufous 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,

58934 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

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

58936 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

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

(767 ac)

26,440 ha

(65,492 ac)

56,045 ha

(138,824 ac)

82,795 ha

(205,083 ac)

Contra Costa ...................................................................................................... 32 ha

(80 ac)

31,970 ha

(79,189 ac)

35,245 ha

(87,301 ac)

67,247 ha

(166,570 ac)

San Joaquin ....................................................................................................... 606 ha

(1,500 ac)

525 ha

(1,300 ac)

4,834 ha

(11,975 ac)

5,965 ha

(14,775 ac)

Santa Clara ........................................................................................................ NA 4,037 ha

(10,000 ac)

4,106 ha

(10,170 ac)

8,143 ha

(20,170 ac)

Total ............................................................................................................ 948 ha

(2,347 ac)

62,972 ha

(155,981 ac)

100,230 ha

(248,270 ac)

164,150 ha

(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 TildenBriones 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

58938 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

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

58940 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

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

58942 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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 nonFederal 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

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

58944 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

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

58946 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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

Categories of activities Activities potentially affected by Species Listing Only 1

Additional

Activities potentially affected by

critical habitat designation 2

Federal Activities Potential Affected 3.Activities such as removing, thinning, or 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.

None

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58947

TABLE 2.—IMPACTS OF ALAMEDA WHIPSNAKE LISTING AND CRITICAL HABITAT DESIGNATION—Continued

Categories of activities Activities potentially affected by Species Listing Only 1

Additional

Activities potentially affected by

critical habitat designation 2

Private and other non-Federal

Activities Potentially Affected 4.

Activities such as removing, thinning, or 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).

None.

1This 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. 2This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 3Activities initiated by a Federal agency.

4Activities 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

58948 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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-toGovernment 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 § 17.11(h) revise the entry for

‘‘Whipsnake, Alameda’’ under

‘‘REPTILES’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58949

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

REPTILES

*******

Whipsnake, Alameda

(=striped racer).

Masticophis lateralis

euryxanthus.

U.S.A. (CA) ............. Entire ....................... T 628 17.95(c) NA

*******

3. Amend § 17.95(c) by adding critical

habitat for the Alameda whipsnake

(Masticophis lateralis euryxanthus) in

the same alphabetical order as this

species occurs in § 17.11(h).

§ 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

58950 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Map Unit 1: Contra Costa County,

California. From 1992 Orthophoto quads,

Mount Diablo Base Meridian, California: T. 2

N., R. 4 W., S1⁄2 sec. 13, SE1⁄4 sec. 23, N1⁄2

SE1⁄4 sec. 24, sec. 25, N1⁄2 SE1⁄4 sec. 26, E1⁄2

sec. 27, E1⁄2 sec. 34 secs. 35–36; T. 2 N., R.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58951

3 W., S1⁄2 sec. 15, S1⁄2 sec. 16, SW1⁄4 sec. 18,

secs. 19–22, S1⁄2 NW1⁄4 sec., 23, SW1⁄4 sec.

24, secs. 25–36; T. 2 N., R. 2 W., S1⁄2 sec. 30,

sec. 31, SW1⁄4 sec. 32; T. 1 N., R. 4 W., secs.

1–2, S1⁄2 sec. 3, sec. 4, SE1⁄4 sec. 5, N1⁄2 SE1⁄4

sec. 8, secs. 9–15, N1⁄2 sec. 16, N1⁄2 SE1⁄4 sec.

21, secs. 22–26, NE1⁄4 sec. 27, N1⁄2 SE1⁄4 sec.

36; T. 1 N., R. 3 W., secs. 1–24, N1⁄2 sec. 25,

N1⁄2 sec. 26, N1⁄2 sec. 27, S1⁄2 NW1⁄4 sec. 28,

secs. 29–32; T. 1. N., R. 2 W., secs. 5–7, S1⁄2

NW1⁄4 sec. 8, W1⁄2 sec. 17, secs. 18–19, W1⁄2

sec. 29; sec. 30; T. 1. S., R. 3 W., N1⁄2 sec.

5, N1⁄2 sec. 6.

58952 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Map Unit 2: Alameda and Contra Costa

Counties, California. From 1992 Orthophoto

quads, Mount Diablo Base Meridian,

California: T. 1 N., R. 3 W., SE1⁄4 sec. 35, S1⁄2

NW1⁄4 sec. 36; T. 1. N., R. 2 W., SW1⁄4 sec.

31, S1⁄2 sec. 33, SW1⁄4 sec. 34; T. 1 S., R. 3

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58953

W., sec. 1, E1⁄2 sec. 2, NE1⁄4 sec. 12, SW1⁄2 sec.

13, S1⁄2 sec. 14, S1⁄2 sec. 15, secs. 22–27, SE1⁄4

sec. 28, NE1⁄4 sec. 34, N1⁄2 SE1⁄4 sec. 35, sec.

36; T. 1 S., R. 2 W., S1⁄2 sec. 2, secs. 3–6, N1⁄2

SE1⁄4 sec. 7, secs. 8–11, SW1⁄4 sec. 12, S1⁄2

NW sec. 13, secs. 14–17, SE1⁄4 sec. 18, S1⁄2

NE1⁄4 sec. 19, secs, 20–36; T.1 S., R. 1 W.,

SW1⁄4 sec. 19, SW1⁄4 sec. 29, S1⁄2 NW1⁄4 sec.

30, secs. 31–32; T. 2 S., R. 3 W., N1⁄2 SE1⁄4

sec. 1, NE1⁄4 sec. 12, S1⁄2 sec. 13, N1⁄2 sec. 24;

T. 2 S., R. 2 .W., secs. 1–18, E1⁄2 sec. 19, secs.

20–30, N1⁄2 SE 1⁄4 sec. 31, sec. 32, N1⁄2 sec.

33, N1⁄2 sec. 34, N1⁄2 SW1⁄4 sec. 35, sec. 36;

T. 2 S., R. 1 W., W1⁄4 sec. 4, secs. 5–6, S1⁄2

sec. 16, secs. 17–21, S1⁄2 NW1⁄4 sec. 22, W1⁄2

sec. 26, secs. 27–34, W1⁄2 sec. 35; T. 3 S., R.

1 W., NW1⁄4 sec. 2, secs. 3–4, N1⁄2 SE1⁄4 sec.

5, N1⁄2 sec. 6; T. 3 S., R. 2 W., N1⁄2 sec. 1.

58954 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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, E1⁄2 sec. 13, SW1⁄4 sec. 24, sec.

25, NE1⁄4 sec. 26, secs. 35–36; T. 3 S., R. 1

W., SW1⁄4 sec. 2, S1⁄2 sec. 3, S1⁄2 sec. 4, S1⁄2

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58955

NW1⁄4 sec. 5, S1⁄2 NE1⁄4 sec. 6, secs. 7–11,

SW1⁄4 sec. 12, secs. 13–36; T. 3 S., R. 1 E.,

W1⁄2 sec. 19, S1⁄2 NW1⁄4 sec. 30, sec. 31, S1⁄2

sec. 32; T. 4 S., R. 2 W., NE1⁄4 sec. 1; T. 4

S., R. 1 W., secs. 1–6, NE1⁄4 sec. 7, secs. 8–

12, NE1⁄4 sec. 14, N1⁄2 SW1⁄4 sec. 15, sec. 16,

N1⁄2 SE1⁄4 sec. 17, NE1⁄4 sec. 21; T. 4 S., R.

1 E., W1⁄2 sec. 4, secs. 5–8, W1⁄2 sec. 9, NW1⁄4

sec. 16.

58956 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Map Unit 4: Alameda and Contra Costa

Counties, California. From 1992 Orthophoto

quads, Mount Diablo Base Meridian,

California: T. 2 N., R. 1 W., SE1⁄4 sec. 36; T.

2 N., R. 1 E., S1⁄2 NW1⁄4 sec. 27, S1⁄2 NE1⁄4

sec. 28, S1⁄2 sec. 29, SE1⁄4 sec. 30, S1⁄2 NE1⁄4

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58957

sec. 31, secs. 32–34, S1⁄2 sec. 35; T. 1 N., R

2 W., S1⁄2 sec. 25, SE1⁄4 sec. 26, N1⁄2 sec. 36;

T. 1 N., R. 1 W., sec. 1, SE1⁄4 sec. 2, SE1⁄4 sec.

8, S1⁄2 sec. 9, sec. 12, N1⁄2 SE1⁄4 sec.13, W1⁄2

sec. 14, S1⁄2 NE1⁄4 sec. 15, sec. 17, N/12 SE1⁄4

sec. 20, secs. 21–28, E1⁄2 SW1⁄4 sec. 29, S1⁄2

sec. 30, sec. 31, secs. 32–36; T. 1 N., R. 1.

E., W1⁄2 sec. 1, secs. 2–11, sec. 12, secs. 13–

36; T. 1 N., R. 2 E., SW1⁄4 sec. 7, W1⁄2 sec.

18, sec. 19, S1⁄2 sec. 20, SW1⁄4 sec. 21, secs.

28–33, S1⁄2 sec. 34; T.1 S., R. 1 W., secs. 1–

5, N1⁄2 SE1⁄4 sec. 6, sec. 8, N1⁄2 SW1⁄4 sec. 9,

secs. 10–15, NW1⁄4 sec. 16, NE1⁄4 sec. 17, N1⁄2

SE1⁄4 sec. 23, sec. 24, N1⁄2 sec. 25; T. 1 S.,

R. 1 E., secs. 1–29, N1⁄2 sec. 30, NE1⁄4 sec. 32,

sec. 33–36; T. 1 S., R. 2 E., SW1⁄4 sec. 2, secs.

3–10, S1⁄2 NW1⁄4 sec. 11, W1⁄2 sec. 13, secs.

14–36; T. 2 S., R. 1 E., secs. 1–3, N1⁄2 sec. 10,

N1⁄2 sec. 11, sec. 12; T. 2 S., R. 2 E., NW1⁄4

sec. 1, secs. 2–10, W1⁄2 sec. 11, N1⁄2 sec. 15,

sec. 16–17, E1⁄2 sec. 18.

58958 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

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.,

SE1⁄4 sec. 21, S1⁄2 sec. 22, S1⁄2 NW1⁄4 sec. 23,

SW1⁄4 sec. 24, S1⁄2 NW1⁄4 sec. 25, secs. 26–

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58959

27, E1⁄2 sec. 28, SE1⁄4 sec. 29, NE1⁄4 sec. 32,

secs. 33–36; T. 3 S., R. 2 E., SW1⁄4 sec. 19,

SE1⁄4 sec. 21, S1⁄2 NE1⁄4 sec. 22, S1⁄2 NW1⁄4

sec. 23, SE1⁄4 sec. 24, secs. 25–36; T. 3 S., R.

3 E., S1⁄2 sec. 24, secs. 25–26, S1⁄2 NE1⁄4 sec.

27, S1⁄2 NW1⁄4 sec. 28, S1⁄2 NE1⁄4 sec. 29, S1⁄2

NW1⁄4 sec. 30, secs. 31–36; T. 3 S., R. 4 E.,

S1⁄2 sec. 19, S1⁄2 sec. 20, S1⁄2 sec. 21, SW1⁄4

sec. 27, secs. 28–33, S1⁄2 NW1⁄4 sec. 34; T. 4

S., R. 1 W., E1⁄2 sec. 25, E1⁄2 sec. 36; T. 4 S,

R. 1 E., secs. 1–4, E1⁄2 sec. 9, secs. 10–15, E1⁄2

sec. 16, SE1⁄4 sec. 19, S1⁄2 sec. 20, S1⁄2 NE1⁄4

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., W1⁄2 sec. 2, secs. 3–10, W1⁄2 sec. 11, W1⁄2

sec. 11, W1⁄2 sec. 14, secs. 15–22,W1⁄2 sec. 23,

W1⁄2 sec. 26, secs. 27–34, W1⁄2 sec. 35; T. 5

S., R. 1 E., secs. 1–29, N1⁄2 SE1⁄4 sec. 30, N1⁄2

sec. 33, N1⁄2 SE1⁄4 sec. 34, secs. 35–36; T. 5

S., R. 2 E., secs. 1–35, N1⁄2 SW1⁄4 sec. 36; T.

5 S., R. 3 E., secs. 1–24, N1⁄2 sec. 26, N1⁄2

SW1⁄4 sec. 27, secs. 28–30, N1⁄2 sec. 31, N1⁄2

sec. 32; T. 5. S., R. 4 E., W1⁄2 sec. 2, secs. 3–

9, N1⁄2 SW1⁄4 sec. 10, N1⁄2 SW1⁄4 sec. 16, secs.

17–18, N1⁄2 sec. 19; T. 6 S., R. 1 E., sec. 1,

N1⁄2 sec. 2; T. 6 S., R. 2 E., N1⁄2 sec. 3, N1⁄2

sec. 4, N1⁄2 sec. 5, N1⁄2 sec.6.

58960 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Map Unit 6: Alameda and Contra Costa

Counties, California. From 1992 Orthophoto

quads, Mount Diablo Base Meridian,

California: T. 1 N., R. 4 W., SE1⁄4 sec. 36; T.

1 N., R. 3 W., SW1⁄4 sec. 31, S1⁄2 sec. 33; T.

1 S., R. 4 W., S1⁄2 NE 1⁄4 sec. 1, NE1⁄4 sec. 12;

T. 1 S., R. 3 W., W1⁄2 sec. 3, secs. 4–6, N1⁄2

SE1⁄4 sec. 7, secs. 8-10, secs. 14–15, N1⁄2 SE1⁄4

sec. 16, N1⁄2 sec. 17, NE1⁄4 sec. 18.

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations 58961

BILLING CODE 4310–55–C

58962 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Rules and Regulations

Map Unit 7: Alameda County, California.

From 1992 Orthophoto quads, Mount Diablo

Base Meridian, California: T. 4 S., R. 1 W.,

SE1⁄4 sec. 10, S1⁄2 sec. 11, S1⁄2 sec. 12, secs.

13–14, E1⁄2 sec. 15, NE1⁄4 sec. 23, NW1⁄4 sec.

24; T. 4 S., R. 1 E., S1⁄2 sec. 7, S1⁄2 sec. 8,

sec. 9, secs. 16–18, NE1⁄4 sec. 19, NE1⁄4 sec.

20, sec. 21, W1⁄2 sec. 27, N1⁄2 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