Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the California Red-Legged Frog, and Special Rule Exemption Associated With Final Listing for Existing Routine Ranching Activities, 19244-19346 [06-3344]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 71 (Thursday, April 13, 2006)]
[Rules and Regulations]
[Pages 19244-19346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3344]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the California Red-Legged Frog, and Special Rule Exemption 
Associated With Final Listing for Existing Routine Ranching Activities; 
Final Rule

Federal Register / Vol. 71, No. 71 / Thursday, April 13, 2006 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AJ16


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the California Red-Legged Frog, and Special Rule 
Exemption Associated With Final Listing for Existing Routine Ranching 
Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the California red-legged frog (Rana 
aurora draytonii) pursuant to the Endangered Species Act of 1973, as 
amended (Act). We are further finalizing a special rule associated with 
final listing of the California red-legged frog as threatened for 
existing routine ranching activities pursuant to section 4(d) of the 
Act. In total, approximately 450,288 acres (ac) (182,225 hectares (ha)) 
fall within the boundaries of the critical habitat designation. The 
critical habitat is located in Alameda, Butte, Contra Costa, El Dorado, 
Kern, Los Angeles, Marin, Merced, Monterey, Napa, Nevada, San Benito, 
San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, 
Solano, Ventura and Yuba counties, California.

DATES: This rule becomes effective on May 15, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Sacramento Fish and Wildlife Office, 2800 Cottage Way, Suite W-
2605, Sacramento, California, 95825 (telephone 916/414-6600). The final 
rule and economic analysis are available via the Internet at https://
www.fws.gov/pacific/sacramento.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Listing Branch Chief, 
Sacramento Fish and Wildlife Office, at the above address (telephone 
916/414-6600; facsimile 916/414-6712).

SUPPLEMENTARY INFORMATION:

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat. However, 
designation of critical habitat does not require specific actions to 
restore or improve habitat.
    Currently, only 473 species, or 37 percent of the 1,272 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,272 
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, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service. 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to completion to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, 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.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for 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

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impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled 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) (42 U.S.C. 4321 et seq.). 
These costs, which are not required for many other conservation 
actions, directly reduce the funds available for direct and tangible 
conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information 
on the California red-legged frog, refer to the revised proposed 
critical habitat designation published in the Federal Register on 
November 3, 2005 (70 FR 66906).

Previous Federal Actions

    Previous Federal actions for the California red-legged frog can be 
found in our revised proposal of critical habitat for the California 
red-legged frog published in the Federal Register on November 3, 2005 
(70 FR 66906). That information is incorporated by reference into this 
final rule. On November 23, 2005, the federal district court in the 
Eastern District of California granted a motion to extend the deadline 
for publication of the final critical habitat until March 31, 2006. 
This final designation is being completed and published in the Federal 
Register in compliance with that court order.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the California red-legged frog 
published on April 13, 2004 (69 FR 19620). We also requested written 
comments from the public on the revised proposed designation of 
critical habitat for the California red-legged frog published on 
November 3, 2005 (70 FR 66906). We also contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on both the proposed and 
the revised proposed rule. The comment period for the initial proposed 
rule opened on April 13, 2004, and closed on June 14, 2004. We extended 
the period from June 14, 2004 to July 14, 2004 (69 FR 32966). Comments 
and new information received in response to the first proposed rule 
which were relevant to the revised proposal and final designation were 
incorporated in the final rule as appropriate and are summarized with 
the comments received in response to the revised proposed rule below.
    During the comment period for the initial proposed rule, we 
received a total of 88 comment letters from Federal, State, and local 
governments, and private individuals. Of those comment letters, 30 
commenters generally supported the initial proposed designation of 4.1 
million acres (1.6 million hectares) or provided specific information 
pertaining to the subspecies or habitat, and 58 commenters generally 
did not support the initial proposed designation as written or did not 
support the inclusion of certain lands. Of the 88 total comment 
letters, 39 comment letters focused on land areas that we later 
determined to be nonessential to the conservation of the subspecies and 
that we are no longer including in this final designation. In summary, 
in our revised proposed rule and in this final designation, we used the 
best scientific information available in determining the areas 
essential for the California red-legged frog and removed all areas that 
we determined are not essential for the conservation of this subspecies 
and therefore do not meet the definition of critical habitat. We re-
examined all initially proposed areas and removed any areas that do not 
contain one or more of the PCEs or that were determined to be 
nonessential for the conservation of the subspecies because: (1) The 
area is highly degraded and may not be restorable; (2) the area is 
small, highly fragmented, or isolated and may provide little or no 
long-term conservation value; and/or (3) other areas within the 
geographic region were determined to be sufficient to meet the 
subspecies needs for conservation.
    We also considered several criteria in the selection of areas that 
contain the features essential for the conservation of California red-
legged frog and focused on designating units: (1) Throughout the 
current geographic, elevational, and ecological distribution of the 
subspecies; (2) that would maintain the current population structure 
across the subspecies' range; (3) that retain or provide for 
connectivity between breeding sites allowing for the continued 
existence of viable and essential metapopulations, despite fluctuations 
in the status of subpopulations; (4) that possess large continuous 
blocks of occupied habitat, representing source populations and/or 
unique ecological characteristics; and (5) that contain sufficient 
upland habitat around each breeding location to allow for sufficient 
survival and recruitment to maintain a breeding population over the 
long term. We proposed critical habitat units in areas that have the 
highest likelihood to contain self-sustaining populations of California 
red-legged frogs based on the presence of the PCEs, the density of 
California red-legged frog occurrences, and the kind, amount, and 
quality of habitat associated with those occurrences. We believe this 
strategy allowed us to narrow our initial focus down to the habitats 
that meet the definition of critical habitat and are essential to the 
conservation of the subspecies.
    During the comment period associated with the revised proposed rule 
that opened on November 3, 2005, and closed on February 1, 2006, we 
received 76 comments directly addressing the revised proposed critical 
habitat designation and the draft economic analysis. Of these comments, 
three were from peer reviewers, one from a Federal agency, and 32 from 
organizations. Five commenters supported the designation of critical 
habitat for the California red-legged frog, and 55 opposed the 
designation. Sixteen letters included comments or information, but did 
not express support or opposition to the revised proposed critical 
habitat designation. Comments received were grouped into 15 general 
issues specifically relating to the revised proposed critical habitat 
designation for the California red-legged frog, and are addressed in 
the following summary and/or incorporated into the final rule as 
appropriate. We did not receive any requests for a public hearing; 
however, we did receive one request for a public workshop from the 
Calaveras County Farm Bureau. On January 10, 2006, we held a public 
workshop in San Andreas, California, and on January 17, 2006, we held 
an additional public workshop for the Calaveras County Board of 
Supervisors and the general public.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the subspecies, the geographic region in which the subspecies occurs, 
and conservation biology principles. We received responses from two of 
the peer

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reviewers. The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule. One peer 
reviewer generally accepted our methodology and criteria used in the 
designation of critical habitat, while another peer reviewer generally 
agreed with our proposed special rule to exempt routine ranching 
practices. The other peer review comments are addressed in the 
following summary and incorporated into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the California red-legged frog, and addressed them in the 
following summary.

Peer Reviewer Comments

    (1) Comment: One peer reviewer questioned how the future increase 
in the size of Los Vaqueros reservoir would affect critical habitat in 
Unit ALA-1A.
    Our Response: The area surrounding Los Vaqueros reservoir was 
excluded from critical habitat because of disproportionately high 
economic costs. See Relationship of Critical Habitat to Economic 
Impacts--Exclusions Under Section 4(b)(2) of the Act below. 
Additionally, areas that support California red-legged frog 
populations, but are outside the critical habitat designation, will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act and to the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, as determined on the basis of 
the best available information at the time of the action. Federally 
funded or permitted projects affecting listed species, or subspecies, 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases.
    (2) Comment: One peer reviewer questioned our rationale for not 
including the documented population of California red-legged frogs at 
Corral Hollow in San Joaquin County. Additionally, the same peer 
reviewer expressed concern that California red-legged frog recovery 
cannot take place only in occupied areas.
    Our Response: In our revised proposed designation of critical 
habitat for the California red-legged frog, we selected areas based on 
the best scientific data available that possess those physical and 
biological features essential to the conservation of the subspecies, 
and that may require special management considerations or protection. 
We included areas that were occupied at the time of listing as well as 
some areas subsequently identified as occupied. We proposed critical 
habitat units in areas whose populations of California red-legged frogs 
have the highest likelihood to be self-sustaining based on the presence 
of the PCEs; the density of California red-legged frog occurrences; and 
the kind, amount, and quality of habitat associated with those 
occurrences. The proposed units contain sufficient PCEs to support the 
behaviors that we have determined are essential to the conservation of 
the subspecies. In this rule, we did not believe that all occupied 
habitat should be designated as critical habitat, nor did we believe it 
necessary to designate unoccupied habitat. In the development of the 
revised proposed rule, we determined the designation of unit ALA-1, 
which is located to the west of the Corral Hollow area, was sufficient 
for the conservation of the California red-legged frog in that area. 
For more information, please see the Criteria Used to Define Critical 
Habitat section.
    (3) Comment: One peer reviewer stated that based on the paper 
published by Shaffer et al. (2004), the California red-legged frog is a 
full species and should be recognized as such by the Service.
    Our Response: Based on mtDNA evidence, Shaffer et al. (2004) 
concluded that Rana aurora aurora (red-legged frog) and Rana aurora 
draytonii do not constitute a monophyletic group and suggests 
recognition of each as a separate species. Additionally, Shaffer et al. 
(2004) suggests Rana cascadae (Cascades frog) and Rana aurora draytonii 
are more closely related and should be considered sister taxon. We 
recognize the paper by Shaffer et al. (2004) presents evidence that can 
be used to support the argument that the California red-legged frog 
should be considered a full species. In a cursory review of 
herpetological and special status species web sites, we found one (The 
Center for North American Herpetology) that noted Shaffer et al.'s 
(2004) conclusion that the California red-legged frog was a distinct 
species, but that web site still uses Rana aurora draytonii. Another 
web site (Amphibia Web) uses Rana draytonii. Two other web sites (IUCN 
Red List and Nature Serve) still list the California red-legged frog as 
Rana aurora draytonii. At this time, we do not find that a formal 
change in taxonomy for the California red-legged frog is necessary.
    (4) Comment: One peer reviewer asserted that the lack of a 
metapopulation focus in the development of the critical habitat 
designation practically guarantees extinction of California red-legged 
frogs from 15 or more critical habitat units.
    Our Response: We disagree that the designation of critical habitat 
presented in this rule will lead to the extinction (extirpation) of the 
California red-legged frog in any of the critical habitat units. We 
used the best scientific information available in determining those 
areas essential for the California red-legged frog for our revised 
proposed critical habitat designation. We considered several criteria 
in the selection of areas that contain the features essential for the 
conservation of California red-legged frog and focused on designating 
units: (1) Throughout the current geographic, elevational, and 
ecological distribution of the subspecies; (2) that would maintain the 
current population structure across the subspecies' range; (3) that 
retain or provide for connectivity between breeding sites, allowing for 
the continued existence of viable and essential metapopulations, 
despite fluctuations in the status of subpopulations; (4) that possess 
large continuous blocks of occupied habitat, representing source 
populations and/or unique ecological characteristics; and (5) that 
contain sufficient upland habitat around each breeding location to 
allow for sufficient survival and recruitment to maintain a breeding 
population over the long term. We excluded any areas that do not 
contain one or more of the PCEs or that were determined not to be 
essential for the conservation of the subspecies because: (1) The area 
is highly degraded and may not be restorable; (2) the area is small, 
highly fragmented, or isolated and may provide little or no long-term 
conservation value; and/or (3) other areas within the geographic region 
were determined to be sufficient to meet the subspecies' needs for 
conservation. We disagree that critical habitat units need to be 
connected within very large contiguous blocks. Connecting large areas 
of unknown occupancy, which may or may not support California red-
legged frogs or the PCEs, would not materially contribute to the 
conservation of the subspecies. For more information, please see the 
Criteria Used to Define Critical Habitat section.
    (5) Comment: One peer reviewer questioned our exclusion of large 
blocks of private and Federal lands from critical habitat, stating that 
this essentially shifts the responsibility of threatened and endangered 
species' protection to entities that have different priorities.
    Our Response: There are multiple ways to provide management for 
species habitat. Statutory and regulatory frameworks that exist at a 
local level can

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provide such protection and management, as can lack of pressure for 
change (e.g., areas too remote for anthropogenic disturbance). Finally, 
State, local, or private management plans, as well as management by a 
Federal agency, can provide protection and management to avoid the need 
for designation of critical habitat. When we consider a plan to 
determine its adequacy in protecting habitat, we consider whether the 
plan, as a whole, will provide the same level of protection that 
designation of critical habitat would provide. The plan need not lead 
to exactly the same result as a designation in every individual 
application, as long as the protection it provides is equivalent 
overall. In making this determination, we examine whether the plan 
provides management, protection, or enhancement of the PCEs that is at 
least equivalent to that provided by a critical habitat designation, 
and whether there is a reasonable expectation that the management, 
protection, or enhancement actions will continue into the foreseeable 
future. Each review is particular to the species and the plan, and some 
plans may be adequate for some species and inadequate for others.
    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, the impact on 
national security, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless [s]he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion, and the 
Congressional record is clear that, in making a determination under the 
section, the Secretary has discretion concerning which factors to 
consider and how much weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the subspecies. For more 
information see Application of Section 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below.

General Comments

Comments Related to Habitat and Subspecies-Specific Information

    (6) Comment: One commenter stated our discussion of the reduction 
in the range of the California red-legged frog in the revised proposed 
rule was misleading.
    Our Response: We believe our description of the reduction in the 
range of the California red-legged frog is accurate. We referred to 
multiple sources when researching the reduction in the range of the 
California red-legged frog. We consulted the recovery plan; Jennings 
and Hayes (1994); Fisher and Shaffer (1996); the California Natural 
Diversity Database (2004 and 2005); Berkeley Museum of Vertebrate 
Zoology (2004); and the California Academy of Sciences (2004). The map 
prepared by Jennings and Hayes (1994) depicts historic and extant (as 
of 1994) occurrences of the California red-legged frog. Approximately 
45 counties comprised the historic range of the California red-legged 
frog, and approximately 17 counties were found to have extant 
occurrences in 1994. In 1996, when the subspecies was listed, 243 
streams or drainages in 22 California counties were documented to 
contain populations of California red-legged frogs (California Natural 
Diversity Database (CNDDB) 2004). At the time of listing, California 
red-legged frogs were believed to have been extirpated from most of the 
southern Coastal Mountains from Santa Barbara south to Baja California 
and east along the Transverse (San Gabriel, San Bernadino, Santa Ynez, 
and Santa Monica Mountains) and Peninsular (San Jacinto, Santa Rosa, 
Agua Tibia, Laguna, Santa Ana Mountains) Ranges. Since listing, two 
additional occurrences south of the Tehachapi Mountains at City Creek 
in San Bernardino county and Andreas Canyon in Riverside county have 
been discovered (CNDDB 2005) but may no longer be extant. Four 
additional occurrences have been recorded in the Sierra Nevada 
foothills since listing, bringing the total to five extant populations, 
compared to approximately 26 historical records (Berkeley Museum of 
Vertebrate Zoology 2004; CNDDB 2004; California Academy of Sciences 
2004; Barry in litt. 2005). Currently California red-legged frogs are 
only known from 3 disjunct regions in 26 California counties, and one 
disjunct region that is still present in Baja California, Mexico 
(Grismer 2002; Fidenci 2004; R. Smith and D. Krofta, in litt. 2005). 
Additionally, through comparison of historical museum records (1890-
1980) and field surveys (1990-1992), Fisher and Shaffer (1996) present 
evidence of the extirpation (local extermination) of California red-
legged frogs from 24 of 28 counties in a limited portion of the 
subspecies' historical range.
    (7) Comment: One commenter suggested we should have included a 
reference to a paper published by Shaffer et al. (2004) in the 
subspecies description section of the revised proposed rule.
    Our Response: The Service did consult the paper by Shaffer et al. 
(2004) in development of the revised proposed rule. As noted by the 
commenter, we referenced the Shaffer et al. (2004) paper in the 
Geographic Range section of the revised proposed rule. We also cite 
Shaffer et al. (2004) in the unit description for RIV-1 in the revised 
proposed rule in regards to California red-legged frog's genetic 
lineage in southern California. Based on mtDNA evidence, Shaffer et al. 
(2004) concluded that Rana aurora aurora (red-legged frog) and Rana 
aurora draytonii do not constitute a monophyletic group and suggests 
recognition of each as a separate species. Additionally, Shaffer et al. 
(2004) suggests Rana cascadae (Cascades frog) and Rana aurora draytonii 
are more closely related and should be considered sister taxa. We 
recognize the paper by Shaffer et al. (2004) presents evidence that can 
be used to argue that the California red-legged frog should be 
considered a full species. However, as discussed earlier in our 
response to comment 3, we conducted a cursory review of scientific web 
sites, and based on that review, at this time, we do not find that a 
formal change in taxonomy for the California red-legged frog is 
necessary.

Comments Related to Threats to the Subspecies

    (8) Comment: Several commenters did not believe we adequately 
assessed the current threats to the California red-legged frog, 
including introduced predators, grazing, urban run-off, pesticides, and 
fertilizers.
    Our Response: As discussed throughout the proposed rule, in our 
previous final designation of critical habitat for the California red-
legged frog (66 FR 14626; March 13, 2001), and in our final recovery 
plan for the subspecies (Service 2002), threats to those features that 
are essential to the conservation of the California red-legged frog 
(i.e., primary constituent elements) may include but are not limited 
to:

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Trematode and chytrid fungus disease; direct and indirect impacts from 
some human recreational activities; flood control maintenance 
activities; water diversions; unmanaged overgrazing activities 
(summarized by Kauffman and Krueger (1984) and Belsky et al. (1999)); 
competition and predation by nonnative species, such as warm water fish 
and bullfrogs (Alvarez et al. 2003); habitat removal and alteration by 
urbanization; and some agricultural pesticides and fertilizers (Hayes 
et al. 2006). We also included lists of threats that may require 
special management for each unit description in the revised proposed 
rule (70 FR 66906) and in this final rule (see Special Management 
Considerations or Protections below).
    (9) Comment: One commenter disagreed with our statement that 
California red-legged frogs can persist in the presence of bullfrogs 
and nonnative predatory fish.
    Our Response: We concluded that there are specific conditions under 
which California red-legged frogs can persist in the presence of 
bullfrogs and nonnative predatory fish. In aquatic systems subject to 
seasonal drying, it may be difficult for bullfrogs to become 
established. Doubledee et al. (2003) studied the relationship between 
bullfrogs and California red-legged frog persistence. That study showed 
that bullfrogs and California red-legged frogs can coexist and persist 
under certain natural and managed regimes. Fellers and Guscio (2004) 
suggest since bullfrogs require approximately 16 months to 
metamorphose, periodic drying would be an effective means of preventing 
a population from becoming established. Additionally, periodic drying 
may prevent nonnative warm water fish from becoming established as 
well. Alvarez et al. (2003) present evidence that nonnative predatory 
fish can have a significant effect on juvenile California red-legged 
frog survival. Of 90 ponds surveyed in the Los Vaqueros watershed, 7 
were found to have nonnative fish. Over 3 years, one or more ponds with 
nonnative fish were repeatedly drained, and all fish were exhaustively 
removed. In comparison to surveys conducted before fish removal and 
surveys conducted after fish removal and pond recharge, juvenile and 
adult California red-legged frog abundance increased dramatically after 
nonnative fish were removed, suggesting a strong link to decreased 
California red-legged frog survival and nonnative fish presence.

Comments Related to Criteria and Methodology

    (10) Comment: One commenter asserted our description of the Primary 
Constituent Elements (PCEs) for the California red-legged frog was 
insufficient and did not conform to Home Builders Association of 
Northern California et al. v. U.S. Fish and Wildlife Service, 268 
F.Supp.2d 1197 (E.D.C. 2003) in the use of exclusion criteria to define 
where essential features are found.
    Our Response: We used the best scientific information available in 
determining the identifiable physical and biological features essential 
for the conservation of the California red-legged frog (PCEs). PCE 4 
(dispersal habitat) includes a description of features that may 
constitute barriers to dispersal for the California red-legged frog and 
as such could be interpreted as exclusion criteria. However, features 
that may constitute barriers to dispersal are merely illustrative and 
are not to be used as exclusion criteria.
    We further used the best scientific information available in 
determining our descriptions of the areas essential for the California 
red-legged frog as presented in our revised proposed critical habitat 
designation. We considered several criteria in the selection of areas 
that contain the features essential for the conservation of California 
red-legged frog and focused on designating units: (1) Throughout the 
current geographic, elevational, and ecological distribution of the 
subspecies; (2) that would maintain the current population structure 
across the subspecies' range; (3) that retain or provide for 
connectivity between breeding sites, allowing for the continued 
existence of viable and essential metapopulations, despite fluctuations 
in the status of subpopulations; (4) that possess large continuous 
blocks of occupied habitat, representing source populations and/or 
unique ecological characteristics; and (5) that contain sufficient 
upland habitat around each breeding location to allow for sufficient 
survival and recruitment to maintain a breeding population over the 
long term. We excluded any areas that do not contain sufficient PCEs to 
support necessary biological functions or that were determined not to 
be essential for the conservation of the subspecies because: (1) The 
area is highly degraded and may not be restorable; (2) the area is 
small, highly fragmented, or isolated and may provide little or no 
long-term conservation value; and/or (3) other areas within the 
geographic region were determined to be sufficient to meet the 
subspecies' needs for conservation.
    Thus, we believe that the development of the PCEs for this 
designation of critical habitat for the California red-legged frog and 
the implementation of the criteria and methods identified herein and in 
our revised proposed rule conform to the standards set forth in Home 
Builders Association of Northern California et al. v. U.S. Fish and 
Wildlife Service, 268 F.Supp.2d 1197 (E.D.C. 2003).
    (11) Comment: Two commenters asserted the revised proposed rule 
fails to identify the physical or biological features essential to the 
conservation of the California red-legged frog. Another commenter 
suggested that failure to designate unoccupied habitat runs counter to 
the recovery goals of the California red-legged frog and the intent of 
the Act. Additionally, the same commenter asserted that we should have 
designated all occupied habitat.
    Our Response: In our revised proposed designation of critical 
habitat for the California red-legged frog, we selected areas based on 
the best scientific data available that possess those physical and 
biological features essential to the conservation of the subspecies, 
and that may require special management considerations or protection. 
We included in the revised proposed designation areas that were 
occupied at the time of listing as well as some areas subsequently 
identified as occupied. We proposed critical habitat units in areas 
that have the highest likelihood to contain self-sustaining populations 
of California red-legged frogs based on: (1) The presence of the PCEs; 
(2) the density of California red-legged frog occurrences; and (3) the 
kind, amount, and quality of habitat associated with those occurrences. 
The revised proposed units contain sufficient PCEs to support the 
behaviors that we have determined are essential to the conservation of 
the subspecies. Pursuant to section 3(5)(C) of the Act, critical 
habitat shall not include the entire geographical area that can be 
occupied by the species unless otherwise determined by the Secretary. 
We do not believe that all occupied habitat is essential to the 
conservation of the subspecies. Thus, in this rule, we only designate 
those areas determined to be essential to the conservation of the 
subspecies based on the methodological criteria (refer to the response 
to Comment (10) above for a list of these criteria).
    (12) Comment: One commenter suggested that limiting protection of 
upland and dispersal habitat to 200 feet (ft) and 0.7 mile (mi), 
respectively, does

[[Page 19249]]

not provide for adequate conservation of the California red-legged frog 
in part due to the need for juvenile frogs to disperse from natal 
aquatic habitat.
    Our Response: We are not aware of any scientific study that 
provides estimates of juvenile California red-legged frog movement 
distances. For reasons that are currently unclear, juveniles tend to 
disperse away from aquatic habitat occupied by adults. Juvenile 
dispersal is essential for recolonizing temporarily extirpated habitat 
and preventing genetic isolation as juveniles disperse in more 
directions, and for longer distances than do migrating adults (Wright, 
in litt. 1999; Bulger et al. 2003). Juvenile frogs will disperse 
through a variety of habitats, provided that habitat contains 
sheltering vegetation or scattered wetlands or streams. Juvenile frogs 
have been recorded in forested areas, nonnative grasslands, and even 
croplands (CNDDB 2005); however, frogs are not known to disperse 
through urbanized or suburban areas, suburban developments, or areas 
separated from breeding habitat by impassible barriers. Impassible 
barriers include wide or fast flowing rivers and streams, lakes greater 
than 50 ac (20 ha), and heavily traveled roads without underpasses or 
culverts (Reh and Seitz 1990; Fahrig et al. 1995). Juveniles dispersing 
along riparian corridors may have higher survivorship, as sheltering 
vegetation and suitable aquatic habitat are both more common in such 
corridors (M. Jennings, in litt. 2000). Juveniles appear to have less 
strict requirements for aquatic habitat than adults, and tend to 
segregate away from adults in water bodies that are shallower or faster 
moving than those typically used for breeding (Hayes and Jennings 1989; 
Bobzien pers. comm. 2000; M. Jennings, in litt. 2000). We encourage 
further research into California red-legged frog juvenile dispersal 
distances.
    We recognize the importance of upland dispersal for the 
conservation of the California red-legged frog. Bulger et al. (2003) 
estimated that approximately 75 percent of adult California red-legged 
frogs are resident in their aquatic habitats, and approximately 90 
percent did not move more than 197 ft (60 meters (m)) from their 
aquatic habitat in a mesic environment. Additionally, the maximum 
distance moved by a non-migrating California red-legged frog was 427 ft 
(130 m). Tatarian (2004) found upland use by California red-legged 
frogs in a more xeric, inland environment averaged 91 ft (27.7 m). A 
single female California red-legged frog inhabited an upland area, 302 
ft (92 m) from its aquatic habitat, continuously for 50 days. Based on 
the work of Bulger et al. (2003) and Tatarian (2004), and our previous 
final critical habitat designation (66 FR 14625), we believe that the 
PCE 3 (upland habitat) distance of 200 ft (60 m) from aquatic habitat 
is sufficient to provide upland foraging and dispersal habitat for most 
California red-legged frogs. We do not believe it practicable or 
necessary to expand this width to capture all upland habitat that may 
be available to the subspecies. We also believe that the available 
scientific information does not support a change to our previous 
determination of the 0.7 mi (1.1 km) dispersal distance. For more 
information see the Primary Constituent Elements Section below.
    (13) Comment: One commenter expressed concern at our apparent lack 
of recognition of the tenuous situation the California red-legged frog 
is in due to its apparent dependence on stock ponds as habitat. 
Additionally, the commenter suggested that the California red-legged 
frog cannot rely on stock ponds as a substitute for naturally occurring 
ponds, streams, or other naturally occurring aquatic habitat.
    Our Response: As outlined in the revised proposed rule, we 
recognize stock ponds are usually aquatic habitat of poorer quality 
than naturally occurring ponds, and we do not consider stock ponds as 
replacement habitat for naturally occurring ponds or streams. 
Hydroperiods (amount of time the stock pond contains water) may be so 
short (e.g., when early drawdown of irrigation ponds occurs) that 
larvae and tadpoles do not have sufficient time to complete 
metamorphosis. Artificial ponds also require ongoing maintenance and 
are often temporary structures. Natural soil erosion, sometimes 
increased by pond breaching; livestock impacts; and off-road vehicle 
(ORV) use can cause ponds to silt in after a few decades (Hamilton and 
Jepson 1940), thereby reducing their quality as frog habitat. Often 
ponds are not maintained because it may be more economical to construct 
a new pond when the old pond fills with silt and is no longer 
functional (Hamilton and Jepson 1940). Finally, stock ponds are often 
geographically isolated from other seasonal wetlands, and colonization 
of newly created ponds beyond the normal dispersal range may be slow or 
nonexistent (Pechmann et al. 1989).
    Populations of nonnative introduced predaceous fish and bullfrogs, 
although less prevalent than in natural habitats, sometimes become 
established in stock ponds and have been implicated in the decline of 
other amphibian species (Fisher and Shaffer 1996; Hayes and Jennings 
1986; Moyle 1973). We also recognize that stock ponds may facilitate 
the spread of nonnative organisms by providing aquatic habitats in arid 
landscapes that otherwise may have served as barriers to the spread of 
such organisms. Despite these potential adverse impacts, the long-term 
effect of construction of stock ponds on the subspecies is either 
neutral or beneficial, because the California red-legged frog would 
have likely been extirpated from many areas if stock ponds had not been 
built and maintained for livestock production and ranching.
    (14) Comment: One commenter stated that the units are too small, 
need to be connected, and should be large contiguous blocks of critical 
habitat.
    Our Response: We used the best scientific information available in 
determining those areas essential for the California red-legged frog 
and thus proposed as critical habitat. During our determination 
process, we considered several criteria in the selection of areas that 
contain the features essential for the conservation of California red-
legged frog. We disagree that all critical habitat units need to be 
connected within very large contiguous blocks of habitat. Connecting 
large areas of unknown occupancy, which may or may not support 
California red-legged frogs or the PCEs, would not materially 
contribute to the conservation of the subspecies. For more information, 
please see the Criteria Used to Define Critical Habitat section.
    (15) Comment: One commenter disagreed with our time estimate that a 
water feature must hold water for a minimum of 15 weeks to be 
considered essential breeding habitat and stated that California red-
legged frogs would be more common in vernal pool habitats if 15 weeks 
was sufficient time to complete breeding and metamorphosis.
    Our Response: We agree that setting the minimum time to 15 weeks 
for essential breeding habitat does not provide sufficient time to 
complete breeding and metamorphosis. Depending on water temperatures, 
eggs may hatch in 7 to 14 days (Jennings 1988). Eggs may require 
approximately 3 weeks to develop into tadpoles, and an additional 11-20 
weeks to develop into terrestrial frogs (Storer 1925; Wright and Wright 
1949; Bobzien et al. 2000). To be considered essential breeding habitat 
(PCE 1), we have changed the amount of time a water feature must hold 
water from 15 weeks to 20 weeks, which is an average of the above 
estimates required for egg and tadpole development into terrestrial 
frogs. For more information, see the Primary Constituent Elements 
section below.

[[Page 19250]]

    (16) Comment: Two commenters questioned why we did not designate 
critical habitat solely within the California red-legged frog recovery 
plan core area units.
    Our Response: Several critical habitat units fall entirely within, 
or within portions of, recovery plan core areas. The Recovery Plan for 
the California red-legged frog was completed in 2002 (Service 2002). In 
developing this critical habitat designation, we used the latest 
scientific information available, which includes the 2002 Recovery 
Plan. We also incorporated more recent survey data (CNDDB 2005) and 
literature (e.g., Bulger et al. 2003; Alvarez 2004; Fellers and Guscio 
2004; Fidenci 2004; Shaffer et al. 2004; Tatarian 2004; Fellers and 
Kleeman 2005). We used all available data to determine the PCEs and 
develop a strategy for determining areas (i.e., critical habitat units) 
essential to the conservation of the subspecies. All the units are 
described in the Critical Habitat section below. We recognize areas 
other than those designated as critical habitat, such as those defined 
in the recovery plan, may be important for the eventual recovery of the 
California red-legged frog. However, these areas did not meet our 
criteria for being essential. See also response to Comment 10 above.

Comments Related to Site-Specific Areas

    (17) Comment: One commenter stated that the Unit MNT-2 in Carmel 
Valley should not be included in the designation because the area 
already is subject to county and State controls. The commenter also 
states that the area is not essential for the subspecies.
    Our Response: Based upon the information we received, we cannot 
confirm that Monterey County and the State of California have 
instituted regulatory controls that would render the critical habitat 
designation redundant in Unit MNT-2. We believe that Unit MNT-2 meets 
the criteria we have adopted for determining whether an area should be 
considered essential.
    (18) Comment: Numerous commenters were opposed to the revised 
proposed designation of critical habitat unit CAL-1. They suggest an 
alternate designation of lands in the Mokelumne River watershed 
surrounding Pardee Dam Reservoir (managed by East Bay Municipal Utility 
District (EBMUD)) and/or lands surrounding New Hogan Dam (managed by 
the U.S. Army Corps of Engineers), suggesting these areas are more 
suitable for the conservation of the frog as they are managed as 
protected open spaces. Several commenters questioned our designation of 
critical habitat in the proposed unit CAL-1, stating Young's Creek is 
designated as a seasonal stream and is dry during 3-4 months of an 
average rainfall year. Additionally, other commenters indicated other 
ponds in the area are also of a seasonal nature, and may be dry by 
early June in a typical year.
    Our Response: Unit CAL-1 contains all the features identified in 
the PCEs and meets the definition of being essential for the 
conservation of the California red-legged frog. However, in order to 
preserve and encourage ongoing partnership activities, we have excluded 
all of unit CAL-1 from the final designation of critical habitat for 
the California red-legged frog. See Application of Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act below for more information.
    (19) Comment: One commenter provided information from EBMUD's 
website that suggests that California red-legged frogs have been found 
in surveys conducted in the Mokelumne River watershed, and therefore 
this area would be more appropriate for the designation of critical 
habitat than CAL-1.
    Our Response: EBMUD's website provides information on California 
red-legged frogs found in surveys of EBMUD lands in their land holdings 
east of San Francisco Bay (the East Bay area). However there was no 
mention of California red-legged frogs found in surveys conducted in 
the Mokelumne River watershed (EBMUD Mokelumne Watershed Wildlife web 
page viewed January 25, 2005). For further confirmation, we contacted 
an EBMUD biologist who has extensive field experience in the lower 
Mokelumne River watershed, and the biologist confirmed that no 
California red-legged frogs had been found in EBMUD's Mokelumne River 
holdings (Reeves pers com. 2006). Additionally, we have excluded all of 
unit CAL-1 from the final designation of critical habitat for the 
California red-legged frog. See Application of Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act below for more information.
    (20) Comment: One commenter stated there is no evidence that the 
Burnt Bridge Creek watershed supports a population of California red-
legged frogs, and a herpetological survey stated that breeding and 
summer habitat was seemingly absent from Burnt Bridge Creek. Therefore, 
based on the lack of documentation of the presence of the subspecies, 
YUB-1 should not be included in the designation of critical habitat.
    Our Response: Unit YUB-1 contains all the features identified in 
the PCEs and meets the definition of being essential for the 
conservation of the California red-legged frog. In the herpetological 
report cited by the commenter, Barry (2002) suggests California red-
legged frog ``breeding habitat and summer habitat is seemingly absent 
from accessible sections of Burnt Bridge Creek.'' However, Barry (2002) 
also states that portions of a terrace and ravine north of Burnt Bridge 
Creek and east of Oregon Hill Road have dense overgrown blackberry 
scrub vegetation and that there was some evidence of small ponds or 
boggy meadows under the vegetation. Prior to a fire in 1999 and 
discovery in 2000 of California red-legged frogs in Little Oregon 
Creek, that site was covered by similar blackberry scrub vegetation. 
Barry (2002), whose surveys were limited to U.S. Forest Service lands, 
also suggests other locations in the Dobbins and Cottage/Deadwood Creek 
watersheds that hold promise as California red-legged frog sites; 
however, due to the prevalence of private land in the area, those and 
other locations were not surveyed. California red-legged frogs are able 
to migrate considerable distances overland and have been shown to use 
small seeps and other wet areas during dispersal events. Additionally, 
portions of Burnt Bridge Creek are within the known dispersal 
capabilities of the California red-legged frog (e.g., Bulger et al. 
2003) and are considered dispersal habitat as identified in PCE 4.
    (21) Comment: One commenter requested that the North and South Fork 
of Webber Creek be excluded from critical habitat since both are fast 
flowing and would not be conducive to juvenile life stages of the 
California red-legged frog. However, the commenter suggests both creeks 
may support adult life stages after reduction of high winter and spring 
in-stream flows.
    Our Response: In areas where streams are subject to high peak 
winter and spring flows, California red-legged frogs tend to adjust 
breeding timing and habitat use to coincide with reduction of peak, 
scouring flows (Fellers pers com. 2004; Bobzien pers com. 2005). 
Additionally, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the subspecies, that are within 
areas occupied by the subspecies at the time of listing, and that may 
require special management considerations and protection. This 
designation is designed for the conservation of PCEs necessary to 
support the life history functions of the

[[Page 19251]]

subspecies. Because not all life history functions require all the 
PCEs, not all critical habitat will contain all the PCEs.
    (22) Comment: El Dorado County requested to be excluded from the 
designation of critical habitat based on the County's general plan.
    Our Response: We have reviewed El Dorado County's general plan and 
found no measures specific to the conservation of the California red-
legged frog. The County identifies numerous goals in the Conservation 
and Open Space Element within its general plan; however, no specific 
measures with respect to the conservation of the primary constituent 
elements for the California red-legged frog are mentioned. While we 
value El Dorado County's voluntary agreement in the interagency 
protection of Spivey Pond, based on the general plan, we have not 
excluded El Dorado County in its entirety from designated critical 
habitat. We have, however, excluded those areas being managed by the 
Bureau of Land Management (BLM) at Spivey Pond in El Dorado County 
based on an interagency land use management plan (see Application of 
Section 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act below).
    (23) Comment: One commenter opposed the designation of the Hearst 
Corporation's Jack Ranch property in SLO-1. The commenter stated that 
many areas on the portion of the Jack Ranch within SLO-1 are extremely 
arid and would not support a California red-legged frog population and, 
therefore, do not meet the definition of critical habitat. The 
commenter also argued that the Jack Ranch property does not meet the 
definition of critical habitat because the property does not require 
special management considerations or protection. The commenter stated 
that the Jack Ranch has been responsibly managed for over 40 years in a 
manner that has protected and benefited the various natural habitats on 
the ranch. Alternatively, the commenter argued, the Jack Ranch property 
should be excluded from critical habitat because the benefits of 
excluding the ranch outweigh the benefits of including it. The 
commenter asserted that, as a result of the current ranch management 
practices in place on the Jack Ranch, the various habitats and species 
present on the ranch are generally flourishing and will continue to 
benefit if these practices are allowed to continue. The commenter 
argued that designating the ranch as critical habitat would create 
regulatory uncertainty, impose economic burdens on the landowner, and 
increase vulnerability to legal challenge that could threaten the 
area's long-term viability as a working ranch.
    Our Response: Section 3(5)(A) of the Act defines critical habitat 
as the specific areas within the geographic area occupied by the 
species on which are found those physical and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection. Our criteria for 
determining features essential to the conservation of the subspecies 
target areas known to be occupied by California red-legged frog at the 
time of listing; determined to be occupied since the time of listing; 
or known to possess high-quality habitat likely to be occupied based on 
proximity to known occurrences, contiguous habitat, and dispersal 
capabilities of the California red-legged frog. We included large 
blocks of contiguous habitat that: Provide geographic distribution 
across the range of the subspecies; contain high-quality habitat; allow 
for the long-term viability of the subspecies; represent the full range 
of habitat and environmental variability the subspecies occupies; avoid 
conflict with existing commercial and residential development; focus on 
public lands where available; and, where possible, overlap with other 
critical habitat designations.
    As noted in the unit description for SLO-1, this area was known to 
be occupied by California red-legged frogs at the time of listing and 
subsequently and contains the following features that are essential for 
the conservation for the subspecies: aquatic habitat for breeding and 
non-breeding activities (PCE 1 and PCE 2) and upland habitat for 
foraging and dispersal activities (PCE 3 and PCE 4). (See unit 
description for SLO-1, Cholame, below). Also as noted in the unit 
description, threats that may require special management in this unit 
include: highway construction, which may remove upland or aquatic 
habitat; overgrazing of aquatic and riparian habitats; and dewatering 
of aquatic habitats due to water diversions. Therefore, based on the 
criteria above, occupancy at the time of listing, and the requirement 
for special management, we have designated SLO-1 as critical habitat, 
including a portion of the Jack Ranch property within SLO-1.
    We recognize that routine ranching activities may be beneficial to 
the California red-legged frog. Therefore, in conjunction with the 
designation of critical habitat, we are promulgating a special rule 
under the authority of section 4(d) of the Act containing the actions 
and prohibitions necessary to provide for the conservation of the 
California red-legged frog. The prohibitions outlined in the special 
rule do not include the take of California red-legged frog during 
existing routine ranching practices. We believe that this special rule 
will encourage landowners and ranchers operating on non-Federal land to 
continue their livestock-related practices that are not only important 
for livestock operations, but that also provide habitat for the 
California red-legged frog. See also response to Comment 38 and Special 
Rule section below.
    (24) Comment: One commenter stated that 6,400 acres (2,590 ha) of 
unit SLO-1 should be excluded from the designation because it does not 
occur within the Cholame Creek watershed. It is the understanding of 
the commenter that the Cholame Creek watershed is where California red-
legged frogs have been documented to occur.
    Our Response: Although the unit description for SLO-1 states it 
``includes locations in the Cholame Creek watershed,'' California red-
legged frogs have also been documented in 2001 (CNDDB 2005) within the 
watershed for Jack Canyon, which drains toward the San Joaquin Valley. 
Therefore, we included the area in question in the critical habitat 
designation as it is occupied, contains the PCEs, and meets our 
criteria for determining areas essential for the conservation of the 
subspecies.
    (25) Comment: One commenter was opposed to the inclusion of land 
covered under the Hearst Ranch Conservation Agreement in coastal San 
Luis Obispo County, a portion of which occurs within units SLO-2 and 
SLO-3. The commenter argued that, because of the level of protection 
provided by the Hearst Ranch Conservation Agreement, these areas either 
do not fall within the definition of critical habitat contained in 
section 3 of the Act or should be excluded under section 4(b)(2) of the 
Act. The commenter asserted that California red-legged frogs will be 
protected through specific measures addressed in Hearst Ranch's draft 
management plan. In addition, the commenter argued that inclusion of 
land covered under the Hearst Ranch Conservation Agreement would 
discourage voluntary conservation initiatives on private lands.
    Our Response: We recognize the importance of voluntary conservation 
measures, such as the Hearst Ranch Conservation Agreement and future 
management plans, that benefit federally listed, proposed, candidate, 
or other at-risk species. Both unit SLO-2 and SLO-3 have been excluded 
under section 4(b)(2) of the Act for economic reasons. See the section 
Relationship of Critical Habitat to Economic Impacts--

[[Page 19252]]

Exclusions Under Section 4(b)(2) of the Act below for additional 
information.
    (26) Comment: One commenter was opposed to the designation of those 
portions of the Flood Family Ranch Company's property located in units 
STB-1 and STB-3. The commenter stated that the continuation of cattle 
grazing on the ranch would be threatened by the critical habitat 
designation. The commenter expressed concerns that the designation of 
critical habitat included areas where new vineyards are planned and 
that the designation would prevent the development of these vineyards. 
The commenter also argued that the designation would interfere with 
existing mining activities that occur along the main stem of the 
Sisquoc River, which runs through the ranch property. The commenter 
provided information and maps showing the locations of the planned 
vineyards and mining areas. Finally, the commenter contended that the 
designation of the ranch lands as critical habitat for the California 
red-legged frog is improper and unwarranted. The commenter asserted 
that the Service did not use the best available science for the 
designation because the Service did not survey the area for the 
presence of the subspecies and/or the presence of PCEs. To support 
this, the commenter contended that California red-legged frogs have 
never been observed in STB-1, yet we proposed designating this area as 
critical habitat for the California red-legged frog. The commenter 
further asserted that the Service did not identify any specific special 
management considerations and protections required within the revised 
proposed critical habitat areas.
    Our Response: Maps and other information provided by the commenter, 
which show the location of planned vineyards and mining areas, confirm 
that these areas were not part of the revised critical habitat proposal 
(70 FR 66906; November 3, 2005) and are not included in this final 
designation of critical habitat for the California red-legged frog.
    Although we did not conduct surveys for California red-legged frog 
during the course of designating critical habitat, we did use the best 
scientific data available, in accordance with section 3(5)(A)(i) of the 
Act and regulations at 50 CFR 424.12. As noted in the unit descriptions 
(see STB-1, La Brea Creek unit description, and STB-3, Sisquoc River 
unit description, below) occurrence records from the time of listing 
exist for both STB-1 and STB-3. The unit descriptions for both STB-1 
and STB-3 also included special management considerations for each 
unit.
    We recognize that routine ranching activities may be beneficial to 
the California red-legged frog. Therefore, as part of this final rule, 
we are promulgating a special rule under the authority of section 4(d) 
of the Act containing the actions and prohibitions necessary to provide 
for the conservation of the California red-legged frog. The 
prohibitions outlined in the special rule do not include the take of 
California red-legged frog during existing routine ranching practices. 
We believe that this special rule will encourage landowners and 
ranchers operating on non-Federal land to continue their livestock-
related practices that are not only important for livestock operations, 
but also provide habitat for the California red-legged frog.
    (27) Comment: One commente