74138 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU23 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Sonoma County Distinct 

Population Segment of the California 

Tiger Salamander 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final decision in rulemaking 

process. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate and 

exclude approximately 17,418 acres (ac) 

(7,049 hectares (ha)) of critical habitat 

for the Sonoma County distinct 

population segment of the California 

tiger salamander (Ambystoma 

californiense) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). We are excluding all 

critical habitat based on interim 

conservation strategies and measures 

being implemented by those local 

governing agencies with land use 

authority over the area and also as a 

result of economic exclusions 

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

Act. Therefore, no critical habitat is 

being designated for the Sonoma County 

distinct population segment of the 

California tiger salamander in Sonoma 

County, California. 

DATES: This final decision becomes 

effective on January 13, 2006. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this rulemaking, will be available for 

public inspection, by appointment, 

during normal business hours, at the 

Sacramento Fish and Wildlife Office 

(SFWO), 2800 Cottage Way, W–2605, 

Sacramento, CA 95825. The final rule 

and economic analysis will be available 

via the Internet at http://www.fws.gov/ 

sacramento/. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Sacramento Fish and 

Wildlife Office, at the above address, 

(telephone (916) 414–6600; facsimile 

(916) 414–6712). 

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 466 species or 36.7 percent of the 

1,269 listed species in the United States 

under the jurisdiction of the Service 

have designated critical habitat. 

We address the habitat needs of all 

1,269 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, and the Section 10 incidental 

take permit process. The Service 

believes that it is these measures that 

may make the difference for the 

conservation of many species. 

We note, however, that two courts 

found our definition of adverse 

modification to be invalid (March 15, 

2001, decision of the United States 

Court Appeals for the Fifth Circuit, 

Sierra Club v. U.S. Fish and Wildlife 

Service et al., F.3d 434 and the August 

6, 2004, Ninth Circuit judicial opinion, 

Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service). On 

December 9, 2004, the Director issued 

guidance to be used in making section 

7 adverse modification determinations. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). None 

of these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

rule. For more information on the 

Sonoma County distinct population 

segment of the California tiger 

salamander, refer to the final listing rule 

and proposed critical habitat rule 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74139 

published in the Federal Register on 

March 19, 2003 (68 FR 13498), and 

August 2, 2005 (70 FR 44301), 

respectively. 

As previously mentioned in the 

proposed critical habitat rule published 

in the Federal Register on August 2, 

2005 (70 FR 44301), we have been 

cooperatively working with Federal, 

State, County, and local officials as well 

as representatives from local business 

and environmental groups over the last 

18 months to develop a conservation 

strategy for the California tiger 

salamander in Sonoma County. The 

development of the Santa Rosa Plain 

Conservation Strategy (Conservation 

Strategy) along with implementation 

measures has been moving forward and 

the County of Sonoma along with the 

cities of Santa Rosa, Rohnert Park, 

Cotati and Windsor have all passed 

resolutions supporting the development 

and agree to work toward 

implementation of the Conservation 

Strategy for the protection of the 

Sonoma County distinct population 

segment of the California tiger 

salamander as well as several other 

Federally listed plant species occurring 

on the Santa Rosa Plain. 

On June 29, 2005, the Service and the 

California Department of Fish and Game 

(CDFG) issued interim guidelines which 

contain project specific conservation 

measures for projects affecting the 

California tiger salamander on the Santa 

Rosa Plain. These interim guidelines are 

in place and the measures identified in 

them are currently being implemented 

by those individuals impacting habitat 

features considered essential for the 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander. These 

conservation measures have been 

reviewed by the team developing the 

Conservation Strategy as well as peer 

reviewed by biologists knowledgeable of 

amphibian conservation or ecological 

conservation in general and are 

consistent with long-term conservation 

of the California tiger salamander and 

other listed plants on the Santa Rosa 

Plain. As the Conservation Strategy is 

finalized, the Service and the CDFG 

intend to continue to implement and or 

revise these interim guidelines to best 

conserve the California tiger salamander 

and other Federally-listed plant species 

on the Santa Rosa Plain. 

Previous Federal Actions 

On October 13, 2004, a complaint was 

filed in the U.S. District Court for the 

Northern District of California (Center 

for Biological Diversity and 

Environmental Defense Council v. U.S. 

Fish and Wildlife Service et al. (Case No. 

C–04 4324 FMS)). On February 3, 2005, 

the District Court required the Service to 

submit for publication in the Federal 

Register, a final determination on the 

proposed critical habitat designation on 

or before December 1, 2005. On August 

2, 2005, we noticed in the Federal 

Register a proposed critical habitat 

designation (70 FR 44301). On August 

19, 2005, a court order was filed on the 

above complaint, which upheld the 

section 4(d) rule exempting grazing from 

Section 9 prohibitions, but vacated the 

downlisting of the Santa Barbara and 

Sonoma populations and reinstated 

their endangered distinct population 

segment status. On October 25, 2005, we 

noticed in the Federal Register the 

availability of a draft economic analysis 

on the proposed designation (70 FR 

61591). In a November 17, 2005 Federal 

Register notice (70 FR 69717), we 

requested comments on a refinement of 

those areas considered to contain the 

essential features necessary for the 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander, and 

identified the adjusted economic 

impacts. This final decision associated 

with the rulemaking process is in 

accordance with the settlement 

agreement and court order. For more 

information on previous Federal actions 

concerning the California tiger 

salamander, refer to the proposed rule to 

designate critical habitat in Sonoma 

County published in the Federal 

Register on August 2, 2005 (70 FR 

44301), as well as the listing notice 

published in the Federal Register on 

March 19, 2003 (68 FR 13498). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for California tiger 

salamander in the proposed rule 

published on August 2, 2005 (70 FR 

44301). We also contacted appropriate 

Federal, State, and local agencies; 

scientific organizations; and other 

interested parties and invited them to 

comment on the proposed rule. In 

addition, we held two public hearings 

on September 8, 2005, in Santa Rosa, 

California. 

We had three open comment periods, 

totaling 91 days, between August 2, 

2005 and November 28, 2005. During 

those periods, we received comments 

directly addressing the proposed critical 

habitat designation: three from peer 

reviewers, six from local government, 

and 55 from organizations or 

individuals. We reviewed all comments 

received from the peer reviewers and 

the public for substantive issues and 

new information regarding critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander. Comments received 

were grouped into general issues 

specifically relating to the proposed 

critical habitat rulemaking for the 

Sonoma County distinct population 

segment of the California tiger 

salamander, are addressed in the 

following summary, and incorporated 

into the final rule as appropriate. 

Comments From the State 

Section 4(i) of the Act states, ‘‘the 

Secretary shall submit to the State 

agency a written justification for her 

failure to adopt regulation consistent 

with the agency’s comments or 

petition.’’ We did not receive any 

comments from State agencies regarding 

the proposal to designate critical habitat 

for the Sonoma County distinct 

population segment of the California 

tiger salamander. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from six knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received a response from 

three of the peer reviewers. These 

reviewers provided specific information 

regarding species location and habitat as 

well as information on the areas that 

could be excluded based on soil 

information, locations of wetlands, 

potential breeding habitat, elevation 

information, and habitat fragmentation. 

This information was used to assist us 

in determining the final critical habitat 

boundaries. Any changes as a result of 

peer review information are reflected 

and incorporated in this final 

rulemaking as appropriate. Specific peer 

review comments are addressed in the 

following summary below. 

Peer Review Comments 

Comment: The critical habitat area 

should be reduced to approximately 

18,000–20,000+ acres of extant occupied 

habitat and comprised of a 1.3 mile (mi) 

(2 kilometer (km)) buffer around known 

breeding locations. 

Our Response: As outlined in our 

notice published in the Federal Register 

on November 17, 2005 (70 FR 69717), 

we refined the proposed designation to 

just those areas surrounding known 

breeding locations, and by applying 

parameters for dispersal and upland 

habitat similar to those we used in 

critical habitat designation for the Santa 

74140 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

Barbara and Central populations of the 

California tiger salamander. We began 

mapping habitat by buffering breeding 

locations by a distance of 0.70 mi (1.1 

km) to capture dispersal and upland 

habitat use by the species. Some 

research has found that 99 percent of 

interpond dispersal would be captured 

using this 0.7 mi (1.1 km) radius around 

a breeding pond (Trenham et al. 2001; 

Trenham and Shaffer 2005). 

Salamanders have been documented 

dispersing even farther than 0.7 mi (1.1 

km) (Sweet 1998) however, and the 

Conservation Strategy chose a radius of 

1.3 mi (2.1 km) to ensure that incidental 

take coverage would be inclusive of all 

areas likely to be occupied by 

salamanders and to establish a broad 

area in which conservation for 

salamander would be implemented. 

Ultimately however, as discussed 

below, we excluded all areas 

designation as critical habitat (see 

Application of Exclusions Under 

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

Comment: Existing urban centers 

within the historic range of California 

tiger salamander should be removed 

from the designation. Retaining these 

urban centers will bias the economic 

evaluation of critical habitat. 

Our Response: In our final 

designation, we mapped only those 

areas which contained the essential 

features necessary to conserve the 

Sonoma County distinct population 

segment of the California tiger 

salamander. We removed all developed 

and nonessential areas to the best of our 

ability, however due to mapping 

precision we were unable to remove all 

such development. The scale of the 

maps prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

left inside the critical habitat boundaries 

shown on the maps of this final rule 

have been excluded by text in the rule 

and are not designated as critical 

habitat. These developed and 

nonessential habitat areas although 

within the boundary of the final 

designation would not contain the 

primary constituent elements and as 

such would not be considered critical 

habitat. We excluded all the final 

critical habitat based on implementation 

of local government management 

strategies and economic cost (see 

Exclusions Under Section 4(b)(2) of the 

Act section). 

Comment: There is anecdotal 

evidence of one adult California tiger 

salamander near Rainsville Road in the 

1990s from an amateur herpetologist 

and the critical habitat boundary should 

extend south to Rainsville Road, north 

of Petaluma. 

Our Response: As part of our 

deliberation over which areas to 

designate, we used currently known 

California tiger salamander breeding 

locations within Sonoma County. We 

believe that basing our designation on 

breeding locations would ensure the 

conservation of the species by providing 

areas which contain the essential 

features of aquatic, upland, and 

dispersal habitats. We lacked adequate 

documentation of essential features, 

particularly breeding habitat, that might 

be associated with this observation to 

include it in a critical habitat 

designation. We recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. Areas that support 

populations, but are outside the critical 

habitat designation, will continue to be 

subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard as determined on the basis of 

the best available information at the 

time of the action. 

Other Comments 

Issue 1: Habitat and Species Specific 

Information 

Comment: A few comments stated 

they were in favor of including the 

Petaluma area as critical habitat because 

they have observed salamanders in this 

area and suitable habitat exists. 

Our Response: We have been unable 

to confirm the claims of these 

comments. Breeding or individual 

observations of the species in the 

Petaluma area have yet to be verified by 

recognized experts. Since the emergency 

listing in July, 2002, we have received 

numerous claims from the public that 

they have seen salamanders at various 

locations within the potential range of 

the species. Upon further investigation 

by recognized experts in those 

instances, the arboreal salamander 

(Aneides lugubris) is frequently 

mistaken for the California tiger 

salamander and no confirmed breeding 

areas for the California tiger salamander 

have been confirmed outside those 

identified during this rulemaking 

process. 

Issue 2: Unit Designations 

Comment: Several comments 

included specific recommendations on 

how the critical habitat unit(s) should 

be designed including specific areas 

which should be included and excluded 

from the final designation. 

Our Response: We used the best 

scientific information available in 

determining the extent of the critical 

habitat boundaries and revised our 

proposed rule based on comments 

received and peer review. We mapped 

only those areas which contained the 

essential features necessary to conserve 

the Sonoma County distinct population 

segment of the California tiger 

salamander. When determining critical 

habitat boundaries, we made every 

effort to avoid including within the 

boundaries of the map contained within 

this final rule developed areas such as 

buildings, paved areas, and other 

structures that lack the primary 

constituent elements for the California 

tiger salamander. The scale of the maps 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

final rule have been excluded by text in 

the rule and are not designated as 

critical habitat. These developed and 

nonessential habitat areas would not 

contain the primary constituent 

elements and as such would not be 

considered critical habitat. We excluded 

all the area which would otherwise have 

been designated as final critical habitat 

based on implementation of local 

government management strategies and 

economic cost (see Exclusions Under 

Section 4(b)(2) of the Act section). 

Comment: One commenter stated that 

critical habitat unit is too limited and 

that California tiger salamanders have 

been observed south to Muir Woods, 

Marin County. 

Our Response: We used the best 

scientific data available for the 

designation of critical habitat and 

alternative considered for the Sonoma 

County distinct population segment of 

the California tiger salamander, as per 

section 3(5)(A)(i) of the Act and 

regulations at 50 CFR 424.12. We used 

the California Natural Diversity 

Database (CNDDB), survey records, and 

other information to determine the 

historical and potential range of the 

species at the time of listing in March 

2003. There are no confirmed records of 

the Sonoma County distinct population 

segment of the California tiger 

salamander found in Marin County. 

Comment: Several commenters stated 

that the extension of California tiger 

salamander critical habitat into the 

Petaluma area is not justified based on 

the current known locations of the 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74141 

species and distribution of California 

tiger salamander habitats. Several 

commenters also stated that the 

Petaluma area is nearly completely 

developed and lacks the primary 

constituent elements, the designation 

would cause significant economic 

impacts; and that the lands within the 

Petaluma city limit should be excluded 

from critical habitat. 

Our Response: We used the best 

scientific information available in 

determining the extent of the critical 

habitat boundaries and revised our 

proposed rule based on comments 

received and peer review. The area 

which otherwise would have received a 

designation as critical habitat is based 

on known breeding locations for the 

species. As a result, the area south of 

Pepper Road in Cotati was not 

considered essential to the conservation 

of the species. In addition, as a result of 

analyzing the benefits of designating 

critical habitat versus benefits of not 

designating critical habitat we excluded 

all the final critical habitat based on 

implementation of local government 

management conservation strategies and 

economic costs (see Exclusions Under 

Section 4(b)(2) of the Act section). 

Although the area considered essential 

in the final determination does not 

include the Petaluma area, this does not 

mean that the area does not contain 

appropriate habitat for the California 

tiger salamander or that the area may be 

needed for recovery of the species. We 

continue to encourage all local 

governmental municipalities to work 

closely with State and Federal resource 

agencies to conserve and protect 

endangered and sensitive species and 

their habitats. 

Comment: One commenter 

recommends excluding the areas north 

of Santa Rosa Creek; within the 100 year 

flood plain; east of Highway 101 from 

Rohnert Park Expressway north; and 

south of Pepper Road to Lichau Creek. 

Our Response: We have revised the 

areas considered as critical habitat 

based on scientific information, peer 

review, and comments received. As a 

result, we have removed many areas 

from the proposed rule that did not 

contain the essential features. Also our 

final determination has excluded all the 

remaining area which otherwise would 

have been designated as critical habitat 

based on implementation of local 

government management strategies and 

economic cost (see Exclusions Under 

Section 4(b)(2) of the Act section). 

Issue 3: Social and Economic Costs/ 

Regulatory Burden 

Comment: Several commenters 

requested excluding the lands in the 

City of Santa Rosa’s urban grown 

boundary as critical habitat because of 

their concerns of high economic 

impacts. 

Our Response: Section 4 of the 

Endangered Species Act of 1973, as 

amended, and our implementing 

regulations, state that critical habitat 

shall be designated for species listed 

under the Act. We have excluded all 

areas which otherwise would have been 

designated as critical habitat, including 

areas within the City of Santa Rosa 

urban growth boundary (UGB), after 

taking into consideration the economic 

impact and conservation measures being 

implemented by local governmental 

agencies (see Exclusions Under Section 

4(b)(2) of the Act section). 

Comment: One commenter expressed 

concern about the burden on 

agricultural practices such as plowing 

fields, planting new vines, and the 

removal of existing vines. 

Our Response: Designation of critical 

habitat in areas occupied by the species 

does not necessarily result in a 

regulatory burden above that already in 

place due to the presence of the listed 

species. The Service works with private 

landowners to identify activities and 

modifications to activities that will not 

result in take, to develop measures to 

minimize the potential for take, and to 

provide authorizations for take through 

Sections 7 and 10 of the Act. One 

intention of critical habitat is to inform 

people of areas that contain the features 

that are essential for the conservation of 

the species. We encourage landowners 

to work in partnership with us to 

develop plans that allow their land 

management and development practices 

to proceed in a manner consistent with 

the conservation of listed species. The 

California tiger salamander is already a 

Federally-listed species, and as such, 

projects that may result in take of the 

species are already required to consult 

with the Service under Section 7 or 

Section 10 of the Act. However, we 

excluded all areas which otherwise 

would have been designated as critical 

habitat based on implementation of 

local government management strategies 

and economic cost (see Exclusions 

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

section). 

Issue 4: Notification and Comment 

Period Comments 

Comment: One commenter stated that 

the comment period was too short and 

the information about the Conservation 

Strategy was not available until just 

recently. 

Our Response: The proposed critical 

habitat designation was published in the 

Federal Register on August 2, 2005 (70 

FR 44301), and we accepted comments 

from all interested parties for a 60-day 

comment period, until October 3, 2005. 

On October 25, 2005, we reopened the 

comment period for 21 days until 

November 14, 2005, and made available 

the draft economic analysis (70 FR 

61591). On November 17, 2005, we 

reopened the comment period for 12 

days until November 28, 2005 (70 FR 

69717), and requested comments on a 

refinement of those areas considered to 

contain the essential features necessary 

for the conservation of the Sonoma 

County distinct population segment of 

the California tiger salamander. The 

Conservation Strategy was released for 

public comment on August 17, 2005. 

The document was posted on the 

websites of the City of Santa Rosa and 

the Sacramento Fish and Wildlife Office 

of the U.S. Fish and Wildlife Service. 

The Service issued a press release and 

local media reported the event. A public 

meeting to accept comments and 

provide information was held in Santa 

Rosa on September 12, 2005. The public 

comment period closed on the 

Conservation Strategy on September 17, 

2005. 

Issue 5: Designation Process 

Comment: One commenter stated that 

the proposed rule’s boilerplate position 

statement that critical habitat provides 

no additional benefit to listed species 

violates the Act’s requirement that the 

Service base its determinations solely 

on the best available science. 

Our Response: The Service’s 

statements regarding the general 

protections provided by critical habitat 

does not change the method in which 

we make our final critical habitat 

determinations. We used the best 

scientific data available in determining 

the extent of the area which would be 

designated as critical habitat absent 

exclusions and in identifying areas 

which contain the features essential to 

the conservation of the species. 

Comment: One commenter stated that 

the proposed rule implies that if the 

Service does not receive justification for 

inclusion of an area during the public 

comment period, then that area will be 

dropped from the final critical habitat 

designation. The commenter also stated 

that the Service needs to make its 

decision on the basis of the best 

available scientific information and 

where the information is not completely 

clear or incomplete, the benefit of the 

doubt should go toward actions which 

would benefit conservation of the 

species. 

Our Response: It was not our intent to 

suggest that areas would be removed 

from the designation if information was 

74142 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

not received to justify their inclusion. 

We based the final critical habitat on the 

best scientific information available as 

well as incorporated appropriate peer 

review information. We believe that the 

final area identified as critical habitat 

prior to exclusion under section 4(b)(2) 

represents the best scientific 

information as to what areas contain the 

essential features necessary for 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander considering 

the economic and other relevant 

impacts. 

Comment: One commenter stated that 

the Service needs to narrow the scope 

of the proposed critical habitat and not 

include the entire geographical area that 

can be occupied by the threatened or 

endangered species. 

Our Response: The final boundaries of 

that area which would be designated as 

critical habitat prior to exclusion under 

section 4(b)(2) for the Sonoma County 

distinct population segment of the 

California tiger salamander has been 

greatly reduced from the proposed 

designation. Based on the best scientific 

data available, we removed those areas 

from the proposed designation which 

did not contain the essential habitat 

features, were already developed, or 

were outside the current range of the 

species. The final area which would be 

designated as critical habitat absent 

exclusion under section 4(b)(2) is based 

on the aquatic, upland and dispersal 

habitat surrounding known breeding 

locations. 

Issue 6: Cooperative Efforts 

Comment: One commenter expressed 

their support of the cooperative/ 

partnership approach being used by the 

Conservation Strategy members. They 

stated that designating critical habitat 

would provide disincentives to private 

landowners by requiring farmers and 

ranchers obtaining funds from the U.S. 

Department of Agriculture through the 

Farm Bill to complete the consultation 

process, which hinders the completion 

of conservation activities on these lands. 

Our Response: We support all 

cooperative/partnership efforts to 

conserve federally listed threatened and 

endangered species. Federal agencies 

already consult with us on activities 

(i.e., permitting or funding of projects) 

in areas currently occupied by the 

species or if the species may be affected 

by the action to ensure that their actions 

do not jeopardize the continued 

existence of the species. Therefore, we 

believe that the designation of critical 

habitat would not likely result in 

significant additional regulatory burden 

above that already in place due to the 

presence of the listed species. However, 

we excluded all the area which would 

otherwise be designated as critical 

habitat based on implementation of 

local government management strategies 

and economic cost (see Application of 

Exclusions Under Section 4(b)(2) of the 

Act section). 

Issue 8: Conservation Strategy 

Comment: One commenter stated that 

identifying the Conservation Strategy as 

an alternative to designating critical 

habitat is not appropriate or lawful 

under the Endangered Species Act. 

Our Response: We did not propose 

the Conservation Strategy to be an 

alternative to designating critical 

habitat. However, Section 4(b)(2) of the 

Act states that ‘‘The Secretary may 

exclude any area from critical habitat if 

[s]he determines that the benefits of 

such exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless [s]he determines, 

based on the best scientific data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species 

concerned.’’ We excluded all the area 

which would otherwise have been 

designated as critical habitat based on 

implementation of local government 

management strategies and economic 

cost (see Application of Exclusions 

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

section). 

Comment: Several commenters 

expressed support of the Conservation 

Strategy, but had reservations because it 

was not finalized and that it needs 

improvement in order to conserve the 

Sonoma County distinct population 

segment of the California tiger 

salamander and four Federally-listed 

plants. 

Our Response: In development of the 

Conservation Strategy, the Federal, 

State, County and local government 

agencies, as well as representatives from 

the building industry and 

environmental organizations, received 

similar comments regarding issues with 

the Conservation Strategy. The 

Conservation Strategy has been 

independently peer reviewed and 

comments received from peer reviewers 

have been incorporated into the current 

version of the plan. The Conservation 

Strategy focuses on establishing large, 

contiguous preserves and a coordinated 

region-wide restoration and 

management strategy, species research, 

endowment funding, administration of 

preserve management, and 

implementation that will contribute to 

the recovery of the California tiger 

salamander and four Federal and State 

listed plants in Sonoma County. The 

County of Sonoma, the City of Santa 

Rosa, the City of Cotati, the Town of 

Windsor, the City of Rohnert Park, the 

California Department of Fish and 

Game, and the Service have signed a 

planning agreement and the local 

jurisdictions adopted individual 

resolutions that agree to implement an 

interim conservation strategy while the 

Conservation Strategy is fully adopted 

and implemented. We have outlined 

those reasons why we believe the 

current Conservation Strategy would 

provide a benefit above that of 

designating critical habitat (see 

Exclusion Under Section 4(b)(2) of the 

Act section). However, the Conservation 

Strategy is still under development and 

subject to final approval. Should the 

current Conservation Strategy not be 

implemented or changed to such an 

extent as it no longer provides for the 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander, we would 

revisit our current determination on 

designating critical habitat for the 

species and repropose critical habitat. 

Comment: One commenter stated that 

the Service needs to protect the areas 

where the California tiger salamander 

reside rather than relocate them as is 

identified in the Conservation Strategy. 

Our Response: The designation of 

critical habitat does not prescribe 

management actions but does define 

areas which contain the essential 

features described as primary 

constituent elements. We agree that 

protection of areas where California 

tiger salamanders are endemic should 

be the priority of the strategy, and this 

is demonstrated by the conservation 

areas identified in the Conservation 

Strategy. The Conservation Strategy 

identifies areas that support potential 

habitat but is not currently occupied by 

the California tiger salamander and 

recommends translocation of the species 

to be an option only under certain 

circumstances. These areas may be 

suitable for translocation of individuals 

to aid in the recovery of the species. 

Some projects authorized under Section 

7 or 10 of the ESA may have 

unavoidable impacts to the species. 

These unavoidable impacts may be 

minimized by salvaging individuals and 

relocating them to suitable habitat on a 

case by case basis. Preliminary data has 

demonstrated that this management 

technique may be successful. The 

Conservation Strategy has been peer 

reviewed by recognized experts and the 

comments regarding translocation have 

been incorporated into the current 

version of the plan. 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74143 

Issue 9: Economic Analysis 

Comment: One commenter states that 

the Draft Economic Analysis (DEA) fails 

to evaluate benefits associated with 

conserving the California tiger 

salamander. Further, this commenter 

states that the DEA should review the 

benefits of conserving open space and 

riparian areas. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking (i.e., the 

direct benefit) is to designate areas in 

need of special management that 

contain the features essential to the 

conservation of listed species. While a 

listed species may be the primary 

beneficiary of designated critical 

habitat, the designation of critical 

habitat may also result in two distinct 

categories of benefits to society: (1) Use, 

and (2) non-use benefits. Use benefits 

are the social benefits that accrue from 

the physical use of a resource. Visiting 

critical habitat to see endangered 

species in their natural habitat would be 

a primary example. Non-use benefits, in 

contrast, represent welfare gains from 

just knowing that a particular listed 

species’ natural habitat is being 

specially managed for the conservation 

of that species. Both use and non-use 

benefits may occur unaccompanied by 

any market transactions. 

A primary reason for conducting this 

analysis is to provide information 

regarding the economic impacts 

associated with a proposed critical 

habitat designation. Section 4(b)(2) of 

the Act requires the Secretary to 

designate critical habitat based on the 

best scientific data available after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. Economic impacts can be both 

positive and negative and by definition, 

are observable through market 

transactions. 

Where data are available, this analysis 

attempts to recognize and measure the 

net economic impact of the proposed 

designation. For example, the DEA 

investigates whether conserved open 

space at designated mitigation sites 

results in increased property values. 

The DEA did not find any evidence that 

housing price was influenced by 

proximity to the nearest conservation 

area. The authors hypothesize that this 

may be attributable to the large amount 

of open space in Sonoma County. While 

section 4(b)(2) of the Act gives the 

Secretary discretion to exclude certain 

areas from the final designation, she is 

authorized to do so only if an exclusion 

does not result in the extinction of the 

species. In terms of carrying out its 

responsibilities under section 4(b)(2) 

then, the Service need only to consider 

whether the economic impacts (both 

positive and negative) or any other 

impact are significant enough to merit 

exclusion of any particular area without 

causing the species to go extinct. 

Comment: One commenter states that 

the DEA overestimates costs associated 

with conserving California tiger 

salamander, because it includes 

economic impacts attributable to listing 

under the Act. The commenter further 

states that the DEA confuses the 

economic costs by including costs of 

conservation efforts to protect the 

species (not its critical habitat) with 

conservation of the proposed critical 

habitat. For this reason, the commenter 

questions why the DEA includes predesignation costs, as these costs are 

associated with listing of the species. 

Our Response: This analysis identifies 

those economic activities believed to 

most likely threaten the California tiger 

salamander and its habitat and, where 

possible, quantifies the economic 

impact to avoid, mitigate, or compensate 

for such threats within the boundaries 

of the critical habitat. In instances 

where critical habitat is being proposed 

after a species is listed, some future 

impacts may be unavoidable, regardless 

of the final designation and exclusions 

under 4(b)(2). However, due to the 

difficulty in making a credible 

distinction between listing and critical 

habitat effects within critical habitat 

boundaries, this analysis considers all 

future conservation-related impacts to 

be coextensive with the designation. 

Comment: Several commenters state 

that the DEA should incorporate the 

recent ruling in the Ninth Circuit Court 

of Appeals, Gifford Pinchot Task Force 

v. U.S. Fish and Wildlife Service. 

Our Response: The DEA 

acknowledges that the Ninth Circuit 

judicial opinion, Gifford Pinchot Task 

Force v. United States Fish and Wildlife 

Service, invalidated the Service’s 

regulation defining destruction or 

adverse modification of critical habitat. 

The Service is currently reviewing the 

decision to determine what affect it (and 

to a limited extent Center for Biological 

Diversity v. Bureau of Land 

Management (Case No. C–03–2509–SI, 

N.D. Cal.)) may have on the outcome of 

consultations pursuant to section 7 of 

the Act. As a result of this ruling, the 

DEA assumes that efforts to mitigate 

impacts to the habitat must occur within 

the boundaries of critical habitat. 

Consistent with this requirement, zonal 

mitigation sites assumed in the DEA are 

those identified in the Santa Rosa Plain 

Conservation Strategy. 

Comment: Several commenters state 

that the DEA underestimates the impact 

of critical habitat on transportation 

projects in Sonoma County. 

Our Response: Planned transportation 

projects are captured in the DEA using 

the California Department of 

Transportation’s California 

Transportation Investment System 

(CTIS) tool that includes information for 

interstates, principal arterials, and rural 

minor arterials. The CTIS tool 

incorporates information about projects 

overseen by the State Transportation 

Improvement Program, the State 

Highway Operations and Protection 

Program, the Interregional 

Transportation Strategic Plan, the 

California Aviation System Plan, and 

various regional transportation planning 

organizations. Version 1.3.2 of this tool 

is used in the DEA as the updated 

Version 2.0 had not been released at the 

time the report was prepared. 

Accordingly, the DEA is prepared using 

the most current publicly available 

information on planned transportation 

projects. Public comments received 

were inadequate to update impact 

calculations. 

Based on the public comments 

received, the Service’s contractor for 

completing the economic analysis 

contacted the Sonoma County 

Transportation Authority (Authority) to 

request more detailed information on 

the nature, location and scope of 

additional planned projects. The 

Authority was unable to provide the 

needed information in time to revise the 

impact analysis within the courtdirected timeframe. However, since no 

critical habitat is being designated, the 

impacts asserted by the commenter will 

not be incurred. 

Comment: Several commenters state 

that mitigation prices used in the DEA 

are too low. The comments further cite 

a wide range of current market prices for 

mitigation in Sonoma County. 

Our Response: The DEA calculates 

mitigation prices as the cost of land 

assembly in the various California tiger 

salamander mitigation zones plus the 

cost of required improvements to land 

to make the site suitable for California 

tiger salamander occupation. This 

approach is consistent with the welfaretheoretic underpinnings of the impact 

model, in particular its focus on 

efficiency effects. One social cost of 

using land for mitigation is the value of 

the foregone alternative uses of the land. 

These values are approximately equal to 

the purchase price of the land. Another 

social cost of mitigation is the value of 

the resources used to modify the land to 

make it suitable for California tiger 

salamander occupation. 

74144 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

Mitigation prices may rise above the 

supply price of mitigation, for example 

when the supply of mitigation is 

constrained by permitting delays or 

other factors. However, prices above 

supply cost are a transfer between 

agents and net out of an efficiency 

impact. 

Comment: Two commenters state that 

the DEA should not use mitigation 

formulas described in the Conservation 

Strategy since it is not a legally binding 

document. Further, the commenters 

state that the DEA should not assume 

that critical habitat has no impacts 

outside of a 1.3-mile buffer around 

breeding habitat. 

Our Response: The cities of Santa 

Rosa, Rohnert Park, and Cotati, the town 

of Windsor, Sonoma County, the local 

development community, 

environmental organizations, the 

Service, and other federal and state 

agencies have undertaken a process to 

support California tiger salamander 

conservation at a regional level. This 

effort has involved extensive scientific 

research and analysis of the biological 

and ecological issues relating to 

California tiger salamander and of its 

specific circumstances in the region. 

During the week of November 7, 2005, 

all of the local jurisdictions formally 

approved execution of a planning 

agreement that commits them to work 

with the Service and other parties to 

finalize and implement the 

Conservation Strategy. Indeed, one 

economic cost of critical habitat may be 

to disrupt and impose additional costs 

on this collaborative effort. 

Comment: Two commenters state that 

the DEA underestimates or ignores 

potential impacts to agriculture. In 

particular, commenters are concerned 

that the DEA does not quantify impacts 

to the wine grape industry and does not 

quantify increases in production costs 

or decreases in agricultural land values 

resulting from critical habitat. 

Our Response: The DEA quantifies the 

reduction in agricultural land values 

resulting from foregone or constrained 

land development opportunities. A 

review of available biological opinions 

did not reveal any evidence of 

limitations on crop production practices 

resulting from listing of the California 

tiger salamander. 

The DEA acknowledges that critical 

habitat may increase the costs and 

reduce the economic optimality of 

vineyard development within critical 

habitat. However, given the relative 

abundance of substitute vineyard sites 

within Sonoma County relative to the 

forecasted increase in vineyard acreage, 

it is speculative at present to assign 

costs to this potential impact. 

Summary of Changes From Proposed 

Rule 

In the proposed critical habitat rule 

for the Sonoma County distinct 

population segment of the California 

tiger salamander, we identified the 

historical and potential range of the 

species in Sonoma County, utilizing all 

known breeding and adult locality data 

and GIS resources available to the 

Service. Based on comments received 

from the public and from peer review, 

and a refinement of our parameters for 

dispersal and upland habitat use by the 

species, we revised the final designation 

of critical habitat for the Sonoma 

County distinct population segment of 

the California tiger salamander, as 

follows: 

(1) As outlined in our notice 

published in the Federal Register on 

November 17, 2005 (70 FR 69717), we 

refined the proposed designation by 

applying parameters for dispersal and 

upland habitat similar to those we used 

in critical habitat designation for the 

Santa Barbara and Central populations 

of the California tiger salamander. We 

began mapping habitat by buffering 

known salamander breeding locations 

by a distance of 0.70 mi (1.1 km) to 

capture dispersal and upland habitat 

use by the species. We adjusted the 0.70 

mi (1.1 km) area around breeding sites 

depending on habitat availability, 

dispersal barriers, and development and 

removed areas which did not contain 

the essential features. See Methodology 

and Criteria Sections below for more 

information. 

(2) We revised the proposed critical 

habitat unit based on comments and 

biological information and peer review 

received during the public comment 

periods. 

(3) Collectively, we excluded or 

removed the entire designation. Some 

areas in the proposed rule were 

removed because they did not contain 

the primary constituent elements. Other 

areas were excluded based on 

conservation measures being 

implemented by the local government 

agencies, or because of 

disproportionately high economic costs, 

as authorized under section 4(b)(2) of 

the Act (see ‘‘Application of Exclusions 

Under Section 4(b)(2) of the Act’’

section below). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such 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 or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species (as 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2)). Accordingly, when 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species so require, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. An 

area currently occupied by the species 

but was not known to be occupied at the 

time of listing will likely be essential to 

the conservation of the species and, 

therefore, included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74145 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific and commercial data 

available. They require Service 

biologists to the extent consistent with 

the Act and with the use of the best 

scientific and commercial data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the conservation of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

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

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander. In 

determining the areas to designate 

critical habitat for the California tiger 

salamander, we used the best scientific 

data available. We have reviewed the 

overall approach to the conservation of 

the Sonoma County distinct population 

segment of the California tiger 

salamander undertaken by local, State, 

and Federal agencies operating within 

the species’ range since its listing in 

2003 (68 FR 13498). 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species. The 

material included data in reports 

submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits; 

research published in peer-reviewed 

articles and presented in academic 

theses and agency reports; and regional 

Geographic Information System (GIS) 

coverages. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we are 

required to base critical habitat 

determinations on the best scientific 

data available and to consider those 

physical and biological features 

(primary constituent elements (PCEs)) 

that are essential to the conservation of 

the species, and that may require special 

management considerations and 

protection. These 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, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distribution of a species. 

The specific primary constituent 

elements required for the California 

tiger salamander are derived from the 

biological needs of the California tiger 

salamander as described below and in 

the Background section of this 

designation and previous listing or 

critical habitat designation for the 

species. 

The areas determined to contain the 

features essential for the conservation of 

the California tiger salamander are 

designed to provide sufficient aquatic 

habitat for breeding and upland habitat 

as refugia for adults to maintain and 

sustain populations of California tiger 

salamanders throughout their range, and 

provide those habitat components 

necessary for the species. Conserving 

California tiger salamanders over the 

long term requires a three-pronged 

approach: (1) Protecting the hydrology 

and water quality of breeding pools and 

ponds; (2) retaining or providing for 

connectivity between breeding locations 

for genetic exchange and recolonization; 

and (3) protecting sufficient upland 

habitat around each breeding location to 

allow for enough adult survival to 

maintain a breeding population over the 

long term. In our determination of the 

amount of critical habitat to designate, 

we focused on identifying those areas 

which contained the features which 

would provide the breeding and upland 

habitat to maintain and sustain existing 

populations of salamanders in 

documented breeding sites (vernal pool 

complexes) identified within Sonoma 

County. Due to the complex life history 

and dispersal capabilities of California 

tiger salamanders, and the dynamic 

nature of the environments in which 

they are found, the primary constituent 

elements described below should be 

found throughout the unit that is being 

identified as critical habitat. Critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander will provide for 

breeding and nonbreeding habitat and 

for dispersal between these habitats, as 

well as allowing for an increase in the 

size of the Sonoma County distinct 

population segment of the California 

tiger salamander. 

Space for Individual and Population 

Growth and Normal Behavior 

California tiger salamanders require a 

combination of aquatic habitat and 

upland habitat in order to successfully 

maintain normal population growth and 

behavior. Aquatic habitat is essential for 

California tiger salamander breeding 

and for providing space, food, and cover 

necessary to sustain early life history 

stages of California tiger salamanders. 

Breeding habitat consists of fresh water 

bodies, including natural and man-made 

ponds, vernal pools, or other ephemeral 

or permanent wetland features which 

allow California tiger salamanders to 

complete their aquatic portion of their 

lifecycle. To be considered essential, 

aquatic habitats must have the potential 

74146 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

to hold water for a minimum of 12 

weeks in the winter or spring in a year 

of average rainfall. This is the amount 

of time needed for juveniles to complete 

metamorphosis and become capable of 

surviving in upland habitats. During 

periods of drought or less-than average 

rainfall, these breeding sites may not 

hold water long enough for individuals 

to complete metamorphosis, but these 

sites would still be considered because 

they constitute breeding habitat in years 

of average rainfall. Without its essential 

aquatic habitat features, the California 

tiger salamander would not survive, 

because breeding could not occur. 

Upland Habitat 

Associated upland habitat containing 

underground refugia is essential for the 

survival of adult California tiger 

salamanders and juveniles that have 

recently undergone metamorphosis. 

Adult and juvenile California tiger 

salamanders are terrestrial, and they 

enter aquatic habitats only for short 

periods of time to breed. For the 

majority of their life cycle, California 

tiger salamanders depend for survival 

on upland habitats containing 

underground or covered refugia where 

they are protected from desiccation. 

Juveniles have been found in soil cracks 

and rodent burrows and adults almost 

exclusively in rodent burrows. These 

underground refugia provide protection 

from the hot, dry weather in the 

nonbreeding season (Shaffer and 

Trenham 2005). California tiger 

salamanders also find food in small 

mammal burrows and rely on the 

burrows for protection from predators. 

The upland areas also regulate the 

hydrological functioning and protect 

water quality of the aquatic habitat 

(Hanes and Stromberg 1998). As 

described in previous rules (69 FR 

68572; 70 FR 49380), California tiger 

salamanders have been found up to 1.3 

mi (2 km) from occupied occurrences 

(Sweet, 1998). The only known study 

we are aware of that specifically 

investigated movement of California 

tiger salamanders between breeding 

ponds projected that 0.70 mi (1.1 km) 

would encompass 99 percent of 

interpond dispersal (Trenham et al. 

2001; Trenham and Shaffer 2005). As 

we did for the Santa Barbara and Central 

populations, we used the 0.70 mi (1.1 

km) away from breeding location to 

identify those upland habitat features 

essential for the Sonoma County distinct 

population segment of the California 

tiger salamander. 

Food 

California tiger salamanders use both 

aquatic and terrestrial habitat during 

their lifecycle. As a result California 

tiger salamanders require areas which 

support a prey base of both aquatic (e.g., 

zooplankton, aquatic larvae, aquatic 

invertebrates, tadpoles, etc.) and 

terrestrial (e.g., terrestrial invertebrates, 

insects, frogs, worms, etc.) species. The 

aquatic and upland habitat features 

would support the necessary prey base 

in all aspects of the California tiger 

salamander lifecycle. 

Reproduction 

Lifetime reproductive success for 

California and other tiger salamanders is 

low. Trenham et al. (2000) found the 

average female bred 1.4 times and 

produced 8.5 young that survived to 

metamorphosis per reproductive effort. 

This resulted in roughly 11 

metamorphic offspring over the lifetime 

of a female. In part, this low 

reproductive success is due to the 

extended time it takes for California 

tiger salamanders to reach sexual 

maturity: Most do not breed until 4 or 

5 years of age. While individuals may 

survive for more than 10 years, many 

breed only once. Combined with low 

survivorship of metamorphosed 

individuals (in some populations, less 

than 5 percent of marked juveniles 

survive to become breeding adults 

(Trenham et al. 2000)), reproductive 

output in most years is not sufficient to 

maintain populations. This trend 

suggests that the species requires 

occasional ‘‘boom’’ breeding events to 

prevent extirpation (temporary or 

permanent loss of the species from a 

particular habitat) or extinction 

(Trenham et al. 2000). With such low 

recruitment, isolated populations are 

susceptible to unusual, randomly 

occurring natural events as well as from 

human-caused factors that reduce 

breeding success and individual 

survival. Factors that repeatedly lower 

breeding success in isolated pools can 

quickly extirpate a population. 

California tiger salamanders would 

require an interconnected network of 

ponds and upland areas so that they can 

disperse from one pond to nearby ponds 

in order to augment or recolonize 

locally extirpated ponds and uplands. 

Dispersal Habitat 

Protecting the ability of California 

tiger salamanders to move freely across 

the landscape in search of breeding 

ponds is essential in maintaining gene 

flow and for recolonization of sites that 

are temporarily extirpated and is 

essential in preserving the California 

tiger salamander’s population structure. 

The life history and ecology of the 

California tiger salamander make it 

likely that this species has a 

metapopulation structure (Hanski and 

Gilpin 1991). A metapopulation is a set 

of local populations or breeding sites 

within an area, where typically 

migration from one local population or 

breeding site to other areas containing 

suitable habitat is possible, but not 

routine. Movement between areas 

containing suitable habitat (i.e. 

dispersal) is restricted due to 

inhospitable conditions around and 

between areas of suitable habitat. 

Because many of the areas of suitable 

habitat may be small and support small 

numbers of salamanders, local 

extinction of these small units may be 

common. 

A metapopulation’s persistence 

depends on the combined dynamics of 

these local extinctions and the 

subsequent recolonization of these areas 

through dispersal (Hanski and Gilpin 

1991; Hanski 1994). The essential 

dispersal habitat feature generally 

consists of upland areas adjacent to 

essential aquatic habitat that are not 

isolated from breeding ponds by barriers 

that California tiger salamanders cannot 

cross. Essential dispersal habitat 

features provide connectivity among 

California tiger salamander breeding 

ponds. While California tiger 

salamanders can bypass many obstacles, 

and do not require a particular type of 

habitat for dispersal, the habitat 

connecting essential aquatic habitat 

features must be free of barriers (e.g. a 

physical or biological feature that 

prevents salamanders from dispersing 

beyond the feature). Examples of 

barriers are areas of steep topography 

devoid of soil or vegetation and State 

Highway 101. Agricultural lands such as 

row crops, orchards, vineyards, and 

pastures do not constitute barriers to the 

dispersal of California tiger 

salamanders. Therefore, a critical 

element for successful conservation is 

the maintenance of sets of 

interconnected sites that are within the 

‘‘rescue’’ distance of other ponds 

(Trenham et al. 2001). 

Primary Constituent Elements for the 

Sonoma County Distinct Population 

Segment of the County California Tiger 

Salamander 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the Sonoma County 

distinct population segment of the 

California tiger salamander’s primary 

constituent elements (PCEs) are: 

(1) Standing bodies of fresh water, 

including natural and manmade ponds, 

vernal pools, and other ephemeral or 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74147 

permanent water bodies that typically 

become inundated during winter rains 

and hold water for a sufficient length of 

time (i.e., 12 weeks) necessary for the 

species to complete the aquatic portion 

of its life cycle; 

(2) Barrier-free uplands adjacent to 

breeding ponds (within 0.7 mi (1.1 km)) 

that contain small mammal burrows. 

Small mammals are essential in creating 

the underground habitat that adult 

California tiger salamanders depend 

upon for food, shelter, and protection 

from the elements and predation; and 

(3) Accessible upland areas between 

breeding locations (PCE 1) and areas 

with small mammal burrows (PCE 2) 

that allow for dispersal among such 

sites. 

Criteria Used To Identify Critical 

Habitat 

In determining the areas we would 

consider as critical habitat, we first 

looked at those breeding locations 

identified as being occupied at the time 

of listing and which contain the habitat 

features (primary constituent elements, 

PCEs) essential for the conservation of 

the species. We then looked at those 

additional areas found to be occupied 

subsequent to listing which also 

contained those essential habitat 

features determined to provide for the 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander. 

In our determination of critical habitat 

for the Sonoma County distinct 

population segment of the California 

tiger salamander, we selected areas that 

possess the physical and biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. After 

identifying the PCEs that are essential to 

the conservation of the California tiger 

salamander, we used the PCEs in 

combination with occurrence data; 

confirmed breeding information, 

geographic distribution; GIS data layers 

for habitat mapping; vegetation, 

topography, watersheds, and current 

land uses; scientific information on the 

biology and ecology of the California 

tiger salamander; and accepted 

conservation principles for threatened 

or endangered species. 

In our proposed designation and in 

our refinement of that proposal, we 

identified areas that contain those 

features which are essential to the 

conservation of the California tiger 

salamander within the occupied range 

of the Sonoma County distinct 

population segment of the California 

tiger salamander, as was reported and 

mapped by biologists who had 

conducted California tiger salamander 

surveys throughout the range of the 

species. The range boundaries were 

developed based on the principles of 

conservation science, genetics of the 

species, topography, geology, soils, 

vernal pool type distribution, historic 

distribution, and survey information 

(CNDDB 2005). In the proposed 

designation, we purposefully included a 

broad area that after further review 

included some areas which were 

developed and or did not contain the 

essential features or lacked the 

documented occurrence information. 

In order to map only those areas 

containing the essential features, we 

refined the proposed designation to just 

those areas surrounding known 

breeding locations in Sonoma County. 

In addition, we applied parameters for 

upland dispersal and habitat use similar 

to those used in the critical habitat 

designations for the Central and Santa 

Barbara populations of California tiger 

salamander. Our refined designation 

and associated economic impacts were 

published in the Federal Register on 

November 17, 2005 (70 FR 69717). 

In the development of the final 

designation, we revised the critical 

habitat boundaries to better identify 

those areas containing the essential 

features for conservation of species. We 

focused on areas within the range where 

we had credible records of breeding 

(reports filed by biologists holding 

section 10(a)(1)(A) recovery permits) 

indicating California tiger salamander 

presence (CNDDB 2005). Our 

conservation strategy for the Sonoma 

population focuses on those breeding 

locations that provide sufficient aquatic 

and upland habitats to ensure high 

enough adult survival to maintain and 

sustain extant occurrences of California 

tiger salamander within the range of the 

Sonoma County distinct population 

segment. 

We then identified the amount of 

upland habitat surrounding these 

breeding occurrences where adult 

California tiger salamanders live during 

the majority of their life cycle. To 

determine a general guideline for the 

amount of upland habitat necessary to 

support an occurrence of adult 

California tiger salamander, we 

reviewed the primary literature 

regarding California tiger salamander 

upland habitat use, including Trenham 

(2000), Trenham et al. (2000 and 2001), 

and Trenham and Shaffer (2005). 

The best scientific peer-reviewed data 

indicate that California tiger salamander 

do not remain primarily in burrows 

close to aquatic habitats and breeding 

ponds, but instead move some distance 

out into the surrounding upland 

landscapes. As described in previous 

rules (69 FR 68572; 70 FR 49380), 

California tiger salamander have been 

found up to 1.3 mi (2 km) from 

occupied occurrences (Sweet 1998). The 

only known study we are aware of that 

specifically investigated movement of 

California tiger salamanders between 

breeding ponds projected that 0.70 mi 

(1.1 km) would encompass 99 percent of 

interpond dispersal (Trenham et al. 

2001; Trenham and Shaffer 2005). As 

we did for the Santa Barbara and Central 

populations, we used a 0.70 mi (1.1 km) 

dispersal distance (radius) as a guide for 

the amount of upland habitat around 

known occupied extant occurrences to 

be mapped as critical habitat for the 

purposes of preserving the Sonoma 

County distinct population segment of 

the California tiger salamander within 

small mammal burrows (PCE 2). 

However, we recognize that (as with 

movements in search of suitable 

underground refugia) upland habitat 

features influence California tiger 

salamander movements within a 

particular landscape. As a result, we 

made adjustments to the upland areas to 

include additional areas containing the 

PCEs. In other cases, the critical habitat 

was reduced so as not to include nonhabitat areas (those not exhibiting the 

PCEs) from the designation. Some 

agricultural and other lands were 

included if they were within the 0.7 mi 

(1.1 km) distance and the essential 

feature for upland refugia or 

connectivity between occurrences and 

were not considered a barrier to 

movement. 

When determining critical habitat 

boundaries, we made every effort to 

avoid the designation of developed 

areas such as buildings, paved areas, 

and other structures that lack PCEs for 

the California tiger salamander. Any 

such structures inadvertently left inside 

critical habitat boundaries are not 

considered part of the critical habitat 

unit. This also applies to the land on 

which such structures sit directly. 

Therefore, Federal actions limited to 

these areas would not trigger section 7 

consultations, unless activities within 

these areas affect the species and/or 

primary constituent elements in 

adjacent critical habitat. 

A brief discussion of the area that 

would have been designated as critical 

habitat had it not been excluded is 

provided in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of this 

area is contained in our supporting 

record for this rulemaking. 

74148 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing and 

contain the PCEs may require special 

management considerations or 

protections. Threats which may warrant 

special management within the area 

being identified as critical habitat for 

the California tiger salamander include 

activities such as: Habitat destruction 

and fragmentation (e.g. urban and 

agricultural development); 

sedimentation, introduction of 

nonnative predators such as bullfrogs 

and fish and non-native salamanders; 

activities that could disturb aquatic 

breeding habitats and water quality, 

such as heavy equipment operation, 

ground disturbance, maintenance 

projects (e.g. pipelines, roads, 

powerlines), off-road travel or 

recreation; activities that would reduce 

small mammal populations to the point 

that there is insufficient underground 

refugia used by salamanders for 

foraging, protection from predators, and 

shelter from the elements; activities that 

create barriers impassable for 

salamanders or increase mortality in 

upland habitat between extant 

occurrences in breeding habitat; and, 

activities that disrupt vernal pool 

complexes’ ability to support California 

tiger salamander breeding function. A 

detailed discussion of threats to the 

Sonoma County distinct population 

segment of the California tiger 

salamander and its habitat can be found 

in the final listing rule (68 FR 13498, 

March 19, 2003) and the proposed 

critical habitat designation (70 FR 

44301, August 2, 2005). 

Critical Habitat Designation 

In the development of the critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander, we determined which 

lands have features essential to the 

conservation of the species by defining 

the physical and biological features 

essential to the species’ conservation 

and delineating the specific areas 

containing them. We then evaluated 

those lands determined to have essential 

features to ascertain if any specific areas 

are appropriate for exemption or 

exclusion from critical habitat pursuant 

to either sections 3(5)(A), 4(a)(3), or 

4(b)(2) of the Act. On the basis of our 

evaluation, we have determined that the 

benefits of excluding lands under 

appropriate management for the 

Sonoma County distinct population 

segment of the California tiger 

salamander outweighs the benefits of 

their inclusion. We also evaluated the 

economic costs of the designation and 

identified those areas which had 

disproportionately high cost and 

evaluated whether those high cost areas 

also warranted exclusion. We have 

subsequently excluded the entire lands 

from the Sonoma County distinct 

population segment of the California 

tiger salamander critical habitat 

pursuant to section 4(b)(2) of the Act 

(refer to Exclusions under Section 

4(b)(2) of the Act section below) based 

on both the ongoing management being 

implemented by local governing 

agencies and high economic costs. 

The area which would be designated 

as critical habitat absent exclusions 

under section 4(b)(2), described below, 

constitute our best assessment of the 

areas: (1) Within the geographical area 

occupied by the species at the time of 

listing; (2) that contain the PCEs; and (3) 

that may require special management. 

Although all of the areas are within the 

geographical area known to be occupied 

by the species at the time of listing, we 

are not designating all of the areas 

known to be occupied by the Sonoma 

County distinct population segment of 

the California tiger salamander. We 

provide separate discussions on: (1) The 

reasons why these areas contain features 

essential for the conservation of the 

Sonoma County distinct population 

segment of the California tiger 

salamander and (2) special management 

considerations for these areas. All of the 

areas containing features determined to 

be essential for the conservation of the 

Sonoma County distinct population 

segment of the California tiger 

salamander were known to be occupied 

at the time of listing. 

The tables below show the lands 

being excluded from critical habitat 

pursuant to section 4(b)(2) of the Act 

(Table 1), a summary of the areas 

containing the features that are essential 

to the Sonoma County distinct 

population segment of the California 

tiger salamander (Table 2) and the 

approximate area that would be 

designated as critical habitat absent 

exclusion under section 4(b)(2) for the 

Sonoma County distinct population 

segment of the California tiger 

salamander by land ownership (Table 

3). 

TABLE 1.—APPROXIMATE AREA ACRES (AC)/HECTARES (HA) EXCLUDED FROM CRITICAL HABITAT FOR THE SONOMA

COUNTY DISTINCT POPULATION SEGMENT OF THE CALIFORNIA TIGER SALAMANDER PURSUANT TO SECTION 4(b)(2) 

OF THE ACT

Excluded area total 

California 

ac ha 

Unit 1 ........................................................................................................................................................................... 17,418 7,049 

TABLE 2.—AREAS DETERMINED TO CONTAIN FEATURES ESSENTIAL TO CONSERVATION OF THE SONOMA COUNTY DISTINCT POPULATION SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER AND THE AREA EXCLUDED FROM THE FINAL

CRITICAL HABITAT DESIGNATION [AC (HA)] 

Unit 

Definitional area Excluded area Total 

ac ha ac ha ac ha 

1a ................................................................................................. 1,313 531 1,313 531 0 0 

1b ................................................................................................. 12,887 5,215 12,887 5,215 0 0 

1c ................................................................................................. 2,442 988 2,442 988 0 0 

1d ................................................................................................. 776 314 776 314 0 0 

Total ...................................................................................... 17,418 7,049 17,418 7,049 0 0 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74149 

TABLE 3.—CRITICAL HABITAT UNITS DESIGNATED BUT EXCLUDED FOR THE SONOMA COUNTY DISTINCT POPULATION

SEGMENT FOR THE CALIFORNIA TIGER SALAMANDER

Unit 

Federal State Local Other Total 

ac ha ac ha ac ha ac ha ac ha 

1a ..................................................................... ............ ............ 8 3 ............ ............ 1,305 528 1,313 531 

1b ..................................................................... ............ ............ 260 105 ............ ............ 12,627 5,110 12,887 5,215 

1c ...................................................................... ............ ............ ............ ............ ............ ............ 2,442 988 2,442 988 

1d ..................................................................... ............ ............ ............ ............ ............ ............ 776 314 776 314 

Total .......................................................... ............ ............ 268 108 ............ ............ 17,150 6,941 17,418 7,049 

Figure 1 below represents the area 

which would otherwise be designated as 

critical habitat for the Sonoma County 

distinct population segment of the 

California tiger salamander absent 

exclusions under section 4(b)(2). We 

have excluded the entire final critical 

habitat for the species based on 

economic impacts and the conservation 

benefits of implementation of interim 

and long-term conservation measures 

for the California tiger salamander being 

adopted and implemented by local 

governing agencies. We present brief 

descriptions of the unit, and reasons 

why it meets the definition of critical 

habitat for the Sonoma County distinct 

population segment for the California 

tiger salamander, below. 

BILLING CODE 4310–55–U 

74150 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

BILLING CODE 4310–55–C 


ER14DE05.000</GPH>
Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74151 

Santa Rosa Plain Unit 

The Santa Rosa Plain unit consists of 

17,418 ac (7,049 ha) in four subunits 

distributed in the Santa Rosa Plain 

south of Mark West Spring Creek and 

north of Pepper Road. The area is 

located mostly west of the developed 

portions of Santa Rosa, Rohnert Park 

and Cotati. Each one of the subunits 

represents a breeding center for the 

species. All four of these areas were 

considered occupied at the time of 

listing and contain the features 

considered essential for the 

conservation of the species. The special 

management required for this unit 

includes management of introduction of 

nonnative predators and other species to 

ponds; management of off-road vehicle 

use; management of construction, 

installation and maintenance of roads, 

pipelines, powerlines, and 

telecommunication lines; small 

mammal populations management; 

management of activities that create 

barriers impassable for salamanders; 

and management of activities that 

disrupt vernal pool complexes’ ability to 

support California tiger salamanders. 

Subunit 1a; (1,313 ac (531 ha)) 

This subunit is located in the 

northern portion of the designation near 

Fulton and Piner Roads. Land 

ownership within the subunit includes 

approximately 8 ac (3 ha) of CDFG land 

within the Alton Lane Preserve. Land 

within the remainder of this subunit is 

privately owned. The subunit is 

determined to be critical habitat because 

it contains features essential to the 

conservation of the California tiger 

salamander, it is occupied by the 

species, it represents the northernmost 

distribution of California tiger 

salamander in Sonoma County, and it is 

one of four breeding centers for the 

species. This subunit contains the 

essential habitat features of ponded 

areas which stay inundated for the 

minimum amount of time for the 

species to complete its aquatic lifecycle 

(PCE 1) and provides a prey base as well 

as space for growth and development; 

and upland areas which contain 

underground mammal burrows and 

similar refugia for food and shelter (PCE 

2), and accessible upland habitats for 

dispersal (PCE 3). Special management 

for this subunit includes those activities 

outlined above. This subunit has been 

excluded from the final designation due 

to both the conservation measures being 

implemented by local governing 

agencies as well as having 

disproportionately high economic costs 

(see ‘‘Exclusion Under Section 4(b)(2) 

section’’ below). 

Subunit 1b: (12,887 ac (5,215 ha)) 

This subunit is located south of 

Guerneville Road to Sierra Road in the 

central portion of the designation. Land 

ownership within the subunit includes 

approximately 260 ac (105 ha) of CDFG 

land. Land within the remainder of this 

subunit is privately owned. The subunit 

is determined to be critical habitat 

because it contains features essential to 

the conservation of the California tiger 

salamander, it is occupied by the 

species, it represents the largest 

contiguous area, it is in the center of the 

distribution of the Sonoma County 

distinct population segment of the 

California tiger salamander, contains the 

most known occurrences of breeding, 

and it is one of four breeding centers for 

the species. This subunit contains the 

essential habitat features of ponded 

areas which stay inundated for the 

minimum amount of time for the 

species to complete its aquatic lifecycle 

(PCE 1) and provides a prey base as well 

as space for growth and development; 

and upland areas which contain 

underground mammal burrows and 

similar refugia for food and shelter (PCE 

2), and accessible upland habitats for 

dispersal (PCE 3). Special management 

for this subunit includes those activities 

outlined above. This subunit has been 

excluded from the final designation due 

to both the conservation measures being 

implemented by local governing 

agencies as well as having 

disproportionately high economic costs 

(see ‘‘Exclusion Under Section 4(b)(2) 

section’’ below). 

Subunit 1c: (2,442 ac (988 ha)) 

This subunit is located in the 

southern portion of the designation near 

Stoney Point Road near Roblar Road and 

north of Pepper Road. Land within the 

area is privately owned. The subunit is 

determined to be critical habitat because 

it contains features essential to the 

conservation of the California tiger 

salamander, it is occupied by the 

species, it represents the southernmost 

distribution of the Sonoma County 

distinct population segment of the 

California tiger salamander, and it is one 

of four breeding centers for the species. 

This subunit contains the essential 

habitat features of ponded areas which 

stay inundated for the minimum 

amount of time for the species to 

complete its aquatic lifecycle (PCE 1) 

and provides a prey base as well as 

space for growth and development; and 

upland areas which contain 

underground mammal burrows and 

similar refugia for food and shelter (PCE 

2), and accessible upland habitats for 

dispersal (PCE 3). Special management 

for this subunit includes those activities 

outlined above. This subunit has been 

excluded from the final designation due 

to both the conservation measures being 

implemented by local governing 

agencies as well as having 

disproportionately high economic costs 

(see ‘‘Exclusion Under Section 4(b)(2) 

section’’ below). 

Subunit 1d: (776 ac (314 ha)) 

This subunit is located in the 

southern portion of the designation near 

Old Redwood Highway south of Cotati. 

Land within the area is privately owned. 

The subunit is determined to be critical 

habitat because it contains features 

essential to the conservation of the 

California tiger salamander, it is 

occupied by the species, it represents 

the southeastern most distribution of 

California tiger salamander in Sonoma 

County, and it is one of four breeding 

centers for the species. This subunit 

contains the essential habitat features of 

ponded areas which stay inundated for 

the minimum amount of time for the 

species to complete its aquatic lifecycle 

(PCE 1) and provides a prey base as well 

as space for growth and development; 

and upland areas which contain 

underground mammal burrows and 

similar refugia for food and shelter (PCE 

2), and accessible upland habitats for 

dispersal (PCE 3). Special management 

for this unit includes those activities 

outlined above. This subunit has been 

excluded from the final designation due 

to both the conservation measures being 

implemented by local governing 

agencies as well as having 

disproportionately high economic costs 

(see ‘‘Exclusion Under Section 4(b)(2)’’

section below). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. Such 

alterations include, but are not limited 

to: Alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical. We are currently 

reviewing the regulatory definition of 

adverse modification in relation to the 

conservation of the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

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 

proposed or designated. Regulations 

implementing this interagency 

74152 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

cooperation provision of the Act are 

codified at 50 CFR Part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports may 

include reasonable and prudent 

alternatives or reasonable and prudent 

measures to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. We may issue 

a formal conference report if requested 

by a Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). Until such time 

as a proposed designation is finalized, 

any reasonable and prudent alternatives 

or reasonable and prudent measures 

included in a conference report are 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) requires 

Federal agencies to ensure that activities 

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, the 

action agency ensures 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 of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy critical 

habitat. 

Federal activities that may affect the 

Sonoma County distinct population 

segment of the California tiger 

salamander or any critical habitat would 

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 under section 404 of the 

Clean Water Act, a section 10(a)(1)(B) 

permit from the Service, or some other 

Federal action, including funding (e.g., 

Federal Highway Administration or 

Federal Emergency Management Agency 

funding), 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 and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may adversely modify such habitat, or 

that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the Sonoma County distinct 

population segment of the California 

tiger salamander. Federal activities that, 

when carried out, would adversely 

affect any critical habitat for the Sonoma 

County distinct population segment of 

the California tiger salamander include, 

but are not limited to: 

(1) Actions that would regulate 

activities affecting waters of the United 

States by the Army Corps of Engineers 

under section 404 of the Clean Water 

Act; 

(2) Actions by any Federal agency that 

change water flow regimes, or that dam, 

divert, or channel water; 

(3) Road construction and 

maintenance funded or authorized by 

the Federal Highway Administration; 

(4) Conservation measures by private 

landowners funded by the Natural 

Resources Conservation Service; 

(5) Airport construction regulated by 

the Federal Aviation Administration; 

(6) Construction of communication 

facilities licensed by the Federal 

Communications Commission; and 

(7) Other activities funded by the U.S. 

Environmental Protection Agency, 

Department of Energy, Federal 

Emergency Management Agency, or 

other Federal agency. 

Special management that may be 

needed for the Sonoma County distinct 

population segment of the California 

tiger salamander and its habitat is 

briefly summarized below: 

(1) Manage hydrologic functioning of 

vernal pools and ponds. Restore and 

maintain natural hydrologic regimes to 

prevent hydrologic changes to aquatic 

habitats to maintain their suitability as 

California tiger salamander breeding 

habitat and restore such habitats in 

areas where they have become altered or 

destroyed. 

(2) Manage water quality. Manage 

actions that significantly and 

detrimentally alter the water chemistry 

in the aquatic salamander habitat. 

Possible actions requiring such 

management would include intentional 

or unintentional release of chemical or 

biological pollutants into the surface 

water or connected groundwater at a 

point source or by dispersed release 

(non-point). 

(3) Upland Habitat Management. 

Actions that significantly and 

detrimentally alter the characteristics of 

the upland habitat surrounding aquatic 

areas may need special management. 

Possible actions which may require 

special management include vegetation 

manipulation, road construction and 

maintenance, gravel mining, and urban 

and suburban development and 

infrastructure. We note that such 

alteration and or destruction of the 

surrounding upland areas which results 

in alteration of the hydrologic 

functioning of the aquatic habitat may 

destroy or adversely modify the aquatic 

habitat associated with the upland 

areas. As a result, these activities could 

eliminate or reduce the habitat 

necessary for the reproduction, 

sheltering or growth of the Sonoma 

County distinct population segment of 

the California tiger salamander. 

(4) Manage nonnative aquatic species. 

Manage the introduction, spreading, or 

augmenting of detrimental nonnative 

aquatic species into salamander aquatic 

habitat. Possible actions requiring such 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74153 

management would include fish 

stocking for sport, aesthetics, biological 

control, or other purposes; and release 

of live bait fish and nonnative tiger 

salamanders. 

(5) Manage On- and Off-Road Use. 

Protect aquatic and upland areas from 

off-road vehicle use. Manage trails, road 

maintenance, and off-road vehicle 

access to prevent habitat degradation in 

order to maintain, protect, and restore 

California tiger salamander habitat. 

(6) Manage small mammal control 

activities. Activities that would reduce 

small mammal populations to the point 

that there is insufficient underground 

refugia used by the Sonoma County 

distinct population segment of the 

California tiger salamander for foraging, 

protection from predators, and shelter 

from the elements may ultimately be 

detrimental to salamanders. 

(7) Manage creation of dispersal 

barriers. Activities that create barriers 

impassable for salamanders, increase 

mortality in upland habitat between 

extant occurrences, or disrupt dispersal 

behavior may be detrimental to the 

salamander and may require special 

management. Activities that may require 

such management include highway and 

other urban infrastructure, building 

development, and intensively managed 

agricultural development (annual 

crops). 

We consider the entire area which 

would be designated as critical habitat, 

absent exclusion under section 4(b)(2), 

to be occupied by the species at the time 

of listing based on information provided 

from 10(a)(1)(A) reports and occurrence 

data (CNDDB 2005). We consider the 

entire area which would be designated 

as critical habitat, absent exclusion 

under section 4(b)(2), to contain the 

features essential to the conservation of 

the Sonoma County distinct population 

segment of the California tiger 

salamander. 

Exclusion Under Section 4(b)(2) of the 

Act 

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

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

In our critical habitat designations, we 

use the provision outlined in section 

4(b)(2) of the Act to evaluate those 

specific areas that contain the features 

essential to the conservation of the 

species to determine which areas to 

propose and subsequently finalize (i.e. 

designate) as critical habitat. On the 

basis of our evaluation, we have 

determined that the benefits of 

excluding certain lands from the 

designation of critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander outweigh the benefits of 

their inclusion, and have subsequently 

excluded all lands within Sonoma 

County from this designation pursuant 

to section 4(b)(2) of the Act as discussed 

below. 

Areas excluded pursuant to section 

4(b)(2) may include those covered by 

the following types of plans/programs if 

the plans/programs provide assurances 

that the conservation measures they 

outline will be implemented and 

effective: (1) Legally operative Habitat 

Conservation Plans (HCPs) that cover 

the species; (2) draft HCPs that cover the 

species and have undergone public 

review and comment (i.e., pending 

HCPs); (3) Tribal conservation plans/ 

programs that cover the species; (4) 

State conservation plans/programs that 

cover the species; (5) National Wildlife 

Refuges with Comprehensive 

Conservation Plans (CCPs) or other 

applicable programs that provide 

assurances that the conservation 

measures for the species will be 

implemented and effective, and; (6) 

Partnerships, conservation plans/ 

easements, or other type of formalized 

relationship/agreement on private lands. 

The relationship of critical habitat to 

these types of areas is discussed in 

detail in the following paragraphs. 

After consideration under section 

4(b)(2), the entire area of habitat has 

been excluded from critical habitat for 

the Sonoma County distinct population 

segment of the California tiger 

salamander as a result of both 

conservation measures being 

implemented and developed by local 

governing agencies and 

disproportionately high economic costs. 

A detailed analysis of our exclusion of 

these lands under section 4(b)(2) of the 

Act is provided in the paragraphs that 

follow. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest regulatory benefit to the species 

of critical habitat is that federally 

authorized, funded, or carried out 

activities require consultation pursuant 

to section 7 of the Act to ensure that 

they are not likely to destroy or 

adversely modify critical habitat. There 

are two limitations to this regulatory 

effect. First, it only applies where there 

is a Federal nexus—if there is no 

Federal nexus, designation itself does 

not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts may 

occur, then formal consultation would 

be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

74154 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

believe the conservation achieved 

through implementing larger scale 

management plans is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one, and possibly other, listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to designated critical 

habitat caused by the particular project 

and they are not committed to provide 

conservation or long-term benefits to 

areas not affected by the proposed 

project. Thus, any management plan 

which considers enhancement or 

recovery as the management standard 

will always provide as much or more 

benefit than a consultation for critical 

habitat designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the Sonoma County distinct 

population segment of the California 

tiger salamander. In general the 

educational benefit of a critical habitat 

designation always exists, although in 

some cases it may be redundant with 

other educational effects. For example, 

habitat conservation plans (or in the 

case here, the Conservation Strategy) 

have significant public input and may 

largely duplicate or exceed the 

educational benefit of a critical habitat 

designation. This benefit is closely 

related to a second, more indirect 

benefit; in that designation of critical 

habitat would inform State agencies and 

local governments about areas that 

could or should be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas were 

included in the proposed rule as 

constituting essential California tiger 

salamander habitat. Consequently, we 

believe that the informational benefits 

are already provided even though these 

areas are not designated as critical 

habitat. Additionally, the purpose of 

informing State agencies and local 

governments about areas which would 

benefit from protection and 

enhancement of habitat for the 

California tiger salamander normally 

served by the designation of critical 

habitat is already well established 

among State and local governments, and 

Federal agencies for those areas which 

we are excluding in this rule on the 

basis of other implemented conservation 

measures and the on-going development 

and implementation of the Conservation 

Strategy. 

As discussed in the ‘‘Summary of 

Changes from the Proposed Rule’’

section above, we have determined that 

all habitat in Sonoma County for the 

California tiger salamander (Unit 1) will 

not be designated as critical habitat as 

a result of this rulemaking process. We 

have reached this determination 

because we believe the benefits of 

excluding this unit from as critical 

habitat outweigh the benefits of 

designating the unit as critical habitat. 

After the Sonoma County distinct 

population segment of the California 

tiger salamander was listed as an 

endangered species (68 FR 13498), we 

as well as other resource and regulatory 

agencies (U.S. Army Corps of Engineers, 

CDFG, U.S. Environmental Protection 

Agency) were contacted by local 

governmental officials from Sonoma 

County and the Cities of Windsor, Santa 

Rosa, Rohnert Park, and Cotati to 

strategize on how best to conserve State 

and Federally listed species on the 

Santa Rosa Plain. The Conservation 

Strategy is intended to direct 

conservation efforts for the Sonoma 

County distinct population segment of 

the California tiger salamander and 

several other Federally listed plant 

species. Although a recovery plan has 

not yet been prepared, recovery 

activities for the Sonoma County 

distinct population segment of the 

California tiger salamander would likely 

parallel those conservation measures 

identified in the Conservation Strategy. 

We believe that the best way to achieve 

the objectives outlined in the 

Conservation Strategy will be to use the 

authorities under section 4(b)(2) to 

exclude these lands. 

Application of Exclusions Under 

Section 4(b)(2) of the Act 

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

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

The Secretary exercises her discretion 

under section 4(b)(2) to exclude all 

essential areas from a final critical 

habitat designation for the following 

reasons: (1) The adverse impacts 

associated with the likely economic 

costs of the proposed final designation 

outweigh the likely conservation 

benefits provided by a final designation, 

and (2) it is highly probable that the 

Santa Rosa Plain Conservation Strategy 

will be implemented, and this strategy 

would provide conservation benefits 

that are superior to a final critical 

habitat designation. A final designation 

may also work at cross purposes to the 

Conservation Strategy by discouraging 

the involvement of local jurisdictions 

and private landowners without 

providing any counterbalancing, 

proactive conservation benefit. 

The following discussion describes 

the analysis of the relative costs and 

benefits of a critical habitat designation. 

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

Secretary to exclude areas from critical 

habitat for economic reasons or other 

relevant impacts if she determines that 

the benefits of such exclusion exceed 

the benefits of designating the area as 

critical habitat, unless the exclusion 

will result in the extinction of the 

species concerned. This is a 

discretionary authority Congress has 

provided to the Secretary with respect 

to critical habitat. Although economic 

and other impacts may not be 

considered when listing a species, 

Congress has expressly required their 

consideration when designating critical 

habitat. 

Relationship of Critical Habitat to 

Economic Impacts—Exclusions Under 

Section 4(b)(2) of the Act 

In conducting economic analyses, we 

are guided by the 10th Circuit Court of 

Appeal’s ruling in the New Mexico 

Cattle Growers Association case (248 

F.3d at 1285), which directed us to 

consider all impacts, ‘‘regardless of 

whether those impacts are attributable 

co-extensively to other causes.’’ As 

explained in the analysis, due to 

possible overlapping regulatory schemes 

and other reasons, there are also some 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74155 

elements of the analysis that may 

overstate some costs. 

Conversely, the Ninth Circuit has 

recently ruled (‘‘Gifford Pinchot’’, 378 

F.3d at 1071) that the Service’s 

regulations defining ‘‘adverse 

modification’’ of critical habitat are 

invalid because they define adverse 

modification as affecting both survival 

and recovery of a species. The Court 

directed us to consider that 

determinations of adverse modification 

should be focused on impacts to 

recovery. While we have not yet 

proposed a new definition for public 

review and comment, compliance with 

the Court’s direction may result in 

additional costs associated with the 

designation of critical habitat 

(depending upon the outcome of the 

rulemaking). In light of the uncertainty 

concerning the regulatory definition of 

adverse modification, our current 

methodological approach to conducting 

economic analyses of our critical habitat 

designations is to consider all 

conservation-related costs. This 

approach would include costs related to 

sections 4, 7, 9, and 10 of the Act, and 

should encompass costs that would be 

considered and evaluated in light of the 

Gifford Pinchot ruling. 

In addition, we have received several 

credible comments on the economic 

analysis contending that it 

underestimates, perhaps significantly, 

the costs associated with this critical 

habitat designation. Both of these factors 

are a balancing consideration against the 

possibility that some of the costs shown 

in the economic analysis might be 

attributable to other factors, or are 

overly high, and so would not 

necessarily be avoided by excluding the 

area for which the costs are predicted 

from this critical habitat designation. 

We recognize that we have excluded 

all of the proposed critical habitat. 

Congress expressly contemplated that 

exclusions under this section might 

result in such situations when it enacted 

the exclusion authority. House Report 

95–1625, stated on page 17: ‘‘Factors of 

recognized or potential importance to 

human activities in an area will be 

considered by the Secretary in deciding 

whether or not all or part of that area 

should be included in the critical 

habitat. In some situations, no critical 

habitat would be specified. In such 

situations, the Act would still be in 

force and prevent any taking or other 

prohibited act * * *’’ (emphasis 

supplied). We accordingly believe that 

these exclusions, and the basis upon 

which they are made, are fully within 

the parameters for the use of section 

4(b)(2) set out by Congress. 

We provided notice of availability of 

a DEA on October 25, 2005 (70 FR 

61591) and requested comment on the 

potential exclusion of high cost areas. 

We published a subsequent notice on 

November 17, 2005 (70 FR 69717) in 

which we disclosed revised economic 

impacts based on a refinement of the 

proposed designation on which we 

solicited public comment. The DEA 

estimated the foreseeable economic 

impacts of the proposed critical habitat 

designation on government agencies and 

private businesses and individuals. The 

economic analysis identified potential 

costs over a 20-year period as a result 

of the proposed critical habitat 

designation, including those costs 

coextensive with listing. The analysis 

measured lost economic efficiency 

associated with residential and 

commercial development, and public 

projects and activities, such as 

economic impacts on transportation 

projects, the energy industry, and 

Federal lands. However, no Federal 

lands are within the proposed critical 

habitat boundary. The economic 

analysis considered the potential 

economic effects of actions relating to 

the conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander, including 

costs associated with sections 4, 7, and 

10 of the Act, and including those 

attributable to designating critical 

habitat. It further considered the 

economic effects of protective measures 

taken as a result of other Federal, State, 

and local laws that aid habitat 

conservation for the California tiger 

salamander in essential habitat areas. 

The economic analysis considered both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (e.g., lost economic 

opportunities associated with 

restrictions on land use). This analysis 

also addressed how potential economic 

impacts are likely to be distributed, 

including an assessment of any local or 

regional impacts of habitat conservation 

and the potential effects of conservation 

activities on small entities and the 

energy industry. This information can 

be used by decision makers to assess 

whether the effects of the designation 

might unduly burden a particular group 

or economic sector. Finally, the analysis 

looked retrospectively at costs that have 

been incurred since the date the species 

was listed as an endangered species and 

considers those costs that may occur in 

the 20 years following a designation of 

critical habitat. 

A copy of the final economic analysis 

with supporting documents are 

included in our administrative record 

and may be obtained by contacting U.S. 

Fish and Wildlife Service, Branch of 

Endangered Species (see ADDRESSES

section). 

We have considered, but are 

excluding from critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander all essential habitat in the 

four highest cost census tracts which 

cumulatively account for approximately 

94% of the economic impacts of the 

designation (Table 4). 

TABLE 4.—EXCLUDED CENSUS TRACTS

AND COSTS

Census tract Adjusted welfare 

impact in final EA ($) 

06097153300 ............ 125,612,192 

06097153200 ............ 30,148,184 

(including transportation costs) 

06097151201 ............ 18,746,038 

06097153005 ............ 9,863,633 

(1) Benefits of Inclusion of the 4 

Excluded Census Tracts 

The principal benefit of designating 

critical habitat is that Federal activities 

that may affect such habitat are subject 

to consultation pursuant to section 7 of 

the Act. Such consultation requires 

every Federal agency to ensure that any 

action it authorizes, funds, or carries out 

is not likely to result in the destruction 

or adverse modification of critical 

habitat. The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that these activities are 

not likely to destroy or adversely modify 

critical habitat. 

There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. It does not 

encourage proactive or ‘‘interventionist’’

conservation efforts. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are maintained. Critical habitat 

designation alone, however, does not 

74156 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

require specific steps toward recovery, 

especially on non-federal lands. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that the decision of the 

Ninth Circuit in Gifford Pinchot Task 

Force v. USFWS must be considered in 

weighing the effects of designation of 

critical habitat. In that case, the court 

held the Service’s regulatory definition 

of ‘‘destruction or adverse modification’’

was contrary to the Act because it 

required an analysis of the effect of the 

proposed Federal action on the survival 

of the species in addition to an analysis 

of the effect on recovery of the species. 

To the extent compliance with Gifford 

Pinchot would lead to more 

determinations that Federal actions 

destroy or adversely modify critical 

habitat than had previously been the 

case, designation of critical habitat 

would provide greater regulatory 

protections to the species’ habitat. 

Significant portions of the lower 

Santa Rosa Plain within or adjacent to 

the urban growth boundary are 

documented to be occupied by 

California tiger salamander. Other 

portions are not surveyed and may or 

may not be occupied. Also, there are 

large upland areas near breeding ponds 

where California tiger salamander 

aestivate underground. Any Federal 

activity adversely affecting California 

tiger salamander in these occupied areas 

will require section 7 consultations with 

the Service, and any non-Federal action 

that may take a California tiger 

salamander will require a Section 10 

permit if the action is not already 

covered under a section 7 consultation. 

In general, regulatory benefits of a 

critical habitat designation would be 

highest on Federal lands where most 

actions would be subject to section 7 

review. There are no Federal lands in 

the Santa Rosa Plain. However, section 

7 consultation likely will have a 

regulatory effect on many proposed 

actions that directly affect California 

tiger salamander breeding habitat due to 

a Federal nexus with the Clean Water 

Act and consultation with the Army 

Corps of Engineers. As described above, 

these consultations are likely to result in 

determinations of ‘‘no jeopardy’’ to the 

species and ‘‘no destruction or adverse 

modification’’ of critical habitat under 

the Gifford Pinchot standard. Upland 

areas or private lands where California 

tiger salamander have not been 

surveyed or observed will be subject to 

less and sometimes no regulation under 

the Act. This outcome depends on 

whether local jurisdictions require 

California tiger salamander surveys on 

private lands and, if so, whether 

California tiger salamanders are actually 

found on the property. If California tiger 

salamander are found on these upland 

areas, and the proposed action may take 

California tiger salamander, then a 

section 10 permit is required and 

consultation on critical habitat will also 

occur. In contrast, if California tiger 

salamander are not found or the 

landowner declines to survey for 

California tiger salamander, then the 

proposed action may occur without a 

section 7 or section 10 permit and there 

is no consultation under the Act. Under 

this process, it is likely that a significant 

amount of potential upland aestivation 

habitat will not be regulated under the 

Act because of a lack of a Federal nexus 

and the low likelihood that portions of 

these areas are currently occupied by 

the species. It is in cases such as this 

where a critical habitat designation 

provides little positive regulatory 

benefit. 

Designation of critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander would confer some limited 

additional regulatory benefits beyond 

the status quo because the Service 

would apply the Gifford Pinchot 

recovery standard to section 7 

consultations on proposed Federal 

activities. This standard would ensure 

that the Service looks beyond the 

jeopardy standard when assessing a 

project’s impact on a species’ critical 

habitat. We determined in the economic 

analysis that designation of critical 

habitat could result in approximately 

$184 million in costs in these four 

census tracts, the majority of which are 

directly related to residential 

development impacts. We believe that 

the potential decrease in residential 

housing development that could be 

caused by this designation of critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander would minimize 

impacts to and potentially provide some 

additional protection to the species, the 

vernal pool complexes and ponds where 

they reside, and the physical and 

biological features essential to the 

species’ conservation (i.e., the primary 

constituent elements). Thus, this 

decrease in residential housing 

development would directly translate 

into a potential benefit to the species 

that would result from this designation. 

However, these benefits are likely to 

be quite limited in relation to what the 

California tiger salamander requires for 

successful conservation on the Santa 

Rosa Plain. This consultation benefit 

would not apply to all critical habitat 

lands because of a lack of a Federal 

nexus for large portions of unsurveyed 

private uplands that are not 

immediately adjacent to breeding 

ponds. It would also be applied in a 

piecemeal, project-by-project fashion. 

Application of section 7 on these private 

lands would depend on an 

unpredictable combination of several 

factors, including the presence of a 

section 7 Federal nexus, the likelihood 

or certainty of California tiger 

salamander occupancy on the project 

site, the willingness of the landowner to 

survey for California tiger salamander if 

occupancy is unknown, the legal ability 

and political desire of local jurisdictions 

to require surveys and/or some form of 

consultation with the Service, and the 

ability to require compensatory 

mitigation if impacts to California tiger 

salamander are anticipated. 

Therefore, it is reasonable to conclude 

that only a portion of the area that 

otherwise would be designated as 

critical habitat will likely be regulated 

or conserved. Some areas of potential 

critical habitat would be conserved 

through the direct regulation of Federal 

actions and associated private activities 

(e.g., a Clean Water Act permit 

concerning a proposed development 

that would fill wetlands). On the other 

hand, large portions of critical habitat 

on private lands will not be regulated 

under section 7 or section 10 of the Act 

where direct take is not likely to occur 

or is undeterminable, and no other 

Federal nexus exists. We are unable to 

calculate at this time the relative 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74157 

amounts of land in these two respective 

categories. At best, a critical habitat 

designation, in conjunction with section 

9 take prohibitions, is most likely to 

protect known occupied breeding sites 

or occupied upland areas. A critical 

habitat designation is least likely to 

protect unoccupied habitat and 

unsurveyed private lands with no 

Federal nexus and, as we discuss below, 

may serve to discourage California tiger 

salamander conservation on these areas. 

Another potential benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area 

and thereby focus and contribute to 

conservation efforts by clearly 

delineating areas of high conservation 

value for certain species. Such a benefit 

could be substantial in geographic areas 

where the presence of the California 

tiger salamander was a relatively new or 

unknown phenomenon, and there was a 

need to educate the local community to 

the species’ presence and conservation 

needs. However, such a situation does 

not exist anywhere in the Santa Rosa 

Plain. Due in large part to the extensive 

media attention applied to the highprofile conflicts that accompanied the 

listing of the species and the critical 

habitat proposal, there is widespread 

knowledge of the species’ local status 

and conservation needs. Therefore, it is 

unlikely that a final critical habitat 

designation would provide any 

significant new or additional 

educational benefit beyond the status 

quo. 

In sum, a final critical habitat 

designation would confer some 

additional, but limited, regulatory 

benefits on portions of the critical 

habitat above and beyond those already 

provided through the listing of the 

species. Most of these limited additional 

benefits would be a consequence of 

section 7 consultation on critical habitat 

to the Gifford Pinchot standard. 

(2) Benefits of Exclusion of the Four 

Census Tracts 

The economic analysis conducted for 

the refined proposal estimates that the 

costs associated with designating these 

four census tracts would be 

approximately $184 million. By 

excluding these census tracts, some of 

these costs will be avoided. 

Additionally, important public sector 

transportation projects will avoid the 

costs associated with critical habitat 

designation. 

We believe that the required future 

recovery planning process would 

provide at least equivalent educational 

value to the public, State and local 

governments, scientific organizations, 

and Federal agencies by providing 

information about habitat that contains 

features considered essential to the 

conservation of the Sonoma County 

distinct population segment of the 

California tiger salamander, and in 

facilitating conservation efforts through 

heightened public awareness of the 

plight of the listed species. Recovery 

plans would contain explicit objectives 

for ongoing public education, outreach, 

and collaboration at local, State, and 

Federal levels, and between the private 

and public sectors to guide recovery of 

the Sonoma County distinct population 

segment of the California tiger 

salamander. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We believe that the benefits from 

excluding these four census tracts from 

the designation of critical habitat—

avoiding the potential economic and 

human costs, both in dollars and jobs, 

predicted in the economic analysis—

exceed the educational and regulatory 

benefits which could result from 

including those lands in this 

designation of critical habitat. 

We have evaluated and considered 

the potential economic costs on the 

residential development industry and 

public sector transportation projects 

relative to the potential benefit for the 

Sonoma County distinct population 

segment of the California tiger 

salamander and its primary constituent 

elements derived from the designation 

of critical habitat. We believe that 

avoiding the potential economic impact 

of up to approximately $184 million on 

the development industry and public 

sector projects significantly outweighs 

the potential conservation and 

protective benefits for the species and 

the primary constituent elements that 

would be derived from the designation 

of these four census tracts as critical 

habitat. 

Additionally, we believe that the 

recovery planning process provides 

equivalent educational value to the 

public, State and local governments, 

scientific organizations, and Federal 

agencies in providing information about 

habitat that contains those features 

considered essential to the conservation 

of the Sonoma County distinct 

population segment of the California 

tiger salamander, and in facilitating 

conservation efforts through heightened 

public awareness of the plight of the 

listed species. Recovery plans would 

contain explicit objectives for ongoing 

public education, outreach, and 

collaboration at local, State, and Federal 

levels, and between the private and 

public sectors to guide recovery efforts 

for the Sonoma County distinct 

population segment of the California 

tiger salamander and would bring 

funding for these efforts. We therefore 

find that the benefits of excluding the 

four census tracts from this designation 

of critical habitat outweigh the benefits 

of including them in the designation. 

Relationship of Critical Habitat to 

Current and Proposed Conservation 

Efforts—Application of Section 4(b)(2) 

We have considered, but are 

excluding, lands within the refined 

designation that fall within the 

boundaries of the draft Conservation 

Strategy. We believe the benefits of 

excluding lands within this draft 

Conservation Strategy outweigh the 

benefits of including them. The 

following represents our rationale for 

excluding these areas. Taken together 

with the four census tracts excluded 

above for economic reasons, the result is 

that we are not designating any critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander at this time on the 

basis of both economics and the 

proactive conservation benefits 

conferred by the locally developed 

conservation strategy. 

Since the listing of the Sonoma 

County distinct population segment of 

the California tiger salamander, Federal, 

State, and local officials have struggled 

with how best to manage the unique 

conservation challenge posed by this 

species. The salamander occurs almost 

exclusively on undeveloped, privately 

owned lands within an approved urban 

growth boundary (UGB) or within areas 

adjacent to the UGB. Prior to the listing, 

significant local planning efforts had 

been completed, and much of the 

remaining salamander habitat within or 

adjacent to the UGB had been 

designated for various types of 

development. 

Pursuant to section 4(b)(2), we 

analyzed whether the benefits of 

designating these lands as critical 

habitat were outweighed by the benefits 

of excluding these lands from a final 

designation. In the following section, we 

evaluate a ‘‘without critical habitat’’

scenario and compare it to a ‘‘with 

critical habitat’’ scenario. The difference 

between the two scenarios measured the 

net negative or positive impacts 

attributable to the designation of critical 

habitat. We paid particular attention to 

the following issues: 

• The degree to which a critical 

habitat designation would confer 

regulatory conservation benefits on 

these species (e.g. high, medium, low); 

74158 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

• Whether the designation would 

educate members of the public such that 

conservation efforts would be enhanced; 

• Whether a critical habitat 

designation would have a positive, 

neutral, or negative impact on local 

support for salamander conservation, 

including the finalization and 

implementation of the Conservation 

Strategy; 

• To what extent a critical habitat 

designation is likely to encourage or 

discourage future cooperative efforts 

with local landowners and officials; 

and, 

• The degree to which the 

Conservation Strategy provides a better 

conservation alternative to critical 

habitat and the likelihood it will be 

implemented. 

If a critical habitat designation results 

in a quantifiable reduction in the 

likelihood that existing or future 

voluntary, cooperative conservation 

activities will be carried out on nonfederal lands, and at the same time fails 

to confer a counter-balancing positive 

regulatory or educational benefit to the 

conservation of the species, then the 

benefits of excluding such areas from 

critical habitat outweigh the benefits of 

including them. 

The designation of critical habitat on 

non-federal lands can have both 

negative and positive impacts on the 

conservation of listed species (Bean 

2002). There is a growing body of 

documentation that some regulatory 

actions by the Federal government, 

while well-intentioned and required by 

law, can under certain circumstances 

have unintended negative consequences 

for the conservation of species on nonfederal lands (Bean 2002; Brook et al. 

2003; James 2002; Koch 2002; Wilcove 

et al. 1996). Some landowners fear a 

decline in value of their properties 

because of their belief that the Act may 

restrict future land-use options where 

threatened or endangered species are 

found. Consequently, endangered 

species are perceived by many 

landowners as a financial liability, 

which sometimes results in anticonservation incentives to these 

landowners (Brook et al. 2003, Main et 

al. 1999). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that many landowners will 

support and carry out conservation 

actions (Bean 2002; Brook et al. 2003; 

Main et al. 1999). The magnitude of this 

negative outcome is greatly amplified in 

conservation situations, such as on 

privately-owned lands, where it is 

insufficient simply to prohibit harmful 

activities. Instead, it is necessary in 

most cases to encourage and carry out 

active management measures to prevent 

extinctions and promote recovery (Bean 

2002). Consideration of this concern is 

especially important in areas where 

recovery efforts require access and 

landowner permission for survey and 

restoration efforts. Simply preventing 

‘‘harmful activities’’ will not slow the 

extinction of listed species or promote 

their recovery. Proactive, voluntary 

conservation efforts are necessary to 

prevent the extinction and promote the 

recovery of these species (Wilcove and 

Lee 2004, Shogren et al. 1999). It is 

widely acknowledged that conservation 

of the Sonoma County distinct 

population segment of the California 

tiger salamander will require proactive 

restoration efforts. 

(1) Benefits of Inclusion of the Excluded 

Areas 

The benefits of inclusion of the 

excluded areas as critical habitat were 

described in the preceding section. 

(2) Benefits of Exclusion of the Excluded 

Areas—Other Relevant Impacts 

The salamander occurs almost 

exclusively on undeveloped, privately 

owned lands within an approved urban 

growth boundary in Sonoma County. 

Prior to the listing, significant local 

planning efforts had been completed, 

and much of the remaining salamander 

habitat within the growth boundary had 

been designated for various types of 

development. Because of the 

salamander’s occurrence on private 

lands mostly designated for 

development, the primary challenge 

facing Federal, State, and local officials 

is how best to reconcile the goals and 

requirements of the Federal Endangered 

Species Act with the economic and 

social needs of the local communities in 

Sonoma County. 

Approximately two years ago, a group 

of Federal, State, and local officials and 

stakeholders initiated an effort to 

address this challenge. Local biologists 

with the Service, the U.S. Army Corps 

of Engineers, the U.S. Environmental 

Protection Agency, and the California 

Department of Fish and Game joined 

with local representatives of the cities of 

Santa Rosa, Cotati, Rohnert Park, 

Sonoma County, the North Coast 

Regional Water Quality Control Board, 

and the environmental and 

development communities. All parties 

recognized that a court-ordered Federal 

designation of critical habitat would 

likely further polarize local 

conservation efforts, and that a regional 

scientific effort with broad local support 

of private landowners had the highest 

likelihood of achieving conservation of 

the California tiger salamander and 

other listed species on the Santa Rosa 

Plain. 

This group developed the 

Conservation Strategy, a comprehensive 

plan to provide for California tiger 

salamander conservation while also 

identifying a predictable process 

whereby certain public and private 

development projects can proceed. The 

Conservation Strategy was published in 

draft form and provided to the public 

for review and comment earlier in 2005. 

The Conservation Strategy also received 

extensive peer review from 

knowledgeable scientists. For the sake 

of brevity, the Conservation Strategy 

document (August 3, 2005) is 

incorporated herein by reference, while 

the main objectives of the Conservation 

Strategy are described below: 

(1) Provide for the long-term survival 

and recovery of the California tiger 

salamander and listed plant species by 

establishing and supporting a system of 

preserves, mitigation banks, and 

restoration areas. 

(2) Ensure that projects impacting 

extant California tiger salamander 

subpopulations are minimized and 

mitigated to the maximum extent 

possible. 

(3) Identify and maximize the 

potential for restoration of degraded 

habitat areas, and add these to the 

preserve system. 

(4) Fund monitoring efforts to make 

sure that California tiger salamander 

conservation areas are adaptively 

managed to account for changing 

conditions and new information. 

(5) Fund monitoring efforts to make 

sure that the provisions of the 

Conservation Strategy are properly 

implemented and that its terms are 

enforced. 

(6) Provide for a cost effective, 

predictable, and streamlined process for 

private and public development projects 

under the Act, and; 

(7) Ensure that the Conservation 

Strategy for California tiger salamander 

is compatible with local urban planning 

efforts and, likewise, ensure that 

changes to local planning efforts are 

compatible with ongoing California tiger 

salamander conservation. 

Final completion and implementation 

of the Conservation Strategy will require 

several more steps to comply with State 

and local government approval 

processes. We have some concern that 

the strategy is not yet completed and 

under implementation, but these 

concerns are alleviated by the passage of 

resolutions by the local jurisdictions 

(November 9, 2005) and subsequent 

approval of a planning agreement 

committing them to complete and 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74159 

implement the strategy within the next 

18–24 months as these approval 

processes are completed. In addition, 

these jurisdictions have agreed to 

implement interim conservation 

measures until the Conservation 

Strategy is implemented to ensure that 

current or initiated actions proceed 

consistent with the biological objectives 

of the Conservation Strategy. These 

interim measures subject actions 

affecting California tiger salamander and 

its habitat to Service and CDFG review, 

and they provide mitigation for 

unavoidable impacts to California tiger 

salamander. These measures are 

described in greater detail later in this 

section. 

Implementation of the Conservation 

Strategy offers the best possible 

opportunity to reconcile the goals of the 

Federal Endangered Species Act with 

the economic and social planning goals 

of the local communities. We are 

encouraged by the passage of the 

resolutions and the approval of the 

planning agreement by all of the 

affected local jurisdictions and believe 

that final implementation of the 

Conservation Strategy is very likely. We 

are also encouraged by the tremendous 

show of good faith by all of the agencies 

and local entities that have participated 

in this process as part of the 

Conservation Strategy team, and the 

generous commitment of their time and 

effort over the last two years. This large 

investment of personnel resources by 

these many entities reflects a serious 

commitment and implies a high 

likelihood that the strategy will be 

finalized and implemented. 

Further, it is likely that a designation 

of critical habitat in the face of this 

planning effort would have a chilling 

effect on the participation of at least 

some of these local entities and 

stakeholders. Several comments 

received from various jurisdictions 

expected that a critical habitat 

designation would encourage 

participants to leave the cooperative 

process that has been established and 

may cause the breakdown of the 

Conservation Strategy. Likewise, it is 

probable that local landowners affected 

by a final critical habitat designation 

process would revert to the more 

traditional ‘‘permit-by-permit’’ approval 

process, which would make planning 

for long-term California tiger 

salamander conservation much more 

difficult on a landscape scale, as 

described earlier. 

In summary, we conclude that the 

designation of critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander would have negative 

impacts on the finalization and 

implementation of the Santa Rosa Plain 

Conservation Strategy. Avoiding these 

negative impacts is a benefit of 

excluding these lands from the final 

critical habitat designation. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion for Proposed 

Critical Habitat 

As discussed in the overview to this 

section, we analyzed whether the 

benefits of designating these lands as 

critical habitat were outweighed by the 

benefits of excluding these lands from a 

final designation. We evaluated a 

‘‘without critical habitat’’ scenario and 

compared it to a ‘‘with critical habitat’’

scenario. The difference between the 

two scenarios measured the net negative 

or positive impacts attributable to the 

designation of critical habitat. 

In general, we believe the 

conservation achieved through 

implementing habitat conservation 

plans (HCPs), approved conservation 

agreements, or other applied habitat 

management strategies such as the 

Conservation Strategy is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed, site-specific 

project. Thus, any HCP or conservation 

strategy which establishes long-term 

enhancement or recovery as the 

management standard, and that ensures 

implementation of compensatory 

mitigation where appropriate, will 

always provide as much or more benefit 

than a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Therefore, we assign relatively little 

weight to the benefits of designating this 

area as critical habitat when compared 

to the approach embodied by the 

Conservation Strategy. This strategy 

provides the highest likelihood of 

conserving habitat for California tiger 

salamander and listed plants in Sonoma 

County. The need to maintain and 

expand recent gains in cooperative 

conservation efforts in Sonoma County 

for the California tiger salamander and 

listed plants is crucial to the long-term 

effectiveness of California tiger 

salamander recovery. Under the best of 

circumstances, a critical habitat 

designation would only provide 

piecemeal, project-by-project 

conservation benefits to California tiger 

salamander by prohibiting adverse 

modification of designated critical 

habitat. It would not provide a proactive 

or distinct population segment-wide 

recovery benefit to the species 

achievable under larger-scale 

conservation plans, which benefit from 

economies of scale through 

participation of multiple landowners 

and project proponents in partnership 

with one or more local jurisdictions in 

a relatively large geographic area. Such 

larger-scale plans are more effective at 

protecting and managing strategically 

situated habitat areas of a size that can 

achieve long-term conservation for the 

species than a project-by-project 

approach. The most important benefits 

provided by the Conservation Strategy, 

in comparison to a designation of 

critical habitat, can be summarized as 

follows: 

(1) The Conservation Strategy 

reconciles local growth plans (e.g., an 

approved urban growth boundary) with 

the conservation goals of the Federal 

Endangered Species Act. A critical 

habitat designation has not been 

reconciled with local plans, and 

according to multiple public comments 

by knowledgeable officials is likely to 

not be supported by local landowners 

and government officials. Therefore, the 

Conservation Strategy has a higher 

likelihood of successfully providing for 

the conservation of California tiger 

salamander because it has been 

embraced by the local community 

through their elected officials. 

(2) A tremendous amount of local 

planning resources and public 

participation has already been expended 

in completing the most recent round of 

urban growth planning in Sonoma 

County. A decision such as a Federal 

critical habitat designation could 

dramatically affect these boundaries and 

should, wherever possible and 

appropriate, be flexible to accommodate 

locally developed and approved 

planning processes. This flexibility 

makes economic, social, and 

conservation sense. 

(3) The Conservation Strategy has 

created an atmosphere of partnership by 

bringing together a broad coalition of 

government officials, local developers, 

environmentalists, and landowners. A 

critical habitat designation will likely 

polarize many of these stakeholders and 

decrease the likelihood that meaningful 

cooperative conservation will be 

74160 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

achieved for the California tiger 

salamander. 

(4) The Conservation Strategy 

provides a ‘‘proactive’’ conservation 

strategy that actively encourages 

California tiger salamander conservation 

for all types of California tiger 

salamander lands, including 

unoccupied or unsurveyed lands and 

agricultural lands. Critical habitat 

provides ‘‘prohibitive’’ protections in 

portions of the species’’ range, but it 

does not encourage proactive activities. 

Therefore, the Conservation Strategy has 

a higher likelihood of achieving 

conservation of California tiger 

salamander on private lands, and it has 

a higher likelihood of helping reestablish California tiger salamander on 

unoccupied lands. 

(5) The Conservation Strategy has a 

higher likelihood of achieving broader 

landscape-level conservation for the 

California tiger salamander and listed 

plants. The critical habitat designation, 

in contrast, would likely result in 

piecemeal conservation efforts that 

would be influenced by the order in 

which permit requests are submitted to 

Federal and other agencies. 

(6) The Conservation Strategy will 

identify funding mechanisms to provide 

for California tiger salamander 

mitigation and conservation. Critical 

habitat has no funding mechanisms for 

California tiger salamander mitigation 

costs and proactive conservation 

activities. 

(7) The Conservation Strategy 

provides ongoing educational benefits 

that surpass any of those that would be 

provided by a final critical habitat 

designation. 

For the reasons described above, we 

have determined that the benefits of 

designating critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander are relatively small, while 

the benefits of not designating proposed 

critical habitat and proceeding with the 

Conservation Strategy are more 

significant. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

We believe that exclusion of these 

lands will not result in the extinction of 

the Sonoma County distinct population 

segment of the California tiger 

salamander. Many of these areas are 

considered occupied habitat. Actions 

which might adversely affect the species 

are expected to have a Federal nexus, 

and would thus undergo a section 7 

consultation with the Service. The 

jeopardy standard of section 7, and 

routine implementation of habitat 

preservation through the section 7 

process, as discussed in the economic 

analysis, provide assurance that the 

species will not go extinct. In addition, 

the species is protected from take under 

section 9 of the Act. The exclusion 

leaves these protections unchanged 

from those that would exist if the 

excluded areas were designated as 

critical habitat. 

In fact, we believe the exclusion of 

these areas from a critical habitat 

designation will actually improve both 

its short term and long term 

conservation opportunities and will 

reduce its likelihood of extinction. 

Implementation of the ‘‘interim 

measures’’ and the Conservation 

Strategy will provide an opportunity for 

maintaining and increasing salamanders 

in certain portions of the Santa Rosa 

Plain, while a critical habitat 

designation will likely not prevent the 

continued slow demise of the 

population as unmanaged fragmentation 

occurs due to piecemeal development. 

(5) Reconsideration of This Decision 

Necessarily, in balancing the benefits 

of inclusion against the benefits of 

exclusion, we must make forecast about 

future occurrences. Our forecasts are 

based on the best information currently 

available. We recognize that our 

information is imperfect, and therefore 

our forecasts may be imperfect. To the 

extent that our analysis is not borne out, 

we will consider further rulemaking in 

the future. For example, if the 

Conservation Strategy is not finalized or 

implemented in a reasonable amount of 

time, or the interim measures prove to 

be less effective at conserving the 

California tiger salamander than 

expected, our current analysis will 

likely prove to have significantly 

understated the benefits of inclusion. 

Therefore, if we subsequently 

determine, based on new information, 

that the benefits of including a 

particular area are not outweighed by 

the benefits of excluding it, we will 

promptly publish a proposed rule to 

revise the critical habitat to add that 

area, and after public comment, add that 

area to the designation, if appropriate. 

Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

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 concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

October 25, 2005 (70 FR 61591), and we 

accepted comments on the draft 

economic analysis until November 14, 

2005. We reopened the comment period 

on November 17, 2005 to allow all 

interested parties an opportunity to 

comment simultaneously on the 

proposed rule and a refinement of the 

original which we were considering (70 

FR 69717). We accepted comments until 

November 28, 2005. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

Sonoma County distinct population 

segment of the California tiger 

salamander. This information is 

intended to assist the Secretary in 

making decisions about whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas in the 

designation. This economic analysis 

considers the economic efficiency 

effects that may result from the 

designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities, the energy 

industry, transportation projects, and 

Federal lands. This information can be 

used by the Secretary to assess whether 

the effects of the designation might 

unduly burden a particular group or 

economic sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

We received comments on the draft 

economic analysis of the proposed 

designation. Following the close of the 

comment period, we considered those 

comments and prepared responses to 

comments (see Responses to Comments 

section above). 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74161 

The November 17, 2005, notice (70 FR 

69717) reopening the comment period 

provides a detailed economics section 

that shows an economic impact on land 

development of $195,863,729. The 

revised impact on transportation 

projects is $426,000. The total revised 

cost of designation is thus $196,289,729, 

or $17,316,226 annualized over 20 

years. In the event that portions of 

critical habitat with the urban growth 

boundaries are excluded, the cost drops 

to $128,008,620. 

We are not designating any critical 

habitat for the Sonoma County distinct 

population segment of the California 

tiger salamander. We are excluding all 

areas under 4(b)(2) (see Exclusions 

section) so there are no costs associated 

with this rulemaking process. 

A copy of the economic analysis with 

supporting documents are included in 

our administrative record and may be 

obtained by contacting U.S. Fish and 

Wildlife Service, Branch of Endangered 

Species (see ADDRESSES section) or for 

downloading from the Internet at 

http://www.fws.gov/sacramento. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. As explained above, 

we prepared an economic analysis of 

this action. We used this analysis to 

meet the requirement of section 4(b)(2) 

of the Act to determine the economic 

consequences of designating specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The SBREFA 

also amended the RFA to require a 

certification statement. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect the California tiger salamander. 

Federal agencies also must consult with 

us if their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

Had we designated critical habitat, it 

would not have been expected to result 

in significant small business impacts 

since revenue losses would have been 

less than one percent of total small 

business revenues in affected areas. 

Large businesses greatly dominate 

greenfield development, and it was 

estimated that no more than a single 

small business would be affected 

annually as a consequence of 

designation. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the single small business, on average, 

that may be required to consult with us 

each year regarding their project’s 

impact on California tiger salamander 

and its habitat. First, if we conclude, in 

a biological opinion, that a proposed 

action is likely to jeopardize the 

continued existence of a species or 

adversely modify its critical habitat, we 

can offer ‘‘reasonable and prudent 

alternatives.’’ Reasonable and prudent 

alternatives are alternative actions that 

can be implemented in a manner 

consistent with the scope of the Federal 

agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy or adverse modification of 

74162 Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species, we may identify 

reasonable and prudent measures 

designed to minimize the amount or 

extent of take and require the Federal 

agency or applicant to implement such 

measures through non-discretionary 

terms and conditions. We may also 

identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or to develop 

information that could contribute to the 

recovery of the species. 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those that, in 

their initial proposed form, would result 

in jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and this notice of rulemaking. The 

types of Federal actions or authorized 

activities that we have identified as 

potential concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the Corps 

of Engineers under section 404 of the 

Clean Water Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Road construction and 

maintenance, right-of-way designation, 

and regulation of agricultural activities; 

(4) Hazard mitigation and postdisaster repairs funded by the FEMA; 

and 

(5) Activities funded by the EPA, U.S. 

Department of Energy, or any other 

Federal agency. 

It is likely that a developer or other 

project proponent could modify a 

project or take measures to protect 

California tiger salamander. The kinds 

of actions that may be included if future 

reasonable and prudent alternatives 

become necessary include conservation 

set-asides, management of competing 

nonnative species, restoration of 

degraded habitat, and regular 

monitoring. These are based on our 

understanding of the needs of the 

species and the threats it faces, as 

described in the final listing rule and 

proposed critical habitat designation. 

These measures are not likely to result 

in a significant economic impact to 

project proponents. 

In summary, we have considered 

whether this action would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined that it would not affect 

a substantial number of small entities 

because we are excluding areas which 

otherwise would be designated. A 

regulatory flexibility analysis is not 

required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under SBREFA, this action is not a 

major rule. We are excluding all areas 

from critical habitat, so there are no 

economic impacts attributable to a 

critical habitat designation. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule does not designate critical habitat 

for the California tiger salamander and 

is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

seq.), we make the following findings: 

(a) This action will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this action 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

Federal Register / Vol. 70, No. 239 / Wednesday, December 14, 2005 / Rules and Regulations 74163 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Federalism 

In accordance with Executive Order 

13132, the action does not have 

significant Federalism effects. The rule 

does not designate any critical habitat, 

and a Federalism assessment is not 

required. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the action does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We are not 

designating any critical habitat with this 

action. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s Manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

are not designating any critical habitat 

in this rule, and no Tribal lands are 

involved. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Sacramento Fish and Wildlife Office 

(see ADDRESSES section). 

Author(s) 

The primary author of this package is 

the staff of the Sacramento Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend Part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, 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 

■ 2. In § 17.95, amend paragraph (d) by 

adding an entry for California tiger 

salamander (Ambystoma californiense) 

in Sonoma County following the entries 

for ‘‘California tiger salamander in Santa 

Barbara County’’ and ‘‘Central 

Population of California tiger 

salamander’’ read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

California Tiger Salamander 

(Ambystoma californiense) 

* * * * * 

California Tiger Salamander in Sonoma 

County 

Pursuant to section 4(b)(2) of the Act, 

we have excluded all areas determined 

to meet the definition of critical habitat 

under section 4(b)(2) of the Act for 

California tiger salamander in Sonoma 

County. Therefore, no specific areas are 

designated as critical habitat for this 

species. 

* * * * * 

Dated: December 1, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–23701 Filed 12–13–05; 8:45 am] 

BILLING CODE 4310–55–P