Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the California Tiger Salamander in Sonoma County, 44301-44322 [05-14992]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Proposed Rules]
[Pages 44301-44322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14992]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU23


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the California Tiger Salamander in Sonoma County

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; public hearing announcement.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the California tiger salamander 
(Ambystoma californiense) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 74,223 acres (ac) 
(30,037 hectares (ha)) fall within the boundaries of the proposed 
critical habitat designation. The proposed critical habitat is located 
in Sonoma County, California.

DATES: We will accept comments from all interested parties until 
October 3, 2005. We will hold a public hearing on September 8, 2005, at 
the Flamingo Hotel in Santa Rosa, California. The public hearing will 
include two sessions from 1 p.m. to 3 p.m. and 6 p.m. to 8 p.m. 
Registration for the hearings will begin a half-hour before each 
session. For more information, see ``Public Hearing'' section below or 
contact Arnold Roessler of the Sacramento Fish and Wildlife Office at 
(916) 414-6600.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Wayne White, 
Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and 
Wildlife Office (SFWO), Cottage Way, W-2605, Sacramento, CA 95825.
    2. You may hand-deliver written comments to the SFWO, at the above 
address.
    3. You may send comments by electronic mail (e-mail) to fw1sonoma_
tiger_salamander@fws.gov. Please see the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    4. You may fax your comments to (916) 414-6713.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection,

[[Page 44302]]

by appointment, during normal business hours at the SFWO, at the above 
address (telephone (916) 414-6600).

FOR FURTHER INFORMATION CONTACT: Wayne White, Field Supervisor, SFWO 
(see ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments are 
particularly sought concerning:

    (1) The reasons why any habitat in this proposed rule should or 
should not be determined to be critical habitat as provided by 
section 4 of the Act;
    (2) Comment and identification on any habitat included in this 
proposed rule which does not contain the primary constituent 
elements;
    (3) Specific information on the amount and distribution of 
occupied California tiger salamander (CTS) habitat in Sonoma County;
    (4) Specific information on the amount and distribution of any 
other habitat which may be essential to the conservation of the 
species (this rule proposed to designate significant amounts of 
habitat not known to be occupied at the time of listing; the Service 
has varying amounts of information as to whether such habitat is 
essential to the conservation of the species;
    (5) Current, planned, or potential land use designations and 
current or planned activities in the subject areas and their 
possible impacts on proposed critical habitat;
    (6) The benefits related to the designation of critical habitat 
proposed in this rule;
    (7) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation and, in 
particular, any impacts on small entities;
    (8) If any proposed habitat should be excluded and the benefits 
of such exclusion; and
    (9) Whether our approach to designating critical habitat could 
be improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.

    We are also soliciting comments concerning the relative benefits of 
designation or exclusion of any lands as California tiger salamander 
critical habitat in Sonoma County (see Conservation Strategy for the 
Santa Rosa Plain section for specifics).
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to fw1sonoma_tiger_
salamander@fws.gov in ASCII file format and avoid the use of special 
characters or any form of encryption. Please also include ``Attn: 
California tiger salamander in Sonoma County'' in your e-mail subject 
header and your name and return address in the body of your message. If 
you do not receive a confirmation from the system that we have received 
your Internet message, contact us directly by calling the SFWO at phone 
number (916) 414-6600. Please note that the Internet address 
fw1sonoma_tiger_salamander@fws.gov will be closed out at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species, or 36 percent 
of the 1,244 listed species, in the U.S. under the jurisdiction of the 
Service, have designated critical habitat.
    We address the habitat needs of all 1,244 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434, and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions

[[Page 44303]]

with the most biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    A physical description of the California tiger salamander and other 
information about its taxonomy, distribution, life history, and biology 
is included in the Background section of the final rule to list 
California tiger salamander as a threatened species, published in the 
Federal Register on August 4, 2004 (69 FR 47212). Additional relevant 
information may be found in the final rules to list the Santa Barbara 
County Distinct Population Segment (DPS) (65 FR 57242, September 21, 
2000) and the Sonoma County DPS California tiger salamander (68 FR 
13498, March 13, 2003), and the proposed rules to designate critical 
habitat for the California tiger salamander in Santa Barbara County (69 
FR 3064, January 22, 2004) and the Central population of the species 
range (69 FR 48570, August 10, 2004) as well as the final rule to 
designate critical habitat for the California tiger salamander in Santa 
Barbara County (69 FR 68568, November 24, 2004). The information 
contained in those previous Federal Register documents was used in 
developing this rule.
    Critical Habitat and Private Lands: The California tiger salamander 
in Sonoma County occurs primarily on private lands. Approximately 80-95 
percent of imperiled species in the United States occur partly or 
solely on private lands where the Service has little or no management 
authority (Hilty and Merenlender 2003, Wilcove et al. 1996). In 
addition, recovery actions involving the reintroduction or positive 
management of listed species on private lands usually require the 
voluntary cooperation of the landowner (Bean 2002, James 2002, Knight 
1999, Main et al. 1999, Norton 2000, Shogren et al. 1999). Therefore, 
``a successful recovery program is highly dependent on developing 
working partnerships with a wide variety of entities, and the voluntary 
cooperation of thousands of non-Federal landowners and others is 
essential to accomplishing recovery for listed species'' (Crouse et al. 
2002). Because large tracts of land suitable for conservation of 
threatened and endangered species are owned by private landowners, 
successful recovery of many listed species is especially dependent upon 
working partnerships and the voluntary cooperation of non-Federal 
landowners (Crouse et al. 2002, James 2002, Wilcove and Chen 1998).
    The designation of critical habitat on privately-owned lands can 
have both negative and positive impacts on the conservation of listed 
species (Bean 2002). There is a growing body of documentation that some 
regulatory actions by the Federal Government, while well-intentioned 
and required by law, can under certain circumstances have unintended 
negative consequences for the conservation of species on private lands 
(Brook et al. 2003, Bean 2002, Conner and Mathews 2002, James 2002, 
Koch 2002, Wilcove et al. 1996). Some landowners fear a decline in 
value of their properties because of their belief that the Act may 
restrict future land-use options where threatened or endangered species 
are found. Consequently, endangered species are perceived by many 
landowners as a financial liability, which sometimes results in anti-
conservation incentives to these landowners (Brook et al. 2003, Main et 
al. 1999).
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that many 
landowners will support and carry out conservation actions (Bean 2002, 
Brook et al. 2003, Main et al. 1999). The magnitude of this negative 
outcome is amplified in conservation situations, such as on privately-
owned lowlands in California, where it is insufficient simply to 
prohibit harmful activities. Instead, it is necessary in many cases to 
encourage and carry out proactive management measures to prevent 
extinctions and promote recovery (Bean 2002).
    Consideration of this concern is especially important in areas 
where species have been extirpated and their recovery requires access 
and permission for reintroduction efforts, or where interventionist 
activities are necessary for conservation (e.g., fire management or 
control of invasive species). Simply preventing ``harmful activities'' 
will not slow the extinction of many listed species. For example, some 
species need reintroduction within their former range to fully recover, 
or they need protection from invasive nonnative species.
    In the case of the California tiger salamander in Sonoma County, 
natural repopulation is likely not possible without human assistance 
and landowner cooperation. Examples of such proactive activities that 
benefit the California tiger salamander include enhancement or creation 
of breeding ponds and control of nonnative predators. These are the 
types of proactive, voluntary conservation efforts that are necessary 
to prevent the extinction and promote the recovery of many other 
species (Wilcove and Lee 2004, Shogren et al. 1999, Wilcove and Chen 
1998, Wilcove et al. 1998).
    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and ``any other relevant 
impact'' of designating a particular area as critical habitat. We may 
exclude areas from critical habitat upon a determination that the 
benefits of such exclusions outweigh the benefits of specifying such 
areas as critical habitat. Under certain circumstances, such as those 
occurring on private lands as outlined above, a designation of critical 
habitat can have a net negative conservation impact due to the legal, 
economic, and sociological concerns of private landowners. In these 
cases the Secretary of the Interior may exclude land from critical 
habitat when the benefits of excluding the area are greater than the 
benefits of including it in critical habitat.

[[Page 44304]]

Conservation Strategy for the Santa Rosa Plain

    California tiger salamander occurs primarily on private lands in 
Sonoma County. At the time of its listing, local jurisdictions, land 
owners, and developers were apprehensive as to how the listing would 
affect their activities. Local stakeholders, including local 
governments, landowners, and the environmental community, met with the 
Service to discuss possible cooperative approaches to protecting the 
California tiger salamander and listed plant species (Blennosperma 
bakeri (Sonoma sunshine), Lasthenia burkei (Burke's goldfields), 
Limnanthes vinculans (Sebastopol meadowfoam), and Navarretia 
leucocephala ssp. plieantha (many-flowered navarretia). The goal of 
such an approach would be to develop an alternative to a critical 
habitat designation that provides special management for those physical 
and biological characteristics that are essential to the conservation 
of the species while allowing planned land uses to occur within the 
county. The potential result of the plan would be to avoid critical 
habitat designation due to the fact that special management or 
protection would not be necessary. Another potential result would be 
that the benefits from the local plan would exceed benefits of that 
would result from the designation of critical habitat, and therefore, 
the Secretary could consider excluding areas covered by the plan 
pursuant to section 4(b)(2).
    Consistent with the Secretary's ``4C's'' policy, Conservation 
through Cooperation, Communication and Consultation, it is the 
Service's goal to identify and support innovative cooperative 
conservation approaches that have a similar or greater likelihood of 
providing for the conservation of listed species when compared to 
traditional regulatory approaches such as designation of critical 
habitat. In our determination of whether habitat is in need of 
``special management or protection,'' the Service will evaluate the 
Sonoma County draft conservation strategy for CTS to determine whether 
its implementation is likely to occur and if so, whether its 
implementation provide a similar or greater level of conservation 
benefits to the CTS in Sonoma County when compared to a final 
designation of critical habitat.
    In recognition of the ongoing local conservation planning, this 
proposed designation includes all occupied and unoccupied habitat in 
Sonoma County with the potential to support CTS. While we do not 
currently have the information to justify inclusion of all of these 
lands in the final designation, we intend to rely on the public 
comments to assist in our determination of which of the lands not 
identified as occupied at the time of listing are essential to the 
conservation of the species. We believe this approach has two benefits. 
First, it will provide the maximum public comment on the benefits and 
potential contribution to CTS conservation from the maximum area 
available. Second, this approach does not undermine the local effort to 
encourage participation by local landowners and local government in the 
Sonoma County CTS Conservation Strategy. Our proposed designation is 
intentionally broad in order to identify all potential lands available 
to the CTS and so as not of unintentionally affect the local planning 
process.
    Description of Sonoma County CTS Conservation Strategy Alternative: 
A local conservation strategy for the Sonoma County CTS was initiated 
due to concerns over how the listing of the CTS and its critical 
habitat designation may affect development and other local economic 
activities. Two teams were formed to develop and implement this 
strategy: the Santa Rosa Plain Conservation Strategy Team (Conservation 
Team) and the Implementation Committee.
    The Conservation Team includes representatives of the U.S. Fish and 
Wildlife Service, the U.S. Army Corps of Engineers, the U.S. 
Environmental Protection Agency, the California Department of Fish and 
Game, County and Cities, the North Coast Regional Water Quality Control 
Board, local governmental agencies, the Laguna de Santa Rosa 
Foundation, the environmental community, and the private landowner 
community. The purpose of this team was to develop a Santa Rosa Plain 
Conservation Strategy (Conservation Strategy) for the Santa Rosa Plain 
that conserves and enhances enough habitat for the California tiger 
salamander in Sonoma County and listed plants to provide for long-term 
conservation, while considering the need for development pursuant to 
the general plans for the local jurisdictions.
    The Implementation Committee consists of representatives from the 
City of Santa Rosa, City of Cotati, City of Rohnert Park, County of 
Sonoma, the California Department of Fish and Game, and the U.S. Fish 
and Wildlife Service. The purpose of this team is to use the 
Conservation Strategy to develop an implementation approach that is 
compatible with local planning efforts.
    The purpose of the Conservation Strategy is threefold: (1) To 
establish a long-term conservation program sufficient to mitigate 
potential adverse effects of future development on the Santa Rosa 
Plain, and to substantively contribute to the conservation of the 
listed species and their sensitive habitat; (2) to accomplish the 
preceding in a manner that protects stakeholders' land use interests; 
and (3) to support issuance of an authorization for incidental take of 
CTS and provide coverage for listed plants that may occur in the course 
of carrying out project activities on the Plain.
    The Conservation Strategy will:
     Be a coordinated mechanism for processing permits for 
projects that are in the potential range of listed species on the 
Plain; this process will provide consistency, timeliness, and 
certainty;
     Identify the basic biological requirements for the 
conservation of CTS and listed plants, geographic areas where 
preservation is recommended, criteria for selection of these 
conservation areas, and mitigation measures necessary to achieve the 
recommended conservation goals;
     Address the application of mitigation banks, the 
development of management plans for preserves, adaptive management, and 
ongoing monitoring needs.
    The Implementation Team will enumerate the steps necessary to 
ensure successful implementation of the strategy. The implementation 
section will identify the scope of covered activities, the areas within 
the potential range likely to be impacted by development, mechanisms 
for review and approval for public and private projects, and potential 
funding sources.
    As noted earlier, development of the conservation strategy included 
identifying the most appropriate geographic areas for conservation. 
Approximately 4,000 acres ranging from northwest Santa Rosa to south of 
Cotati have been identified as conservation areas. The conservation 
area boundaries identify areas where mitigation for project related 
impacts to the listed species and vernal pools should be directed. The 
boundaries and distribution of the conservation areas are based upon an 
analysis of the following factors: (1) Known distribution of CTS based 
on recorded breeding sites and adult occurrences, (2) the presence of 
additional suitable CTS habitat, (3) presence of large blocks of land 
which are natural or restorable potential habitat, (4) location of 
existing preserves, and (5) known location of the listed plants 
(although this designation focuses on the effect of the conservation 
strategy on the CTS, the strategy itself

[[Page 44305]]

addresses other listed species and areas of concern).
    Conservation areas are integral to the conservation of the listed 
species by directing preservation efforts into the most important 
areas, as well as to ensure well distributed populations. At this point 
in their deliberations, the local jurisdictions appear to be 
considering all the best available scientific and commercial 
information in identifying those elements important to the conservation 
of the CTS.
    This Conservation Strategy is in the final stages of development, 
and it is anticipated that a final Administrative Draft Conservation 
Strategy will be available for public review and comment the summer of 
2005. We recognize that the public is not able to comment on specific 
aspects of the strategy without it being available for review, but we 
would like to solicit public comments as described below. Additional 
information on the conservation areas and Conservation Strategy can be 
found on the Santa Rosa Plain Conservation Strategy Web page at https://
ci.santa-rosa.ca.us.
    Solicitation of comments concerning the relative benefits of 
designation of California tiger salamander critical habitat: In 
addition to the analysis conducted when assessing potential economic 
impacts of the California tiger salamander in Sonoma County critical 
habitat designation, the Secretary will evaluate other considerations 
as part of the 4(b)(2) exclusion process. As part of the Secretary's 
deliberative process, the Service identifies the benefits of inclusion 
and exclusion of various areas.
    As part of our designation, we will evaluate the following with 
respect to the Local Conservation Strategy:
     The degree to which a critical habitat designation would 
confer conservation benefits on the California tiger salamander when 
compared to the likely benefits of the alternative strategy;
     The degree to which the designation or the proposed 
alternative conservation strategy would educate members of the public 
such that conservation efforts would be enhanced;
     The degree to which a critical habitat designation or the 
proposed alternative conservation strategy would have a positive, 
neutral, or negative impact on voluntary conservation efforts on 
privately-owned lands; and
     The extent to which a critical habitat designation is 
likely to encourage or discourage future conservation activities on 
private lands.
    The Service will evaluate whether the regulatory benefits of 
designation of critical habitat in Sonoma County for the California 
tiger salamander outweigh the conservation benefits of implementation 
of the alternative conservation strategy proposed by local public and 
private interests. In this proposed rule, we are soliciting public 
comment on the relative merits of a critical habitat designation when 
compared to implementation of this alternative strategy. We are 
particularly interested in public comment on the following issues:
     What is necessary to ensure the conservation of the CTS 
with regard to private lands in Sonoma County;
     Identification of whether the species or its habitat 
requires proactive management actions, and, if so, of what type, on 
private lands;
     Identification of current voluntary conservation efforts 
or working partnerships existing on private lands and how those efforts 
are likely to be affected by the proposed designation;
     Whether the Service could expect an increase or decline in 
conservation activities on private lands that are designated as 
critical habitat;
     Whether a critical habitat designation of private lands 
already occupied by the California tiger salamander and subject to the 
regulatory provisions of the Act will provide additional regulatory 
conservation benefits to accrue on those lands;
     Whether traditional methods of regulation under the Act 
(e.g., Section 7 consultation with the U.S. Army Corps of Engineers) 
are adequate to provide for the long-term conservation of the 
California tiger salamander on private lands in Sonoma County; and
     What conservation efforts are likely to occur on private 
lands in the foreseeable future and how designation of critical habitat 
is likely to affect those future actions?
    The Service will evaluate information received on these and other 
issues when making a decision concerning the final designation of 
critical habitat. It is important to note that the Service will only 
consider a plan which contains provisions that all the public entities 
and any other parties necessary to implement those provisions have 
signed. A draft plan which has not been finalized provides the Service 
with little to no certainty of the type or the extent of the 
conservation measures that will be implemented. As a result, the 
Service would have no basis for finding that the habitat is not in need 
of special management or protection, or alternatively, for excluding 
the habitat on the basis for any but economic reasons. Any economic 
exclusions would be predicated on the results of the economic analysis.

Previous Federal Actions

    On October 13, 2004, a complaint was filed in the U.S. District 
Court for the Northern District of California (Center for Biological 
Diversity and Environmental Defense Council v. U.S. Fish and Wildlife 
Service et al. (Case No. C-04 4324 FMS)), which in part identified the 
failure of designating critical habitat for the California tiger 
salamander in Sonoma County. On February 3, 2005, the District Court 
approved a settlement agreement between the parties that requires the 
Service to submit for publication in the Federal Register, on an 
expedited basis, a proposal for designation of critical habitat for the 
Sonoma County population of California tiger salamander. The agreement 
also requires the Service to submit for publication in the Federal 
Register a final determination on the proposed critical habitat 
designation on or before December 1, 2005. This proposed rule is in 
accordance with the settlement agreement.
    For a discussion of previous Federal actions regarding the Sonoma 
population, please see the final rule listing the Central California 
tiger salamander as threatened rangewide (August 4, 2004, 69 FR 47212). 
Federal actions on the California tiger salamander prior to May 2004 
are summarized in that final rule (69 FR 47212) and used in developing 
this rule. That final rule listed the California tiger salamander as 
threatened throughout its range, and eliminated the separate listings 
for the Santa Barbara and Sonoma populations.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat

[[Page 44306]]

with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 7 requires consultation on Federal actions that are 
likely to result in the destruction or adverse modification of critical 
habitat. However, Section 7 provides no protection for strictly private 
actions on private lands that are designated as critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Designation of critical habitat does not allow 
government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are ``essential to the conservation of the 
species.'' Critical habitat designations identify, to the extent known 
using the best scientific and commercial data available, habitat areas 
that provide essential life cycle needs of the species (i.e., areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b); see Primary Constituent Elements section).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species at the time of 
listing. An area currently occupied by the species but not known to 
have been occupied at the time of listing may or may not be essential 
to the conservation of the species and, therefore, its inclusion will 
be based on a determination by the Secretary that the habitat is 
essential to the conservation of the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific and commercial data available. They require Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is generally the listing 
documents for the species. Additional information sources include the 
data in the recovery plan for the species, articles in peer-reviewed 
journals, data in conservation plans developed by States and counties, 
data included as part of scientific status surveys and studies, data in 
biological assessments, or other unpublished materials, public comment 
and scientific judgment. All information is used in accordance with the 
provisions of Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations of the species, but are outside the 
critical habitat designation, will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that 
contain the features that are essential to the conservation of the 
California tiger salamander in Sonoma County. We have reviewed the 
overall approach to the conservation of the California tiger salamander 
undertaken by local, State, and Federal agencies operating within the 
species' range within Sonoma County and those efforts related to the 
conservation strategy being undertaken by the resource agencies, local 
governments, and representatives from the environmental and building 
communities (see Conservation Strategy section).
    We based the extent of the proposed critical habitat for the 
California tiger salamander in Sonoma County on historic and current 
range of the species as well as the Santa Rosa Plain conservation 
strategy. Historic records for the species and/or its habitat have been 
documented throughout the Santa Rosa Plain and into the Petaluma River 
watershed. Additional criteria used in refining the extent of the 
critical habitat were the specific soil types associated with habitat 
for the species and below the 200-foot (61-meter) elevation. Major 
water courses or floodplains were used to delineate boundaries where 
information on their location and extent was available. In addition, we 
used aerial photography to examine historic and current habitat as well 
as land use patterns.
    We have also reviewed available information that pertains to the 
upland and aquatic habitat requirements of this species. Based on the 
best available information, we included areas where the species 
historically occurred, or currently occurs, or has the potential to 
occur based on the suitability of habitat. We identified areas which 
represent the range of environmental, ecological, and genetic variation 
of the California tiger salamander in Sonoma County and contain the 
primary constituent elements (see Primary Constituent Elements 
section). In addition, to avoid influencing the local conservation 
planning process, we included the maximum area representing the 
historic range of the species with the expectation that the final rule 
would be significantly revised based on refinements resulting from 
development of additional information and public comment. 
Identification of the broadest possible proposal would be most likely 
to elicit information regarding the current presence of PCEs, the 
occupancy

[[Page 44307]]

of identified habitat, and other information regarding the benefit of 
designating or excluding the habitat.
    This proposed unit was delineated by digitizing a polygon (map 
unit) using ArcView (Environmental Systems Research Institute, Inc.), a 
computer GIS program. The polygon was created by modifying the 
Potential Range of the California tiger salamander polygon as 
identified in the Interim Guidance on Site Assessments and Field 
Surveys for Determining Presence or a Negative Finding of the 
California Tiger Salamander (Service and California Department of Fish 
and Game 2003). We evaluated the historic and current geographic range 
and potential suitable habitat, and identified areas of nonessential 
habitat (i.e., not containing the primary constituent elements) (see 
Primary Constituent Elements section). We have included areas within 
this unit which are already developed or are planned for development. 
We anticipate that public comment will help refine the mapped areas so 
as to avoid inclusion of areas that do not contain the PCEs or do not 
meet the definition of critical habitat. Those undeveloped areas within 
and adjacent to developed areas which do contain the PCE features would 
be considered as potential critical habitat for the species.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements 
(``PCEs'')) that are essential to the conservation of the species, and 
whether such areas may require special management considerations and 
protection. These include, but are not limited to: space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing (or development) 
of offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific PCEs required for the Sonoma population are based on 
the biological needs of the California tiger salamander (see Background 
section). All areas proposed as critical habitat for the Sonoma 
population are within the species' historic range and contain one or 
more of the physical or biological features (PCEs) identified as 
essential for the conservation of the species. Critical habitat for the 
Sonoma population includes essential aquatic habitat, essential upland 
nonbreeding habitat with underground refugia, and dispersal habitat 
connecting occupied California tiger salamander locations. In addition, 
the critical habitat we have proposed is designed to allow for an 
increase in the size of California tiger salamander populations in 
Sonoma County.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the primary constituent elements for the California tiger 
salamander in Sonoma County are:
    (1) Standing bodies of fresh water (including natural and manmade 
(e.g., stock) ponds, vernal pools and other ephemeral or permanent 
water bodies which typically support inundation during winter rains and 
hold water for a minimum of 12 weeks in a year of average rainfall.
    (2) Upland habitats adjacent and accessible to and from breeding 
ponds that contain small mammal burrows or other underground habitat 
that California tiger salamanders depend upon for food, shelter, and 
protection from the elements and predation.
    (3) Acessible upland dispersal habitat between occupied locations 
that allow for movement between such sites.
    We describe the relationship between each of these PCEs and the 
conservation of the salamander in more detail below.
    The essential aquatic habitat described as the first PCE is 
essential for Sonoma population breeding and for providing space, food, 
and cover necessary to sustain early life history stages of larval and 
juvenile California tiger salamander. Breeding habitat consists of 
fresh water bodies, including natural and manmade ponds (e.g. 
stockponds), and vernal pools. To be considered essential, aquatic and 
breeding habitats must have the capability to hold water for a minimum 
of 12 weeks in the winter or spring in a year of average rainfall 
because this is the amount of time needed for larvae to grow into 
metamorphosed juveniles so they can become capable of surviving in 
upland habitats. During periods of drought or less-than-average 
rainfall, these sites may not hold water long enough for individuals to 
complete metamorphosis; however, these sites would still be considered 
essential because they constitute breeding habitat in years of average 
rainfall. Without its essential aquatic and breeding habitats, the 
Sonoma population would not survive, reproduce, and develop juveniles 
that could grow into adult individual salamanders that can complete 
their life cycles.
    Upland habitats containing underground refugia are essential for 
the survival of adult and juvenile salamanders that have recently 
undergone metamorphosis. Adult and juvenile California tiger 
salamanders are primarily terrestrial. Adult California tiger 
salamanders enter aquatic habitats only for relatively short periods of 
time to breed. For the majority of their life cycle, California tiger 
salamanders depend for survival on upland habitats containing 
underground refugia in the form of small mammal burrows or other 
underground structures. California tiger salamanders cannot persist 
without upland underground refugia, which provide protection from the 
hot, dry weather typical of California in the nonbreeding season. 
California tiger salamanders also find food in these refugia and rely 
on them for protection from predators. The presence of small burrowing 
mammal populations is a key element for the survival of California 
tiger salamander as they construct burrows used by California tiger 
salamander. Without the continuing presence of small mammal burrows in 
upland habitats, California tiger salamanders would not be able to 
survive.
    Essential dispersal habitats are generally upland areas adjacent 
and accessible to aquatic habitats. Essential dispersal habitats 
provide connectivity among California tiger salamander suitable aquatic 
and upland habitats. While California tiger salamander can bypass many 
obstacles, and do not require a particular type of habitat for 
dispersal, the habitats connecting essential aquatic and upland 
habitats need to be accessible (no physical or biological features that 
prevent access to adjacent areas) to function effectively. Agricultural 
lands such as row crops, orchards, vineyards, and pastures do not 
constitute barriers to the dispersal of California tiger salamanders, 
however, a busy highway or interstate may constitute a barrier. The 
extent to which any feature is a barrier is a function of the specific 
geography of the area and its contribution to limiting salamander 
access to a greater or lesser extent.
    Dispersal habitats are essential for the conservation of the 
California tiger salamander. Protecting the ability of California tiger 
salamanders to move freely across the landscape in search of suitable 
aquatic and upland habitats is essential in maintaining gene flow and 
for recolonization of sites that may

[[Page 44308]]

become temporarily extirpated. Lifetime reproductive success for the 
California tiger salamander and other tiger salamanders may be 
naturally low. Trenham et al. (2000) found the average female bred 1.4 
times and produced 8.5 young that survived to metamorphosis per 
reproductive effort. This reproduction resulted in roughly 11 
metamorphic offspring over the lifetime of a female. In part, this low 
reproductive success may be due to the extended time it takes for 
California tiger salamanders to reach sexual maturity; most do not 
breed until 4 or 5 years of age. While individuals may survive for more 
than 10 years, it is possible that many breed only once. This presumed 
low breeding rate, combined with a hypothesized low survivorship of 
metamorphosed individuals indicates that reproductive output in most 
years may not be sufficient to maintain populations.
    Dispersal habitats help to preserve the population structure of the 
California tiger salamander. The life history and ecology of the 
California tiger salamander make it likely that this species has a 
metapopulation structure. A metapopulation is a set of breeding sites 
within an area, where typical migration from one local occurrence or 
breeding site to other areas containing suitable habitat is possible, 
but not routine. Movement between areas containing suitable upland and 
aquatic habitats (i.e., dispersal) is restricted due to inhospitable 
conditions around and between areas of suitable habitats. Because many 
of the areas of suitable habitats may be small and support small 
numbers of salamanders, local extinction of these small units may be 
common. The persistence of a metapopulation depends on the combined 
dynamics of these local extinctions and the subsequent recolonization 
of these areas through dispersal (Hanski and Gilpin 1991; Hanski 1994).
    Stock ponds and vernal pools provide a significant amount of 
habitat for the Sonoma population remaining in the Santa Rosa Plain. 
More recently manmade stock ponds joined or, in some areas, replaced 
vernal pools as breeding habitat.
    A landscape that supports a California tiger salamander population, 
whether vernal pool or stockpond, is typically grassland with areas of 
stockponds or seasonally flooded depressions with an impermeable layer 
that form pools which remain wetted for at least 12 weeks in a year 
with average rainfall.
    Upland areas associated with the water bodies are an important 
source of nutrients to stock ponds or vernal pools. These nutrients 
provide the foundation for the water body's aquatic community's food 
chain. These plants and invertebrate and vertebrate animals are 
important providers of food and habitat for salamanders (Proctor et al. 
1967; Krapu 1974; Swanson 1974; Morin 1987; Simovich et al. 1991; 
Silveira 1996). The uplands may also provide breeding, feeding, and 
sheltering habitat for small mammals that adult California tiger 
salamanders depend upon for food, shelter, and protection from the 
elements and predation.
    In summary, the primary constituent elements consist of three 
components. At a minimum, these elements will include:
     Suitable breeding locations;
     Associated uplands surrounding the breeding locations, and
     Accessible dispersal habitat connecting breeding habitat 
to uplands or other breeding habitat.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat on lands that we 
have determined are occupied at the time of listing and contain the 
primary constituent elements and have identified other additional areas 
that may be essential to the conservation of the California tiger 
salamander in Sonoma County. In recognition of the ongoing local 
conservation planning, this proposed designation includes all occupied 
and potentially unoccupied habitat in Sonoma County with the potential 
to support California tiger salamander. While we do not currently have 
the information to justify inclusion of these potentially unoccupied 
lands, we intend to rely on the public comments to assist in our 
determination of which of the lands not identified as occupied at the 
time of listing are essential to the conservation of the species. While 
we are proposing these potentially unoccupied areas, we are not and 
have not made a determination as to whether they are essential to the 
conservation of the species. In the months between publication of this 
proposal, and publication of a final rule, we will review the 
information available to us through public comment and the scientific 
literature to determine which of the proposed areas are essential to 
the conservation of the species in Sonoma County. We believe this 
approach has two benefits. First, it will provide the maximum public 
comment on the benefits and potential contribution to California tiger 
salamander conservation from the maximum area available. Second, this 
approach does not undermine the local effort to encourage participation 
by local landowners and local government in the Santa Rosa Plain 
Conservation Strategy. The final rule will not include areas that the 
Secretary is unable to determine are essential. Therefore, we 
particularly seek public comment on particular areas that the public 
believes are essential and the basis for that belief.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid proposing the designation of developed areas such 
as buildings, paved areas, extensive vineyards, parks and golf courses, 
and other structures that lack PCEs for the California tiger 
salamander. Any such structures inadvertently left inside proposed 
critical habitat boundaries are not considered part of the proposed 
unit. This also applies to the land on which such structures sit 
directly. Therefore, Federal actions limited to these areas would not 
trigger section 7 consultations, unless they affect the species and/or 
primary constituent elements in adjacent critical habitat.
    After identifying the PCEs, we used the PCEs in combination with 
information on California tiger salamander locations, geographic 
distribution, vegetation, topography, geology, soils, distribution of 
California tiger salamander occurrences within and between vernal pool 
types, watersheds, current land uses, scientific information on the 
biology and ecology of the California tiger salamander, and 
conservation principles to identify essential habitat. As a result of 
this process, the proposed critical habitat unit possesses a 
combination of occupied and potential aquatic and upland habitat types, 
landscape features, surrounding land uses, vernal pool types, ponds, 
topography, and representation of geographical range, and environmental 
variability for the California tiger salamander.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed species incidental to otherwise lawful activities. 
An incidental take permit application must be supported by a habitat 
conservation plan (HCP) that identifies conservation measures that the 
permittee agrees to implement for the species to the maximum extent 
practicable, minimize and mitigate the impacts of the requested 
incidental take. These provisions ensure the management of the physical 
and biological elements of critical habitat for species covered under 
the HCP and in some cases when covered species rely on the same 
physical and biological characteristics provide protection and 
management for

[[Page 44309]]

non-covered species. We often exclude non-Federal public lands and 
private lands that are covered by an existing operative HCP and 
executed implementation agreement (IA) under section 10(a)(1)(B) of the 
Act from designated critical habitat because the benefits of exclusion 
outweigh the benefits of inclusion as discussed in section 4(b)(2) of 
the Act. We are not aware of any HCP's under development; therefore, we 
are not proposing any areas for exclusion.
    In summary, we are proposing to designate critical habitat on lands 
that we have determined are occupied at the time of listing and contain 
the primary constituent elements and those additional areas that may or 
may not be essential to the conservation of the California tiger 
salamander in Sonoma County. We do not have adequate data at this point 
to make a determination as to whether these areas are essential and so 
are requesting that the public comment and provide any information on 
the areas as to whether they are or are not essential to the 
conservation of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. Areas in need of management 
include not only the immediate locations where the species may be 
present, but additional areas adjacent to these that can provide for 
normal population fluctuations that may occur in response to natural 
and unpredictable events. The Sonoma population of the California tiger 
salamander may depend upon habitat components beyond the immediate 
areas where individuals of the species occur, if these areas support 
the presence of small mammals or are essential in maintaining 
ecological processes such as hydrology, expansion of distribution, 
recolonization, and maintenance of natural predator-prey relationships. 
We believe that the areas proposed for critical habitat may require 
special management considerations or protections due to the threats 
outlined below:
    (1) Introduction of non-native predators such as bullfrogs and fish 
can be significant threats to the California tiger salamander breeding 
ponds in Sonoma County;
    (2) Activities that could disturb aquatic breeding habitats during 
the breeding season, such as heavy equipment operation, ground 
disturbance, maintenance projects (e.g. pipelines, roads, powerlines), 
off-road travel or recreation;
    (3) Activities that impair the water quality of aquatic breeding 
habitat;
    (4) Activities that would reduce small mammal populations to the 
point that there is insufficient underground refugia used by California 
tiger salamander in Sonoma County for foraging, protection from 
predators, and shelter from the elements;
    (5) Activities that create barriers impassable for salamanders or 
increase mortality in upland habitat between extant occurrences in 
breeding habitat; and
    (6) Activities that disrupt vernal pool complexes' ability to 
support California tiger salamander breeding function.

Proposed Critical Habitat Designation

    We are proposing to designate critical habitat for the California 
tiger salamander in the Santa Rosa Plain Region. The critical habitat 
area described below constitutes our best assessment at this time of 
the areas occupied at the time of listing that contain the PCEs and may 
require protection or special management, and those areas not 
identified as occupied at the time of listing but which may be found to 
be essential to the conservation of the species.
    The approximate area encompassed within the proposed critical 
habitat is 74,223 ac (30,037 ha). The area estimate reflects all land 
within the critical habitat unit boundary. We have included areas with 
the unit which are already developed or planned for development. The 
developed areas would not contain any of the PCEs and would not be 
considered as proposed critical habitat for the species. Those 
undeveloped areas within and adjacent to developed areas which do 
contain the essential habitat features would be considered as proposed 
critical habitat for the species.
    No federal lands are included in this proposed unit. Although some 
State lands occur within the boundaries of proposed critical habitat, 
the majority of the areas proposed for critical habitat occur on 
private lands. The approximate areas encompassed within the proposal 
and the associated land ownership are shown in Table 1.

                             Table 1.--Approximate Areas Within the Proposed Critical Habitat and Associated Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Federal lands acres                                      Private and other lands acres
  Proposed critical habitat              (hectares)           State lands acres  (hectares)            (hectares)              Total acres  (hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Rosa Plain.............  0 ac (0 ha)..................  887 ac (359 ha)\1\...........  73,336 ac (29,678 ha)........  74,223 ac (30,037 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Land ownership within the unit includes approximately 676 ac (274 ha) of California Department of Fish and Game lands, 211 ac (85 ha) of State land
  Commission lands, and 26 ac (10.5 ha) of County Regional Park (Crane Creek).

    We present a brief description of the designation, and reasons why 
areas within it may be essential for the conservation of the Sonoma 
population of California tiger salamander, below. To our knowledge at 
this point each area within the proposed designation contain aquatic, 
upland, and dispersal habitats and contain the primary constituent 
elements and those additional areas found to be essential to the 
conservation of the California tiger salamander.

Proposed Designation Description

    This critical habitat designation consists of 74,223 ac (30,037 ha) 
located in central Sonoma County, bordered on the west by the Laguna de 
Santa Rosa, on the south by Skillman Road northwest of Petaluma, on the 
east by the foothills, and on the north by Windsor Creek. The Santa 
Rosa Plain and adjacent areas are characterized by vernal pools, 
seasonal wetlands, and associated grassland habitat. This proposed 
designation represents the northernmost part of the geographic 
distribution of California tiger salamander and supports California 
tiger salamander breeding through various vernal pool complexes. The 
proposed designation encompasses all of the nine vernal pool complexes, 
each of which contain wetlands which are currently known to support 
breeding California tiger salamander in Sonoma County. At the time of 
listing, there were eight known breeding sites and fewer known 
occurrences of California tiger salamander within the breeding sites.

[[Page 44310]]

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In response 
to the 9th Circuit Court's decision on Gifford Pinchot the Service has 
provided direction regarding the analysis of adverse modification of 
critical habitat. Such alterations include, but are not limited to: 
Alterations adversely modifying any of those physical or biological 
features that were the basis for determining the habitat to be 
critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402