Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon Spotted Frog, 53537-53579 [2013-20985]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53537-53579]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20985]



[[Page 53537]]

Vol. 78

Thursday,

No. 168

August 29, 2013

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 Oregon Spotted Frog; Proposed Rule

Federal Register / Vol. 78 , No. 168 / Thursday, August 29, 2013 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2013-0088; 4500030114]
RIN 1018-AZ56


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Oregon Spotted Frog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the Oregon spotted frog under the Endangered 
Species Act. We are proposing critical habitat for this species in 
Washington and Oregon, and this action fulfills our obligations under 
the Endangered Species Act and a court-approved settlement agreement. 
The effect of this regulation will be to designate critical habitat for 
the Oregon spotted frogs' habitat under the Endangered Species Act.

DATES: We will accept comments received or postmarked on or before 
October 28, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by October 15, 2013.

ADDRESSES: Written Comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R1-ES-2013-0088, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2013-0088; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this rulemaking and are available at https://www.fws.gov/wafwo and 
https://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, and at 
the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we may 
develop for this rulemaking will also be available at the U.S. Fish and 
Wildlife Service Web site and Field Office set out above, and may also 
be included at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive SE., Suite 102, Lacey, WA 98503, by telephone 360-753-9440 or by 
facsimile 360-753-9445. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species that is 
determined to be an endangered or threatened species requires that 
critical habitat be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can be 
completed only by issuing a rule. Elsewhere in today's Federal 
Register, we have proposed to list the Oregon spotted frog (Rana 
pretiosa) as a threatened species under the Act.
    The basis for our action. Under the Endangered Species Act, any 
species that is determined to be a threatened or endangered species 
shall, to the maximum extent prudent and determinable, have habitat 
designated that is considered to be critical habitat. Section 4(b)(2) 
of the Endangered Species Act states that the Secretary shall designate 
and make revisions to critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless 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.
    We are preparing an economic analysis of the proposed designation 
of critical habitat. In order to consider economic impacts, we are 
preparing an analysis of the economic impacts of the proposed critical 
habitat designation and related factors. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek additional public review and comment.
    In this rule we propose to designate critical habitat for this 
species. We are proposing to designate 68,192 acres (27,597 hectares), 
and approximately 24 stream miles (38 km) as critical habitat in 
Washington and Oregon. The proposed critical habitat areas are under 
ownership or management by Federal and State agencies, Counties, local 
municipalities, and private individuals. We are considering excluding 
one area in Washington and three areas in Oregon from critical habitat 
designation under section 4(b)(2) of the Act, based on the existence of 
partnerships as evidenced by conservation plans. These areas encompass 
10,277 acres (4,158 hectares). All comments received will be fully 
considered in the Secretary's final determination regarding the 
potential exclusion of these areas and any other areas for which 
exclusion may be appropriate.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information 
received during the comment period, our final determinations may differ 
from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase

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in threats outweighs the benefit of designation such that the 
designation of critical habitat is not prudent.
    (2) Specific information on:
    (a) The amount and distribution of Oregon spotted frog habitat;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the Oregon spotted frog;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why;
    (g) Whether there are any specific areas where the proposed 
critical habitat boundaries should be expanded to include adjacent 
riparian areas, what factors or features should be considered in 
determining an appropriate boundary revision, and why this would be 
biologically necessary or unnecessary; and
    (h) Additional research studies or information regarding the 
movement distances or patterns of Oregon spotted frogs.
    (3) Land use designations and current or planned activities in the 
areas proposed to be designated as critical habitat, and possible 
impacts of these activities on the proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Oregon spotted frog within the proposed critical 
habitat areas.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular; any impacts on small entities or families, 
and the benefits of including or excluding areas from the proposed 
designation that exhibit these impacts.
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    (8) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (9) Whether the areas being considered for exclusion under section 
4(b)(2) of the Act in this proposed rule should be excluded, and 
whether the benefits of excluding these areas would outweigh the 
benefits of including them in the designation.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    Please see the proposed listing rule published in today's Federal 
Register for a complete history of previous Federal actions.
    In a settlement agreement with plaintiff WildEarth Guardians on May 
10, 2011, the Service submitted a workplan to the U.S. District Court 
for the District of Columbia in re Endangered Species Act Section 4 
Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D. DC May 
10, 2011), and obtained the court's approval to systematically, over a 
period of 6 years, review and address the needs of more than 250 
candidate species to determine if they should be added to the Federal 
Lists of Endangered and Threatened Wildlife and Plants. The Oregon 
spotted frog is 1 of 251 candidate species identified in the May 2011 
workplan. Accordingly, a proposed rule to list the Oregon spotted frog 
as a threatened species under the Act is published in today's Federal 
Register.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Oregon spotted frog in this 
section of the proposed rule. For more information on Oregon spotted 
frog species description, taxonomy, life history, habitat and 
distribution descriptions, refer to the proposed rule to list the 
Oregon spotted frog as a threatened species under the Act published in 
today's Federal Register.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided

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pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species, and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features essential to the conservation of the species (such as space, 
food, cover, and protected habitat). In identifying those physical or 
biological features within an area, we focus on the principal 
biological or physical constituent elements (primary constituent 
elements such as roost sites, nesting grounds, seasonal wetlands, water 
quality, tide, soil type) that are essential to the conservation of the 
species. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.
Prudency Determination
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) such designation of critical habitat would not be beneficial to 
the species.
    Currently no imminent threat of take is attributed to collection or 
vandalism to the Oregon spotted frog, and identification and mapping of 
critical habitat is not expected to initiate any such threat. In the 
absence of finding that the designation of critical habitat would 
increase threats to a species, if critical habitat designation would 
result in any benefits, then a prudent finding is warranted. Here, the 
potential

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benefits of designation include: (1) Triggering consultation under 
section 7 of the Act, in new areas for actions in which there may be a 
Federal nexus where it would not otherwise occur because, for example, 
it is or has become unoccupied or the occupancy is in question; (2) 
focusing conservation activities on the most essential features and 
areas; (3) providing educational benefits to State or county 
governments or private entities; and (4) preventing people from causing 
inadvertent harm to the species. Therefore, because we have determined 
that the designation of critical habitat will not likely increase the 
degree of threat to the species and may provide some measure of 
benefit, we find that designation of critical habitat is prudent for 
the Oregon spotted frog.
Critical Habitat Determinability
    Having determined that designation is prudent, under section 
4(a)(3) of the Act, we must find whether critical habitat for the 
Oregon spotted frog is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (1) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (2) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where the species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Oregon spotted frog.
Physical or Biological Features
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species, and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the Oregon spotted frog from studies of this species' habitat, ecology, 
and life history as described below. We have determined that the 
following physical or biological features are essential for the Oregon 
spotted frog:

Space for Individual and Population Growth and for Normal Behavior

    The Oregon spotted frog is the most aquatic native frog species in 
the Pacific Northwest. It is almost always found in or near a perennial 
body of water, such as a spring, pond, lake, sluggish stream, 
irrigation canal, or roadside ditch. For completion of their life 
cycle, Oregon spotted frogs require shallow, stable water areas for egg 
and tadpole survival and development; perennial, deep, moderately 
vegetated pools for adult and juvenile survival in the dry season; and 
perennial water overlying emergent vegetation for protecting all age 
classes during cold wet weather (Watson et al. 2003, p. 298; Pearl and 
Hayes 2004, p. 18). This scenario essentially equates to ``an expansive 
meadow/wetland with a continuum of vegetation densities along edges and 
in pools and an absence of introduced predators'' (Watson et al. 2003, 
p. 298).
    Oregon spotted frogs exhibit fidelity to seasonal pools throughout 
all seasons (breeding, dry, and wet) (Watson et al. 2003, p. 295), and 
these seasonal pools need to be connected by water, at least through 
the spring and again in the fall, for frogs to access them. Subadult 
and adult frogs may be able to make short terrestrial movements, but 
wetted movement corridors are preferred. A wetted movement corridor 
with a gradual topographic gradient (less than or equal to three 
percent) is necessary to enable tadpole movement out of shallow egg-
laying sites into deeper, more permanent water, as water levels recede 
during the dry season (Watson et al. 2003, p. 298; Pearl and Hayes 
2004, p. 20). Impediments to movement may include, but are not limited 
to, hard barriers such as dams and inhospitable habitat, such as lakes 
or rivers/creeks without refugia from predators.
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide space for their individual and population growth and 
for normal behavior: (1) Perennial bodies of water (such as, but not 
limited to springs, ponds, lakes, and sluggish streams) or other water 
bodies that retain water year round (such as irrigation canals or 
roadside ditches) with a continuum of vegetation densities along edges; 
(2) a gradual topographic gradient that enables movement out of shallow 
oviposition (egg-laying) sites into deeper, more permanent water; and, 
(3) barrier-free movement corridors.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    The ecosystems utilized by Oregon spotted frogs have inherent 
community dynamics that sustain the food web. Habitats, therefore, must 
maintain sufficient water quality to sustain all life stages, as well 
as acceptable ranges for maintaining the underlying ecological 
community. These key physical parameters include pH, temperature, 
nutrients, and uncontaminated water.
    For tadpoles and frogs living in productive wetland habitats, food 
is not usually a limiting factor. Post-metamorphic Oregon spotted frogs 
are opportunistic predators feeding on live animals found in or near 
water (important prey species information is provided in the life 
history section of the listing document). Tadpoles are grazers, having 
rough tooth rows for scraping plant surfaces and ingesting plant tissue 
and bacteria, algae, detritus, and probably carrion (Licht 1974, p. 
624; McAllister and Leonard 1997, p. 13). Competitors for food 
resources include nonnative fish species, bullfrogs, and green frogs.
    Pearl and Hayes (2004, pp. 8-9) posit that Oregon spotted frogs are 
limited by both latitude and elevation to areas that provide warm-water 
marsh conditions (summer shallow water exceeding 20 degrees Celsius (C) 
(68 degrees Fahrenheit (F)) based on the observed temperatures and slow 
developmental rates in egg stages (compared to other pond-breeding 
ranid frogs) and increased surface activity in adult frogs as water 
temperatures exceed 20 degrees C (68 degrees F) and when the 
differentiation between surface and subsurface is greater than 3 
degrees C (37 degrees F) (Watson et al. 2003, p. 299). Warmer water is 
important for embryonic development and plant food

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production for larval rearing (Watson et al. 2003, p. 299) and to allow 
subadults and adults to bask.
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for their nutritional and physiological requirements: 
(1) Sufficient quality of water to support habitat used by Oregon 
spotted frogs (including providing for a sufficient prey base); (2) 
absence of competition from introduced fish and bullfrogs; and (3) 
shallow (warmer) water.

Cover or Shelter

    During the dry season, Oregon spotted frogs move to deeper, 
permanent pools or creeks and show a preference for areas with greater 
than 50 percent surface water and/or less than 50 percent vegetation 
closure (Watson et al. 2003, pp. 295, 297), avoiding dense stands of 
grasses with greater than 75 percent closure. They are often observed 
near the water surface basking and feeding in beds of floating and 
shallow subsurface vegetation (Watson et al. 2003, pp. 291-298; Pearl 
et al. 2005a, pp. 36-37) that appears to allow them to effectively use 
ambush behaviors in habitats with high prey availability, and the off-
shore vegetation mats offer basking habitat that is less accessible to 
some terrestrial predators (Pearl et al 2005a, p. 37). Proximity to 
escape cover such as aggregated organic substrates also may be 
particularly important for Oregon spotted frogs to successfully evade 
avian, terrestrial, and amphibian predators (Licht 1986b, p. 241; 
Hallock and Pearson 2001, pp. 14-15; Pearl & Hayes 2004, p. 26).
    Oregon spotted frogs, which are palatable to fish and bullfrogs, 
did not evolve with introduced species and, in some areas, such as 
high-elevation lakes, did not evolve with native fish. Therefore, 
Oregon spotted frogs may not have the mechanisms to avoid the predatory 
fish that prey on the tadpoles. The warm-water microhabitat requirement 
of the Oregon spotted frog, unique among native ranids of the Pacific 
Northwest, exposes it to a number of introduced fish species (Hayes 
1994, p. 25), the most common being brook trout (Salvelinus 
fontinalis). During drought years, as dropping water levels reduce 
wetland refuges, Oregon spotted frog larvae become concentrated and are 
exposed to brook trout predation (Hayes et al. 1997, p. 5; Hayes 1998a, 
p. 15), resulting in lower Oregon spotted frog recruitment (Pearl 1999, 
p. 18). Demographic data suggest introduced fish have a negative effect 
on Oregon spotted frogs because sites with significant numbers of brook 
trout and/or fathead minnow have a disproportionate ratio of older 
spotted frogs to juvenile frogs (i.e., poor recruitment) (Hayes 1997, 
pp. 42-43). Overwintering locations of Oregon spotted frogs, where 
nonnative fish have limited or no access, improve the winter survival 
rates of males and females (Chelgren et al. 2008, p. 749), and the 
associated breeding areas have a significantly higher (0.89 times) 
number of egg masses (Pearl et al. 2009a, p. 142). In addition, 
nonnative fish (in particular wide-gape fish like bluegill sunfish) may 
be facilitating the distribution and abundance of bullfrogs by preying 
upon macroinvertebrates that would otherwise consume bullfrog tadpoles 
(Adams et al. 2003, p. 349).
    Bullfrogs share similar habitat and temperature requirements with 
the Oregon spotted frog, but adult bullfrogs achieve larger body size 
than native western ranids and even juvenile bullfrogs can consume 
post-metamorphic native frogs (Hayes and Jennings 1986, p. 492; Pearl 
et al. 2004, p. 16). In addition, bullfrog larvae can outcompete or 
displace native larvae from their habitat or optimal conditions by 
harassing native larvae at feeding stations or inhibiting native larvae 
feeding patterns (Kupferberg 1997, pp. 1741-1746, Kiesecker and 
Blaustein 1998, pp. 783-784, Kiesecker et al. 2001b, pp. 1966-1967). 
Therefore, Oregon spotted frogs require areas that are sheltered from 
competition with, or predation by, bullfrogs.
    Within the current range of the Oregon spotted frog are two 
different winter regimes. In British Columbia and Washington, the Puget 
Trough climate is maritime with mild summer and winter temperatures. 
Subfreezing conditions occur only for short periods in November through 
March, but ice rarely persists for more than a week. The Cascades 
winter conditions are cold enough to produce ice-capped water bodies 
from December to February, and temperatures regularly extend below 
freezing between mid-October and early April. Known overwintering sites 
are associated with flowing systems, such as springs and creeks, that 
provide well-oxygenated water (Hallock and Pearson 2001, p. 15; Hayes 
et al. 2001, pp. 20-23; Tattersall and Ultsch 2008, pp. 123, 129, 136) 
and sheltering locations protected from predators and freezing 
(Risenhoover et al. 2001b, pp. 13-26; Watson et al. 2003, p. 295; Pearl 
and Hayes 2004, pp. 32-33). Oregon spotted frogs may burrow in mud, 
silty substrate, or clumps of emergent vegetation during periods of 
prolonged or severe cold (Watson et al. 2003, p. 295; McAllister and 
Leonard 1997, p. 17) but may remain active throughout most of the 
winter (Hallock and Pearson 2001, p. 17). Therefore, overwintering 
habitat needs to retain water during the winter (October through March 
or early April), and, to facilitate movement, these areas need to be 
hydrologically connected via surface water to breeding and rearing 
habitat.
    In the areas of the range where water bodies become capped by ice 
and snow for several weeks during the winter, hypoxic water conditions 
can occur due to cessation of photosynthesis combined with oxygen 
consumption by decomposers (Wetzel 1983, pp. 162-170). While lethal 
oxygen levels for Oregon spotted frogs have not been evaluated, other 
ranid species have been found to use overwintering microhabitat with 
well-oxygenated waters (Ultsch et al. 2000, p. 315; Lamoureux and 
Madison 1999, p. 434), and most fish cannot tolerate levels below 2.0 
mg/L (Wetzel 1983, p. 170). However, some evidence indicates that 
Oregon spotted frogs can tolerate levels at or somewhat below 2.0 mg/L 
and do not purposefully avoid areas with low oxygen levels, at least 
for short periods (Hayes et al. 2001, pp. 20-22; Risenhoover et al. 
2001b, pp. 17-18).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for their cover and shelter requirements: (1) 
Permanent fresh water bodies, including natural and manmade, that have 
greater than 50 percent surface water with floating and shallow 
subsurface vegetation during the summer and that are hydrologically 
connected via surface water to breeding and rearing habitat; (2) 
permanent fresh water bodies, including natural and manmade, that hold 
water from October to March and are hydrologically connected via 
surface water to breeding and rearing habitat; (3) physical cover from 
avian and terrestrial predators, and lack of predation by introduced 
fish and bullfrogs; and (4) refuge from lethal overwintering conditions 
(freezing and anoxia).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Oregon spotted frog breeding sites are generally temporarily 
inundated (flooded or underwater) shallows (2-12 in (5-30 cm) deep) 
that are hydrologically connected to permanent waters (Licht 1971, p. 
120, Hayes et al. 2000 entire, Pearl and Bury 2000 entire, Risenhoover 
et al. 2001a, pp. 13-15, Watson et al. 2003, p. 295) and include pools, 
gradually receding shorelines,

[[Page 53543]]

benches of seasonal lakes and marshes, and wet meadows. Egg-laying 
microhabitats are gradually sloped and relatively close to shorelines 
(Hayes et al. 2000, p. 5; Pearl and Bury 2000, p. 6; Pearl and Hayes 
2004, p. 20) and are usually associated with submergent or the previous 
year's emergent vegetation. Characteristic vegetation includes grasses, 
sedges, and rushes. Vegetation coverage beneath egg masses is generally 
high, and Oregon spotted frog egg masses are rarely found over open 
soil or rock substrates (Pearl and Bury 2000, p. 6; Lewis et al. 2001, 
pp. 9-10). Full solar exposure seems to be a significant factor in 
breeding habitat selection and eggs are laid where the vegetation is 
low or sparse, such that vegetation structure does not shade the eggs 
(McAllister and Leonard 1997, pp. 8, 17; McAllister and White 2001, pp. 
10-11; Pearl and Bury 2000, p. 6; Pearl et al. 2009a, pp. 141-142).
    To be considered essential breeding habitat, water must be 
permanent enough to support breeding, tadpole development to 
metamorphosis (approximately 4 months), and survival of frogs. Egg-
laying can begin as early as February in British Columbia and 
Washington and as late as April/May in the higher elevations. In 
addition, breeding habitat must be hydrologically connected to 
permanent waters. The heaviest losses to predation are thought to occur 
shortly after tadpoles emerge from eggs, when they are relatively 
exposed and poor swimmers (Licht 1974, p. 624). Significant mortality 
can also result when tadpoles become isolated in breeding pools away 
from more permanent waters (Licht 1974, p. 619; Watson et al. 2003, p. 
298). Watson et al. (2000, p. 28) reported nearly total reproductive 
failure in 1998 when the egg-laying pools dried due to dry weather 
following breeding. In addition to being vulnerable to desiccation, 
tadpoles may succumb to low dissolved oxygen levels in isolated pools 
and ponds during summer (Watson et al. 2000, p. 28).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide for sites for breeding reproduction, or rearing 
(development) of offspring: (1) Standing bodies of fresh water, 
including natural and manmade ponds, slow-moving streams or pools 
within streams, and other ephemeral or permanent water bodies that 
typically become inundated during winter rains and hold water for a 
minimum of 4 months (from egg-laying through metamorphosis); (2) 
shallow (less than or equal to 12 inches (30cm)) water areas (shallow 
water may also occur over vegetation that is in deeper water); (3) a 
hydrological connection to a permanent water body; (4) gradual 
topographic gradient; (5) emergent wetland vegetation (or vegetation 
that can mimic emergent vegetation via manipulation, for example reed 
canarygrass that can be mowed); and (6) full solar exposure.

Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species

    Dispersal habitat may consist of ephemeral (water present for only 
a short time), intermittent, or perennial drainages that are generally 
not suitable for breeding but can provide corridors that afford 
movement. This habitat also offers areas for the establishment of home 
ranges by juvenile recruits, maintenance of gene flow through the 
movement of juveniles and adults between populations, and recruitment 
into new breeding habitat or recolonization of breeding habitat after 
local extirpations. Detailed studies of dispersal and population 
dynamics of Oregon spotted frogs are limited. However, home ranges in a 
Washington study averaged 5.4 ac (2.2 ha), and daily movement was 16-23 
feet (ft) (5-7 meters (m)) throughout the year (Watson et al. 2003, p. 
295). Oregon spotted frogs at the Sunriver site in Oregon routinely 
make annual migrations of 0.31-0.81 mi (0.5-1.3 km) between the major 
egg-laying complex and an overwintering site (Bowerman 2006, pers. 
comm.). Longer travel distances, while infrequent, have been observed 
between years and within a single year between seasons. The maximum 
observed movement distance in Washington was 1.5 mi (2.4 km) between 
seasons along lower Dempsey Creek to the creek's mouth from the point 
where the frogs were marked (McAllister and Walker 2003, p. 6). In 
Oregon, the maximum observed movement was 1.74 mi (2.8 km) downstream 
(Cushman and Pearl 2007, p. 13). While these movement studies are 
specific to Oregon spotted frogs, the number of studies and size of the 
study areas are limited and studies have not been conducted over 
multiple seasons or years. In addition, the ability to detect frogs is 
challenging because of the difficult terrain in light of the need for 
the receiver and transmitter to be in close proximity. Hammerson (2005) 
recommends that a 3.1-mile (5-km) separation distance for suitable 
habitat be applied to all ranid frog species because the movement data 
for ranids are consistent and the preponderance of data indicates that 
a separation distance of several kilometers may be appropriate and 
practical for delineation of occupancy, despite occasional movements 
that are longer or that may allow some genetic interchange between 
distant populations (for example, the 10-km (6.2-mi) distance noted by 
Blouin et al. 2010, pp. 2186, 2188). Therefore, for the purposes of 
evaluating the connectedness of Oregon spotted frog breeding areas and 
individual frogs' ability to move between areas of suitable habitat, we 
will assume a maximum movement distance of 3.1 mi (5 km). In addition, 
these aquatic movement corridors should be free of impediments to 
movement, including but not limited to hard barriers such as dams and 
biological barriers such as abundant predators.
    Maintenance of populations across a diversity of ecological 
landscapes is necessary to provide sufficient protection against 
changing environmental circumstances (such as climate change). This 
diversity of habitat areas provides functional redundancy to safeguard 
against stochastic events (such as droughts) and may also be necessary 
as different regions or microclimates respond to changing climate 
conditions. Establishing or maintaining populations across a broad 
geographic area spreads out the risk to individual populations across 
the range of the species, thereby conferring species resilience. 
Finally, protecting a wide range of habitats across the occupied range 
of the species simultaneously maintains genetic diversity of the 
species, which protects the underlying integrity of the major genetic 
groups (Blouin et al. 2010, pp. 2184-2185) whose persistence is 
important to the ecological fitness of the species as a whole (Blouin 
et al. 2010, p. 2190).
    Therefore, based on the information above, we identify the 
following physical or biological features needed by Oregon spotted 
frogs to provide habitats protected from disturbance and representative 
of the historical, geographic, and ecological distribution: (1) Wetted 
corridors within 3.1 mi (5 km) of breeding habitat that are free of 
barriers to movement, and (2) a diversity of high-quality habitats 
across multiple sub-basins throughout the geographic extent of the 
species' range sufficiently representing the major genetic groups.

Primary Constituent Elements for Oregon Spotted Frog

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Oregon spotted frog in areas occupied at

[[Page 53544]]

the time of listing, focusing on the features' primary constituent 
elements (PCEs). Primary constituent elements are those specific 
elements of the physical or biological features (PBFs) that provide for 
a species' life-history processes and are essential to the conservation 
of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the Oregon spotted frog are:
    (1) Primary constituent element 1--Nonbreeding (N), Breeding (B), 
Rearing (R), and Overwintering Habitat (O). Ephemeral or permanent 
bodies of fresh water, including, but not limited to natural or manmade 
ponds, springs, lakes, slow-moving streams, or pools within or oxbows 
adjacent to streams, canals, and ditches, that have one or more of the 
following characteristics:
     Inundated for a minimum of 4 months per year (B, R) 
(timing varies by elevation but may begin as early as February and last 
as long as September);
     Inundated from October through March (O);
     If ephemeral, areas are hydrologically connected by 
surface water flow to a permanent water body (e.g., pools, springs, 
ponds, lakes, streams, canals, or ditches) (B, R);
     Shallow water areas (less than or equal to 30 centimeters 
(12 inches), or water of this depth over vegetation in deeper water (B, 
R);
     Total surface area with less than 50 percent vegetative 
cover (N);
     Gradual topographic gradient (less than 3 percent slope) 
from shallow water toward deeper, permanent water (B, R);
     Herbaceous wetland vegetation (i.e., emergent, submergent, 
and floating-leaved aquatic plants), or vegetation that can 
structurally mimic emergent wetland vegetation through manipulation (B, 
R);
     Shallow water areas with high solar exposure or low 
(short) canopy cover (B, R);
     An absence or low density of nonnative predators (B, R, N)
    (2) Primary constituent element 2--Aquatic movement corridors. 
Ephemeral or permanent bodies of fresh water that have one or more of 
the following characteristics:
     Less than or equal to 5 kilometers (3.1 miles) linear 
distance from breeding areas;
     Impediment free (including, but not limited to, hard 
barriers such as dams, biological barriers such as abundant predators, 
or lack of refugia from predators).
    (3) Primary constituent element 3--Refugia habitat. Nonbreeding, 
breeding, rearing, or overwintering habitat or aquatic movement 
corridors with habitat characteristics (e.g., dense vegetation and/or 
an abundance of woody debris) that provide refugia from predators 
(e.g., nonnative fish or bullfrogs).
Special Management Considerations or Protection
    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features essential to the conservation of the 
species and which may require special management considerations or 
protection. Here we describe the type of special management 
considerations or protections that may be required for the physical or 
biological features identified as essential for the Oregon spotted 
frog. The specific critical habitat units and subunits where these 
management considerations or protections apply for each species are 
identified in Unit Descriptions.
    A detailed discussion of activities influencing the Oregon spotted 
frog and their habitat can be found in the proposed listing rule. 
Threats to the physical or biological features that are essential to 
the conservation of this species and that may warrant special 
management considerations or protection include, but are not limited 
to: (1) Habitat modifications brought on by nonnative plant invasions 
or native vegetation encroachment (trees and shrubs); (2) loss of 
habitat from conversion to other uses; (3) hydrologic manipulation; (4) 
removal of beavers; (5) livestock grazing; and (6) predation by 
invasive fish and bullfrogs. These threats also have the potential to 
affect the PCEs if conducted within or adjacent to designated units.
    The physical or biological features essential to the conservation 
of the Oregon spotted frog may require special management 
considerations or protection to ensure the provision of wetland 
conditions and landscape context of sufficient quantity and quality for 
long-term conservation and recovery of the species. Management 
activities that could ameliorate the threats described above include 
(but are not limited to) treatment or removal of exotic and encroaching 
vegetation (for example mowing, burning, grazing, herbicide treatment, 
shrub/tree removal); modifications to fish stocking and beaver removal 
practices in specific water bodies; nonnative predator control; 
stabilization of extreme water level fluctuations; restoration of 
habitat features; and implementation of appropriate livestock grazing 
practices.
Criteria Used To Identify Critical Habitat
    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species. In accordance with the Act and its implementing 
regulation at 50 CFR 424.12(e), we consider whether designating 
additional areas--outside those currently occupied as well as those 
occupied at the time of listing--is necessary to ensure the 
conservation of the species. All areas currently known to be occupied 
by Oregon spotted frogs constitute the specific areas within the 
geographical area occupied by the species at the time of its proposed 
listing on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protections. These areas are 
identified as occupied in each of the unit or subunit descriptions 
below. We are also proposing to designate areas that are currently 
``not known to be occupied'' that are also essential for the 
conservation of the species. The distinction between ``occupied'' and 
``not known to be occupied'' areas is based primarily on a lack of 
survey data for the latter areas (i.e., these areas may be either 
occupied or unoccupied, but have not been surveyed because of access 
limitations). Our determination of the areas occupied at the time of 
listing and the rationale for why ``not known to be occupied'' areas 
are essential for the conservation of the species are provided below.
    We used information from reports and databases prepared by Federal 
and State agencies and private researchers to identify the specific 
locations used by Oregon spotted frogs for egg-laying, rearing, 
nonbreeding, and overwintering. Occurrence data used for determining 
occupancy includes the time period between 2000 and 2012; older 
occurrence data were not considered to be a reliable predictor for 
current occupancy. In only three locations throughout the species' 
range is occurrence data used prior to 2005 (i.e., 2000-2004). 
Therefore, the majority of occupied occurrence data was collected in 
2005 or later.
    The presence of primary constituent elements (PCEs) are not a 
mandatory requirement for areas proposed for

[[Page 53545]]

designation as unoccupied critical habitat (i.e., the ``not known to be 
occupied'' areas in this proposed rule) (50 CFR 424.02(d)). However, 
the presence of PCEs was evaluated in mapping these areas, since areas 
having those features would have greater likelihood of providing 
habitat features essential to Oregon spotted frog conservation. To 
determine whether the currently occupied areas and the ``not known to 
be occupied'' areas contain the primary constituent elements, we 
plotted all occurrence records in ArcGIS, version 9 or 10 
(Environmental Systems Research Institute, Inc.), a computer geographic 
information system program, and overlaid them on National Agriculture 
Imagery Program (NAIP) digital imagery, National Wetland Inventory 
(NWI) data, National Hydrologic Data (NHD), and slope data. Where NWI 
data were available and appeared to well-represent the potential 
habitat as seen on the NAIP imagery, the NWI data were used to 
approximate primary constituent elements. These areas are referred to 
as ``wetlands'' in the unit descriptions. However, in many cases the 
NWI features were either too expansive or not expansive enough to 
capture the known occurrences; in these cases, NAIP imagery, slope, and 
local knowledge were utilized to approximate the primary constituent 
elements. These areas are referred to as ``seasonally wetted'' in the 
unit descriptions. In order to capture primary constituent element 2-
aquatic movement corridors, we used the NHD to map 3.1 mi (5 km) 
distance up and downstream from the occurrence data. NAIP imagery and 
local knowledge were used to refine NHD line features (for example, 
adjusting alignment with actual water course).
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for Oregon spotted frog. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We are proposing for designation of critical habitat lands that we 
have determined are occupied by the Oregon spotted frog at the time of 
listing and contain sufficient elements of physical or biological 
features to support life-history processes essential for the 
conservation of the species. The physical or biological features relate 
to Oregon spotted frog nonbreeding, breeding, rearing, and 
overwintering habitat needs, the specifics of which are discussed in 
greater detail under ``Primary Constituent Elements for Oregon spotted 
frog'' above. We determined occupancy in these areas based on 
occurrence data as described above. These occupied areas provide the 
physical or biological features essential to the conservation of the 
species, which may require special management considerations or 
protection.
    In addition, we are proposing to designate critical habitat within 
areas ``not known to be occupied'' at the time of listing, but that we 
have determined to be essential for the conservation of the species. We 
can designate critical habitat in areas outside the geographic area 
occupied by a species only when a designation limited to its range 
would be inadequate to ensure the conservation of the species. For 
areas not occupied by the species at the time of listing, we must 
demonstrate that these areas are essential to the conservation of the 
species in order to include them in our critical habitat designation. 
For purposes of this proposed rule and our analysis, the ``not known to 
be occupied areas'' are defined as specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of this Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. To determine if ``not known to be 
occupied'' areas met the criteria for critical habitat, we considered: 
(1) The importance of the area to the overall status of the species to 
prevent extinction and contribute to future recovery of the species; 
(2) whether the area presently provides the essential physical or 
biological features, or could be managed and restored to contain the 
necessary physical or biological features to support the species; and 
(3) whether individuals were likely to use or colonize the area. While 
the Act does not require that such features be present in order to 
designate areas as unoccupied critical habitat, these presently ``not 
known to be occupied'' areas generally provide the physical or 
biological features essential for the conservation of the species and 
may require special management considerations or protection. In 
general, these areas are ``not known to be occupied'' because they have 
not been surveyed. However, each of these areas are within occupied 
sub-basins, contain habitat features similar to known occupied areas, 
hydrologically connect (via surface water) occupied areas, and do not 
contain barriers that would inhibit Oregon spotted frog movement 
between occupied areas.
    Within Critical Habitat Unit 1 (Lower Chilliwack River Washington), 
approximately 137 ac (55 ha) and 0.38 river mi (0.61 km) are being 
proposed as unoccupied critical habitat (i.e., ``not known to be 
occupied''--see discussion below), and within Critical Habitat Unit 8 
(Upper Deschutes River Oregon (subunit 8A)), approximately 177 ac (72 
ha) fall within this category. In Critical Habitat Unit 9 (Little 
Deschutes River, Oregon), approximately 45 ac (18 ha), 13 ac (5 ha) 
within Critical Habitat Unit 12 (Williamson River Oregon), and 83 ac 
(33 ha) within Critical Habitat Unit 13 (Upper Klamath Lake Oregon) are 
within unoccupied critical habitat. In total, approximately 455 ac (184 
ha), and 0.38 river mile are proposed as unoccupied critical habitat. 
Each of the areas proposed as unoccupied critical habitat are adjacent 
to known occupied sites, where a number of threats remain operative.
    Although these areas are being treated as if they are unoccupied 
for purposes of this proposed rule, substantial uncertainty surrounds 
their occupancy status. There is no conclusive evidence that the Oregon 
spotted frog is completely absent from these areas, since: (1) Surveys 
have not been conducted (because of access limitations on private 
property or resource limitations on public lands); (2) the unoccupied 
reaches have appropriate habitat based on the best available 
information; (3) these areas are between or connected to known occupied 
areas; and (4) there are no barriers that would constrain upstream or 
downstream movement.
    The species has been extirpated from up to 90 percent of its 
historical range, and limiting the proposed designation to the known 
currently occupied sites would not be adequate to ensure the 
conservation of the species. Including the proposed designation of 
unoccupied habitat is essential to ensure adequate resilience, 
redundancy, and representation in the wild. Resilience describes 
characteristics of a species

[[Page 53546]]

and its habitat that allow it to recover from periodic disturbance. 
Redundancy (having multiple populations distributed across the 
landscape) is needed to provide a margin of safety for the species to 
withstand catastrophic events. Representation (the range of variation 
found in a species) ensures that the species' adaptive capabilities are 
conserved. These terms are not independent of each other, and some 
characteristic of a species or area may contribute to all three.
    The inclusion of unoccupied critical habitat in the proposed rule 
provides for the connectivity of upstream and downstream populations, 
facilitating gene flow and allowing for recolonization of sites that 
may become lost due to threats or other factors. Six of the unoccupied 
areas included in the proposed designation comprise river segments and 
their adjacent seasonally flooded areas. These areas contain some of 
the physical and biological features necessary to support Oregon 
spotted frogs and provide a corridor between known occupied areas. Two 
additional unoccupied areas included in the proposed designation are 
areas that also contain some of the physical and biological features 
necessary to support Oregon spotted frogs, and are adjacent to occupied 
areas. The designation of unoccupied critical habitat connecting known 
occupied areas or adjacent to known occupied sites is essential because 
it provides: (1) Areas for dispersal and the establishment of new 
breeding populations; (2) sites for future reintroduction efforts 
should that be part of a recovery strategy; and (3) nearby nonbreeding, 
breeding, rearing, and overwintering habitat opportunities should 
threats, natural catastrophic, or stochastic events render existing 
occupied sites nonfunctional. All of the unoccupied areas are within 
occupied sub-basins, contain habitat features similar to known occupied 
areas, are hydrologically connected (via surface water) occupied areas, 
and do not contain barriers that would inhibit Oregon spotted frog 
movement between occupied areas.
    Areas proposed as critical habitat for the Oregon spotted frog are 
not representative of the entire known historical geographic 
distribution of the species. We are not proposing to designate critical 
habitat in areas where the species has been extirpated, such as in 
California or the Willamette Valley in Oregon. These historical areas 
do not meet the criteria for critical habitat since they are not 
essential to the conservation of the species.
    We are proposing 14 units of critical habitat for designation based 
on sufficient elements of physical or biological features being present 
to support Oregon spotted frog life-history processes. These units are 
delineated by the sub-basins where Oregon spotted frogs remain extant. 
The threats are relatively consistent across each unit, with the 
exception of one unit where threats are significantly different (Unit 8 
Upper Deschutes River). This unit is further subdivided into two 
subunits. Each unit contains areas occupied by Oregon spotted frogs and 
all of the identified elements of physical or biological features and 
supports multiple life-history processes. Some segments within the 
units contain only some elements of the physical or biological features 
necessary to support the Oregon spotted frog's particular use of that 
habitat. In addition, some segments within the units are not known to 
be presently occupied, but we have determined them to be essential for 
the conservation of the species. Therefore, we are also proposing these 
``not known to be occupied'' areas as critical habitat for the Oregon 
spotted frog.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-ES-R1-2013-0088, on our Internet 
site https://www.fws.gov/wafwo, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing 14 units as critical habitat for Oregon spotted 
frog. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for Oregon spotted frog. The 14 areas we propose as critical 
habitat are: (1) Lower Chilliwack River; (2) South Fork Nooksack River; 
(3) Samish River; (4) Black River; (5) White Salmon River; (6) Middle 
Klickitat River; (7) Lower Deschutes River; (8) Upper Deschutes River; 
(9) Little Deschutes River; (10) McKenzie River; (11) Middle Fork 
Willamette River; (12) Williamson River; (13) Upper Klamath Lake; and 
(14) Upper Klamath. All units contain areas occupied by Oregon spotted 
frogs. However, as previously discussed, some units also contain areas 
``not known to be occupied'' by Oregon spotted frogs; more details 
about these areas are included within each individual critical habitat 
unit description below. The approximate area and river mileage of each 
proposed critical habitat unit and its relevant subunits, as well as 
landownership within each unit, are shown in Tables 1 and 2. Unlike 
Washington, no river miles alone were proposed for designation in 
Oregon as these areas were included within the area of the larger Unit 
designation. River miles alone were applied only where we were unable 
to delineate a polygon to encompass the PBF, such as in incised 
channels or developed areas. Otherwise, all of the river miles are 
encompassed in the acreage totals.

                       Table 1--Approximate Area and Landownership in Proposed Critical Habitat Units for the Oregon Spotted Frog
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Private/Local
                  Critical habitat unit                     Federal Ac (Ha)     State Ac (Ha)      County Ac (Ha)   municipalities Ac        Total
                                                                                                                           (Ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington:
    1. Lower Chilliwack River............................                  0                  0             13 (5)          267 (108)          280 (113)
    2. South Fork Nooksack River.........................                  0                  0                  0           111 (45)           111 (45)
    3. Samish River......................................                  0             1 (<1)             1 (<1)          982 (398)          984 (398)
    4. Black River.......................................          877 (355)          375 (151)           151 (61)      3,478 (1,408)      4,881 (1,975)
    5. White Salmon River................................           108 (44)        1,084 (439)                  0            33 (13)        1,225 (496)
    6. Middle Klickitat River............................      4,048 (1,638)                  0              2 (1)       2,796 (1132)      6,846 (2,770)
Oregon:
    7. Lower Deschutes River.............................            63 (25)                  0                  0            6 (2.5)            69 (28)

[[Page 53547]]

 
    8. Upper Deschutes River.............................     23,211 (9,393)           180 (73)            45 (18)          962 (389)     24,398 (9,873)
    8A. Upper Deschutes River, Below Wickiup Dam.........        1,180 (477)           180 (73)            45 (18)          961 (389)        2,366 (958)
    8B. Upper Deschutes River, Above Wickiup Dam.........     22,031 (8,916)                  0                  0                 <1     22,031 (8,916)
    9. Little Deschutes River............................      5,275 (2,135)           216 (87)            81 (33)      5,789 (2,343)     11,361 (4,598)
    10. McKenzie River...................................            98 (40)                  0                  0                  0            98 (40)
    11. Middle Fork Willamette River.....................          292 (118)                  0                  0                  0          292 (118)
    12. Williamson River.................................     10,335 (4,182)                  0                  0      4,817 (1,949)     15,152 (6,132)
    13. Upper Klamath Lake...............................        1,243 (503)              6 (3)                  0        1,002 (405)        2,251 (911)
    14. Upper Klamath....................................            85 (34)                  0                  0           160 (65)           245 (99)
                                                          ----------------------------------------------------------------------------------------------
        Total............................................   45,635 (18, 647)        1,862 (753)          293 (118)     20,402 (8,258)    68,192 (27,597)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all land and stream miles within critical habitat unit boundaries, except those
  stream miles included in Table 2.


                                       TABLE 2--Approximate River Mileage and Ownership Within Proposed Critical Habitat Units for the Oregon Spotted Frog
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                   Private/Local
                                                                   Federal river     Federal/       State river    State/Private   County river   County/Private  municipalities
                           Ownership *                              mile  (km)     Private river    mile  (km)      river mile      mile  (km)      river mile      river mile         Total
                                                                                    mile  (km)                         (km)                            (km)            (km)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Lower Chilliwack River.......................................               0               0               0               0               0               0    7.63 (12.28)    7.63 (12.28)
2. South Fork Nooksack River....................................               0               0               0               0               0               0     3.56 (5.73)     3.56 (5.73)
3. Samish River.................................................               0               0               0               0               0               0     1.73 (2.78)     1.73 (2.78)
4. Black River..................................................     0.06 (0.10)     0.06 (0.09)     0.45 (0.73)     0.05 (0.07)     0.64 (1.02)     0.27 (0.43)     5.90 (9.49)    7.42 (11.94)
5. White Salmon River...........................................     0.91 (1.46)               0               0               0               0               0     2.30 (3.70)     3.20 (5.15)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    Total.......................................................     0.97 (1.55)     0.06 (0.09)       0.5 (0.8)     0.05 (0.07)     0.63 (1.02)     0.27 (0.43)   21.12 (33.97)   23.54 (37.88)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Ownership--multi-ownership (such as Federal/Private) indicate different ownership on each side of the river/stream/creek.
Note: River miles (km) may not sum due to rounding. Mileage estimates reflect stream miles within critical habitat unit boundaries that are not included in area estimates in Table 1.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Oregon spotted frog, below. 
In some cases, multiple data sources are used to inform our 
determinations. These multiple data sources include various unpublished 
reports, databases, and spreadsheets provided by our partner agencies. 
These sources are identified in the literature cited list, which is 
included as supplementary information on https://www.regulations.gov for 
this proposed rule. These sources are available upon request from the 
Washington Fish and Wildlife Office (see ADDRESSES).

Critical Habitat Unit 1: Lower Chilliwack River

    The Lower Chilliwack River unit consists of 280 ac (113 ha) and 8 
river miles (12 river kilometers) in Whatcom County, Washington. This 
unit includes the Sumas River and adjacent seasonally wetted areas from 
approximately the intersection with Hopewell Road downstream to the 
intersection with Gillies Road. This unit also includes portions of 
Swift Creek and an unnamed tributary just south of Swift Creek, along 
with their adjacent seasonally wetted areas. Oregon spotted frogs are 
known to currently occupy 143 ac (58 ha) and 7 river miles (11 river 
kilometers) in this unit (Bohannon et al. 2012). Currently, a 137-ac 
(55-ha) area and a river segment of 0.38 river miles (0.61 river 
kilometers) are ``not known to be occupied'' (see explanation of this 
definition above). We consider the ``not known to be occupied'' acres 
and river miles to be essential for the conservation of the species 
because they provide egg-laying habitat and an aquatic movement 
corridor for the Oregon spotted frogs in the unnamed tributary. Within 
this unit, currently, 13 ac (5 ha) are managed by Whatcom County, and 
267 ac (108 ha) and 8 river miles (12 river kilometers) are privately 
owned. All of the essential physical or biological features are found 
within the unit, but are impacted by invasive plants (reed 
canarygrass), woody vegetation plantings, and hydrologic modification 
of river flows. The essential features within this unit may require 
special management considerations or protection to ensure maintenance 
or improvement of the existing nonbreeding, breeding, rearing, and 
overwintering habitat; aquatic movement corridors; or refugia habitat, 
and to address any changes that could affect these features.

Critical Habitat Unit 2: South Fork Nooksack River

    The South Fork Nooksack River unit consists of 111 ac (45 ha) and 4 
river miles (6 river kilometers) in Whatcom County, Washington. This 
unit includes the Black Slough and adjacent seasonally wetted areas 
from the headwaters to the confluence with South Fork Nooksack River. 
This unit also includes wetlands and seasonally wetted areas along 
Tinling Creek and the unnamed tributary to the Black Slough. Oregon 
spotted frogs are known to currently occupy this unit (Bohannon et al. 
2012). The entire area within this unit is under private ownership, 
including one nonprofit conservation organization. All of the essential 
physical or biological features are found within the unit, but are 
impacted by

[[Page 53548]]

invasive plants (reed canarygrass), woody vegetation plantings and 
succession, and beaver removal efforts. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 3: Samish River

    The Samish River unit consists of 984 ac (398 ha) and 2 river miles 
(3 river kilometers) in Whatcom and Skagit Counties, Washington. This 
unit includes the Samish River and adjacent seasonally wetted areas 
from the headwaters downstream to the confluence with Dry Creek. Oregon 
spotted frogs are known to currently occupy this unit (Bohannon et al. 
2012). Within this unit, currently less than 1 ac (less than 1 ha) is 
managed by Washington Department of Natural Resources (WDNR), 1 ac 
(less than 1 ha) is managed by Skagit County, and 982 ac (397 ha) and 2 
river miles (3 river kilometers) are privately owned, including two 
nonprofit conservation organizations. All of the essential physical or 
biological features are found within the unit, but are impacted by 
invasive plants (reed canarygrass), woody vegetation plantings and 
succession, and beaver removal efforts. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 4: Black River

    The Black River unit consists of 4,881 ac (1,975 ha) and 7 river 
miles (12 river kilometers) in Thurston County, Washington. This unit 
includes the Black River and adjacent seasonally wetted areas from 
Black Lake downstream to approximately 3 mi (5 km) south of the 
confluence with Mima Creek. This unit also includes six tributaries to 
the Black River (Dempsey Creek, Salmon Creek, Blooms Ditch, Allen 
Creek, Beaver Creek, and Mima Creek), one tributary to Black Lake (Fish 
Pond Creek), and their adjacent seasonally wetted areas. Oregon spotted 
frogs are known to currently occupy this unit (Hallock 2013). Within 
this unit, currently 877 ac (355 ha) are Federally managed by the 
Nisqually NWR (873 ac (353 ha)) and the Department of Energy (4 ac (2 
ha)); 375 ac (151 ha) are managed by State agencies, including the 
Washington Department of Fish and Wildlife and Department of Natural 
Resources; 151 ac (61 ha) are City or County managed; and 3,478 ac 
(1,408 ha) are privately owned, including two nonprofit conservation 
organizations. Within this unit, currently 6 river miles (10 river 
kilometers) are privately owned; less than 1 river mile (less than 1 
river kilometer) is dually managed/owned (i.e., different owners on 
opposite sides of the river); and less than 1 river mile (less than 1 
river kilometer) is managed by each of the following: Nisqually NWR, 
State agencies, and Thurston County. All of the essential physical or 
biological features are found within the unit, but are impacted by 
invasive plants (reed canarygrass), woody vegetation plantings and 
succession, and beaver removal efforts. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 5: White Salmon River

    The White Salmon River unit consists of 1,225 ac (496 ha) and 3 
river miles (5 river kilometers) in Skamania and Klickitat Counties, 
Washington. This unit includes the Trout Lake Creek from the confluence 
with Little Goose Creek downstream to the confluence with White Salmon 
River, Trout Lake, and the adjacent seasonally-wetted areas. Oregon 
spotted frogs are known to currently occupy this unit (Hallock 2011 and 
Hallock 2012). Within this unit, currently 108 ac (44 ha) and 1 river 
mile (2 river kilometers) are managed by the U.S. Forest Service 
(USFS), 1,084 ac (439 ha) are managed by Washington Department of 
Natural Resources as the Trout Lake NAP, and 33 ac (13 ha) and 2 river 
miles (4 river kilometers) are privately owned. All of the essential 
physical or biological features are found within the unit, but are 
impacted by invasive plants and nonnative predaceous fish. The 
essential features within this unit may require special management 
considerations or protection to ensure maintenance or improvement of 
the existing nonbreeding, breeding, rearing, and overwintering habitat; 
aquatic movement corridors; or refugia habitat, and to address any 
changes that could affect these features. The Trout Lake NAP (WDNR) has 
a draft Management Plan that is used for management on WDNR lands in 
this unit and we are considering exclusion of these lands under section 
4(b)(2) of the Act (see Exclusions, below).

Critical Habitat Unit 6: Middle Klickitat River

    The Middle Klickitat River unit consists of 6,846 ac (2,770 ha) in 
Klickitat County, Washington. This unit encompasses Conboy Lake, Camas 
Prairie, and all water bodies therein, and extends to the northeast 
along Outlet Creek to Mill Pond. The southwestern edge is approximately 
Laurel Road, the southern edge is approximately BZ Glenwood Highway, 
and the northern edge follows the edge of Camas Prairie to 
approximately Willard Spring. Oregon spotted frogs are known to 
currently occupy this unit (Hayes and Hicks 2011). Within this unit, 
currently 4,048 ac (1,638 ha) are managed by the Conboy Lake National 
Wildlife Refuge; 2 ac (1 ha) are managed by Klickitat County, and 2,796 
ac (1,132 ha) are privately owned. All of the essential physical or 
biological features are found within the unit, but are impacted by 
water management, exotic plant invasion, native tree encroachment, and 
nonnative predaceous fish and bullfrogs. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 7: Lower Deschutes River

    The Lower Deschutes River unit consists of 69 acres (28 ha) in 
Wasco County, Oregon. This Unit includes Camas Prairie and Camas Creek, 
a tributary to the White River and is located on the Mt. Hood National 
Forest. Oregon spotted frogs are known to currently occupy this unit 
(C. Corkran, pers. comm. 2012). Within this unit, 63 ac (25 ha) are 
managed by the USFS Mt. Hood National Forest, and 6 ac (2.5 ha) are 
privately owned. All of the essential physical or biological features 
are found within the unit but are impacted by vegetation succession 
(conifer encroachment). The essential features within this unit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat; aquatic

[[Page 53549]]

movement corridors; or refugia habitat, and to address any changes that 
could affect these features.

Critical Habitat Unit 8: Upper Deschutes River

    The Upper Deschutes River unit includes 24,398 ac (9,873 ha) in 
Deschutes County, Oregon, in the Upper Deschutes River sub-basin. The 
Upper Deschutes River unit extends from headwater streams and wetlands 
draining to Crane Prairie and Wickiup Reservoirs to the Deschutes River 
downstream to Bend, Oregon. This unit also includes Odell Creek and 
Davis Lake. Within this unit, currently 23,210 ac (9,393 ha) are 
managed by the USFS Deschutes National Forest, 180 ac (73 ha) are 
managed by Oregon Parks and Recreation Department, 45 ac (18 ha) are 
owned by the county, and 962 ac (389 ha) are privately owned. The Upper 
Deschutes River unit consists of two subunits: Below Wickiup Dam 
(Subunit 8A) and Above Wickiup Dam (Subunit 8B). Oregon spotted frogs 
are known to currently occupy 24,221 ac (9,801 ha) in unit 8 (USGS, 
Bowerman, and USFS multiple data sources). Within subunit 8A, 177 ac 
(72 ha) are ``not known to be occupied,'' but are essential to the 
conservation of the species for the reasons identified in the subunit 
description below. The essential features within this unit may require 
special management considerations or protection to ensure maintenance 
or improvement of the existing nonbreeding, breeding, rearing, and 
overwintering habitat; aquatic movement corridors; or refugia habitat, 
and to address any changes that could affect these features. Within 
this unit, we are considering exclusion of lands that may be managed 
under a Sunriver Candidate Conservation Agreement with Assurances 
(CCAA), the Old Mill Pond Oregon spotted frog CCAA, and the Deschutes 
Basin Habitat Conservation Plan under section 4(b)(2) of the Act (see 
Exclusions, below).

Subunit 8A: Below Wickiup Dam

    This subunit includes 2,366 ac (958 ha). This subunit consists of 
the Deschutes River and associated wetlands downstream of Wickiup Dam 
to Bend, Oregon, beginning at the outlet of an unnamed tributary 
draining Dilman Meadow. Currently, two areas totaling 177 ac (72 ha) 
are ``not known to be occupied''. We consider the ``not known to be 
occupied'' acres to be essential for recovery of the species because 
they provide aquatic movement corridors between the few remaining 
populations below Wickiup Dam (e.g., Dilman Meadow and frog populations 
downstream along the Deschutes River). Within this subunit, currently 
1,180 ac (477 ha) are managed by the USFS Deschutes National Forest, 
180 ac (73 ha) are managed by Oregon Parks and Recreation Department, 
45 ac (18 ha) are managed by Deschutes County, and 962 ac (389 ha) are 
privately owned. All of the essential physical or biological features 
are found within the subunit but are impacted by hydrologic 
modification of river flows, reed canarygrass, predaceous fish, and 
bullfrogs. The essential features within occupied habitat within this 
subunit may require special management considerations or protection to 
ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Subunit 8B: Above Wickiup Dam

    This subunit includes 22,031 ac (8,916 ha). This subunit includes 
the following lakes, including associated wetlands, in the upper 
watersheds that flow into the Crane Prairie/Wickiup Reservoir system: 
Hosmer Lake, Lava Lake, Little Lava Lake, Winopee Lake, Muskrat Lake, 
and Little Cultus Lake, Crane Prairie, Wickiup Reservoirs, and Davis 
Lake. Deep water areas (i.e., greater than 20 ft (6 m) without floating 
or submerged aquatic vegetation are not included as critical habitat 
within these waterbodies because they do not contain the primary 
constituent elements of critical habitat for Oregon spotted frog. The 
following riverine waterbodies and associated wetlands are critical 
habitat: Deschutes River from Lava Lake to Wickiup Reservoir, Cultus 
Creek downstream of Cultus Lake, Deer Creek downstream of Little Cultus 
Lake, and Odell Creek from an occupied unnamed tributary to the outlet 
in Davis Lake. The land within this subunit is primarily under USFS 
ownership. Oregon spotted frogs are known to currently occupy this 
subunit (USGS 2006 and 2012 datasets; USFS 2012 dataset). Within this 
subunit, currently 22,031 ac (8,916 ha) are managed by the USFS 
Deschutes National Forest and less than one acre (0.14 ha) is in 
private ownership. All of the essential physical or biological features 
are found within the subunit but are impacted by vegetation succession 
and nonnative predaceous fish. The essential features within this 
subunit may require special management considerations or protection to 
ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 9: Little Deschutes River

    The Little Deschutes River unit consists of 11,361 ac (4,598 ha) in 
Klamath and Deschutes Counties, Oregon. The Little Deschutes River unit 
includes the extent of the Little Deschutes River and associated 
wetlands from the headwaters to the confluence with the Deschutes 
River, 1 mile (1.6 km) south of Sunriver and approximately 20 miles 
(32.2 km) south of Bend, Oregon. This unit includes the following 
tributaries, including adjacent wetlands: Big Marsh Creek, Crescent 
Creek, and Long Prairie Creek. Oregon spotted frogs are known to 
currently occupy 11,316 ac (4,490 ha) in this unit (USGS, Bowerman, and 
USFS multiple data sources). Currently, one 45-ac (18-ha) area is ``not 
known to be occupied.'' We consider the ``not known to be occupied'' 
acres to be essential for the conservation of the species because they 
provide an aquatic movement corridor between populations along the 
Little Deschutes River. Within this unit, currently 5,275 ac (2,135 ha) 
are managed by the USFS Deschutes National Forest and Prineville BLM, 
216 ac (87 ha) are managed by the State of Oregon, 81 ac (33 ha) are 
managed by Deschutes and Klamath Counties, and 5,789 ac (2,343 ha) are 
privately owned. Additionally, the essential physical or biological 
features are found within the unit but are impacted by hydrologic 
manipulation of water levels for irrigation, nonnative predaceous fish, 
reed canarygrass, and bullfrogs. The essential features within occupied 
areas within this unit may require special management considerations or 
protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat; aquatic 
movement corridors; or refugia habitat, and to address any changes that 
could affect these features. Within this unit, we are considering 
exclusion of lands that may be managed under the Deschutes Basin 
Habitat Conservation Plan under section 4(b)(2) of the Act (see 
Exclusions, below).

Critical Habitat Unit 10: McKenzie River Sub-Basin

    The McKenzie River unit consists of 98 ac (40 ha) in Lane County, 
Oregon. This critical habitat unit occurs in the Mink Lake Basin, 
located in the headwaters of the main South Fork of the McKenzie River 
on the McKenzie River Ranger District of the Willamette

[[Page 53550]]

National Forest. The McKenzie River unit includes seven wilderness 
lakes, marshes, and ponds: Penn Lake, Corner Lake, Boat Lake, Cabin 
Meadows, two unnamed marshes and a pond northeast of Penn Lake. A small 
segment of the South Fork McKenzie River between the two unnamed 
marshes also is included within this critical habitat unit. The entire 
area within this unit is under USFS ownership. Oregon spotted frogs are 
known to currently occupy this unit (Adams et al. 2011). All of the 
essential physical or biological features are found within the unit, 
but are impacted by nonnative predaceous fish, isolation, and 
vegetation encroachment. The essential features within this unit may 
require special management considerations or protection to ensure 
maintenance or improvement of the existing nonbreeding, breeding, 
rearing, and overwintering habitat; aquatic movement corridors; or 
refugia habitat, and to address any changes that could affect these 
features.

Critical Habitat Unit 11: Middle Fork Willamette River

    The Middle Fork Willamette River unit consists of 292 ac (118 ha) 
in Lane County, Oregon. This unit includes Gold Lake and bog, which are 
located in the 465-acre (188-ha) Gold Lake Bog Research Natural Area on 
the upstream end of Gold Lake on the Willamette National Forest. The 
entire area within this unit is under USFS ownership. Oregon spotted 
frogs are known to currently occupy this unit (USDA Forest Service 
2011). All of the essential physical or biological features are found 
within the unit, but are impacted by nonnative predaceous fish, 
isolation, and vegetation encroachment. The essential features within 
this unit may require special management considerations or protection 
to ensure maintenance or improvement of the existing nonbreeding, 
breeding, rearing, and overwintering habitat; aquatic movement 
corridors; or refugia habitat, and to address any changes that could 
affect these features.

Critical Habitat Unit 12: Williamson River

    The Williamson River unit consists of 15,152 ac (6,132 ha) in 
Klamath County, Oregon. This unit includes the Williamson River and 
adjacent seasonally wetted areas in Klamath Marsh National Wildlife 
Refuge (NWR) 4.89 mi (7.87 km) east of Silver Lake Highway, north to 
0.998 mi (1.61 km) southeast of Big Springs, north through the Refuge 
to 0.24 mi (0.36 km) southeast of Three Creek spring, and upstream to 
2.14 mi (3.44 km) north of the confluence with Aspen Creek. This unit 
also includes a portion of one tributary to the Williamson River (Jack 
Creek) and its adjacent seasonally wetted areas from National Forest 
Road 94 to 0.132 mi (0.212 km) south of National Forest Road 88. Oregon 
spotted frogs are known to currently occupy 15,139 ac (6,127 ha) in 
this unit (USGS, USFS, and USFWS multiple data sources). Currently, one 
13-ac (5-ha) area is ``not known to be occupied.'' We consider the 
``not known to be occupied'' acres to be essential for the conservation 
of the species because they provide an aquatic movement corridor 
between Oregon spotted frogs in the Klamath Marsh NWR to frogs in the 
Upper Williamson River. Within this unit, 10,335 ac (4,182 ha) are 
federally managed by the Klamath Marsh National Wildlife Refuge and the 
USFS Fremont-Winema National Forest, and 4,817 ac (1,949 ha) are 
privately owned. Additionally, the essential physical or biological 
features are found within the unit, but are impacted by invasive plants 
(reed canarygrass), woody vegetation succession, absence of beaver, and 
nonnative predators. The essential features within occupied areas 
within this unit may require special management considerations or 
protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat; aquatic 
movement corridors; or refugia habitat, and to address any changes that 
could affect these features.

Critical Habitat Unit 13: Upper Klamath Lake

    The Upper Klamath Lake unit consists of 2,251 ac (911 ha) in 
Klamath County, Oregon. This unit includes the Wood River and its 
adjacent seasonally wetted areas from its headwaters downstream to the 
Bureau of Land Management (BLM) south levee road just north of the 
confluence with Agency Lake as well as the complete length of the Wood 
River Canal (west of the Wood River) and its adjacent seasonally-wetted 
areas starting 1.80 mi (2.90 km) south of Weed Road and continuing 
south. This unit also includes one tributary to the Wood River (Fort 
Creek) and its adjacent seasonally wetted areas. In addition, this unit 
includes three creeks (Sevenmile, Crane, and Fourmile) that flow into 
Sevenmile Canal and then into Agency Lake and their adjacent seasonally 
wetted areas.
    Sevenmile Creek includes 1.40 mi (2.25 km) beginning north of 
Nicholson Road, south to the confluence of Crane Creek as well as two 
tributaries (Blue Spring and Short Creek) and the associated, adjacent 
seasonally wetted areas. Crane Creek includes adjacent seasonally 
wetted areas 0.28 mi (0.44 km) from its headwaters south to the 
confluence with Sevenmile Creek as well as two tributaries (Mares Egg 
spring and a portion of an unnamed spring to the west of Crane Creek 
0.16 mi (0.30 km) south of three unnamed springs near Sevenmile Road). 
Fourmile Creek includes the adjacent seasonally wetted areas associated 
with the historical Crane Creek channel, Threemile Creek, Cherry Creek, 
Jack springs, Fourmile springs, the confluence of Nannie Creek, and the 
north-south canals that connect Fourmile Creek to Crane Creek.
    Oregon spotted frogs are known to currently occupy 2,168 ac (877 
ha) in this unit (BLM, USFS, USGS, and USFWS multiple data sources). 
Currently, two areas totaling 83 ac (33 ha) are ``not known to be 
occupied.'' We consider the ``not known to be occupied acres'' to be 
essential for the conservation of the species because they contain some 
of the physical and biological features necessary to support Oregon 
spotted frogs and are adjacent to areas known to be occupied by Oregon 
spotted frogs (Fort Creek to the Wood River). In addition, they provide 
an aquatic movement corridor between Oregon spotted frogs in Sevenmile 
Creek to frogs in Crane Creek and its associated tributaries.
    Within this unit, 1,243 ac (503 ha) are managed by the BLM and 
Fremont-Winema National Forest, 6 ac (3 ha) are managed by Oregon State 
Parks, and 1,002 ac (405 ha) are privately owned. All of the essential 
physical or biological features are found within the unit, but are 
impacted by invasive plants (reed canarygrass), woody vegetation 
plantings and succession, hydrological changes, and nonnative 
predators. The essential features within this unit may require special 
management considerations or protection to ensure maintenance or 
improvement of the existing nonbreeding, breeding, rearing, and 
overwintering habitat; aquatic movement corridors; or refugia habitat, 
and to address any changes that could affect these features.

Critical Habitat Unit 14: Upper Klamath

    The Upper Klamath unit consists of 245 ac (99 ha) of lakes and 
creeks in Klamath and Jackson Counties, Oregon. In Klamath County, Buck 
Lake critical habitat includes seasonally wetted areas adjacent to the 
western edge of Buck Lake encompassing Spencer Creek, three unnamed 
springs, and Tunnel Creek. Parsnip Lakes, in Jackson County, includes 
seasonally wetted

[[Page 53551]]

areas associated with Keene Creek from the Keene Creek dam to 0.55 mi 
(0.88 km) east from the confluence of Mill Creek as well as four lakes 
associated with the creek. Oregon spotted frogs are known to currently 
occupy this unit (BLM, USFS, USGS, and USFWS multiple data sources). 
Within this unit, 85 ac (34 ha) are managed by the BLM and Fremont-
Winema National Forest, and 160 ac (65 ha) are privately owned. All of 
the essential physical or biological features are found within the 
unit, but are impacted by woody vegetation succession, nonnative 
predators, lack of beaver, and hydrological changes. The essential 
features within this unit may require special management considerations 
or protection to ensure maintenance or improvement of the existing 
nonbreeding, breeding, rearing, and overwintering habitat; aquatic 
movement corridors; or refugia habitat, and to address any changes that 
could affect these features.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Oregon spotted frog. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Oregon spotted frog, including Federal actions 
that occur outside of critical habitat that impact physical or 
biological features within critical habitat. The regulations at 50 CFR 
402.02 define the ``action area'' as all areas to be affected directly 
or indirectly by the Federal action, and not merely the immediate area 
involved in the action. These activities include, but are not limited 
to:
    (1) Actions that would significantly alter the structure and 
function of the wetland, pond, channel, lake, oxbow, spring, or 
seasonally flooded areas morphology, geometry, or water availability/
permanence. Such actions or activities could include, but are not 
limited to:

[[Page 53552]]

    (1) Filling or excavation; channelization; impoundment;
    (2) road and bridge construction; urban, agricultural, or 
recreational development;
    (3) mining;
    (4) groundwater pumping;
    (5) dredging;
    (6) construction or destruction of dams or impoundments;
    (7) water diversion;
    (8) water withdrawal;
    (9) hydropower generation;
    (10) livestock grazing;
    (11) beaver removal;
    (12) destruction of riparian or wetland vegetation;
    (13) pond construction; and
    (14) river restoration, including channel reconstruction, placement 
of large woody debris, vegetation planting, reconnecting riverine 
floodplain, or gravel placement.
    These activities may lead to changes in the hydrologic function of 
the aquatic habitat and alter the timing, duration, water flows, and 
water depth. These changes may be designed to be beneficial to the 
Oregon spotted frog and actually increase habitat in the long term or 
may degrade or eliminate Oregon spotted frog habitat and could lead to 
the reduction in available breeding, rearing, nonbreeding, and 
overwintering habitat necessary for the frog to complete its life 
cycle. If the permanence of an aquatic system declines so that it 
regularly dries up, it may lose its ability to support Oregon spotted 
frogs. If the quantity of water declines, it may reduce the likelihood 
that the site will support a population of frogs that is robust enough 
to be viable over time. Similarly, ephemeral, intermittent, or 
perennial ponds can be important stop-over points for frogs moving 
among breeding areas or between breeding, rearing, dry season, or 
wintering areas. Reducing the permanence of these sites may reduce 
their ability to facilitate frog movements. However, in some cases, 
increasing permanence can be detrimental as well, if it creates 
favorable habitat for predatory fish or bullfrogs that otherwise could 
not exist in the system.
    (2) Actions that would significantly alter the vegetation structure 
in and around habitat. Such actions or activities could include, but 
are not limited to, removing, cutting, burning, or planting vegetation 
for restoration actions, creation or maintenance of urban or 
recreational developments, agricultural activities, and grazing. The 
alteration of the vegetation structure may change the habitat 
characteristics by changing the microhabitat (e.g., change in 
temperature, water depth, basking opportunities, and cover) and thereby 
negatively affect whether the Oregon spotted frog is able to complete 
all normal behaviors and necessary life functions or may allow invasion 
of competitors or predators.
    (3) Actions that would significantly degrade water quality (for 
example, alter water chemistry or temperature). Such actions or 
activities could include, but are not limited to, release of chemicals 
or biological pollutants into surface water or into connected ground 
water at a point source or by dispersed release (nonpoint source); 
livestock grazing that results in sedimentation, urine, or feces in 
surface water; runoff from agricultural fields; and application of 
pesticides (including aerial overspray). These actions could adversely 
affect the ability of the habitat to support survival and reproduction 
of Oregon spotted frogs. Variances in water chemistry or temperature 
could also affect the frog's ability to survive with Bd, oomycete water 
mold Saprolegnia, or Ribeiroia.
    (4) Actions that would directly or indirectly result in 
introduction of nonnative predators, increase the abundance of extant 
predators, or introduce disease. Such actions could include, but are 
not limited to: Introduction or stocking of fish or bullfrogs; water 
diversions, canals, or other water conveyance that moves water from one 
place to another and through which inadvertent transport of predators 
into Oregon spotted frog habitat may occur; and movement of water, mud, 
wet equipment, or vehicles from one aquatic site to another, through 
which inadvertent transport of eggs, tadpoles, or pathogens may occur. 
These actions could adversely affect the ability of the habitat to 
support survival and reproduction of Oregon spotted frogs. 
Additionally, the stocking of introduced fishes could prevent or 
preclude recolonization of otherwise available breeding or 
overwintering habitats, which are necessary for the conservation of 
Oregon spotted frogs.
    (5) Actions and structures that would physically block aquatic 
movement corridors. Such actions and structures include, but are not 
limited to: Urban, industrial, or agricultural development; water 
diversions (such as dams, canals, pipes); water bodies stocked with 
predatory fishes or bullfrogs; roads that do not include culverts; or 
other structures that physically block movement. These actions and 
structures could reduce or eliminate immigration and emigration within 
a sub-basin.
    (6) Inclusion of lands in conservation agreements or easements that 
result in any of the actions discussed above. Such easements could 
include, but are not limited to NRCS Wetland Reserve Program, USDA Farm 
Service Agency's Conservation Reserve and Conservation Reserve 
Enhancement Programs, Habitat Conservation Plans, Safe Harbor 
Agreements, or Candidate Conservation Agreements with Assurances.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographic areas owned 
or controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation.

[[Page 53553]]

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless 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 statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the Oregon spotted frog, the benefits of critical 
habitat include public awareness of the species presence and the 
importance of habitat protection, and in cases where a Federal nexus 
exists, increased habitat protection for Oregon spotted frogs due to 
the protection from adverse modification or destruction of critical 
habitat.
    When we evaluate a conservation plan during our consideration of 
the benefits of exclusion, we assess a variety of factors, including 
but not limited to, whether the plan is finalized, how it provides for 
the conservation of the essential physical or biological features, 
whether there is a reasonable expectation that the conservation 
management strategies and actions contained in a management plan will 
be implemented into the future, whether the conservation strategies in 
the plan are likely to be effective, and whether the plan contains a 
monitoring program or adaptive management to ensure that the 
conservation measures are effective and can be adapted in the future in 
response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we will evaluate 
whether certain lands in the proposed critical habitat are appropriate 
for exclusion from the final designation under section 4(b)(2) of the 
Act. If the analysis indicates that the benefits of excluding lands 
from the final designation outweigh the benefits of designating those 
lands as critical habitat, then the Secretary may exercise his 
discretion to exclude the lands from the final designation.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. We have identified potential effects to land use sectors that 
may be associated with the following activities: (1) Species and 
habitat management; (2) residential, commercial, or industrial 
development; (3) agriculture, including cattle grazing, dairy farms, 
and hay production; (4) construction of new, or maintenance of, roads 
and highways; (5) maintenance (including vegetation removal or 
alteration) of drainage ditches; (6) construction or maintenance of 
recreational facilities; and (7) construction or maintenance of dams or 
water diversion structures.
    During the development of a final designation, we will consider 
economic impacts based on information in our economic analysis, public 
comments, and other new information, and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for Oregon spotted frog are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security. Consequently, the Secretary is not intending to 
exercise his discretion to exclude any areas from the final designation 
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any conservation plans or other management 
plans for the area, or whether there are conservation partnerships that 
would be encouraged by designation of, or exclusion from, critical 
habitat. In addition, we look at any tribal issues, and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this proposal, we have determined that the proposed 
designation does not include any tribal lands. Therefore, we have not 
proposed designation of critical habitat for the Oregon spotted frog on 
tribal lands. However, we will coordinate with the tribes in nearby 
areas should there be any concerns or questions arising from this 
proposed critical habitat designation. Because we are not proposing 
designation of critical habitat for the Oregon spotted frog on any 
tribal lands, we anticipate no impact to tribal lands.
    We have identified certain areas that we are considering excluding 
from the

[[Page 53554]]

final critical habitat designation for the Oregon spotted frog based on 
conservation partnerships. However, we solicit comments on the 
inclusion or exclusion of such particular areas (see ``Public 
Comments'' section). During the development of the final designation, 
we will consider economic and other relevant impacts, public comments, 
and other new information before deciding if inclusion or exclusion of 
these areas is warranted. As a result, additional areas, in addition to 
those identified below for potential exclusion in this proposed rule, 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act. Alternatively, we may decide not to exclude 
these lands based on information received during the public comment 
period or other information.

    Table 3--Lands Proposed or That May Be Considered for Exclusion From the Final Rule To Designate Critical
                                         Habitat for Oregon Spotted Frog
----------------------------------------------------------------------------------------------------------------
                               Critical habitat unit                 Name of agreement/
  Type of conservation plan             name              State            entity          Acres       Hectares
----------------------------------------------------------------------------------------------------------------
Draft Management Plan........  Middle Klickitat       WA             Trout Lake NAP...        1,084          439
                                River.
Candidate Conservation         Upper Deschutes River  OR             Sunriver.........          219           88
 Agreement.
Candidate Conservation         Upper Deschutes River  OR             Old Mill Pond....           26           10
 Agreement.
Habitat Conservation Plan....  Upper Deschutes River  OR             Deschutes Basin..        8,948        3,621
                                Little Deschutes
                                River.
                              ----------------------------------------------------------------------------------
    Total Considered.........  .....................  .............  .................       10,277        4,158
----------------------------------------------------------------------------------------------------------------

Management Plans or Conservation Partnerships on Non-Federal Lands

    In determining how the benefits of exclusion and the benefits of 
inclusion are affected by the existence of conservation plans and 
partnerships, we evaluate a variety of factors, which may include (but 
are not limited to), the plan's implementation history and demonstrated 
success; whether the plan is finalized; how the plan provides for the 
conservation of the essential habitat features for the species; whether 
there is a reasonable expectation of future implementation; and whether 
the plan contains a monitoring and adaptive management program to 
ensure that the conservation measures are effective in response to new 
information, if necessary.
Trout Lake Natural Area Preserve Draft Management Plan
    We are considering excluding 1,084 ac (439 ha) of lands managed by 
the Washington Department of Natural Resources as the Trout Lake NAP. 
These lands are located in Unit 5 in Klickitat County, Washington. NAPs 
are established to provide the highest level of protection for 
excellent examples of unique or typical land features in Washington 
State and have three objectives: (1) To protect outstanding examples of 
rare or vanishing terrestrial or aquatic ecosystems, rare plant and 
animal species, and unique geologic features; (2) to serve as baselines 
against which the influences of human activities in similar, but 
differently managed ecosystems can be compared; and (3) to provide 
areas that are important to preserving natural features of scientific 
or educational value.
    The Trout Lake NAP was proposed in 1995 to protect three natural 
features, one of which was the Oregon spotted frog. A draft Trout Lake 
NAP management plan was completed in 2001, but has not been finalized 
or approved. The guiding principle for managing this NAP is to permit 
natural ecological and physical processes to predominate, while 
controlling activities that directly or indirectly modify these 
processes. Exceptions may occur when a primary feature (e.g., Oregon 
spotted frog) for which the site was designated would be jeopardized 
without active intervention. The management goal, as it pertains to 
Oregon spotted frogs, is to maintain a stable or increasing population 
where they are found on the NAP through maintenance and restoration of 
habitat and key natural processes.
    Over the last decade, multiple management actions within the NAP 
have been implemented to benefit Oregon spotted frogs, including water 
management and reed canarygrass treatments. Based on discussions with 
managers of the NAP, we expect actions that benefit Oregon spotted 
frogs will continue to be implemented in the future; however, funding 
for these actions is uncertain. We intend to work with the NAP managers 
to revise and finalize the draft NAP Plan for continued use on the 
Trout Lake NAP. If we determine prior to our final rulemaking that 
conservation efforts identified in the newly revised and finalized NAP 
Plan will provide a conservation benefit to the Oregon spotted frog, we 
may exclude the identified lands from the final designation of critical 
habitat.
Sunriver Candidate Conservation Agreement
    In 2004, the Service prepared a draft Candidate Conservation 
Agreement with Assurances (CCAA) with the Sunriver Nature Center, 
Sunriver Owners Association (SROA), Sunriver Resort Limited Partnership 
(SRLP), Crosswater Owners Association, and Vandevert Acres to promote 
conservation measures for Oregon spotted frogs on private lands in the 
vicinity of Sunriver, Oregon. Although the agreement was not finalized 
due to herbicide and pesticide use on golf courses, the Sunriver Nature 
Center and other parties covered under the agreement have participated 
in monitoring for Oregon spotted frog on private golf courses and 
ranches. Additionally, water management practices conducted by the 
Sunriver Nature Center that stabilize water levels from breeding 
through metamorphosis have facilitated conservation and recovery of 
Oregon spotted frog in the Sunriver area, which hosts the largest 
population of Oregon spotted frogs in the Upper Deschutes River sub-
basin. The Service has been discussing the development of a new CCAA 
that is specific to management of water levels using weirs on lands 
owned by SROA and SRLP. If a CCAA is completed prior to the final 
critical habitat rule for Oregon spotted frog that includes adequate 
conservation measures and implementation is assured to promote 
conservation of Oregon spotted frog, we will consider excluding 219 ac 
(89 ha) under this agreement from critical habitat if the conservation 
efforts will provide a conservation benefit of excluding that outweighs 
the benefit of including. These lands are located in Unit 8.

[[Page 53555]]

Old Mill Pond--Oregon Spotted Frog CCAA
    In July 2012, a new population of Oregon spotted frogs was 
discovered in a water retention pond at The Old Mill District Shops in 
downtown Bend, Oregon. In October 2012, frog occupancy was confirmed in 
a nearby wetland adjacent to the Deschutes River on the Old Mill 
property. The Service has been discussing the development of a CCAA for 
the pond and riverine wetland with the owner of the Old Mill District 
property. This area is located in Unit 8. If a CCAA is completed prior 
to the final critical habitat rule for Oregon spotted frog that has 
adequate conservation measures, and its implementation is assured to 
promote the conservation of Oregon spotted frog, we will consider 
excluding 26 ac (11 ha) under this agreement from the final critical 
habitat designation.
Deschutes Basin Habitat Conservation Plan
    The Deschutes Basin Board of Control (DBBC) and the City of 
Prineville are preparing the Upper Deschutes Basin Multi-species 
Habitat Conservation Plan (HCP). These lands are located in Units 8 and 
9. The DBBC consists of seven member irrigation districts including 
Arnold Irrigation District, Central Oregon Irrigation District, North 
Unit Irrigation District, Ochoco Irrigation District, Swalley 
Irrigation District, Three Sisters Irrigation District, and Tumalo 
Irrigation District. They are preparing a Habitat Conservation Plan for 
16 species that occur within the Upper Deschutes and Little Deschutes 
sub-basins including the Oregon spotted frog. If the conservation 
measures within an HCP are deemed adequate and implementation is 
assured to promote the conservation of Oregon spotted frog prior to the 
final critical habitat rule, we will consider excluding approximately 
8,948 ac (3,621 ha) of lands within the Upper Deschutes and Little 
Deschutes sub-basin covered under the HCP from the final critical 
habitat designation.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our listing determination and critical habitat designation are 
based on scientifically sound data, assumptions, and analyses. We have 
invited these peer reviewers to comment during this public comment 
period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received within 45 days after 
the date of publication of this proposed rule in the Federal Register. 
Such requests must be sent to the address shown in FOR FURTHER 
INFORMATION CONTACT. We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings, as well as how to obtain reasonable accommodations, in 
the Federal Register and local newspapers at least 15 days before the 
hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking only on those entities directly regulated by the

[[Page 53556]]

rulemaking itself, and not the potential impacts to indirectly affected 
entities. The regulatory mechanism through which critical habitat 
protections are realized is section 7 of the Act, which requires 
Federal agencies, in consultation with the Service, to ensure that any 
action authorized, funded, or carried out by the Agency is not likely 
to destroy or adversely modify critical habitat. Therefore, only 
Federal action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis, 
we will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will directly regulate only Federal 
agencies, which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, an initial regulatory 
flexibility analysis is not required. However, though not necessarily 
required by the RFA, in our draft economic analysis for this proposal 
we will consider and evaluate the potential effects to third parties 
that may be involved with consultations with Federal action agencies 
related to this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use because there are no energy supply facilities included in the 
areas proposed for designation and, where distribution corridors 
intersect the proposed critical habitat, activities in those corridors 
are not anticipated to adversely affect the primary constituent 
elements. Therefore, this action is not a significant energy action, 
and no Statement of Energy Effects is required. However, we will 
further evaluate this issue as we conduct our economic analysis, and 
review and revise this assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Indian 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Indian governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Indian governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Indian 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We have determined that this rule will not significantly or 
uniquely affect small governments because the designation of critical 
habitat imposes no obligations on State or local governments. By 
definition, Federal agencies are not considered small entities, 
although the activities they fund or permit may be proposed or carried 
out by small entities. Consequently, we do not believe that the 
critical habitat designation would significantly or uniquely affect 
small government entities. As such, a Small Government Agency Plan is 
not required. Further, it will not produce a Federal mandate of $100 
million or greater in any year, that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Oregon spotted frog in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require

[[Page 53557]]

Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. The 
takings implications assessment concludes that this designation of 
critical habitat for Oregon spotted frog does not pose significant 
takings implications for lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism assessment is not required. In keeping with Department of 
the Interior and Department of Commerce policy, we requested 
information from, and coordinated development of, this proposed 
critical habitat designation with appropriate State resource agencies 
in Washington and Oregon. The designation of critical habitat in areas 
currently occupied by the Oregon spotted frog imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation of critical habitat in areas currently occupied by the 
Oregon spotted frog may impose nominal additional regulatory 
restrictions to those currently in place and, therefore, may have 
little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
because the areas that contain the physical or biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical or biological features essential to the 
conservation of the Oregon spotted frog within the designated areas to 
assist the public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA in connection with designating 
critical habitat under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This position was upheld by 
the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 
(1996)).]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands that were occupied by the Oregon spotted frog at the time of 
listing that contain the features essential for conservation of the 
species, and no tribal lands unoccupied by the Oregon spotted frog that 
are essential for the conservation of the species. Therefore, we are 
not proposing to designate critical habitat for the Oregon spotted frog 
on tribal lands.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

[[Page 53558]]

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at https://www.regulations.gov and upon request from the 
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Washington Fish and Wildlife Office, Oregon Fish and Wildlife Office--
Bend Field Office, and Klamath Falls Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.95, amend paragraph (d) by adding an entry for ``Oregon 
Spotted Frog (Rana pretiosa),'' to follow the entry for ``Mountain 
Yellow-legged Frog (Rana muscosa), Southern California DPS'', to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (d) Amphibians.
* * * * *
    Oregon Spotted Frog (Rana pretiosa)
    (1) Critical habitat units are depicted for Klickitat, Skagit, 
Skamania, Thurston, and Whatcom Counties in Washington and Deschutes, 
Jackson, Klamath, Lane, and Wasco Counties in Oregon, on the maps 
below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of Oregon 
spotted frog consist of three components:
    (i) Primary constituent element 1.--Nonbreeding (N), Breeding (B), 
Rearing (R), and Overwintering (O) Habitat. Ephemeral or permanent 
bodies of fresh water, including, but not limited to, natural or 
manmade ponds, springs, lakes, slow-moving streams, or pools within or 
oxbows adjacent to streams, canals, and ditches, that have one or more 
of the following characteristics:
    (A) Inundated for a minimum of 4 months per year (B, R) (timing 
varies by elevation but may begin as early as February and last as long 
as September);
    (B) Inundated from October through March (O);
    (C) If ephemeral, areas are hydrologically connected by surface 
water flow to a permanent water body (e.g., pools, springs, ponds, 
lakes, streams, canals, or ditches) (B, R);
    (D) Shallow water areas (less than or equal to 30 centimeters (12 
inches), or water of this depth over vegetation in deeper water (B, R);
    (E) Total surface area with less than 50 percent vegetative cover 
(N);
    (F) Gradual topographic gradient (less than 3 percent slope) from 
shallow water toward deeper, permanent water (B, R);
    (G) Herbaceous wetland vegetation (i.e. emergent, submergent, and 
floating-leaved aquatic plants), or vegetation that can structurally 
mimic emergent wetland vegetation through manipulation (B, R);
    (H) Shallow water areas with high solar exposure or low (short) 
canopy cover (B, R); and
    (I) An absence or low density of nonnative predators (B, R, N).
    (ii) Primary constituent element 2.--Aquatic movement corridors. 
Ephemeral or permanent bodies of fresh water that have one or more of 
the following characteristics:
    (A) Less than or equal to 5 kilometers (3.1 miles) linear distance 
from breeding areas; and
    (B) Impediment free (including, but not limited to, hard barriers 
such as dams, biological barriers such as abundant predators, or lack 
of refugia from predators).
    (iii) Primary constituent element 3.--Refugia habitat. Nonbreeding, 
breeding, rearing, or overwintering habitat or aquatic movement 
corridors with habitat characteristics (e.g., dense vegetation and/or 
an abundance of woody debris) that provide refugia from predators 
(e.g., nonnative fish or bullfrogs).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[INSERT EFFECTIVE DATE OF THE FINAL RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created from 2010 aerial photography from U.S. Department of 
Agriculture, National Agriculture Imagery Program base maps using 
ArcMap (Environmental Systems Research Institute, Inc.), a computer 
geographic information system (GIS) program. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation. The coordinates or plot points or 
both on which each map is based are available to the public at the 
Service's internet site (https://www.fws.gov/wafwo), https://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, and at the field 
office(s) responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.

[[Page 53559]]

    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP29AU13.000
    
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[[Page 53560]]

    (6) Unit 1: Lower Chilliwack River, Whatcom County, Washington. Map 
of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.001


[[Page 53561]]


    (7) Unit 2: South Fork Nooksack River, Whatcom County, Washington. 
Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.002


[[Page 53562]]


    (8) Unit 3: Samish River, Whatcom and Skagit Counties, Washington. 
Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.003


[[Page 53563]]


    (9) Unit 4: Black River, Thurston County, Washington. Map of Unit 4 
follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.004


[[Page 53564]]


    (10) Unit 5: White Salmon River, Skamania and Klickitat Counties, 
Washington. Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.005


[[Page 53565]]


    (11) Unit 6: Middle Klickitat River, Klickitat County, Washington. 
Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.006


[[Page 53566]]


    (12) Unit 7: Lower Deschutes River, Wasco County, Oregon. Map of 
Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.007


[[Page 53567]]


    (13) Unit 8A: Upper Deschutes River, Subunit: Below Wickiup Dam, 
Oregon.
    (i) Map 1 of 2, Upper Deschutes River, Below Wickiup Dam, Deschutes 
County, Oregon. Map 1 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.008


[[Page 53568]]


    (ii) Map 2 of 2, Upper Deschutes River, Below Wickiup Dam, 
Deschutes County, Oregon. Map 2 of 2 of Unit 8A follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.009


[[Page 53569]]


    (14) Unit 8B: Upper Deschutes River, Subunit: Above Wickiup Dam, 
Oregon.
    (i) Map 1 of 2, Upper Deschutes River, Above Wickiup Dam, Deschutes 
and Klamath Counties, Oregon. Map 1 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.010


[[Page 53570]]


    (ii) Map 2 of 2, Upper Deschutes River, Above Wickiup Dam, 
Deschutes and Klamath Counties, Oregon. Map 2 of 2 of Unit 8B follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.011


[[Page 53571]]


    (15) Unit 9: Little Deschutes River, Deschutes and Klamath 
Counties, Oregon.
    (i) Map 1 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 1 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.012


[[Page 53572]]


    (ii) Map 2 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 2 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.013


[[Page 53573]]


    (iii) Map 3 of 3, Little Deschutes River, Deschutes and Klamath 
Counties, Oregon. Map 3 of 3 of Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.014


[[Page 53574]]


    (16) Unit 10: McKenzie River, Lane County, Oregon. Map of Unit 10 
follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.015


[[Page 53575]]


    (17) Unit 11: Middle Fork Willamette River, Lane County, Oregon. 
Map of Unit 11 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.016


[[Page 53576]]


    (18) Unit 12: Williamson River, Klamath County, Oregon. Map of Unit 
12 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.017


[[Page 53577]]


    (19) Unit 13: Upper Klamath Lake, Klamath County, Oregon. Map of 
Unit 13 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.018


[[Page 53578]]


    (20) Unit 14: Upper Klamath, Jackson and Klamath Counties, Oregon. 
Map of Unit 14 follows:
[GRAPHIC] [TIFF OMITTED] TP29AU13.019


[[Page 53579]]


* * * * *

    Dated: August 6, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-20985 Filed 8-28-13; 8:45 am]
BILLING CODE 4310-55-C