Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31389 

ADDRESSES and reference Docket No. 

NHTSA–2009–0108. 

II. Submission of Comments 

How Do I Prepare and Submit 

Comments? 

Your comments must be written and 

in English. To ensure that your 

comments are correctly filed in the 

Docket, please include the Docket 

number of this document in your 

comments. Please submit two copies of 

your comments, including attachments, 

to Docket Management at the address 

given above under ADDRESSES. 

Comments may also be submitted to the 

docket electronically by logging onto 

http://www.regulations.gov. Click on 

‘‘How to Use This Site’’ and then ‘‘User 

Tips’’ to obtain instructions for filing 

the document electronically. 

How Can I Be Sure That My Comments 

Were Received? 

If you wish Docket Management to 

notify you upon its receipt of your 

comments, enclose a self-addressed, 

stamped postcard in the envelope 

containing your comments. Upon 

receiving your comments, Docket 

Management will return the postcard by 

mail. 

How Do I Submit Confidential Business 

Information? 

If you wish to submit any information 

under a claim of confidentiality, you 

should submit three copies of your 

complete submission, including the 

information you claim to be confidential 

business information, to the Chief 

Counsel, NHTSA, at the address given 

above under FOR FURTHER INFORMATION

CONTACT. In addition, you should 

submit a copy from which you have 

deleted the claimed confidential 

business information to the docket. 

When you send a comment containing 

information claimed to be confidential 

business information, you should 

include a cover letter setting forth the 

information specified in our 

confidential business information 

regulation. (49 CFR part 512). 

Will the Agency Consider Late 

Comments? 

We will consider all comments that 

Docket Management receives before the 

close of business on the comment 

closing date indicated above under 

DATES. To the extent possible, we will 

also consider comments that Docket 

Management receives after that date. If 

a comment is received too late for us to 

consider it in developing a final plan, 

we will consider that comment as an 

informal suggestion for future revisions 

of the plan. 

How Can I Read the Comments 

Submitted by Other People? 

You may read the comments received 

by Docket Management at the address 

given above under ADDRESSES. The 

hours of the Docket are indicated above 

in the same location. You may also see 

the comments on the Internet. To read 

the comments on the Internet, take the 

following steps: 

1. Go to http://www.regulations.gov. 

2. On that page, in the field marked 

‘‘search,’’ type in the docket number 

provided at the top of this document. 

3. The next page will contain results 

for that docket number; it may help you 

to sort by ‘‘Date Posted: Oldest to 

Recent.’’ 

4. On the results page, click on the 

desired comments. You may download 

the comments. However, since the 

comments are imaged documents, 

instead of word processing documents, 

the downloaded comments may not be 

word searchable. 

Please note that even after the 

comment closing date, we will continue 

to file relevant information in the 

Docket as it becomes available. 

Accordingly, we recommend that you 

periodically check the Docket for new 

material. 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://www.dot.gov/ 

privacy.html. 

Authority: 49 U.S.C. 30111, 30117, 30168; 

delegation of authority at 49 CFR 1.50 and 

501.8. 

Issued on: June 25, 2009. 

Ronald L. Medford, 

Senior Associate Administrator for Vehicle 

Safety. 

[FR Doc. E9–15523 Filed 6–30–09; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R2–ES–2009–0030; 92210–1111– 

FY08–B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition to List the Northern Leopard 

Frog (Lithobates [=Rana] pipiens) in 

the Western United States as 

Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of a 90-day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to list the 

western U.S. population of the northern 

leopard frog (Lithobates [=Rana] 

pipiens) as threatened under the 

Endangered Species Act of 1973, as 

amended (Act). Following a review of 

the petition, we find that the petition 

presents substantial scientific or 

commercial information indicating that 

listing the western U.S. population of 

northern leopard frog may be warranted. 

Therefore, with the publication of this 

notice, we are initiating a status review 

of the species, and we will issue a 12- 

month finding to determine if listing the 

species throughout all or a significant 

portion of its range is warranted. To 

ensure that the status review of the 

northern leopard frog is comprehensive, 

we are soliciting scientific and 

commercial information and other 

information regarding this species. 

DATES: We made the finding announced 

in this document on July 1, 2009. To 

allow us adequate time to conduct a 

status review, we request that 

information be submitted on or before 

August 31, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R2– 

ES–2009–0030; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Solicited section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: 

Steven L. Spangle, Field Supervisor, 

31390 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

Arizona Ecological Services Office, U.S. 

Fish and Wildlife Service, 2321 West 

Royal Palm Drive, Suite 103, Phoenix, 

AZ 85021; telephone 602–242–0210; 

facsimile 602–242–2513. If you use a 

telecommunications device for the deaf 

(TDD), please call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly commence a 

review of the status of that species. To 

ensure that the status review is 

complete and based on the best 

available scientific and commercial 

information, we are soliciting 

information concerning the status of the 

northern leopard frog. We request 

information from the public, other 

concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties concerning the status 

of the northern leopard frog. We are 

seeking information regarding: 

(1) The historical and current status 

and distribution of the northern leopard 

frog, its biology and ecology, and 

ongoing conservation measures for the 

species and its habitat, and threats to 

the species and its habitat; 

(2) information relevant to the factors 

that are the basis for making a listing 

determination for a species under 

section 4(a) of the Endangered Species 

Act of 1973, as amended (Act) (16 

U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

(b) overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) disease or predation; 

(d) the inadequacy of existing 

regulatory mechanisms; or 

(e) other natural or manmade factors 

affecting its continued existence and 

threats to the species or its habitat; and 

(3) its taxonomy (particularly genetics 

of the western U.S. population and of 

the convergence zone of the eastern and 

western haplotypes in Wisconsin and 

Ontario, Canada). 

If we determine that listing the 

northern leopard frog is warranted, it is 

our intent to propose critical habitat to 

the maximum extent prudent and 

determinable at the time we would 

propose to list the species. Therefore, 

with regard to areas within the 

geographical range currently occupied 

by the northern leopard frog, we also 

request data and information on what 

may constitute physical or biological 

features essential to the conservation of 

the species, where these features are 

currently found, and whether any of 

these features may require special 

management considerations or 

protection. In addition, we request data 

and information regarding whether 

there are areas outside the geographical 

area occupied by the species which are 

essential to the conservation of the 

species. Provide specific information as 

to what, if any, critical habitat should be 

proposed for designation if the species 

is proposed for listing, and why the 

suggested critical habitat meets the 

requirements of the Endangered Species 

Act of 1973, as amended (Act; 16 U.S.C. 

1531 et seq.). 

Please note that submissions merely 

stating support or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is a threatened or endangered 

species shall be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ At the 

conclusion of the status review, we will 

issue the 12-month finding on the 

petition, as provided in section 

4(b)(3)(B) of the Act. 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Information and materials we receive, 

as well as supporting documentation we 

used in preparing this finding, will be 

available for public inspection on 

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

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Arizona Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information contained in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of receipt of the 

petition, and publish our notice of this 

finding promptly in the Federal 

Register. 

Our standard for substantial scientific 

or commercial information within the 

Code of Federal Regulations (CFR) with 

regard to a 90-day petition finding is 

‘‘that amount of information that would 

lead a reasonable person to believe that 

the measure proposed in the petition 

may be warranted’’ (50 CFR 424.14(b)). 

If we find that substantial scientific or 

commercial information was presented, 

we are required to promptly commence 

a status review of the species. 

We received a petition dated June 5, 

2006, from the Center for Native 

Ecosystems, Biodiversity Conservation 

Alliance, Defenders of Black Hills, 

Forest Guardians, Center for Biological 

Diversity, The Ark Initiative, Native 

Ecosystems Council, Rocky Mountain 

Clean Air Action, and Jeremy Nichols 

requesting that the northern leopard frog 

(Lithobates (=Rana) pipiens) occurring 

in the western United States (Arizona, 

California, Colorado, Idaho, Iowa, 

Minnesota, Missouri, Montana, 

Nebraska, Nevada, New Mexico, North 

Dakota, Oregon, South Dakota, Texas, 

Utah, Washington, and Wyoming) be 

listed as a threatened distinct 

population segment (DPS) under the 

Act. The petition clearly identified itself 

as such and included the requisite 

identification information for the 

petitioners, as required in 50 CFR 

424.14(a). In response to the petitioners’ 

request, we sent a letter to the 

petitioners dated August 7, 2006, 

explaining that we would not be able to 

address their petition at that time. The 

reason for this delay was that 

responding to court orders and 

settlement agreements for other listing 

actions required nearly all of our listing 

funding. Delays in responding to the 

petition have continued due to higher 

priority actions, until funding recently 

became available to respond to this 

petition. 

In reviewing the petition, there were 

two issues for which the Service 

requested clarification from the 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31391 

petitioners. We were petitioned to list 

the population west of the Mississippi 

River and the Great Lakes region in the 

United States and south of the 

international boundary between the 

United States and Canada. However, the 

petition map does not show Wisconsin 

as a part of the petition, and the status 

of the species is not mentioned in that 

State. However, Wisconsin is located 

west of the Great Lakes region. 

Therefore, we requested that the 

petitioners clarify whether they 

intended to include or exclude 

Wisconsin from the petitioned DPS. The 

Service also sought clarification as to 

whether the petitioners were requesting 

we review only the western U.S. 

population of the northern leopard frog 

as a DPS or if they were also requesting 

us to consider listing the entire species 

or a significant portion of the range of 

the species. The petitioners responded 

to our clarification request in a letter 

dated February 8, 2008, requesting we 

review whether Wisconsin should be 

included in the western U.S. population 

of the northern leopard frog. In addition, 

the petitioners clarified that, if we find 

that listing the western U.S. population 

of northern leopard frogs as a DPS is not 

warranted, we review whether listing 

the entire species is warranted because 

of threats in a significant portion of its 

range. 

Previous Federal Action 

No previous Federal action has been 

taken on the northern leopard frog. The 

northern leopard frog has no Federal 

regulatory status under the Act. 

Species Information 

The northern leopard frog is in the 

family Ranidae (Frost et al. 2008, pp. 7– 

8), the true frogs, and is 1 of about 29 

species within the genus Lithobates that 

occur in North America (Lannoo 2005, 

p. 371). The northern leopard frog is a 

smooth-skinned green, brown, or 

sometimes yellow-green frog covered 

with large, oval dark spots, each of 

which is surrounded by a lighter halo or 

border (Stebbins 2003, pp. 234–235). 

Adult snout-vent lengths range from 2 to 

4.5 inches (5 to 11 centimeters) 

(Stebbins 2003, p. 234). Citations within 

the petition provide a more detailed 

description of the northern leopard frog 

(Baxter and Stone 1985, pp. 41–42; 

Hammerson 1999, pp. 145–146; Patla 

and Keinath 2005, p. 13). 

The northern leopard frog requires a 

mosaic of habitats, which includes 

overwintering, breeding, and upland 

post-breeding habitats, as well as habitat 

linkages, to meet the requirements of all 

of its life stages (Pope et al. 2000, p. 

2505; Smith 2003, pp. 6–15). Northern 

leopard frogs breed in a variety of 

aquatic habitats that include slowmoving or still water along streams and 

rivers, wetlands, permanent or 

temporary pools, beaver ponds, and 

human-constructed habitats such as 

earthen stock tanks and borrow pits 

(Rorabaugh 2005, p. 572). Breeding 

areas typically do not contain 

predaceous fish or other predators 

(Merrell 1968, p. 275; Smith 2003, pp. 

19–21), and emergent vegetation such as 

sedges and rushes are thought to be 

important features of breeding and 

tadpole habitats (Smith 2003, pp. 8–9). 

Sub adult northern leopard frogs 

typically migrate to feeding sites along 

the borders of larger, more permanent 

bodies of water (Merrell 1970, p. 49). 

Recently metamorphosed frogs will 

move up and down drainages and across 

land in an effort to disperse from 

breeding areas (Seburn et al. 1997, p. 

69); however, in some areas of the 

western United States, subadults may 

remain in the breeding habitat within 

which they metamorphosed (Smith 

2003, p. 10). In addition to the breeding 

habitats, adult northern leopard frogs 

require stream, pond, lake, and river 

habitats for overwintering and upland 

habitats adjacent to these areas for 

summer feeding. In summer, adults and 

juveniles commonly feed in open or 

semi-open wet meadows and fields with 

shorter vegetation, usually near the 

margins of water bodies, and seek 

escape cover underwater. During winter, 

northern leopard frogs are found 

inactive underwater on the bottom of 

deeper streams or waters that do not 

freeze to the bottom and are welloxygenated (Stewart et al. 2004, p. 72). 

As soon as males leave overwintering 

sites, they travel to breeding ponds and 

call in shallow water (Smith 2003, p. 

13). Male frogs attract females by calling 

from specific locations within a 

breeding pond, with several males 

typically calling together to form a 

chorus (Merrell 1977, p. 7). Eggs are 

typically laid within breeding habitats, 

two to three days following the onset of 

chorusing (Corn and Livo 1989, p. 5). 

Eggs are laid and larvae typically 

develop in shallow, still water that is 

exposed to sunlight. Eggs are usually 

attached to vegetation, just below the 

water surface. Egg masses may include 

several hundred to several thousand 

eggs (Lannoo 2005, p. 371) and are 

deposited in a tight, oval mass 

(Rorabaugh 2005, p. 572). Time to 

hatching is correlated with temperature 

and ranges from 2 days at 81 degrees 

Fahrenheit (27 degrees Centigrade) to 17 

days at approximately 53 degrees 

Fahrenheit (12 degrees Centigrade) 

(Nussbaum et al. 1983, p. 182). 

Northern leopard frog tadpoles are 

predominantly generalist herbivores, 

typically eating attached and freefloating algae (Hoff et al. 1999, p. 215), 

however they may feed on animal 

material (Hendricks 1973, p. 100). Adult 

and subadult frogs are generalist 

insectivores (Merrell 1977, p. 15; Smith 

2003, p. 12). Prey includes insects, 

spiders, mollusks, and crustaceans. 

A genetic study published in 2004 

using mitochondrial DNA (mtDNA) 

reports that the northern leopard frog is 

split into two populations containing 

discrete eastern and western mtDNA 

markers (haplotypes), with the 

Mississippi River and Great Lakes 

region dividing the geographic ranges 

(Hoffman and Blouin 2004, p. 152). 

Results of the study indicate that the 

two populations have been isolated for 

approximately 2 million years, except 

for a small zone of likely secondary 

contact in Ontario, Canada. 

The northern leopard frog historically 

ranged from Newfoundland and 

southern Quebec, south through New 

England to West Virginia, west across 

the Canadian provinces and northern 

and central portions of the United States 

to British Columbia, Oregon, 

Washington, and northern California, 

and south to Arizona, New Mexico, and 

extreme western Texas (Rorabaugh 

2005, p. 570). However, since the 1970s 

the northern leopard frog has 

experienced significant declines 

throughout its range, particularly in the 

western United States and Canada (Corn 

and Fogelman 1984, p. 147; Hayes and 

Jennings 1986, p. 491; Clarkson and 

Rorabaugh 1989, p. 534; Weller and 

Green 1997, p. 323; Casper 1998, p. 199; 

Leonard et al. 1999, p. 51; Smith 2003, 

pp. 4–6). The species tends to become 

less abundant the further west one 

proceeds. The northern leopard frog is 

now considered uncommon in a large 

portion of its range in the western 

United States, and declines of the 

species have been documented in most 

western States (Rorabaugh 2005, pp. 

570–571; Smith 2003, pp. 4–6; Stebbins 

2003, p. 235). 

Distinct Population Segment 

We consider a species for listing 

under the Act if available information 

indicates such an action might be 

warranted. ‘‘Species’’ is defined in 

section 3 of the Act to include any 

subspecies of fish or wildlife or plants, 

and any distinct vertebrate population 

segment of fish or wildlife that 

interbreeds when mature (16 U.S.C. 

1532 (16)). We, along with the National 

Marine Fisheries Service (now the 

National Oceanic and Atmospheric 

Administration—Fisheries), developed 

31392 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

the Policy Regarding the Recognition of 

Distinct Vertebrate Population Segments 

(DPS Policy) (February 7, 1996; 61 FR 

4722) to help us in determining what 

constitutes a DPS. The policy identifies 

three elements that we are to consider 

in making a DPS determination. These 

elements include: (1) The discreteness 

of the population segment in relation to 

the remainder of the species to which it 

belongs; (2) the significance of the 

population segment to the species to 

which it belongs; and (3) the population 

segment’s conservation status in relation 

to the Act’s standards for listing. If we 

determine that a population segment 

meets the discreteness and significance 

standards, then the level of threat to that 

population segment is evaluated, based 

on the five listing factors established by 

the Act, to determine whether listing the 

DPS as either threatened or endangered 

is warranted. 

Discreteness 

Citing the Services’ DPS policy (61 FR 

4722), the petition asserts that the 

western U.S. population of the northern 

leopard frog may qualify as a DPS based 

on discreteness. The DPS policy states 

that a population may be considered 

discrete if it satisfies either one of the 

following conditions: 

(1) It is markedly separated from other 

populations of the same taxon as a 

consequence of physical, physiological, 

ecological, or behavioral factors. 

Quantitative measures of genetic or 

morphological discontinuity may 

provide evidence of this separation; or 

(2) It is delimited by international 

governmental boundaries within which 

differences in control of exploitation, 

management of habitat, conservation 

status, or regulatory mechanisms exist 

that are significant in light of section 

4(a)(1)(D) of the Act. 

The petitioners assert that the western 

U.S. population of the northern leopard 

frog is markedly separated and 

geographically isolated from the eastern 

population, based on genetic differences 

and analyses of haplotypes (Hoffman 

and Blouin 2004, pp. 145–159). A 

haplotype is a set of closely linked 

genetic markers that are present on one 

chromosome and tend to be inherited 

together. The petitioners cited Hoffman 

and Blouin (2004) to support their 

assertion that the western U.S. 

population of the northern leopard frog 

is discrete. The petition states that there 

is a marked separation of western 

populations from eastern populations 

based on the following measures from 

Hoffman and Blouin (2004, pp. 145– 

159): (1) Eastern and western haplotypes 

have been differentiated for 

approximately 2 million years; (2) 

eastern and western haplotypes are 

divided by the Mississippi River and 

Great Lakes; and (3) there is an average 

sequence divergence of 3 percent 

between eastern and western 

haplotypes. 

The only area of potential overlap 

between the eastern and western 

population of northern leopard frog 

occurs north of the Great Lakes region 

in Ontario (Hoffman and Blouin 2004). 

Only one population (located near 

Attawapiskat, Ontario) appears to be in 

an area of geographic convergence of 

eastern and western haplotypes. This 

population is located north of the Great 

Lakes region, and contains both eastern 

and western haplotypes, likely due to 

secondary contact during the current 

interglacial period. Thus, it represents 

the maximum extent of postglacial 

eastward expansion of the western 

haplotypes and westward expansion of 

the eastern haplotypes (Hoffman and 

Blouin 2004, p. 152). Several studies on 

both plants and animals have 

documented a genetic discontinuity 

associated with the Mississippi River 

region (Fontanella et al. 2007, p. 1063). 

Thus, based on the Hoffman and 

Blouin (2004) genetic analyses, the 

petitioners believe that the western 

population is not only markedly 

separated from the eastern population in 

relation to its genetics, but clearly 

geographically isolated and discrete in 

relation to the eastern northern leopard 

frog population. The petition asserts 

that the genetic differentiation between 

the haplotypes of eastern and western 

northern leopard frogs, which was 

found to average 3 percent, is 

considered to be relatively high for an 

intraspecific comparison (Hoffman and 

Blouin 2004, p. 152). Hoffman and 

Blouin (2004, p. 152) explain that this 

amount of genetic variation is 

comparable to that found between some 

recognized species of frogs in the family 

Ranidae (ranid frogs) such as R. 

pretiosa-R. luteiventris, about 3 percent 

(K. Monsen and M.S. Blouin, unpubl. 

data). In addition, Jaeger et al. (2001, pp. 

339–354) found that there was about 4.7 

percent genetic variation between R. 

yavapaiensis and R. onca, and 

approximately 4.9 percent genetic 

variation between R. blairi and R. 

berlanderi. However, the purpose of the 

Hoffman and Blouin (2004) study was 

not to undertake taxonomic revisions, 

but to better understand the 

evolutionary history of the northern 

leopard frog; as such, the authors do not 

recommend splitting the northern 

leopard frog into two distinct species 

based upon their analyses. The authors 

do recommend that further work be 

conducted on the taxonomic status of 

the two northern leopard frog 

populations to further understand their 

initial findings. 

As stated above, a population may be 

considered discrete if it satisfies either 

one of the discreteness conditions listed 

in the policy. The second condition is 

that the petitioned population be 

delimited by international governmental 

boundaries within which differences in 

control of exploitation, management of 

habitat, conservation status, or 

regulatory mechanisms exist that are 

significant in light of section 4(a)(1)(D) 

of the Act. Section 4(a)(1)(D) of the Act 

discusses the adequacy of existing 

regulatory mechanisms in the Act’s ‘‘5- 

factor’’ analysis for determining whether 

a species is threatened or endangered. In 

assessing a population for discreteness 

based on delimitation by international 

governmental boundaries, we focus 

specifically on whether the factors 

named above are significantly different 

between the two countries because of 

the inadequacy of existing regulatory 

mechanisms. 

The petitioners state that the western 

U.S. population of the northern leopard 

frog is delimited by international 

government boundaries, namely 

between Canada and the United States 

(Smith 2003, p. 5). The petitioners 

reference Seburn and Seburn (1998, pp. 

4–11) in providing information 

documenting significant declines in 

northern leopard frog populations in 

British Columbia, Alberta, Manitoba, 

southern Northwest Territories, 

Saskatchewan, and western Ontario. In 

British Columbia, only one northern 

leopard frog population is known to 

remain (Seburn and Seburn 1998, p. 10). 

The species has also disappeared from 

much of its range in Alberta since 1979 

(Seburn and Seburn 1998, p. 10). In 

Manitoba and Saskatchewan, the 

northern leopard frog experienced 

significant declines in the 1970s and 

many dead and dying frogs were found 

(Seburn and Seburn 1998, p. 9). Less is 

known about the status of the frog in the 

Northwest Territories, but the species is 

reported from only nine sites, all of 

which are fragmented and isolated from 

populations further south in Alberta and 

Manitoba (Seburn and Seburn 1998, pp. 

6, 8). Declines have also occurred in 

northern and southwestern Ontario 

(Seburn and Seburn 1998, p. 10; Hecnar 

1997, p. 9). 

The petition claims that habitat 

declines throughout the Canadian range 

of the northern leopard frog have also 

been significant (Seburn and Seburn 

1998, p. 13). The decline is thought to 

be related to the loss of wetland habitat 

throughout Canada. Approximately 65 

to 80 percent of historical wetlands in 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31393 

Canada have been drained, mostly for 

agriculture and urban development 

(Natural Resources Canada 2004, p. 1), 

and are considered to be an endangered 

habitat (Findlay and Houlahan 1997, p. 

1001). Seburn and Seburn (1998, p. 13) 

describe this loss of habitat as occurring 

throughout all of the provinces, with 

southern Saskatchewan having 59 

percent of its wetland basins and 78 

percent of its wetland margins affected 

by agriculture. 

The Committee on the Status of 

Endangered Wildlife in Canada 

determines the national status of wild 

species, subspecies, varieties, and 

nationally significant populations that 

are considered to be at risk in Canada 

(Seburn and Seburn 1998, p. vi). The 

British Columbia population (Southern 

Mountain Region) is listed as 

Endangered under the Species at Risk 

Act, which provides protection similar 

to that of the Endangered Species Act in 

the United States. The northern leopard 

frog is also on the provincial Red List 

and is listed as ‘‘Endangered’’ under 

British Columbia’s Wildlife Act, and as 

‘‘Threatened’’ under Alberta’s Wildlife 

Act (Alberta Northern Leopard Frog 

Recovery Team 2005, p. 1). However, 

the provincial Wildlife Acts do not 

prohibit take of listed species or provide 

a means by which agencies must ensure 

their actions are not jeopardizing the 

species. Neither Saskatchewan nor 

Ontario affords the northern leopard 

frog any specific protection (Seburn and 

Seburn 1998, p. 7). In the United States, 

northern leopard frog protection and 

collection policies are implemented by 

a wide variety of Federal and State 

agencies. States predominately control 

the management, collection, and 

importation of the species throughout 

its range, while Federal land 

management agencies manage habitat 

for the species, particularly throughout 

the western portion of its range. 

Therefore, because of differences in 

regulatory mechanisms between the 

United States and Canada, we find there 

is evidence to suggest that the 

international boundary with Canada 

may be significant in terms of section 

4(a)(1)(D) of the Act. 

The Service’s DPS policy requires that 

only one of the discreteness criteria be 

satisfied in order for a population of a 

vertebrate species to be considered 

discrete. After reviewing the 

information provided in the petition, we 

believe that the petition presents 

substantial information that the 

northern leopard frog western U.S. 

population may be physically isolated 

from northern leopard frogs in the 

eastern United States and may be 

genetically distinct. In addition, it 

presents substantial information that 

differences in regulatory mechanisms 

between the United States and Canada 

may be significant in terms of section 

4(a)(1)(D) of the Act. Therefore, we find 

that the petition presents substantial 

information indicating that the northern 

leopard frog in the western United 

States may satisfy the discreteness 

element of the DPS policy. 

Significance 

If we determine that a population 

meets the DPS discreteness element, we 

then consider if it also meets the DPS 

significance element. The DPS policy 

(61 FR 4722) states that if a population 

segment is considered discrete under 

one or more of the discreteness criteria, 

its biological and ecological significance 

will be considered in light of 

Congressional guidance that the 

authority to list DPSs be used 

‘‘sparingly’’ while encouraging the 

conservation of genetic diversity. In 

making this determination, we consider 

available scientific evidence of the 

discrete population’s importance to the 

taxon to which it belongs. Since precise 

circumstances are likely to vary 

considerably from case to case, the DPS 

policy does not describe all of the 

classes of information that might be 

used in determining the biological and 

ecological importance of a discrete 

population. However, the DPS policy 

does provide four possible reasons why 

a discrete population may be significant. 

As specified in the DPS policy (61 FR 

4722), this consideration of significance 

may include, but is not limited to, the 

following: 

(1) Persistence of the discrete 

population segment in an ecological 

setting unusual or unique to the taxon; 

(2) Evidence that loss of the discrete 

population segment would result in a 

significant gap in the range of a taxon; 

(3) Evidence that the discrete 

population segment represents the only 

surviving natural occurrence of a taxon 

that may be more abundant elsewhere as 

an introduced population outside its 

historic range; or 

(4) Evidence that the discrete 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics. 

The petition asserts that the western 

U.S. population of the northern leopard 

frog, being discrete from other 

populations, also meets the significance 

element of the DPS policy for two of the 

four reasons above: (1) Loss of the 

population would create a significant 

gap in the range of the taxon and (2) the 

population differs markedly from the 

eastern population based on genetic 

characteristics. 

The petitioners present three reasons 

why the loss of the western U.S. 

population would represent a 

significant gap in the range of the 

species. First, it would represent an 

approximately 50 percent loss in the 

historical range of the species. Second, 

the loss of the western U.S. population 

would leave only frogs in western 

Canada to represent the western 

population of northern leopard frog, 

thereby creating a significant gap in the 

range. Third, loss of the western U.S. 

population would create an irreversible 

gap in the range of the species because 

the Mississippi River and Great Lakes 

are barriers to dispersal by the eastern 

population into the western United 

States. 

According to the petition, the western 

U.S. portion of the range in 19 western 

and Midwestern States west of the 

Mississippi River and the Great Lakes 

region constitutes approximately 50 

percent of the historical overall range 

and nearly 70 percent of the western 

population in the United States and 

Canada (Rorabaugh 2005, p. 571). The 

petition states that the species’ range 

has declined in almost every State that 

it inhabits in the western United States. 

The most recent summary of 

distributional and abundance patterns 

of the northern leopard frog is from 

Rorabaugh (2005, pp. 570–577), which 

documents a substantial contraction of 

the species’ range, especially in the 

western two-thirds of the United States, 

where widespread extinctions have 

occurred. Information provided in the 

petition indicates that the species is 

declining, considered rare, or locally 

extinct from historical locations in 

Arizona, California, Colorado, Idaho, 

Iowa, Minnesota, Missouri, Montana, 

Nebraska, Nevada, New Mexico, North 

Dakota, Oregon, Texas, Utah, 

Washington, Wisconsin, and Wyoming 

(Hayes and Jennings 1986, p. 491; 

Stebbins and Cohen 1995, p. 220; 

Johnson and Batie 1996; Bowers et al. 

1998, p. 372; Casper 1998, p. 199; 

Lannoo 1998, p. xvi; Mossman et al. 

1998, p. 198; Smith 2003, pp. 4–6; 

McCleod 2005, pp. 292–294; Rorabaugh 

2005, p. 571; Smith and Keinath 2004, 

pp. 57–60). The species is possibly 

extirpated from almost 100 percent of its 

historical range in Texas, California, 

Oregon, and Washington (Stebbins and 

Cohen 1995, p. 220; McAllister et al. 

1999, p. 15; Stebbins 2003, p. 235). The 

status of the frog is not clear in South 

Dakota. Smith (2003, p. 39) states that, 

although northern leopard frogs may 

still be common in the Black Hills, 

surveys are incomplete, monitoring does 

not occur, and no habitat delineation 

has been completed for the species. The 

31394 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

petitioners estimate a decline of at least 

35 percent based on estimates of 

wetland loss in the State. In summary, 

the petition presents substantial 

information that the northern leopard 

frog is declining in the western United 

States, that such a large geographic area 

may represent a significant part of the 

range, and that loss of the western U.S. 

population may create a significant gap 

in the range of the species. 

The petition also argues that the 

western U.S. population is isolated, 

peripheral and genetically different, and 

that it is important to the survival, 

evolution, and conservation of the 

species. The petitioners argue that the 

western U.S. population of the northern 

leopard frog is significant because it is 

markedly different from the eastern 

population based on genetic 

characteristics and because its loss 

would represent a significant gap in the 

range of the species. Citing Hoffman and 

Blouin (2004, p. 152), the petition 

presents information that the level of 

mtDNA genetic variation between the 

eastern and western populations of 3 

percent is relatively high for an 

intraspecific comparison of ranid frogs, 

akin to the genetic difference between 

the Columbia spotted frog (Rana 

luteiventris) and the Oregon spotted frog 

(R. pretiosa). The western population 

also differs from the eastern population 

in having significantly lower diversity 

of genetic materials (nucleotides) 

(Hoffman and Blouin 2004, p. 151). 

Based on the significant gap in the 

species’ range that potentially would be 

created by the loss of the western U.S. 

population and the potential genetic 

differences, we find that the petition 

presents substantial information that the 

western U.S. population of the northern 

leopard frog may satisfy the significance 

element of the DPS policy. 

DPS Conclusion 

We have reviewed the information 

presented in the petition, and have 

evaluated the information in accordance 

with 50 CFR 424.14(b). In a 90-day 

finding, the question is whether a 

petition presents substantial 

information that the petitioned action 

may be warranted. Based on our review, 

we find that the petition, supported by 

information in our files, presents 

substantial scientific or commercial 

information to indicate that the western 

U.S. population of the northern leopard 

frog may be a DPS based on genetic 

evidence. The information presented in 

the petition presents substantial 

scientific or commercial information to 

demonstrate that the western U.S. 

population of the northern leopard frog 

may be discrete from the eastern U.S. 

population. Further, the petition also 

presents substantial information that the 

western U.S. population of the northern 

leopard frog may be significant to the 

taxon as a whole. Thus, the western U.S. 

population of the northern leopard frog 

may be a listable entity under the Act 

as a DPS. To meet the third element of 

the DPS policy, we evaluate the level of 

threat to the DPS based on the five 

listing factors established by the Act. 

We thus proceeded with an evaluation 

of information presented in the petition, 

as well as information in our files, to 

determine whether there is substantial 

scientific or commercial information 

indicating that listing this population 

may be warranted. Our threats analysis 

and conclusion follow. 

Threats Evaluation 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR 424) set forth the procedures for 

adding species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. A species, subspecies, or 

distinct population segment of 

vertebrate taxa may be determined to be 

endangered or threatened due to one or 

more of the five factors described in 

section 4(a)(1) of the Act: (A) The 

present or threatened destruction, 

modification, or curtailment of habitat 

or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. 

In making this 90-day finding, we 

evaluated whether information 

regarding the northern leopard frog as 

presented in the petition and other 

information available in our files is 

substantial, thereby indicating that the 

petitioned action may be warranted. Our 

evaluation of this information is 

presented below. 

A. Present or Threatened Destruction, 

Modification, or Curtailment of the 

Species’ Habitat or Range 

The petitioners assert that loss and 

degradation of habitat has been 

widespread and has affected the species 

in every State in the western United 

States in which the northern leopard 

frog is historically known to have 

occurred (Maxell 2000, p. 15; Hitchcock 

2001, pp. 64–66; Rorabaugh 2005, p. 

576; Clarkson and Rorabaugh 1989, p. 

535; Smith 2003, p. 26–31). Habitat loss 

and degradation is reported to be the 

primary threat to all ranid frogs in the 

western United States (Bradford 2005, p. 

923) and a principal threat to northern 

leopard frogs in the western United 

States (Smith 2003, p. 4; Rorabaugh 

2005, p. 571). The petition asserts that 

the northern leopard frog is threatened 

with loss and degradation of habitat due 

to livestock grazing, agricultural 

development, urban development, oil 

and gas development, road 

development, poor forestry practices, 

groundwater pumping, mining, and 

invasive species. 

The petitioners claim that western 

U.S. northern leopard frog populations 

are vulnerable to local extirpation from 

the effects of livestock grazing (Maxell 

2000, pp. 15–16; Smith 2003, p. 30). 

Specifically, the petition states that 

livestock grazing may result in the 

trampling of individual frogs (Maxell 

2000, p. 15; Smith 2003, p. 30) and may 

trample soils around aquatic habitats, 

thereby decreasing infiltration of water 

into the soil, increasing soil erosion, and 

contributing to stream channel down 

cutting (Kauffman and Kreuger 1984, 

pp. 432–434; Belskey et al. 1999, pp. 

419–431). These impacts could hinder 

or prevent movements of northern 

leopard frogs by reducing and 

eliminating riparian vegetation that 

provides cover. Impacts to water quality 

through increased sedimentation 

(Belskey et al. 1999, pp. 420–424) may 

reduce the depth of breeding ponds or 

overwintering habitats, increase water 

temperatures, and create favorable 

environments for diseases and parasites 

known to contribute to mortality in 

northern leopard frogs (Maxell 2000, pp. 

15–16; Johnson and Lunde 2005, pp. 

133–136; Ouellet et al. 2005, p. 1435). 

The petitioners note that livestock 

grazing and associated actions are 

specifically identified as being 

responsible for habitat loss and 

degradation and negatively affecting 

northern leopard frog populations at 

some sites in Arizona (Clarkson and 

Rorabaugh 1989, p. 535; Sredl 1998, pp. 

573–574), California (California 

Department of Fish and Game 2008), 

Idaho (Idaho Department of Fish and 

Game 2005, Appendix F), Montana 

(Maxell 2000, p. 15), Nevada (Hitchcock 

2001, p. 66), North Dakota (Euliss, Jr. 

and Mushet 2004, p. 82), and South 

Dakota (Smith 2003, p. 27). In addition, 

the petition lists approximately 281 

grazing allotments on Forest Service 

National System Lands in Colorado, 

Nebraska, New Mexico, South Dakota, 

and Wyoming that the U.S. Forest 

Service (Forest Service) determined 

would adversely impact northern 

leopard frogs. We did not verify each of 

these allotment determinations, but the 

Forest Service Region 2 website 

(accessed April 24, 2008) does contain 

documents noting adverse effect 

determinations for the northern leopard 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31395 

frog resulting from livestock grazing (for 

instance, see Forest Service 2005a and 

Forest Service 2003 as cited in the 

petition). Information in our files also 

indicates that leopard frogs may be able 

to persist with well-managed livestock 

grazing (Hitchcock 2001, p. 62; Service 

2007, pp. 32–34). 

The petitioners state that agricultural 

development may directly destroy 

northern leopard frog habitat due to dewatering or indirectly through the 

introduction of contaminants and 

invasive species into habitats (Leonard 

et al. 1999, p. 58; Leja 1998, pp. 345– 

353; Rorabaugh 2005, p. 576). The 

petitioners provide information 

indicating that agricultural development 

has occurred throughout the range of the 

northern leopard frog, but particularly 

in the Midwestern States (Leja 1998, p. 

349). The petition presents 1990 data 

that indicate that greater than 90 percent 

of the total land area in Iowa, Nebraska, 

North Dakota, and South Dakota is used 

for agricultural purposes (Demographia 

2000). Agricultural development can 

result in modification of river valley 

habitat, including draining of wetlands, 

channelization and damming of rivers, 

and the development of irrigation 

systems (Wang et al. 1997, p. 11; 

Findlay and Houlahan 1997, p. 1001), 

all of which may modify breeding, 

overwintering, and dispersal habitat for 

northern leopard frogs. 

The petition presents information on 

urbanization of the western United 

States and the resulting loss of northern 

leopard frog habitat throughout the 

western States (Hitchcock 2001, pp. 64– 

66). The petitioners provide information 

from the U.S. Census Bureau (2006) that 

the only State within the range of the 

northern leopard frog in the western 

United States that is not gaining human 

population is North Dakota. Projected 

population growth is expected to result 

in increased needs for water (surface 

diversions and groundwater pumping) 

to support growth (Deacon et al. 2007, 

p. 688). This could decrease water 

availability for northern leopard frogs 

and thereby impact the amount and 

extent of habitat for northern leopard 

frogs. 

The petitioners also discuss how oil 

and gas development threatens the 

northern leopard frog and its habitat in 

the western United States. The petition 

states that the Bureau of Land 

Management (BLM) and Forest Service 

have determined that the drilling and 

maintenance of wells, related 

construction of roads, and disposal of 

wastes resulting from oil and gas 

development will negatively affect the 

northern leopard frog. The petitioners 

argue that oil and gas development in 

the Black Hills of South Dakota, 

northern Idaho, Wyoming, and the 

Arkansas River drainage in Colorado are 

reported to have disturbed habitat, 

altered hydrology, introduced 

contaminants into water, and reduced 

the availability of water for the frog. 

Coal-bed methane development is 

currently occurring primarily in 

Wyoming, but the petitioners note that 

other western States may be impacted in 

the future. Impacts associated with coalbed methane development include roadrelated mortality, discharge of 

contaminated water into breeding 

ponds, loss of spring flows related to 

groundwater withdrawals, discharge of 

extremely cold water into breeding 

habitats, and discharge of water 

containing nonnative predatory fish in 

these same areas (Allan 2002, pp. 5–8; 

Gore 2002, pp. 1–14; Noss and 

Wuethner 2002, pp. 1–20). Mining and 

oil and gas development may also lead 

to contamination of habitats (Smith 

2003, pp. 26, 31; Spengler 2002, pp. 7– 

26). 

The petition presents information and 

cites references indicating that roads 

may pose barriers to dispersal and 

contribute nonpoint source pollution 

(Smith 2003, pp. 27, 38; Maxell 2000, p. 

25; Fahrig et al. 1995, pp. 177–182). 

Road building is often tied to other 

activities such as oil and gas, urban, and 

agricultural development, so the 

indirect effects of road construction, 

maintenance, and use could negatively 

affect northern leopard frog populations. 

The petition also claims that timber 

harvest activities may be a threat to 

northern leopard frog populations 

(Maxell 2000, pp. 12–14; Smith 2003, p. 

29). The petitioners state that the Forest 

Service has determined that logging 

activities planned on the ArapahoRoosevelt, Routt, Medicine Bow, 

Bighorn, and Black Hills National 

Forests (Colorado, South Dakota, and 

Wyoming) would adversely affect the 

northern leopard frog, and cite several 

project planning and land use plan 

documents prepared by the Forest 

Service (Center for Native Ecosystems et 

al. 2006, pp. 186–191). Smith (2003, p. 

29) found that the northern leopard frog 

may be especially affected by logging on 

the Black Hills National Forest of 

western South Dakota and northeastern 

Wyoming more than 80 percent of the 

1.2 million-acre (485,623 hectare) 

National Forest is forested, most areas 

were harvested three or four times in the 

last century, and logging projects may 

include cutting within approximately 

500 feet (152.4 meters) of breeding 

ponds. However, it may be difficult to 

predict the extent of the potential 

negative impact to northern leopard 

frogs due to our poor understanding of 

their use of upland habitat. 

The petition lists 11 harvesting 

projects where the Forest Service 

authorized cutting within 100 feet of 

breeding habitats. Information cited in 

the petition indicates that this practice 

may result in increased sedimentation, 

increased temperature, and reduced 

dispersal corridors for leopard frogs 

(Smith 2003, pp. 29–38). The petition 

focuses on the effects to northern 

leopard frogs on the Black Hills 

National Forest and does not show how 

this threat may be affecting northern 

leopard frogs across the western United 

States. However, information in our files 

indicated that fuels reduction and 

logging occur throughout the western 

range of the northern leopard frog and 

that logging operations in riparian areas 

should maintain buffers near riparian 

habitats or only conduct partial harvests 

of trees to mitigate the effects of timber 

harvest to amphibians (Perkins and 

Hunter 2006, pp. 664–668; McComb et 

al. 1993, pp. 7–15). 

The petitioners provide limited 

information regarding the effects of 

groundwater depletion, but information 

in our files indicates that pumping 

groundwater can decrease spring output 

and recharge in many areas (Wirt et al. 

2005, pp. G1–11; Alley et al. 1999, pp. 

33–44). The petition does note that 

groundwater depletion may have 

reduced the availability of surface water 

in areas across the range of the western 

portion of the northern leopard frog. In 

addition, the petition gives two 

examples from Nevada and New Mexico 

to describe how groundwater pumping 

may impact leopard frog habitat. 

Brussard et al. (1998, pp. 505–542) 

found that pumping of groundwater 

from gold mines threatened spring 

communities in the north-central region 

of Nevada. Groundwater pumping by 

the city of Albuquerque, New Mexico, 

has contributed to the loss of wetland 

habitat in the Rio Grande valley as well 

(Bogan 1998, pp. 562–563). 

The petition also identifies the 

introduction of nonnative aquatic 

animal and plant species as a threat to 

the northern leopard frog. Nonnative 

animals (e.g., crayfish, bullfrogs, and 

fish) may displace northern leopard 

frogs by degrading habitat (e.g., 

destroying emergent vegetation, 

increasing turbidity, and reducing algal 

or invertebrate populations) or through 

direct predation on eggs, tadpoles, and 

even adult leopard frogs. The petitioners 

state that nonnative, invasive plants 

may also threaten northern leopard frog 

habitat in the western United States 

(Maxell 2000, pp. 21–22; Hitchcock 

2001, pp. 5–6). Tamarisk and other 

31396 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

nonindigenous aquatic and terrestrial 

plants may alter riparian habitats by 

forming dense stands that exclude 

native amphibians (Maxell 2000, p. 21) 

and enhance the survival of other 

introduced species, such as bullfrogs 

(Lithobates catesbeiana), which 

compete with and predate northern 

leopard frogs (Adams et al. 2003, pp. 

343–351; Maxell 2000, p. 21; Hitchcock 

2001, pp. 5–6, 62–66). 

Citing Jezouit 2004 (pp. 423–445), the 

petitioners state that the emissions of 

certain gases into the air may lead to 

acid precipitation and the acidification 

of aquatic habitats, which then leads to 

the direct destruction of vegetation 

needed for habitat (EPA 2000, pp. 

48699–48701). Additionally, as 

discussed under Factor D, the 

petitioners state that the National 

Ambient Air Quality Standards 

(NAAQS) for sulfur dioxide, which 

contributes to the formation of acid 

precipitation, are not adequate and do 

not protect aquatic ecosystems from the 

adverse impacts of acid precipitation 

and acidification impacts. They cite 

literature indicating that continued acid 

precipitation may cause vegetation 

damage under the current sulfur dioxide 

NAAQS. The petitioners state this 

information indicates that the current 

NAAQS allow for the emission of sulfur 

dioxide that may harm northern leopard 

frog habitat. We were unable to locate 

the documents cited by the petitioners 

for this claim. 

The petitioners make the same claim 

for nitrogen dioxide, which also 

contributes to the formation of acid rain 

(Baron et al. 2000, p. 352; Fenn et al. 

2003, p. 404; Jezouit 2004, pp. 423–445; 

EPA 2005, p. 59594); nitrogen dioxide 

can increase the acidity of soils and 

aquatic ecosystems, may contribute to 

eutrophication (a process whereby 

increased nutrients leads to decreased 

dissolved oxygen), and may possibly 

change plant community composition 

(e.g., enhanced growth of invasive 

species and shifts in phytoplankton 

productivity) (Baron et al. 2000, p. 358; 

Fenn et al. 2003, pp. 404–418). The 

petitioners contend that scientific 

studies document continued acid 

precipitation and adverse habitat effects 

from nitrogen deposition under the 

current NAAQS (Baron et al. 2000, p. 

365; Fenn et al. 2003, pp. 417–418). 

The petition also considers water 

pollution to be a significant threat to the 

northern leopard frog (Leja 1998, pp. 

345–348; Smith and Keinath 2004 pp. 

46–53; Bradford 2005, p. 917). The 

petition claims that agriculture is the 

primary source of water pollution 

throughout the western range of the 

northern leopard frog and that this 

water pollution occurs primarily 

through sedimentation, nutrient 

pollution, pesticide pollution, and 

mineral pollution (Ribaudo 2000, pp. 5– 

11). Bradford (2005, p. 919) indicates 

that chemical contamination of water 

(defined as pollution; acid precipitation; 

acid mine drainage; mine water 

pollution; sewage; and, heavy metals) 

was the third most implicated adverse 

factor for frog population decline in the 

United States. 

Based on our evaluation of the 

information presented in the petition 

and available in our files regarding the 

livestock grazing, agricultural 

development, urban development, oil 

and gas development, road 

development, forestry practices, 

groundwater pumping, mining, invasive 

species, air emissions, and water 

pollution within the range of the 

northern leopard frog, we find that the 

petition presents substantial 

information. Therefore, listing the 

western U.S. population of the northern 

leopard frog may be warranted due to 

the present or threatened destruction, 

modification, or curtailment of habitat 

or range. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The petitioners state that 

overutilization of the northern leopard 

frog is not reported to be a threat to the 

species in the western United States 

except in Minnesota and Nebraska, 

where large numbers of leopard frogs 

are used for commercial purposes, and 

collection has likely contributed to 

population declines (Moriarty 1998, p. 

168; Smith 2003, p. 21). From 1995– 

1999, approximately 174,772 northern 

leopard frogs were collected in Nebraska 

to supply only two biological supply 

houses (Smith 2003, p. 21). In addition, 

northern leopard frogs in Minnesota 

have been heavily collected for fish bait 

and for the biological supply trade 

(Moriarty 1998, p. 168). 

In 1971, Gibbs et al. (p. 1027) 

published a paper describing the frog 

trade and the decline of northern 

leopard frogs throughout most of their 

range. However, due to the declines 

noted by Gibbs et al. (1971), many States 

began establishing laws to prevent 

uncontrolled collecting. Today, State 

wildlife agencies, including those in the 

western United States, use 

commercialization and collection 

regulations to control human actions 

that may harm wildlife populations, 

such as collection of amphibians 

(Adams et al. 1995, p. 394). Although 

these regulations may be somewhat 

inconsistent among States, information 

in our files indicates that, except for the 

isolated instances cited by the petition, 

overutilization does not appear to 

threaten the western U.S. population of 

the species. Therefore, we find that the 

petition and information in our files do 

not provide substantial information to 

support the claim that the western U.S. 

population of the northern leopard frog 

may be threatened by overutilization for 

commercial, recreational, scientific, or 

educational purposes. 

C. Disease or Predation 

The petition states that the western 

U.S. northern leopard frog is threatened 

by fungal, viral, and bacterial diseases, 

all of which may cause mass mortality 

and/or contribute to population decline 

(Rorabaugh 2005, pp. 575–577). The 

petition provides information from the 

U.S. Geological Survey in 2006 (Table 

16 in petition, pp. 96–97) indicating that 

disease has caused mass mortality in 

ranid frogs in almost every western 

State in the United States. There are 

several fungal diseases that affect the 

northern leopard frog (Faeh et al. 1998, 

p. 263); of those, amphibian 

chytridiomycosis caused by the fungus 

Batrachochytrium dendrobatidis (Bd) 

has likely had a large impact on 

northern leopard frogs in the western 

United States. Mortality from Bd is 

reported for several leopard frog species, 

including the northern leopard frog, in 

Arizona, California, and Colorado 

(Bradley et al. 2002, pp. 206–212; Muths 

et al. 2003, p. 361; Briggs et al. 2005, p. 

3149). Information in Muths et al. (2003, 

p. 364) notes a northern leopard frog 

museum specimen from Colorado 

preserved in 1974 was examined 

histologically and tested positive for Bd, 

which means the presence of Bd in 

Colorado can be traced back to the 

1970s. 

The petition also cites information 

from recent studies that indicates that 

factors such as habitat degradation, 

habitat fragmentation, and climate 

change may exacerbate the lethal effects 

of Bd on amphibian populations (Carey 

et al. 1999, pp. 459–472; Ouellet et al. 

2005, p. 1437). Habitat fragmentation 

may prevent populations from 

recovering after lethal outbreaks of Bd 

(Ouellet et al. 2005, p. 1437), and other 

stressors such as water pollution may 

make northern leopard frogs more 

susceptible to Bd (Carey et al. 1999, pp. 

459–472; Kiesecker et al. 2004, p. 138). 

The petition provides information 

indicating that saprolegniasis, a waterborne fungal disease, may also threaten 

populations of northern leopard frogs 

(Faeh et al. 1998, p. 263). However, this 

fungal disease is usually secondary to 

other stressors such as bacterial 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31397 

infections or trauma (Faeh et al. 1998, 

p. 263). The petition asserts that 

saprolegnia has been associated with 

embryonic die-offs of ranid frogs in 

Oregon, and is found in Columbia 

spotted frog eggs in Idaho and Montana 

(Patla and Keinath 2005, p. 43), but 

there is no other information provided 

to indicate that this disease is a threat 

to northern leopard frogs. 

Faeh et al. (1998, pp. 260–261) are 

also cited as a source of information 

regarding five viral diseases that have 

and could potentially affect the northern 

leopard frog. These include the 

iridoviruses, which include ranavirus, 

polyhedral cytoplasmic amphibian 

virus, tadpole edema virus, and frog 

erythrocytic virus. Ranavirus may be 

extremely lethal, and all life stages of 

frogs may acquire the disease, although 

tadpoles are the most susceptible to the 

disease (Daszak et al. 1999, p. 744). The 

loss of 80 to 90 percent of tadpoles in 

a population from ranavirus may result 

in an 80 percent loss of adult 

recruitment (survival of individuals to 

sexual maturity and joining the 

reproductive population), which may 

negatively affect population viability 

(Daszak et al. 1999, pp. 742–745). The 

petition provides information indicating 

that the introduction of bullfrogs and 

spread of tiger salamanders throughout 

the western U.S. range of the northern 

leopard frog may increase the threat of 

ranavirus infection (Daszak et al. 1999, 

p. 745; Lannoo and Phillips 2005, pp. 

636–639). 

The petition also states that bacterial 

diseases are resulting in loss of 

populations of northern leopard frogs. 

Septicemia or ‘‘red leg’’ may have 

contributed to northern leopard frog 

declines in the Midwestern United 

States in the early 1970s (Koonz 1992, 

p. 20) and caused declines in Colorado 

between 1974 and 1982 (Carey 1993, pp. 

356–358). However, ‘‘red leg’’ may be 

triggered by a variety of environmental 

factors, and it is unclear how it may be 

influencing northern leopard frog 

declines in the western United States 

(McAllister et al. 1999, p. 19). 

One of the widespread and pervasive 

threats to the northern leopard frog in 

the western United States is predation 

by nonnative fishes and other 

introduced aquatic invasive species. 

The petition asserts that predation, 

particularly by nonnative fish and 

bullfrogs, has likely contributed to 

population declines and extirpation of 

northern leopard frogs across their 

western range (Hayes and Jennings 

1986, pp. 490–509; Hecnar and 

M’Closkey 1997, pp. 125–127; 

Hammerson 1999, pp. 140–141; Maxell 

2000, pp. 19–20; Hitchcock 2001, pp. 6, 

63; Smith 2003, pp. 20–21; Smith and 

Keinath 2004, pp. 57–59). Information 

from Bradford (2005, pp. 922–923) 

indicates that ranid frogs in the western 

United States may be adversely affected 

more so than ranid frogs in the eastern 

United States due to their greater 

exposure to exotic, introduced species. 

Because northern leopard frogs in the 

West evolved in permanent or semipermanent waters without large aquatic 

predators (Merrell 1968, p. 275), they 

may be more vulnerable to predation by 

introduced sport fish, bullfrogs, and 

crayfish (Bradford 2005, p. 923). 

Information in our files (Rorabaugh 

2005, p. 575) supports the conclusion 

that predation by nonnative species may 

be severely impacting northern leopard 

frogs in the western United States. 

Nonnative fishes and other invasive 

species such as crayfish and bullfrogs 

that prey upon, compete with, or 

otherwise impact native aquatic species 

are now implicated as the single most 

important deterrent to conservation and 

recovery of the native fish in the West 

(Minckley 1991, pp. 124–177; Marsh 

and Pacey 2005, pp. 59–63; Mueller 

2005, pp. 10–19) as well as many 

amphibians and aquatic reptiles (Rosen 

and Schwalbe 2002, pp. 220–240). 

Nonnative, predacious fish, crayfish, 

and bullfrogs are currently impacting 

watersheds and riparian habitat across 

the west and likely are responsible for 

some declines of northern leopard frogs 

(Rorabaugh 2005, p. 575). 

The data presented in the petition, as 

well as information in our files, relating 

to threats to the western U.S. population 

of the northern leopard frog indicate 

both disease, in particular, Bd fungal 

infections, and predation by introduced 

predators are credible and substantial. 

We find that the petition presents 

substantial information that the western 

U.S. population of the northern leopard 

frog may be threatened by the predation 

and disease. 

D. Inadequacy of Existing Regulatory 

Mechanisms 

The petitioners contend that existing 

regulatory mechanisms, at both State 

and Federal levels, have failed to cease 

or reverse the decline of the northern 

leopard frog. The petitioners identified 

the Service, U.S. Environmental 

Protection Agency (EPA), BLM, Forest 

Service, and State wildlife agencies as 

governmental entities who share a 

responsibility to protect the northern 

leopard frog either via jurisdictional 

directive or through land-management 

decisions. 

The petition states that air pollution 

is reported to be a threat to the northern 

leopard frog (Rorabaugh 2005, pp. 575– 

576) and that the emissions of certain 

gases into the air may lead to acid 

precipitation and the acidification of 

aquatic habitats (Jezouit 2004, pp. 423– 

445). The petitioners assert that this 

situation then leads to the direct 

destruction of vegetation needed for 

habitat (EPA 2000, pp. 48699–48701). 

Additionally, as stated earlier, the 

petitioners state that the NAAQS for 

sulfur dioxide, which contributes to the 

formation of acid precipitation (Baron et 

al. 2000, p. 352; Fenn et al. 2003, p. 404; 

Jezouit 2004, pp. 423–445; EPA 2005, 

pp. 59582–59600), are not adequate and 

do not protect aquatic ecosystems from 

the adverse impacts of acid 

precipitation and acidification impacts. 

The primary NAAQS for sulfur dioxide 

are limited to concentrations of no more 

than an arithmetic mean of 0.03 parts 

per million (ppm) on an annual basis or 

0.14 ppm on a 24-hour basis (see 40 CFR 

§ 50.4), and the secondary NAAQS for 

sulfur dioxide are limited to 0.5 ppm 

over a 3-hour averaging period (see 40 

CFR 50.5). The petitioners, citing 

literature we were unable to locate, state 

that continued acid precipitation causes 

vegetation damage under the current 

sulfur dioxide NAAQS and thus, the 

emission of sulfur dioxide that may 

harm the northern leopard frog and its 

habitat. The petitioners make the same 

claim for nitrogen dioxide, which also 

contributes to the formation of acid rain 

(Baron et al. 2000, p. 352; Fenn et al. 

2003, p. 404; Jezouit 2004, pp. 423–445; 

EPA 2005, pp. 59582–59600). As 

discussed under Factor A, increased 

acidity may destroy, modify, or curtail 

northern leopard frog habitat (Baron et 

al. 2000, p. 358; Fenn et al. 2003, pp. 

404–418). 

The primary and secondary NAAQS 

for nitrogen dioxide are limited to 

concentrations of no more than an 

annual arithmetic mean of 0.053 ppm 

(see 61 FR 52853, October 8, 1996). The 

petitioners contend that although 

scientific studies document continued 

acid precipitation and adverse habitat 

effects from nitrogen deposition under 

the current NAAQS (Baron et al. 2000, 

p. 365; Fenn et al. 2003, pp. 417–418), 

the standards have also remained 

unchanged since 1971. Therefore, the 

petitioners contend that the Clean Air 

Act is currently allowing for harmful 

emissions of nitrogen dioxide. Finally, 

the petition concludes that, because the 

Clean Air Act does not regulate the 

potential impacts of hydrofluorocarbons 

and perfluorocarbons to climate, the 

current laws may not protect the 

northern leopard frog from alleged 

adverse impacts of climate change. The 

potential effects of climate change on 

31398 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

the northern leopard frog in the western 

United States as described in the 

petition are discussed under Factor E. 

The petitioners contend that 

implementation of the Clean Water Act 

(CWA) is allowing waters to be polluted 

and, as such, is not protecting northern 

leopard frog habitats. The petitioners 

state that although the CWA regulates 

point source pollution through the 

National Pollutant Discharge 

Elimination System (NPDES), and is 

required to protect aquatic life through 

the protection of designated uses 

(petition cites 40 CFR § 131.2), in most 

cases the northern leopard frog is not 

considered in the determination of 

whether NPDES permits meet this 

criterion. The petitioners cite examples 

from Wyoming where dozens of NPDES 

permits have recently been issued by 

the Wyoming Department of 

Environmental Quality authorizing the 

discharge of wastewater from coalbed 

methane development. The petition 

asserts that none of these permits 

considered or mitigated impacts to the 

northern leopard frog (Wyoming 

Department of Environmental Quality 

2005a, 2005b, 2005c, 2006a). We 

reviewed the permit for Wyoming 

Department of Environmental Quality 

2005a and although there are no specific 

mitigation measures for northern 

leopard frogs, the permit prohibits 

deposition of substances in quantities 

that could result in significant aesthetic 

degradation or degradation of habitat for 

aquatic life, plant life, or wildlife 

(Wyoming Department of 

Environmental Quality 2005a, p. 3). 

However, it is unclear how this would 

or would not provide for protection of 

northern leopard frogs and their habitat. 

The petition further states that, 

despite the existence of the NPDES 

program, water quality throughout the 

western U.S. range of the northern 

leopard frog continues to decline. The 

petition supports this claim with data 

from the EPA (2002) that lists the 

percent of impaired rivers, streams, 

lakes, and ponds in each western State. 

The data do indicate that a vast majority 

of rivers, streams, lakes, ponds, and 

reservoirs may have some degree of 

impaired water quality. In addition, the 

petition asserts that the CWA does not 

adequately regulate nonpoint source 

pollution, and in most cases, it is 

nonpoint source pollution that is a 

threat to the northern leopard frog in the 

western United States (Leja 1998, p. 

353; Smith 2003, pp. 23–27; Rorabaugh 

2005, p. 576). Pesticides and herbicide 

runoff from agricultural activities, 

runoff from mining operations, runoff 

from roads, erosion and sedimentation 

from domestic livestock grazing, and 

acid rain are nonpoint sources of water 

pollution that the petitioners indicate 

have resulted in adverse effects to the 

northern leopard frog and its habitat 

throughout the western United States 

(Rorabaugh 2005, p. 576). Bradford 

(2005, p. 919) indicates that chemical 

contamination (defined as pollution; 

acid precipitation; acid mine drainage; 

mine water pollution; sewage; and, 

heavy metals) was the third most 

implicated adverse factor for frog 

population declines in the United 

States. 

The EPA is responsible for 

administering the CWA and Clean Air 

Act, as well as for managing the use of 

pesticides. As discussed above, the 

petitioners assert that neither the CWA 

nor the Clean Air Act currently provide 

adequate protection for the northern 

leopard frog in the western United 

States. In addition, the petitioners allege 

that, in relation to pesticide regulation, 

the EPA is not adequately protecting the 

northern leopard frog and its habitat. 

The petition contends that pesticide 

contamination of surface waters in the 

United States is extensive and 

concentrations of pesticides were 

frequently greater than water-quality 

benchmarks for aquatic life and fisheating wildlife (Gilliom et al. 2006, p. 8). 

Of the streams analyzed as part of the 

National Water Quality Assessment 

Program, 57 percent contained one or 

more pesticides that exceeded at least 

one aquatic life protection benchmark 

(Gilliom et al. 2006, p. 8). The 

petitioners are particularly concerned 

with the use of atrazine, a commonly 

used herbicide in the United States. 

Even when used at very low 

concentrations of 0.1 parts per billion 

(ppb), atrazine may cause gonadal 

abnormalities such as retarded 

development and hermaphroditism in 

male northern leopard frogs (Hayes et 

al. 2002, p. 895). Atrazine 

contamination levels are reported to 

exceed aquatic life protection 

benchmarks in a majority of streams in 

the United States, especially streams 

dominated by urban runoff (Gilliom et 

al. 2006, pp. 6–11), and can be present 

in excess of 1 ppb in precipitation, even 

in areas where it is not used (Hayes et 

al. 2002, p. 895; Rorabaugh 2005, p. 

576). The petitioners also state that 

other commonly used pesticides, such 

as glyphosate, malathion, and carbaryl 

may result in tadpole mortality, reduced 

foraging success, and decreased ability 

to avoid predators (Diana and Beasely 

1998, p. 274; Smith and Keinath 2004, 

pp. 46–50; Relyea 2005, pp. 351–357). 

The petitioners contend that the BLM 

has provided inadequate protection to 

the northern leopard frog, although the 

species occurs on BLM lands in 

Colorado, Idaho, Montana, New Mexico, 

Nevada, and Wyoming, and may also 

inhabit BLM lands in North and South 

Dakota. The petitioners note that the 

frog has declined or is absent from BLM 

lands in Arizona (Clarkson and 

Rorabaugh 1989, p. 534), Idaho (Makela 

1998, pp. 8–9), Montana (Maxell 2000, 

p. 144), Nevada (Hitchcock 2001, p. 9), 

Washington (McAllister et al. 1999, pp. 

1–4), and Wyoming (Smith and Keinath 

2004, p. 57), based upon historical 

ranges. BLM lists the northern leopard 

frog as a sensitive species in Colorado, 

Idaho, Wyoming, Montana, and North 

and South Dakota; the species is not 

listed as sensitive on BLM lands 

elsewhere. The petitioners cite National 

Environmental Policy Act documents 

and sensitive species lists from several 

of these States. The petitioners also cite 

relevant sections of BLM manual section 

6840, which guides management of 

sensitive species. However, petitioners 

provided an example from Colorado that 

shows the BLM manual is not a 

mandatory requirement. 

Of the 14 BLM field offices in 

Colorado, the northern leopard frog 

occurs on lands managed by 8 of the 

field offices. According to the petition, 

no documentation was provided that 

indicated the eight field offices had 

considered the northern leopard frog at 

all in relation to the BLM Special Status 

Species Policy at BLM Manual 6840. 

The petitioners assert that information 

provided by the BLM under the 

Freedom of Information Act indicated 

the following: (1) None of the eight field 

offices had evaluated the significance of 

lands administered by the BLM or 

action undertaken by BLM in 

conserving, maintaining, or restoring the 

northern leopard frog; (2) only two field 

offices generated documentation 

concerning the occurrence of the 

species, and none of the field offices 

had information pertaining to the 

distribution or abundance of the 

species; and (3) none of the field offices 

had developed or implemented any 

conservation programs for the species or 

its habitat. 

The Service manages national wildlife 

refuges within the northern leopard 

frog’s western U.S. range, and the 

petitioners believe that predation by 

introduced species and water 

contamination are both factors affecting 

the persistence of northern leopard frogs 

and quality of their habitat on refuges. 

As the petition asserted in Factors A 

and C, the introduction of nonnative 

fish and bullfrogs has caused declines in 

the northern leopard frog and threatens 

the species throughout its western 

range. The petition states that the 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31399 

presence of predatory brown trout and/ 

bullfrogs on refuges where northern 

leopard frogs are or potentially exist 

(Ruby Lake, Las Vegas, Deer Flat, 

Alamosa, Monte Vista, and Tule Lake 

National Wildlife Refuges), is 

contributing to the decline of the 

species. Additionally, water 

contamination is stated as a threat on 

several additional national wildlife 

refuges (Dickerson and Ramirez 1993, 

pp. 1–2). Therefore, the petitioners 

contend that the Service is not ensuring 

the protection of the northern leopard 

frog in the western United States. 

The Forest Service manages 

populations of northern leopard frogs in 

the western United States on National 

Forests and National Grasslands in 

several States, including Arizona, 

Colorado, Idaho, Minnesota, Montana, 

New Mexico, North Dakota, South 

Dakota, Utah, and Wyoming. As 

described under Factor A, populations 

of northern leopard frogs have declined 

across most of these States. The petition 

states that the Forest Service’s proposed 

and current planning regulations are 

insufficient to protect the northern 

leopard frog. The northern leopard frog 

is designated a ‘‘sensitive species’’ in 

Forest Service Regions 1 (Northern 

Region—northern Idaho, Montana, 

North Dakota, northwest South Dakota), 

2 (Rocky Mountain Region—Colorado, 

Nebraska, most of South Dakota, 

Wyoming), 3 (Southwest Region— 

Arizona, New Mexico), 5 (Pacific 

Southwest Region—California), and 6 

(Pacific Northwest—Oregon and 

Washington), but not in Regions 4 

(Intermountain Region—southern Idaho, 

Nevada, Utah, western Wyoming) and 9 

(Eastern Region—includes all eastern 

States and Minnesota and Missouri). 

However, the petitioners allege that the 

sensitive species status does not provide 

any special protection and cite relevant 

portions of the Forest Service’s Manual 

at 2672.1 that requires ‘‘an analysis of 

the significance of adverse effects on the 

population, its habitat, and on the 

viability of the species as a whole.’’ The 

petitioners contend that in practice this 

manual direction allows for sensitive 

species to be impacted as long as there 

is an analysis of the impacts; however, 

no protection is guaranteed as part of 

the analysis. 

The petition provides examples of 

nine Land and Resource Management 

Plans for national forests in the western 

United States (see Table 19, p. 116 of 

petition) that concluded that 

implementation of these Land and 

Resource Management Plans ‘‘may 

adversely impact individuals but are not 

likely to result in a loss of viability over 

the planning area nor cause a trend 

toward listing of the northern leopard 

frog range wide.’’ It is unclear without 

further analysis regarding these Land 

and Resource Management Plans what 

the effects of plan implementation have 

been or are likely to be on northern 

leopard frogs. The petition also 

contends that Region 2 of the Forest 

Service reduced protection for northern 

leopard frog habitats in 2005 by making 

the Watershed and Conservation 

Practices Handbook voluntary. The 

Watershed and Conservation Practices 

Handbook served to ensure 

implementation of ‘‘proven watershed 

conservation practices to protect soil, 

aquatic, and riparian systems’’ (Forest 

Service Handbook 2509.25) and was 

required for all actions on National 

Forest system lands. The revised 

Watershed and Conservation Practices 

Handbook now states that ‘‘alternative 

practices’’ may be used in place of the 

Watershed and Conservation Practices 

Handbook, although these alternative 

practices are not explained or defined 

(Forest Service 2005b, Forest Service 

Handbook 2509.25). 

The petition also contends that State 

regulatory mechanisms are inadequate 

to protect the northern leopard frog and 

its habitat. To the extent that the States 

do provide some level of protection, the 

States may lack jurisdiction to address 

many of the threats facing the northern 

leopard frog, particularly the ability to 

protect the species’ habitat on Federal 

lands. The northern leopard frog is 

designated a ‘‘species of special 

concern’’ or ‘‘sensitive species’’ (the 

terminology may differ by State) in 

Arizona, California, Colorado, Idaho, 

Montana, Nevada, New Mexico, and 

Oregon. This designation primarily 

ensures that a permit must be obtained 

to collect the species, but otherwise 

does not provide any legal protection to 

the species or its habitat. In 1999, the 

species was listed as ‘‘endangered’’ in 

Washington, but according to the 

petition, this designation does not 

provide substantive protection to the 

frog or its habitat on State, private, or 

Federal land. The designation does 

require that a recovery plan be 

developed within 5 years of listing; 

however, to date the plan has not been 

completed. 

Per the petition, according to 

Washington law, recovery plans call for 

regulation, mitigation, acquisition, 

incentive, and compensation to meet 

recovery objectives, but these measures 

‘‘must be sensitive to landowner needs 

and property rights’’ and there is no 

guaranteed funding for implementation 

of the recovery plan. The northern 

leopard frog has no protection in Iowa, 

Minnesota, Missouri, Nebraska, North 

Dakota (although a license is required to 

take the species in North Dakota), South 

Dakota, Texas, Utah, or Wyoming. In 

Nebraska, the northern leopard frog is 

classified as a bait species. Our records 

indicate that several States identified 

habitats important to the northern 

leopard frog as needing special 

management in their Wildlife Action 

Plans and some States, such as Arizona, 

are actively promoting conservation of 

the species. 

In summary, we acknowledge that the 

petitioners have presented substantial 

information that State and Federal 

regulatory mechanisms including 

implementation of the CWA and Clean 

Air Act and management of occupied 

lands by the States, BLM, Service, and 

Forest Service may be inadequate to 

conserve the northern leopard frog in 

the western United States. Therefore, we 

have determined that the petition 

presents substantial information that the 

western DPS of the northern leopard 

frog may be threatened due to the 

inadequacy of existing regulatory 

mechanisms. 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

The petitioners cite several other 

factors that are contributing to declines 

of the western U.S. population of the 

northern leopard frog. The factors 

discussed in the petition include 

malformations, pesticides, water 

pollution, air pollution, ultraviolet 

radiation, road impacts, and effects due 

to climate change. Many of these factors 

interact with habitat degradation and 

loss, disease, and predation to impact 

the species. In our analysis of the 

information presented in the petition, 

the Service reviewed the effects of air 

and water pollution, acid precipitation, 

and roads as they relate to habitat 

destruction, modification or curtailment 

under Factor A. Under Factor D, the 

Service reviewed information regarding 

the effects of pesticides, water and air 

pollution, and ultraviolet radiation on 

the northern leopard frog, as well as the 

information included below. 

Within the last 15 to 20 years, 

malformed northern leopard frogs have 

been reported with increasing frequency 

in the western United States, 

particularly in Minnesota, North Dakota, 

and South Dakota (Helgen et al. 1998, p. 

288; Johnson and Lunde 2005, p. 124). 

However, malformations are reported 

from Arizona, Colorado, Iowa, and 

Montana as well (Johnson and Lunde 

2005, pp. 124–128; North American 

Center for Reporting Amphibian 

Malformations 2006). Noted 

malformations have included limb 

31400 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 

deformities, multiple and missing limbs, 

jaw deformities, stunted growth, 

multiple eyes, missing eyes, and various 

other growths (Helgen et al. 1998, pp. 

288–297; Hoppe 2005, p. 104). The 

petitioners contend that the 

malformations are believed to be caused 

by a variety of factors, including 

trematode parasites, ultraviolet-B 

radiation, and water contamination 

(Blaustein and Johnson 2003, pp. 87–91; 

Johnson and Lunde 2005, pp. 124–138; 

Helgen et al. 1998, pp. 294–297), but are 

generally linked to human-induced 

changes in aquatic habitats (Johnson 

and Lunde 2005, pp. 130–136; Meteyer 

et al. 2000, pp. 151–171). These 

malformations typically lead to 

mortality as behavior is compromised to 

the point of affecting individual fitness 

(Helgen et al. 1998, p. 289; Hoppe 2005, 

pp. 105–108). Rorabaugh (2005, pp. 

576–577) provides a concise and 

thorough review of this literature and 

other information to indicate that 

northern leopard frogs are likely 

negatively impacted by malformations, 

pesticides, water pollution, air 

pollution, and ultraviolet radiation 

throughout their range, and that these 

factors are likely affecting the 

persistence of the species. 

The petition states that even at low 

levels, pesticides can lead to local 

declines or extinction of northern 

leopard frog populations, particularly in 

areas that are in close proximity to 

heavy or frequent pesticide use as 

tadpole and larval stages are sensitive to 

low-level pesticide contamination 

(Berrill et al. 1997, p. 244). The effects 

to northern leopard frogs from 

pesticides, including herbicides, 

piscicides (chemical substances 

poisonous to fish), and insecticides 

vary, but information in the petition 

indicates that the species is negatively 

affected both acutely and via sublethal 

symptoms by several pesticides and 

chemicals (rotenone, Roundup, atrazine, 

malathion, copper sulfate, and fenthion) 

commonly used in the western United 

States (Patla 2005, p. 275; Relyea 2005, 

p. 353; Hayes et al. 2002, pp. 895–896; 

Fordham 1999, p. 125; Beasley et al. 

2005, p. 86; Stebbins and Cohen 1995, 

pp. 215–216; Rorabaugh 2005, p. 576). 

The petition contends that pesticide 

contamination of surface waters in the 

United States is extensive and 

concentrations of pesticides were 

frequently greater than water-quality 

benchmarks for aquatic life and fisheating wildlife (Gilliom et al. 2006, p. 8). 

Of the streams analyzed as part of the 

National Water Quality Assessment 

Program, 57 percent contained one or 

more pesticides that exceeded at least 

one aquatic life protection benchmark 

(Gilliom et al. 2006, p. 8). 

The petitioners also assert that 

ultraviolet radiation (UV) may also be 

negatively impacting the northern 

leopard frog in the western United 

States through increased larval mortality 

and deformities, and slowed growth and 

development (Blaustein et al. 2003, p. 

126). Studies of amphibians and UV 

radiation have focused on UV–B, which 

has been found to be the most damaging 

radiation at the earth’s surface 

(Blaustein et al. 2003, p. 124). In the 

absence of shade, ambient UV–B 

radiation has been found to be lethal to 

northern leopard frog tadpoles 

(Blaustein et al. 2003, pp. 124–128). In 

addition, synergistic effects resulting 

from UV–B radiation in combination 

with low pH, pollutants, and pathogens 

may adversely affect the hatching 

success and development of northern 

leopard frogs (Kiesecker and Blaustein 

1995, pp. 9900–9904; Long et al. 1995, 

p. 1303; Blaustein et al. 2003, pp. 124– 

128). 

The petitioners contend that the 

northern leopard frog in the western 

United States meets all of the criteria for 

a species at risk due to human-induced 

climate change. Citing information in 

the Service’s Determination of 

Threatened Status for the California 

Tiger Salamander (69 FR 47212; August 

4, 2004), the petitioners assert that 

climate change has resulted in increased 

temperatures in the western United 

States, declining snowpack and snow 

water equivalents in western mountains, 

and earlier snow melt. These changes 

are expected to lead to large 

hydrological changes (69 FR 47212; 

Patla and Keineth 2005). 

The petitioners claim that the 

northern leopard frog is at the upper 

limit of its physiological tolerance to 

temperature and dryness throughout the 

arid and semi-arid habitats in the 

western United States (Hammerson 

1999, pp. 146–147; Hitchcock 2001, pp. 

18–19; Rorabaugh 2005, p. 577). In 

addition, the petitioners note that the 

northern leopard frog frequently 

depends upon small, ephemeral 

wetlands for breeding habitats (Merrell 

1968, p. 275) and due to habitat 

fragmentation, the presence of 

nonnative aquatic species, and other 

factors, the leopard frog is bounded by 

dispersal barriers throughout its western 

range (Rorabaugh 2005, p. 577). The 

petition provides a list of impacts in 

addition to habitat impacts that may 

occur from climate change, including 

earlier reproduction and more rapid 

development of larva, decreased 

mobility due to drier conditions, and 

shorter hibernation periods (Carey and 

Alexander 2003, pp. 111–121; Patla and 

Keinath 2005, pp. 44–46). The 

petitioners contend that higher summer 

temperatures may result in increased 

evaporation rates with breeding habitats 

drying up prior to metamorphosis, and 

also due in part to earlier breeding times 

in response to warmer spring 

temperatures, with subsequent episodes 

of freezing temperatures that may result 

in high egg mortality (Smith 2003, p. 

34). Finally, the petitioners assert that 

climate change may also cause frogs to 

experience increased physiological 

stress and decreased immune system 

function, possibly leading to disease 

outbreaks (Carey and Alexander 2003, 

pp. 111–121; Pounds et al. 2006, pp. 

161–167). 

On the basis of our review, we find 

the information on pesticides, water 

pollution, air pollution, ultraviolet 

radiation, road impacts, and effects due 

to changing environmental conditions 

possibly resulting from climate change 

presented in the petition provides 

substantial information to indicate that 

other natural or manmade factors 

(stochastic events) may be a threat to the 

species. The potential impacts of these 

factors may be exacerbating other 

threats to this population; however, 

additional analysis is needed to 

determine the effect of these impacts on 

the northern leopard frog. Based on the 

information submitted in the petition, 

we have determined that substantial 

information has been presented that the 

western U.S. population of the northern 

leopard frog may be threatened due to 

other natural or manmade factors 

(stochastic events) affecting its 

continued existence (Factor E). We will 

continue to evaluate the potential effects 

of these factors on the species and its 

habitat during our status review. 

Finding 

Section 4(b)(3)(A) of the Endangered 

Species Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.), requires that we 

make a finding on whether a petition to 

list, delist, or reclassify a species 

presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of our receipt of 

the petition and publish our notice of 

the finding promptly in the Federal 

Register. 

We have reviewed the petition and 

the literature cited in the petition, and 

evaluated that information to determine 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Proposed Rules 31401 

whether the sources cited support the 

claims made in the petition. We also 

reviewed reliable information that was 

readily available in our files to evaluate 

the petition. 

Our process for making this 90-day 

finding under section 4(b)(3)(A) of the 

Act is limited to a determination of 

whether the information in the petition 

presents ‘‘substantial scientific and 

commercial information,’’ which is 

interpreted in our regulations as ‘‘that 

amount of information that would lead 

a reasonable person to believe that the 

measure proposed in the petition may 

be warranted’’ (50 CFR 424.14(b)). As 

described in our Threats Evaluation, 

above, the petition presents substantial 

information indicating that listing the 

western U.S. population of the northern 

leopard frog may be warranted based on 

Factors A, C, D, and E, summarized 

below. Based on our five-factor analysis 

(above), the petition does not present 

substantial information indicating that 

Factor B is a threat to this species. 

We find that the petitioners have 

presented substantial information 

indicating that the northern leopard 

frogs in the western United States may 

be genetically discrete from northern 

leopard frogs in the eastern United 

States and that the western U.S. 

population may also be significant to 

the species as a whole as the loss of this 

potentially discrete population segment 

may result in a significant gap in the 

range of the species. We also find that 

the petition presents substantial 

scientific or commercial information 

that listing the DPS of the northern 

leopard frog in the western United 

States as threatened or endangered may 

be warranted as the result of current and 

future threats under Factor A due to 

habitat destruction and modification, 

Factor C due to disease and predation, 

Factor D because it is not currently 

protected by existing regulatory 

mechanisms, and Factor E due to 

malformations, pesticides, and 

ultraviolet radiation. Therefore, we are 

initiating a status review to determine if 

listing the species under the Act is 

warranted. We will issue a 12-month 

finding as to whether the petitioned 

action is warranted, not warranted, or 

warranted but precluded. 

The petition asserts that the northern 

leopard frog is a possible DPS, and 

requested that if we find that listing the 

western U.S. population of northern 

leopard frogs as a DPS is not warranted, 

that we review whether listing the entire 

species is warranted because of threats 

in a significant portion of its range. 

Because we find that the petition 

presents substantial information that 

listing the western DPS may be 

warranted, we have not evaluated the 

extent to which the northern leopard 

frog may be endangered or threatened 

throughout a significant portion of its 

range. Such an analysis would occur 

during the 12-month status review if we 

determine that listing the western DPS 

is not warranted. 

We encourage interested parties to 

continue gathering data that will assist 

with the conservation and monitoring of 

the northern leopard frog throughout the 

western United States. You may submit 

information regarding the northern 

leopard frog by one of the methods 

listed in the ADDRESSES section, at any 

time. 

The ‘‘substantial information’’ 

standard for a 90-day finding is not the 

same as the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a 12-month finding to determine 

whether a petitioned action is 

warranted. A 90-day finding is not a 

status assessment of the species and 

does not constitute a status review 

under the Act. Our final determination 

of whether a petitioned action is 

warranted is not made until we have 

completed a thorough status review of 

the species as part of the 12-month 

finding on a petition, which is 

conducted following a positive 90-day 

finding. Because the Act’s standards for 

90-day and 12-month findings are 

different, as described above, a positive 

90-day finding does not mean that the 

12-month finding also will be positive. 

References Cited 

A complete list of all references cited 

herein is available upon request from 

the Arizona Ecological Services Office 

(see FOR FURTHER INFORMATION CONTACT

section). 

Author 

The primary author of this notice is 

the staff of the U.S. Fish and Wildlife 

Service, Arizona Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT section). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

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

Dated: June 24, 2009. 

Marvin E. Moriarty, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–15539 Filed 6–30–09; 8:45 am] 

BILLING CODE 4310–55–P