Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alameda Whipsnake, 58176-58231 [06-8367]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Rules and Regulations]
[Pages 58176-58231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8367]



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Part III





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 Alameda Whipsnake; Final Rule

Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018AT93


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Alameda Whipsnake

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 Alameda whipsnake (Masticophis 
lateralis euryxanthus) pursuant to the Endangered Species Act of 1973, 
as amended (Act). In total, approximately 154,834 acres (ac) (62,659 
hectares (ha)) critical habitat are being designated for the taxon. The 
critical habitat is located in Alameda, Contra Costa, Santa Clara, and 
San Joaquin Counties, California.

DATES: This rule becomes effective on November 1, 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. The final rule and economic 
analysis are available via the Internet at https://www.fws.gov/
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 (16 U.S.C. 1531 et seq.). 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, but 
it does not require specific actions to restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
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 finalizing 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 
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

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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

    The Alameda whipsnake, also known as the Alameda striped racer, 
reaches an adult size of 3 to 5 feet (ft) (91 to 152 centimeters (cm)) 
in length and inhabits the inner coast range mostly in Contra Costa and 
Alameda Counties (Jennings 1983; McGinnis 1992; Swaim 1994), with 
additional occurrence records in San Joaquin and Santa Clara Counties 
(California Natural Diversity Database (CNDDB) 2006; Swaim 2004). 
Lizards, particularly the western fence lizard (Sceloporus 
occidentalis), are the primary prey of the Alameda whipsnake, however, 
the whipsnake's diet may include other prey items (e.g., rattlesnakes 
and nesting birds) depending on an individual's size, sex, age, and 
location. Several individuals monitored by Swaim (1994, p. 50) for 
nearly an entire activity season appeared to maintain stable home 
ranges varying in area from 1.9 to 8.7 ha (5.0 to 21.5 ac). Movements 
of these individuals were multi-directional, and individual snakes 
returned to specific areas and retreat sites after long intervals of 
nonuse. Whipsnakes had one or more core areas (areas of concentrated 
use) within their home range as described above, centered on a scrub 
community; however, whipsnakes often ventured for periods of a few 
hours to weeks at a time into adjacent habitats, including grassland, 
oak savanna, and occasionally oak-bay woodland. Male whipsnakes 
extensively used grasslands during the mating season in spring. Female 
Alameda whipsnakes used grassland areas most extensively after mating, 
possibly in search of suitable egg-laying sites.
    It is our intent to limit discussion in this final rule to new 
information or clarification or correction of earlier information. For 
more information on the Alameda whipsnake, please refer to the December 
5, 1997 final listing rule (62 FR 64306), previous October 3, 2000 
final critical habitat designation (65 FR 58933), and the October 18, 
2005 proposed critical habitat designation (70 FR 60607).

Threats

    Several factors can affect the mosaic nature of the habitat upon 
which the Alameda whipsnake depends. Fire suppression can alter the 
structure of Alameda whipsnake habitat by allowing plants to establish 
a closed canopy, resulting in more uniformly cool conditions that may 
affect the Alameda whipsnake as well as its lizard prey base. 
Infrequent catastrophic wildfires may result in losses of habitat and 
direct mortality of Alameda whipsnakes. Incompatible grazing practices 
such as overgrazing, or bulldozing and burning in preparing lands for 
grazing, can result in significant and long-term losses of the scrub 
component of the vegetation mosaic comprising Alameda whipsnake 
habitat. Construction and use of paved or unpaved roads and trails 
within largely unbroken tracts of habitat, for recreational or other 
purposes, may result in both incremental losses of Alameda whipsnake 
habitat and direct mortality of individual Alameda whipsnakes crushed 
by motorized or unmotorized vehicles. These threats render the 
remaining habitat less suitable for the Alameda whipsnake, and special 
management may be needed to address them.

Previous Federal Actions

    On June 7, 2001, the Home Builders Association of Northern 
California and others filed a lawsuit in the United States Court for 
the Eastern District of California (Court) against the Service, 
challenging the final designation of critical habitat for the Alameda 
whipsnake (Home Builders Association of Northern California et al. v. 
U.S. Fish and Wildlife Service et al., 268 F. Supp. 2d 1197). On May 9, 
2003, the U.S. District Judge vacated and remanded the October 3, 2000, 
final rule designating critical habitat for the Alameda whipsnake and, 
on January 14, 2004, issued an order specifying a schedule for 
completion of a new final rule. Our proposed critical habitat for the 
Alameda whipsnake was published in the Federal Register on October 18, 
2005 (70 FR 60607). A draft economic analysis of the proposed critical 
habitat was published in the Federal Register on May 4, 2006 (71 FR 
26311).
    For more information on previous Federal actions concerning the 
Alameda whipsnake, refer to the December 5, 1997, final listing rule 
published in the Federal Register (62 FR 64306).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Alameda whipsnake published on 
October 18, 2005 (70 FR 60607). The comment period for the proposed 
rule closed on December 19, 2005. A second comment period was opened 
for comments on the Draft Economic Analysis (DEA) and the proposed rule 
on May 4, 2006, and closed on June 5, 2006 (71 FR 26311). Comments and 
new information received in response to the proposed rule and the DEA 
were incorporated in the final rule as appropriate and/or summarized 
below.
    During the comment periods for the proposed rule, we received a 
total of 20 comment letters from Federal, State and local governments, 
and private individuals. Of those comment letters; 5 were peer reviews; 
1 letter provided comments based on comparison of the proposed rule 
with the rule remanded by Court order on May 9, 2003; 10 provided 
comments on the status of particular lands, and 2 of these 10 also 
commented on comparison with the remanded rule; 1 letter commented on 
the occurrence of Alameda whipsnake in non-chaparral habitats; 1 stated 
that all habitat should be saved; 1 expressed general support for the 
draft East Contra Costa County Habitat Conservation Plan and Natural 
Community Conservation Plan (ECCHCP/NCCP); and 1 had particular 
questions on the impact of critical habitat designation on the 
development process. We did not receive any requests for a public 
hearing.

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 all 
five peer reviewers. Four of the peer reviewers agreed generally with 
the descriptions, methods, and the primary constituent elements used in 
this designation. Of those that agreed, one peer reviewer stated the 
designation should go forward as written, two peer reviewers identified 
specific areas that should be added to the designation, and one peer 
reviewer identified specific areas for both addition to and removal 
from the designation. The fifth peer reviewer commented on habitat 
associations, feeding specialization, and slope exposure, and 
recommended additional explanation about habitats where the species is 
seen less frequently. One of five peer reviewers agreed with the 
exclusions we had already proposed under section 4(b)(2) of the Act but 
requested clarifications, while a second peer reviewer disagreed with 
those exclusions. The other three peer reviewers did not comment on the

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exclusions. Three of five peer reviewers felt that additional areas 
should be designated critical habitat in the vicinities of proposed 
critical habitat Units 5A and 5B.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Alameda whipsnake, and addressed them in the following 
summary.

Peer Reviewer Comments

    (1) Comment: One peer reviewer concluded that inadequate attention 
had been given to the issue of intergradation (transitional forms 
resulting from breeding with similar species; in this case, between the 
Alameda whipsnake and the chaparral whipsnake) in the proposed 
designation, noting that he had observed whipsnakes with 
characteristics of Alameda whipsnakes up to 20 miles (mi) (32 
kilometers (km)) south of Unit 5A in Del Puerto Canyon and San Antonio 
Valley within Santa Clara County. The peer reviewer recommended that 
these areas should ideally be designated as critical habitat, and 
suggested that zones of intergradation are vital to the conservation of 
the Alameda whipsnake. The peer reviewer also called for a study of 
intergradation using genetic analysis as appropriate.
    Our Response: We examined the available information on 
intergradation, including published descriptions by Reimer (1954, p. 
47) and Jennings (1983, p. 343.1), and Jennings' comments on the 
proposed listing (Jennings 1994, letter dated March 19, 1994). Those 
references indicate potential intergrades on the eastern and southern 
range of the proposed designation, but not in Santa Clara County. Our 
research into additional occurrence records outside those areas 
designated in Santa Clara County did not locate documentation of such 
records of whipsnake intergrades during the preparation of this final 
rule. We requested the peer reviewer provide additional documentation, 
but did not receive a response within either comment period. Based on 
examination of our Geographic Information System (GIS) database, we 
determined that Del Puerto Canyon and San Antonio Valley do contain at 
least one primary constituent element (PCE). We conclude that the 
reviewer may be correct that Alameda whipsnake intergrades are present 
to the south of the proposed designation, but there is inadequate 
information to support a change in the designation in this area. While 
we may agree with the commenter as to the need for additional study, 
designation of critical habitat is based on the best and most current 
scientific and commercial information available. Without further 
information on the location of whipsnake intergrades, we cannot fully 
consider additional areas for inclusion in critical habitat. Finally, 
we do not believe that all such habitat, even if occupied, must be 
designated as critical habitat, nor did we believe it necessary to 
designate unoccupied habitat. We conclude that the designations of 
Units 5A and 5B as proposed are sufficient for conservation of the 
Alameda whipsnake in the southern range of the subspecies.
    (2) Comment: One peer reviewer noted that the accepted common name 
of the Alameda whipsnake is Alameda striped racer, but assumes its use 
is beyond revision at this time.
    Our Response: We have indicated in the Background section above 
that Alameda striped racer is another name for Alameda whipsnake.
    (3) Comment: One peer reviewer suggested not excluding any critical 
habitat from the final designation because management for the Alameda 
whipsnake should not be much more difficult if such lands are included 
rather than excluded.
    Our Response: We agree that the designation of critical habitat 
does not substantially increase the regulatory requirements already in 
place for a listed species. However, there are multiple ways to provide 
for the management and conservation of a species and its habitat. 
Federal, State, local, or private management plans can provide 
protection and management to avoid the need for designation of critical 
habitat. When we determine whether a plan is adequate in protecting a 
species or its habitat, we consider whether the plan, as a whole, will 
provide at least the same level of protection as the designation of 
critical habitat. 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 or better overall. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the primary constituent elements (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.
    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 species. For more 
information, see Application of Section 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below.
    (4) Comment: One peer reviewer suggested that eucalyptus 
(Eucalyptus sp.) and redwood (Sequoia sempervirens) are not essential 
features because they can form a closed canopy. The peer reviewer 
states that eucalyptus in particular can invade grasslands and 
brushland habitats as well as increase fire risk, which could lead to 
the loss of regional Alameda whipsnake populations. However, the peer 
reviewer acknowledged the potential for eucalyptus and redwood trees to 
provide cover and function as a movement corridor. The reviewer 
provided six color digital aerial photographs showing his recommended 
removal from the critical habitat designation of groves of eucalyptus 
or other inappropriate habitat from Units 2 and 6. The reviewer 
comments that the proposed rule suggests that redwood and eucalyptus 
are essential features.
    Our Response: In the proposed rule, we indicated that proliferation 
of non-native species, including eucalyptus, is a factor associated 
with threats to the Alameda whipsnake and is in need of special 
management. In this particular case, based on the existence of 
eucalyptus groves as well as roads, we have decided to remove one 
specific area in Unit 2 and three specific areas in Unit 6, as 
identified in the peer reviewer's comments. One additional change in 
Unit 2 included moving a portion of the west boundary to follow the 
alignment of Redwood Creek. We also reviewed language in the proposed 
rule as it pertains to eucalyptus and redwood. We conclude that this 
language notes that eucalyptus and redwood are examples of the types of 
vegetation included within woodland communities adjacent to scrub 
habitat, but this does not require that we include them. As noted by 
the peer review comment, these areas may require special management to 
reduce fire risk. As mentioned in the proposed and this final rule, PCE 
2 provides several of the biological processes, including dispersal, 
foraging, and contact with adjacent habitat. There may be instances 
within the designation in which eucalyptus or redwood areas are 
included to provide the spatial connectivity needed for dispersal and

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contact between higher quality vegetation types. We have decided not to 
remove mention of eucalyptus or redwood in the primary constituent 
elements section, because these habitat types may be present in areas 
that are essential for dispersal and contact and/or may require special 
management.
    (5) Comment: Two peer reviewers suggested designating additional 
critical habitat in the area between Units 5A and 5B. One of the peer 
reviewers stated that this area has current Alameda whipsnake 
populations, is in private ownership, and may be threatened by direct 
mortality along ranch roads and residential development of ranchettes 
and cabins or other habitat modification. We requested and received 
additional documentation of Alameda whipsnake sightings in the subject 
area. The sightings, all photographed, were made between April 21, 
2001, and May 2, 2004, by the peer reviewer: three on Ohlone 
Conservation Bank lands, and one adjacent to San Francisco Water 
Department lands (San Antonio Watershed).
    A second peer reviewer's comment on this issue suggested that 
additional areas between Units 5A and 5B should be designated because 
it is a vast area of core type habitat, and the lack of observations is 
due only to a lack of surveys for the species in this specific area, 
and designation as critical habitat is necessary to connect major known 
Alameda whipsnake localities. The reviewer considered the division and 
reduction of Unit 5, relative to the 2000 rule remanded by the Court in 
2003, to be inappropriate based on information concerning Alameda 
whipsnake habitat and mobility.
    Our Response: We reviewed the materials provided and consider the 
additional sighting information provided by one of the peer reviewers 
to be authentic. GIS analysis confirms that the area mentioned by the 
peer reviewers contains all PCEs, and possesses significant blocks of 
chamise chaparral and coastal scrub vegetation as well as major rock 
outcroppings and Alameda whipsnake associated soils. This type of 
habitat is similar to more extensively surveyed areas, which support 
robust populations of Alameda whipsnake.
    However, we consider the units presented in the proposed rule to 
contain sufficient PCEs to support the behaviors that we have 
determined to be essential to the conservation of the subspecies. For 
this reason, we have not designated this additional habitat recommended 
by the peer reviewer's in the final rule.
    (6) Comment: One of the peer reviewers expressed concern that the 
proposed rule relies far too heavily on Swaim (1994), and appears not 
to have consulted key references (Larsen et al. 1991; McGinnis and 
Swaim 1992, Swaim and McGinnis 1992). The reviewer summarizes several 
aspects of Alameda whipsnake biology, including the importance of (a) 
rock, talus, and burrows, (b) high lizard densities, (c) southerly 
slope aspect, and (d) open canopy shrub or chaparral. The reviewer 
states that Alameda whipsnakes may forage or pass through a variety of 
other community types such as grassland and oak woodland. The reviewer 
believes that the proposed rule gives the inaccurate impression that 
snake populations may occur only in these other community types and 
that, therefore, additional explanation is needed. The reviewer 
expresses concern that this impression may result in misinterpretation 
during Section 7 consultations. The reviewer states that annual 
grassland, even if adjacent to scrub or chaparral (PCE 1), is not 
critical habitat if it has a low prey base or low presence of retreat 
sites. The reviewer states that the final critical habitat rule should 
address the potential for development on areas with no such features, 
and gives Moller Ranch as an example where development was done in a 
manner compatible with preservation of snake habitat.
    Our Response: We consulted the three references cited in the peer 
review (Larsen et al. 1991; Swaim and McGinnis 1992; McGinnis and Swaim 
1992). The findings of Swaim and McGinnis (1992) which state that 
Alameda whipsnakes were most often associated with southerly slope 
aspects is adequately summarized in the proposed rule (70 FR 60610). 
More recent analyses establish that this association is not as 
exclusive as originally indicated by Swaim and McGinnis (1992), in 
which Alameda whipsnakes were never found on several other slope 
aspects. In fact, Alameda whipsnakes do use all slope aspects. As 
already discussed in the proposed rule (70 FR 60610), this conclusion 
is based on much more extensive studies by Swaim (2000, 2003, 2004, 
2005b-d), as well as on further analysis of the most current database 
of all records by Alvarez (2005, 2006 in press). Alvarez (2006 in 
press, p. 1) found 17 of 82 (21 percent) of Alameda whipsnake records 
with reliable slope aspect determination to be on west, north, and 
northwest slopes. Furthermore, 37 of 129 records (29 percent) of 
Alameda whipsnake observations reviewed by Alvarez (2005, p. 22) were 
found outside of vegetation types considered typical habitat for the 
subspecies. Such usage is well beyond incidental occurrence implied by 
the peer reviewer. For this final rule, we have modified the wording 
slightly in the second paragraph of the Habitat section (70 FR 60610, 
see also below), to reflect the submission during the comment periods 
of additional materials.
    The study by Larsen et al. (1991) supports the statement in the 
proposed rule that Alameda whipsnakes are specialists, eating mainly 
lizards (70 FR 60609). The study by McGinnis and Swaim (1992) is 
substantially similar to Swaim (1994); it does indicate that the 
Alameda whipsnake monitored at Moller Ranch spent 9 percent of its time 
on annual grassland (McGinnis and Swaim 1992, pp. 35-42). There is 
insufficient information from that study or Alvarez (2006 in press) to 
conclude that grassland without crevices or rocks is never used. Based 
on the information available on the subspecies, it is our best 
professional opinion that movement through all habitat types must 
occasionally occur in order to conserve this subspecies. Accordingly, 
no change in the final rule is warranted based on either of these 
citations.
    This final rule defines three PCEs, all of which define elements 
considered essential for conservation of the subspecies (see Primary 
Constituent Elements, below). We decided not to base the inclusion of 
annual grassland as critical habitat on prey densities or retreat sites 
for a number of reasons. First, as noted elsewhere in this peer review 
and in studies by Swaim (1994) and Alvarez (2005, 2006 in press), 
Alameda whipsnakes do utilize grassland habitat for foraging, 
dispersal, mate-seeking, and egg-laying activities (see also 
Background, above). These are essential life history functions that do 
not necessarily rely on the presence of lizard prey densities or 
retreat sites. Multiple captures of juvenile Alameda whipsnakes in 
grassy ridges during recent monitoring of the Stonebrae Country Club 
project site suggest that this habitat may provide an important 
dispersal corridor (Swaim 2006, p. 6). Second, lizard prey densities 
can fluctuate within and between seasons, and determination of critical 
habitat on lizard prey densities may lead to inaccurate representations 
of habitat quality based on instantaneous measurement. Third, those 
areas which contain PCE 2 such as grassland, which may be utilized less 
frequently due to absence of PCE 1 or 3, may lack those PCEs due to 
prior scrub clearing. Such

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areas may be subject to special management considerations, which could 
enhance habitat quality and contribute to the conservation of the 
subspecies. Fourth, as already mentioned in the proposed rule, 
designation of these areas minimizes overall fragmentation of critical 
habitat and allows for interaction between population components of the 
subspecies.

Comments Related to Site-Specific Areas

    (7) Comment: One commenter requested that a location in Unit 3 
known as the Stonebrae project (formerly Blue Rock) be removed from the 
designation. The commenter asserted that few Alameda whipsnakes have 
been found there, the site has been graded, and the developed portion 
of the site does not contain the PCEs. The commenter's reasons for 
excluding the site are that a section 7 consultation with the Service 
for this project site has been completed (Service file reference number 
1-1-01-F-0275, dated July 12, 2002); the site is not essential to the 
conservation of the Alameda whipsnake; the site does not require 
special management beyond that addressed in an existing management 
plan; the benefits of exclusion outweigh the benefits of inclusion 
under section 4(b)(2) of the Act and; citing our proposed rule (70 FR 
60607, p 60620), the section 7 consultation constitutes a type of 
formalized agreement that would provide assurances that conservation 
measures for the subspecies will be implemented and effective.
    Our Response: We requested and received additional monitoring 
information from the commenter, which reported that 7 Alameda 
whipsnakes were captured in the immediate vicinity of the site in 2004, 
and 38 whipsnakes were captured in 2005 (Swaim 2006, pp. 1, 4). Only a 
portion of the site is currently graded or will be graded in the 
future. The golf course element of the project as well as the open 
space currently have at least one of the PCEs based on our analysis of 
the site and information in our files.
    However, we confirm that a Biological Opinion has been issued for 
the Stonebrae project. The Service agrees with the commenter that this 
constitutes a formalized relationship with assurances that conservation 
measures for the subspecies will be implemented and effective, because 
implementation of the conservation measures within the project 
description is required under the Biological Opinion. The project area 
in its entirety has been excluded from the final rule. For more 
information, see Application of Section 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below.
    (8) Comment: In reference to our proposal not to exclude lands in 
Mount Diablo State Park, one commenter explained that several 
management activities, including the removal of livestock, and 
construction and maintenance of fuel breaks, may be causing 
considerable ecological impact, and monitoring of park lands has been 
inadequate. The commenter pointed out the inability of the State Park 
to fulfill directives to protect listed species in accordance with the 
Mount Diablo 1989 General Plan.
    Our Response: In our proposed rule, we solicited information from 
the State as to whether lands within Mount Diablo should be excluded 
from the designation. We did not receive any information from the State 
regarding the designation of critical habitat. We have not excluded 
Mount Diablo State Park from our final designation, because it contains 
the PCE for the species and the area meets our criteria for 
designation.
    (9) Comment: One commenter requested that the eastern boundary of 
Unit 6 be revised to match more specific information in a Biological 
Opinion for a housing development known as Gateway/Montanera (Service 
file reference number 1-1-02-F-0168, dated October 8, 2004). The 
commenter noted that the requested boundary change is based on criteria 
used in the critical habitat designation that was applicable at the 
time of consultation with the Service and, although that critical 
habitat rule was remanded, the methodology for assessing PCEs has not 
changed significantly in the proposed rule.
    Our Response: The discussion of the Conservation Measures in the 
Biological Opinion states that the 973 ac (394 ha) of conservation 
lands are expected to benefit the Alameda whipsnake (p. 43 of 
Biological Opinion) and ``enhance the value of critical habitat on 
these lands.'' Thus, retention of such conservation lands as critical 
habitat is consistent with the Biological Opinion. The commenter's 
proposed boundary revision primarily separates those areas that will be 
impacted as permitted under the Biological Opinion from areas that will 
not be affected and possess the PCEs. These impacts include 
construction of residences, recreational facilities, trails of various 
kinds, grading, and installation of drainage. In the final rule, the 
Service has revised the critical habitat boundary as requested by the 
commenter to remove developed areas or areas planned to be developed.
    (10) Comment: Two commenters supported the proposed exclusion of 
areas covered by the ECCHCP/NCCP for various reasons. One commenter 
indicated that an overlapping critical habitat designation could 
undermine permit streamlining aspects of Habitat Conservation Plans 
(HCP). A second commenter listed the benefits of the conservation 
measures in the ECCHCP/NCCP of habitat preservation, connectivity, 
management and enhancement, mitigation of activities covered by the 
ECCHCP/NCCP, and contributions to recovery of the Alameda whipsnake and 
maintenance of ecosystem functions.
    Our Response: In this final rule, we have excluded lands within the 
ECCHCP/NCCP boundary. For more information, see Application of Section 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below.
    (11) Comment: One commenter compared the critical habitat 
designated in the proposed rule with a previous 2000 rule which was 
remanded by the Court, and stated that the Service has not adequately 
explained or identified why 203,366 ac (82,299 ha) previously 
designated as critical habitat are not included in the currently 
proposed rule. The commenter specifically refers to areas between Units 
5A and 5B, areas adjacent to proposed development in Unit 3, portions 
of Unit 1, and all of an area known as Unit 7 in the remanded 2000 
rule. The commenter concludes the exclusion of these previously 
designated areas to be arbitrary.
    Our Response: The Service did not arbitrarily exclude areas in the 
proposed rule. We examined the area previously designated as Unit 7 for 
the Alameda whipsnake and considered them along with all other 
scientific information and evaluated the areas based on our methods and 
criteria for this designation. The area within the previously know Unit 
7 did not meet the criteria we used to identify critical habitat for 
this designation. We consider the areas and PCEs included within the 
currently identified critical habitat to be sufficient for conservation 
of the subspecies.
    With respect to the area formerly designated as Unit 7 in the 
remanded rule, we concluded that the potential for movement between 
Units 3 and 4 is possible, but so severely limited by existing roadways 
and current land uses that designation of the area between them would 
not result in a high potential for dispersal. The area within the 
formally designated Unit 7 did not meet our criteria for being 
designated as critical habitat and is not essential.

[[Page 58181]]

    As explained above in our responses to similar comments by three 
peer reviewers (see Comments 1 and 5), we consider the areas designated 
in Units 5A and 5B of the proposed rule to contain sufficient PCEs to 
support the behaviors that we have determined to be essential to the 
conservation of the subspecies.
    The boundaries of Units 1 and 3 in the proposed rule were 
determined from features visible in aerial imagery and described in the 
criteria and methods as including one or more of the following: Ground 
disturbance or other included development; proximity to development; 
included structures or roads; proportion of scrub and chaparral; and 
proportion of soils types associated with multiple records of Alameda 
whipsnake. We have re-examined these particular areas, and have 
determined that the boundaries of Units 1 and 3 are consistent with the 
criteria and methods described in the proposed rule. In this final 
rule, we have excluded one area within Unit 3 because it had been 
adequately considered in a previous Biological Opinion (see Comment 7, 
above)
    (12) Comment: One commenter noted that the proposed rule did not 
identify the area or specific locations of habitat proposed for 
exclusion under section 4(b)(2) of the Act. The commenter assumes that 
the Service proposes to exclude 42,665 ac (7,058 ha) from Unit 4 that 
are covered by the ECCHCP/NCCP, in addition to the 17,440 ac (7,058 ha) 
of East Bay Regional Park District (EBRPD) land that will be excluded.
    The commenter believes that the Service has improperly equated 
protections of critical habitat with those of species listing in its 
exclusion of ECCHCP/NCCP lands. The commenter further states that the 
proposed rule did not state the reasons why EBRPD lands were excluded, 
or identified management activities that may be conducted under federal 
permits or funding that are detrimental to the Alameda whipsnake. 
Finally, the commenter states that the impacts of recreational 
activities, grazing, and roads on EBRPD lands proposed for exclusion 
were not discussed by the Service.
    Our Response: Table 1 of the proposed rule (70 FR 60616) shows the 
distribution by unit of the lands proposed for exclusion. The amount of 
area covered under the ECCHCP/NCCP can be obtained by subtracting the 
local area column in Table 2 from the total area proposed for exclusion 
column in Table 1. The language in the Unit 4 description in the final 
rule has been slightly revised so that it states that EBRPD lands are 
excluded, rather than a portion of such lands. An additional section 
has been provided in the final rule explaining the Service's 
consideration of the incremental protection of designation (see Role of 
Critical Habitat in Actual Practice of Administering and Implementing 
the Act). The proposed rule did include an evaluation and description 
of Federal actions that may destroy or adversely modify habitat, or may 
jeopardize the continued existence of the Alameda whipsnake (70 FR 
60619), which we have revised below (see Effects of Critical Habitat 
Designation). These or other activities could be affected by management 
activity on EBRPD lands. As further discussed in the proposed rule, 
however, we proposed to exclude EBRPD lands based on participation and 
linkage with the ECCHCP/NCCP, and to remove disincentives of such 
participation and linkage where deemed appropriate. For more 
information, see Application of Section 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below.
    (13) Comment: One commenter noted that his client's property, known 
as Oak Knoll, had been properly excluded from the critical habitat 
designation, and should remain excluded in the final rule because it 
was poor habitat, there were no Alameda whipsnake observations, and 
exclusion of the site would meet the section 4(b)(2) balancing test.
    Our Response: In consideration of the criteria described in the 
proposed rule, the location known as Oak Knoll, a decommissioned 
Federal facility, was not determined to be essential for the 
conservation of the subspecies. We are not aware of any recent 
information that would warrant inclusion of this area as critical 
habitat.
    (14) Comment: One commenter indicated that present information did 
not support designation of a 450 ac (182 ha) property in Unit 2 known 
as Faria Ranch. The commenter represents a client who plans to 
construct a housing development on the property. The commenter asserts 
that Faria Ranch generally lacks PCEs, and Alameda whipsnakes have not 
been found on the site. The comment suggests that EnviroNet (2000) 
surveyed the site and found no Alameda whipsnakes. Further, the 
commenter compared the EBRPD Master Plan to a draft document (Huffman-
Broadway Group 2005) his client intends to submit in the future as part 
of an application for a 404 permit in connection to a section 7 
consultation with the Service (i.e., the draft document was provided 
during the comment period, but consultation with the Service has not 
been initiated). The commenter concludes, based on this comparison, 
that no further mitigation measures are required. The commenter makes 
several further general comments related to methods, which we address 
separately below (see Comments Relating to Criteria and Methods).
    Our Response: Faria Ranch is part of a larger geographic area 
encompassing all of the features known as Las Trampas Ridge. In 
contrast to the suggestion by the commenter that Alameda whipsnakes 
were not found in surveys, we find that EnviroNet (2000, p. 1) states 
that ``No trapping of the whipsnake was conducted.'' EnviroNet (2000, 
p. 5) also concludes that Alameda whipsnakes may use the site for short 
periods of time. Moreover, Faria Ranch is within 2 to 4 mi (3 to 6 km) 
of verified records of Alameda whipsnakes, contains small quantities of 
chaparral and rock outcrops, and is within 1,400 ft (427 meters (m)) of 
much more extensive rock outcrops and chaparral. We requested and 
received from the commenter Appendix 4b of the Huffman-Broadway Group 
(2005) report, which included a more recent 2005 site assessment (Swaim 
2005e). This 2005 site assessment concludes that, due to the extensive 
patches of high-quality scrub and chaparral in such close proximity to 
the site, it is very likely that Alameda whipsnakes do occur on Faria 
Ranch (Swaim 2005e, p. 4). Swaim (2005e, p. 4) notes that while Alameda 
whipsnake surveys were not conducted during this assessment, Faria 
Ranch was likely to support high densities of this subspecies based on 
the habitat quality and connection to other areas with recorded 
sightings of Alameda whipsnakes. In contrast to the conclusion by 
EnviroNet (2000, p. 5) that usage would be short term and infrequent, 
Swaim (2005e, p. 4) suggests that portions of Faria Ranch would be 
included within home ranges of any snakes present in the extensive rock 
outcrops and chaparral just north of Faria Ranch.
    We also examined the materials provided for presence or absence of 
the PCEs. Plate C of EnviroNet (2000) provides definitive photographic 
proof of PCEs 1 and 2 on and immediately adjacent to the site. The 
abundant rock outcrops within 1,400 ft (427 ha) of the site were 
verified by the soil information in our GIS database (Rocky Outcrops--
Xerothants). A professional botanist provided further evidence of 
outcrops within the site itself, stating that shrubby rock outcrops 
were examined in detail on three occasions on Faria Ranch (Huffman-
Broadway Group 2005, p. 16). In addition to the

[[Page 58182]]

small inclusions of chaparral and some animal burrows noted on the site 
by EnviroNet (2000, p. 4), much more chaparral occurs in association 
with the rocky soils close to the site. The mammal survey provided by 
the commenter includes an array of common burrowing mammals that very 
likely burrowed on site (Table 2, Attachment 2 in Huffman-Broadway 
Group 2005). The rock outcrops and burrows demonstrate the presence of 
PCE 3 on the site, which is used by the Alameda whipsnake for shelter, 
hibernacula (wintering shelter), foraging, dispersal, and additional 
prey population support functions.
    In the proposed rule, we discussed the need for special management 
considerations to address inappropriate grazing practices. EnviroNet 
(2000, p. 4) identifies grazing as a factor on Faria Ranch that has 
favored invasive exotic species. Special management considerations may 
be needed to manage various effects of grazing or rangeland management 
practices on habitat for Alameda whipsnake, as discussed above 
(Threats), and below in our response to Comment 28. In conclusion, the 
best scientific data indicate that Faria Ranch contains all of the PCEs 
and may require special management. The geographic feature of Las 
Trampas Ridge, which includes Faria Ranch, is occupied by Alameda 
whipsnake. The proximity of observations of Alameda whipsnakes to Faria 
Ranch are well within the dispersal capabilities of the Alameda 
whipsnake, and the habitat is of sufficiently high quality under the 
criteria we have described in the proposed rule to warrant designation. 
Further, the section 7 consultation process has not been initiated, so 
the site cannot be considered for exclusion or removal on that basis. 
For these reasons, Faria Ranch is included in the designated critical 
habitat in the final rule.
    (15) Comment: One commenter points out that the description of Unit 
5A does not include PCE 3, and does not see how Unit 5A can be critical 
habitat if it is devoid of one of the PCE's.
    Our Response: It is not necessary that habitat contain all of the 
PCEs to be designated critical habitat; only sufficient PCEs necessary 
to support one of the life history functions of the species is 
necessary. However, the Unit 5A description in the final rule has been 
amended to make clear that it does contain an abundance of rock bearing 
soils such as rock land, Vallecitos rocky loam, and other types, 
indicating the presence of PCE 3 (talus).

Comments Relating to Criteria and Methods

    (16) Comment: One commenter stated that the proposed rule is 
inadequate because it does not include any unoccupied habitat. The 
commenter states that unoccupied habitat is necessary to the survival 
and recovery of the subspecies. The commenter makes reference to our 
discussion about habitat loss and fragmentation in the remanded October 
3, 2000, final critical habitat rule (65 FR 58933). The commenter 
suggests that the Service has also excluded habitat that currently 
lacks PCEs but could be restored to provide PCEs and aid in the 
recovery of the subspecies. Additionally, the commenter notes that the 
Service did not include any type of buffer habitat.
    Our Response: The criteria and methods in the proposed and this 
final rule have been significantly revised from the remanded final 
critical habitat rule (65 FR 58933) as it pertains to occupancy. 
Habitat determined to be occupied included the habitat between recorded 
observations within the capable and necessary range of movement, with 
relatively high quality habitat for the Alameda whipsnake, presence of 
the PCEs, and other factors (see Methods section and Criteria Used to 
Identify Critical Habitat, below). Additionally, one of the peer 
reviewers concurred with our methodology due to extensive trapping 
surveys in those areas we have designated and where Alameda whipsnakes 
have been found. Habitat occupied by the subspecies extends beyond the 
precise point of collection or observation of known Alameda whipsnake 
sightings, because the snakes have the ability and necessity to move 
and disperse to locations outside these areas, and because the known 
records are only a fraction of the actual population of Alameda 
whipsnakes. Furthermore, although the commenter is correct in that we 
have not designated habitat that does not contain the PCEs but may be 
restorable, we have concluded that designating such habitat is not 
essential for conservation of the subspecies. We have determined that 
we designated sufficient habitat for the conservation of the 
subspecies.
    (17) Comment: One commenter stated that there was no method for 
determining how or when Act protections were no longer needed and that 
this violates the Act as interpreted by the Court.
    Our Response: The language in the May 9, 2003, Court decision to 
which the commenter is referring relates to the issue of identification 
of PCEs. The final rule identifies, enumerates, and discusses those 
PCEs the Service considers essential to the conservation of the 
subspecies and directly relates those PCEs to the specific areas being 
designated and to our implementing regulation found at 50CFR 424.12. 
The final rule is, therefore, in full compliance with the Act as 
interpreted by the Court decision. Additionally, the process for 
determining when the protections of the Act are no longer needed is 
part of the Recovery planning and delisting process and not part of 
critical habitat designation.
    (18) Comment: One commenter states that the proposed rule has 
deficiencies similar to the remanded rule because it relies on 
exclusion criteria that result in what the commenter terms ``deferral 
and overdesignation'' problems.
    Our Response: The language in the May 9, 2003, Court decision to 
which the commenter is referring relates to a finding, as a matter of 
law, that the Service's dependence in the remanded rule on exclusion 
criteria is unwarranted because the remanded rule excluded only 
features and structures, not the land on which they are located. The 
proposed rule, as noted by the commenter, does exclude the land which 
contains buildings, paved areas, and other structures. We have, 
therefore, not designated this land as critical habitat, and we 
consider the proposed rule in compliance with the Act as interpreted by 
the Court decision. Minor editing of the language is included in this 
final rule.
    (19) Comment: One commenter stated that while the PCEs described in 
the proposed rule are those known to be associated with Alameda 
whipsnake, no attempt was made in the proposed rule to discern which 
features or settings are truly essential to the subspecies' 
conservation. The commenter states that the May 9, 2003, Court decision 
requires the Service to do more than identifying habitat features to be 
associated with the subspecies. The commenter claims that all areas 
within each unit that contain PCEs were designated because the proposed 
rule did not state a quantity for patch dimension or minimum amount.
    Our Response: The PCEs described in the proposed rule were not 
selected based on mere association with Alameda whipsnake observations 
or records. The proposed rule includes a detailed description of the 
PCEs, states that they are essential, describes the relationship of 
each PCE to critical and essential life history processes of the 
Alameda whipsnake, and provides support of the selection of the PCEs 
with the best available scientific

[[Page 58183]]

information. This information indicates that a range of patch sizes, 
from very small to large patches, is known to support Alameda whipsnake 
(Swaim 2004, p. 1). In the proposed rule, the Service did not specify a 
patch size or minimum amount of chaparral habitat as a criterion for 
designating critical habitat. The PCEs describe the features essential 
for the Alameda whipsnake and no changes were made in this final rule. 
For additional information, see Criteria Used to Identify Critical 
Habitat, below.
    (20) Comment: One commenter considered the description of the PCEs 
to be overly broad and not in compliance with the May 9, 2003, Court 
decision. The commenter concludes that the formulation of the PCEs in 
the proposed rule provide no guidance for determining the areas that 
are essential to the conservation of the subspecies, because all 
undeveloped areas of the East Bay would possess the PCEs.
    Our Response: The proposed rule includes a detailed description of 
the PCEs and a rationale for why they are essential, describes the 
relationship of each PCE to critical and essential life history 
processes of the Alameda whipsnake, and provides support for the 
selection of the PCEs with the best available scientific information. 
In addition to the PCE descriptions, the proposed rule includes 
additional detailed discussion of the methods and criteria used to 
designate critical habitat. As a result of applying these methods and 
criteria, we have designated sufficient areas containing essential PCEs 
to provide for the life history functions of the subspecies and ensure 
its conservation. These areas are substantially less than all such 
areas in the East Bay that contain PCEs. The Service considers the 
methods and criteria in the proposed rule to be in full compliance with 
the May 9, 2003 Court decision. No change in the description of the 
PCEs, methods, or criteria is warranted in the final rule.
    (21) Comment: One commenter stated that adjacent habitats are 
frequently used and may be critical in their own right. The commenter 
included two peer-reviewed publications supporting his comment (Alvarez 
2005, 2006 in press).
    Our Response: The Service reached this same conclusion in the 
proposed rule (70 FR 60610, ``Habitat''). The references were reviewed 
and found to provide further support for this conclusion as well as for 
Alameda whipsnake mobility. Therefore, this additional information was 
added to the revised sections on Habitat, and Dispersal Habitat, below. 
See also our response to a peer reviewer, above (Comment 6).

Comments Relating to Adequacy of Notice

    (22) Comment: One comment stated that the maps provided in the 
proposed rule were inadequate because they lacked scale and identifying 
features to enable the public to determine what land had been excluded, 
and did not allow the public to determine the differences between areas 
designated in the proposed rule compared to the previous rule remanded 
by Court decision on May 9, 2003.
    Our Response: The Service considers the maps in the proposed rule 
to be adequate for comment. The Service also provided a full legal 
description of all designated areas in the proposed rule. As indicated 
in the summary of the proposed rule, all supporting documents used in 
preparation were available for public inspection. The commenter did not 
request to examine these records. The GIS shapefiles were provided to 
anyone making a request for such information. The Service was not under 
a statutory or Court requirement to compare and explain differences 
between the remanded rule and the proposed rule published on October 
18, 2005. Because the previous critical habitat designation was vacated 
by the Court, this designation is based on the best scientific 
information currently available and stands alone for evaluation and 
review.
    (23) Comment: One commenter contends that the proposed rule fails 
to specify the PCEs, and that its designation of broad areas not 
presently occupied by the Alameda whipsnake constitutes a failure to 
provide adequate public notice.
    Our Response: We specified the PCEs in the proposed rule and did 
not designate areas unoccupied by the Alameda whipsnake (see response 
to Comment 16). The proposed designation was limited to those areas 
containing high quality habitat for the Alameda whipsnake as outlined 
in the Criteria Used to Identify Critical Habitat section of the 
proposed rule. We also specifically noticed all appropriate Federal, 
State, and County government officials, agencies, representatives, and 
the public through direct mailing, local media news releases, Web site 
posting, and newspaper notice. Accordingly, the notice of publication 
of the proposed rule is adequate.

Comments Relating to General Issues of Development Interests

    (24) Comment: One commenter requested clarity on several aspects of 
the development process by the City of Pleasanton, under several 
possible scenarios, namely: (a) Is destruction of Alameda whipsnake 
critical habitat considered ``take'' when no Federal permit or action 
is required? (b) What type of protection is conferred by critical 
habitat designation when a Section 7 permit is not required? (c) Does a 
single home development on infill within a critical habitat area 
require an HCP? (d) Is there a mechanism for the Service to remove 
inappropriately designated properties? The comment noted that the 
position of Dublin on Figures 3 and 5 of the proposed rule should be 
north of Interstate Highway 580.
    Our Response: For information relating to questions (a) and (b) 
please see Effects of Critical Habitat Designation, below. A Federal 
nexus is required to implement the protections of critical habitat 
designation. In response to question (c), the Service notes that the 
commenter does not specify a particular location; therefore we can not 
provide a specific response to this question. In designating critical 
habitat, we avoided areas which included fragmented habitat. As a 
result there are no areas which would be considered as ``infill'' as 
described by the commenter. Also, in designating the critical habitat 
for this species, we did not include small areas embedded within urban 
areas and to the best of our ability did not include developed areas 
within the designation. Any such developed areas remaining within the 
designation would not contain the PCEs and thus not be considered 
critical habitat. As for question (d), the primary mechanism for 
removal of areas that do not contain the PCEs is through the comment 
period that preceded publication of this final rule. The Service notes 
that the commenter did not specify any particular location. However, 
the Service has extensively reviewed all available information, 
published a proposed critical habitat, and modified the proposed 
designation in this final rule as appropriate in response to comments. 
Figures 3 and 5 of the proposed rule do not indicate the position of 
Dublin.
    If a Federal activity or other activity with a Federal nexus within 
designated critical habitat is contemplated, consultation would be 
required and Section 7 authorization obtained for any adverse 
modification of critical habitat. Habitat conditions at the site of the 
action would be considered during this consultation. For additional or 
more site-specific information, please contact the Service's Sacramento 
Field Office (see ADDRESSES).

[[Page 58184]]

    (25) Comment: One commenter suggested that the language describing 
activities that destroy or adversely modify critical habitat should be 
revised to include actions that degrade chaparral scrub or oak 
woodland, rather than actions that alter and degrade such habitat.
    Our Response: The language in the final rule has been modified in 
response to this comment to indicate that activities that destroy or 
adversely modify critical habitat are those that degrade such habitat 
(see Effects of Critical Habitat Designation, Adverse Modification 
Standard, below).

Comments From Other Federal Agencies

    (26) Comment: Lawrence Livermore National Laboratory (LLNL) 
provided information showing that a portion of Department of Energy 
(DOE) lands designated as critical habitat within Unit 5A had been 
burned, and mentioned a number of ongoing activities it expects to 
continue that have already completed consultation with the Service. 
Finally, LLNL requested that language in the final rule be amended to 
mention the initiatives and efforts undertaken as conservation measures 
in its Site 300, which includes the designated critical habitat, to 
protect the Alameda whipsnake and associated coastal scrub habitat.
    Our Response: We verified with the LLNL that the comments with 
respect to fire and ongoing activities were provided to us as 
informational only, and that LLNL is not requesting that its lands be 
excluded from the designation. We acknowledge the conservation measures 
mentioned in the comment. In this final rule, we have decided not to 
exclude DOE lands, and have removed the language stating that the 
Service is unaware of specific management plans or conservation 
measures being undertaken for the Alameda whipsnake or its PCEs at 
LLNL.

Comments From the State

    (27) Comment: The University of California Regents indicated that 
Table 2 of the proposed rule should reflect ownership of 720 ac (291 
ha) acres in Unit 6 and 15 ac (6 ha) in Unit 1 by the University of 
California Regents.
    Our Response: In the final rule, the unit descriptions and Table 2 
were modified to show 720 ac (291 ha) and 15 ac (6 ha) in Units 6 and 
1, respectively, owned by the State of California, and deducted these 
areas from private ownership.
    (28) Comment: The University of California Regents suggested that 
the language in the proposed rule relating to special management 
considerations in Unit 6 is problematic for the University of 
California and local residents due to traffic flow and emergency access 
issues, and that any recommendation to reduce existing, or limit 
additional roads should be removed from the final designation.
    Our Response: Unit 6 is essential to the conservation of the 
subspecies not only as occupied habitat, but also as a connectivity 
corridor for Alameda whipsnake movement between Units 1 and 2. The 
limited area and width of this unit render its functioning as a 
migration corridor particularly sensitive to the existing or additional 
roads. Accordingly, we believe that special management consideration 
may be needed to avoid adversely modifying this habitat. It is not our 
intent in this rule to determine what site-specific management measures 
would be needed within portions of Unit 6. Subsequent consultation 
would be needed to determine what, if any, specific management may be 
needed.
    (29) Comment: The University of California Regents requested that 
State lands managed by the University of California Fire Fuel Reduction 
Programs should be excluded from the critical habitat designation. They 
contend that measures described in the 2020 Long Range Development Plan 
(2020 LRDP) are equivalent to those in a habitat conservation plan, and 
are sufficiently protective of endangered species. The commenter 
detailed some of the mitigation measures and practices in the LRDP. The 
commenter also expressed concern about what consultation burden would 
be required under sections 9 and 10 of the Act due to designation.
    Our Response: When we consider exclusions under section 4(b)(2) of 
the Act, we determine whether the benefits of exclusion outweigh the 
benefits of including the land in a designation. That determination may