Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon Spotted Frog
Federal Register, Volume 81 Issue 91 (Wednesday, May 11, 2016)
Federal Register Volume 81, Number 91 (Wednesday, May 11, 2016)
Rules and Regulations
Pages 29335-29396
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-10712
Page 29335
Vol. 81
Wednesday,
No. 91
May 11, 2016
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Oregon Spotted Frog; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Docket No. 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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Oregon spotted frog (Rana pretiosa) under the Endangered Species Act. In total, approximately 65,038 acres (26,320 hectares) and 20.3 river miles (32.7 river kilometers) in Whatcom, Skagit, Thurston, Skamania, and Klickitat Counties in Washington, and Wasco, Deschutes, Klamath, Lane, and Jackson Counties in Oregon, fall within the boundaries of the critical habitat designation. The effect of this regulation is to designate critical habitat for the Oregon spotted frog under the Endangered Species Act.
DATES: This rule becomes effective on June 10, 2016.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/wafwo. Comments and materials we received, as well as some supporting documentation we used in preparing this final rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at: 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.
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, and at the Washington Fish and Wildlife Office (http://www.fws.gov/wafwo) (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Eric V. Rickerson, State Supervisor, 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. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a final rule to designate critical habitat for the Oregon spotted frog. Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA or Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.
We, the U.S. Fish and Wildlife Service (Service), listed the Oregon spotted frog as a threatened species on August 29, 2014 (79 FR 51658). On August 29, 2013, we published in the Federal Register a proposed critical habitat designation for the Oregon spotted frog (78 FR 53538). On June 18, 2014, we published in the Federal Register a proposed refinement to the August 29, 2013, proposal (79 FR 34685). Section 4(b)(2) of the Act states that the Secretary shall designate 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 critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Oregon spotted frog. Here we are designating approximately 65,038 acres (ac) (26,320 hectares) (ha)) and 20.3 river miles (mi) (32.7 river kilometers (km)) in 14 units as critical habitat in Washington and Oregon for the Oregon spotted frog.
This rule consists of: A final rule for designation of critical habitat for the Oregon spotted frog. The Oregon spotted frog was listed as threatened under the Act. This rule designates critical habitat necessary for the conservation of the species. We have prepared an economic analysis of the designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum and a screening analysis, which together with our narrative and interpretation of effects we consider our draft economic analysis (DEA) of the proposed critical habitat designation and related factors. The analysis, dated April 30, 2014, was made available for public review from June 18, 2014, through July 18, 2014 (79 FR 34685). The analysis was made available for review a second time when we reopened the comment period from September 9, 2014, through September 23, 2014 (79 FR 53384). The DEA addressed probable economic impacts of critical habitat designation for the Oregon spotted frog. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. We have incorporated the comments into this final determination.
Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We solicited opinions from nine knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and whether or not we used the best available information. Five individuals provided comments. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation. We also considered all comments and information received from the public during the comment period.
Previous Federal Actions
The Service listed the Oregon spotted frog as a threatened species on August 29, 2014 (79 FR 51658). A list of the previous Federal actions can be found in the final listing rule and in the proposal to designate critical habitat (78 FR 53538, August 29, 2013).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the Oregon spotted frog during three comment periods. The first comment period associated with the publication of the proposed rule (78 FR 53538) opened on August 29, 2013, and closed on November 12, 2013. We
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opened a second comment period on June 18, 2014, to allow for comment on the DEA and associated perceptional effects memorandum, as well as a revised proposed rule with changes to the critical habitat designation; this period closed on July 18, 2014 (79 FR 34685). A third comment period opened September 9, 2014, to allow for additional comment on the DEA and associated perceptional effects memorandum, and on the changes to proposed critical habitat we announced on June 18, 2014; it closed on September 23, 2014 (79 FR 53384). We received one request for a public hearing; however, the request was from a county in California where the species is not known to currently occur (see Response to Comment 22). However, we did hold a public hearing on October 21, 2013, in Lacey, Washington. In addition, multiple informal public meetings were held in the Bend and Klamath Falls areas in Oregon. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and DEA during these comment periods.
During the three comment periods, we received comments from 114 commenters directly addressing the August 29, 2013, proposed critical habitat designation and the June 18, 2014, revision to proposed critical habitat. During the October 21, 2013, public hearing, four individuals or organizations made statements on the designation of critical habitat for the Oregon spotted frog. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped into six general issues specifically relating to the proposed critical habitat designation for the Oregon spotted frog and the June 18, 2014, proposed revision to the designation, and are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from nine knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses pertinent to the proposed critical habitat rule from five peer reviewers.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the Oregon spotted frog. Two of the peer reviewers provided additional information, clarifications, and suggestions to improve the final critical habitat rule. We evaluated and incorporated this information into this final rule when and where appropriate to clarify this final designation. Two peer reviewers provided substantive comments on the proposed designation of critical habitat for the Oregon spotted frog, which we address below. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: One peer reviewer expressed concern that Unit 7 does not sufficiently delineate the habitat currently used by the population of Oregon spotted frogs in that area, specifically Camas Prairie. The western boundary was drawn around what appear to be wetlands on aerial photographs, but does not account for the primary wintering sites, such as springs, small streams, and immediately adjacent streambanks.
Our response: This comment was received during the comment period for our original proposed critical habitat, published in the Federal Register on August 29, 2013 (78 FR 53538). We subsequently modified the boundaries of Unit 7 to include overwintering habitat and included this boundary refinement in the revised critical habitat proposed in the Federal Register on June 18, 2014 (79 FR 34685). We did not receive comments that disagreed with the Unit 7 boundary refinements; therefore, the final designation for this unit includes, according to the best available scientific information, the known habitats that meet the year-round needs of the species in this unit.
(2) Comment: One peer reviewer stated that, in his experience, egg-
laying sites are depressions that hold shallow water in a nearly flat topography and frequently do not sustain water for the entire 4-month larval rearing period. The reviewer stated that it is only critical that these depressions maintain water during the embryonic development and early larval periods to allow tadpoles to move to more permanent waters to complete their development. The success of these breeding pools is based on the ability of free-swimming tadpoles to move out to more permanent waters sometime after hatching, usually within about 2 weeks. Therefore, the total period of time that these areas must retain water, from egg-laying to out-migration, is closer to 6 weeks.
Our response: The primary constituent element (PCE) characteristic of inundation for a minimum of 4 months per year is applied to both the breeding and rearing habitats. This is not counter to the information discussed by the peer reviewer. However, throughout the range of the species, not all breeding areas are shallow, seasonally inundated areas that cannot support rearing, such that tadpoles must out-migrate. For example, some breeding areas in Oregon and Washington retain water throughout the rearing phase. Due to the variations across the range, we believe the characteristic of inundation for a minimum of 4 months is appropriate.
Comments From Federal Agencies
(3) Comment: One commenter from the U.S. Environmental Protection Agency, two State commenters (one from Washington Department of Ecology (WDOE) and one from Washington Department of Fish and Wildlife (WDFW), Whatcom County, and one member of the public expressed the opinion that the portion of Swift Creek included in the proposed critical habitat may not be capable of supporting a healthy Oregon spotted frog population due to the environmental conditions caused by the Sumas Mountain landslide.
Our response: We concur that Swift Creek and the segments of the Sumas River downstream of its confluence with Swift Creek likely lack the PCEs and may not be capable of providing habitat in the future. Therefore, based on the information provided by the commenters, we have revised Unit 1 to remove these areas from critical habitat.
(4) Comment: A commenter with the U.S. Forest Service (USFS) and three public commenters suggested expanding the proposed critical habitat designation in Unit 12 to include newly identified occupied habitat at the headwaters of Jack Creek (Yellow Jacket Spring area) and extend the downstream extent to Lily Camp. One commenter asked that all wet meadow habitat adjacent to Jack Creek be explicitly mentioned in the text as critical habitat. The public commenters also recommended expanding proposed critical habitat to include Round Meadow, an unoccupied but apparently suitable site that was not proposed as critical habitat.
Our response: Critical habitat in Unit 12 was proposed for expansion on June 18, 2014 (79 FR 34685), extending critical habitat approximately 3.1 mi (5 km) downstream along Jack Creek to O'Connor Meadow. This expansion includes the location described as Yellow Jacket Spring by the
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commenters. However, we did not include the area beyond O'Connor Meadow as far south as Lily Camp due to the lack of detections south of Yellow Jacket Spring. This is in compliance with the 3.1-mi (5-km) rule set, as defined in our description of critical habitat (78 FR 53546). To the best of our ability, we believe that the entire wet meadow habitat associated with Jack Creek has been included in critical habitat in Unit 12. We have no information in our files to suggest that Round Meadow is currently occupied by Oregon spotted frogs. Technically, Round Meadow is part of the Deschutes Basin; however, it is not hydrologically connected via surface water to any other Oregon spotted frog location in the Deschutes Basin nor the Klamath Basin, including Jack Creek. Thus Round Meadow does not fit the criteria for designating unoccupied critical habitat.
(5) Comment: A commenter from the USFS observed that the National Wetlands Inventory (NWI) data used, in part, to map critical habitat for the Oregon spotted frog does not capture all potential wet habitats along rivers, streams, lakes, and ponds and concluded that the proposed critical habitat does not accurately encompass all potential habitat. The commenter then recommended adding language to the rule to address areas of potential habitat outside mapped critical habitat in order to be clear as to whether these lands will be treated as critical habitat.
Our response: We are aware that the NWI does not map all potential wet habitats that are consistent with our PCEs. Where we knew the data was incomplete, we employed National Agriculture Imagery Program (NAIP) digital imagery, hydrologic and slope data, and our best professional judgment to identify and map the areas containing the PCEs. Critical habitat, as defined and used in the Act, is the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features essential for the conservation of the species and which may require special management considerations or protection, and specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. All the areas designated as critical habitat for the Oregon spotted frog meet the definition of critical habitat and contain the PCEs for the species' habitat; conversely, areas of potential habitat outside of the designated critical habitat boundaries could not be determined to meet the definition of critical habitat or contain the PCEs and are, therefore, not included in this final designation. However, the lateral extent of critical habitat along river corridors will vary because of their dynamic nature.
Critical habitat along river corridors in Units 1 through 5 is intended to encompass rivers/streams/creeks and all areas within the associated hydrologic floodplain, including adjacent seasonally wetted areas that contain any components of the PCEs. The text within the criteria section and unit descriptions has been revised to better define the features included in this final designation. The commenter did not provide specific details of areas believed to be incorrectly mapped; therefore, no additional changes beyond the revised descriptions have been made to critical habitat boundaries.
(6) Comment: A commenter from USFS raised a concern about the scale of critical habitat mapping in an area of proposed Unit 10. The area of concern is in the Willamette National Forest on the south fork of the McKenzie River between two unnamed marshes. The width of the stream, as mapped for the purposes of critical habitat, is 2 meters wide at some points, and the stream channel itself may shift depending on seasonal flow. Considering this scenario, the commenter suggested a 100-foot (ft) buffer on each side of the segment of stream in question, stating that such an amendment would not only accommodate future changes in the location of the stream, but would also protect habitat immediately adjacent to the stream, which the USFS indicated should be considered as important for protecting the physical and biological features that are essential to the conservation of the Oregon spotted frog. Similarly, a commenter from WDFW suggested that proposed critical habitat along streams would be improved by making allowances for natural disturbance processes, such as flooding and American beaver (Castor canadensis) activity, which might affect the size and location of the wetted areas along streams.
Our response: Regarding the McKenzie River polygon width, we recognize that there are areas within the critical habitat designation where our mapped polygons may not precisely delineate all of the habitat features that constitute critical habitat for the spotted frog due to limitations of the data used to delineate the boundaries. We also recognize that the characteristics of the area designated as critical habitat may fluctuate over time as water is impounded by beavers or natural disturbances affect the riverine hydrology. We mapped critical habitat using NAIP imagery, NWI information, and other resources at a scale of 1:24,000, which has inherent limitations that preclude the specificity the commenters desire. While we acknowledge the data limitations implicit in our data source, the addition of a 100-ft buffer along all rivers would encompass an area beyond what is necessary for the survival and recovery of the Oregon spotted frog. However, see the Criteria Used To Identify Critical Habitat section and our response to Comment 5 pertaining to the in-text description of areas that are considered to be critical habitat along designated river miles (see Table 2 for a summary of approximate river mileage and ownership within proposed critical habitat units, and also descriptions of Units 1 through 5).
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.'' Comments received from the State regarding the proposal to designate critical habitat for the Oregon spotted frog are addressed below.
(7) Comment: A commenter from the WDOE suggested that text in the proposed rule appears to confuse the Sumas River in Whatcom County, Washington, with the Chilliwack River in British Columbia, Canada. The commenter asserted that in one part of the rule the Sumas River is described as a tributary to the Lower Chilliwack River watershed, which the commenter believed to be correct, but pointed out that elsewhere in the rule the Sumas River was used interchangeably with the Chilliwack River and/or the Lower Chilliwack River, which the commenter felt was incorrect.
Our response: The commenter's confusion arises from the multiple geographic scales that could be used to describe the distribution of the Oregon spotted frog. Because we are considering the species across its range, we attempted to use a consistent naming convention across the range, specifically we chose to use the hydrological unit code (HUC) 8 (4th field or sub-basin) or HUC 10 (5th field or watershed) delineation. In this case, the Sumas River is a tributary to the Lower Chilliwack River watershed (HUC 10) and to the Fraser River sub-basin (HUC 8), and we chose to use the HUC 10 name to delineate Unit 1 consistent with the convention used for the other critical habitat units.
(8) Comment: The WDFW questioned why some areas were not included in
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Critical Habitat Unit 4: Black River. The agency stated that we did not clearly identify whether the wetlands (including seasonally flooded wetlands and pastures) associated with Upper Dempsey Creek, Upper Salmon Creek, and lower Beaver Creek were included. The agency further commented that these segments have not been well-surveyed, and the possibility remains that Oregon spotted frogs occur in the wetlands associated with these segments. In addition, the agency noted that Allen Creek between Tilly Road and Interstate 5 (through Deep Lake and Scott Lake) is not mapped as critical habitat and that, although Oregon spotted frogs are not currently known to occur in this area, there are many unsurveyed wetlands and the possibility remains that Oregon spotted frogs may occur here.
Our response: Critical habitat, as defined and used in the Act, is the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features essential for the conservation of the species and which may require special management considerations or protection, and specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. We agree that, throughout the range, there are many areas that may provide the types of habitat needed by the Oregon spotted frog but have yet to be surveyed; however, the available information is not sufficient to support a conclusion that all of these areas are essential for the conservation of the species.
To the best of our ability, we have included the seasonally flooded wetlands and pastures associated with Upper Dempsey Creek, Upper Salmon Creek, and lower Beaver Creek when they were within 3.1 mi (5 km) of currently known occupied areas. Please see response to Comment 5 for further clarification of areas included in the river mile segments. Areas beyond 3.1 mi (5 km) of currently known occupied areas were outside of our mapping criteria. As noted by WDFW, the areas of Allen Creek between Tilly Road and Interstate 5 are not occupied, there have been no indications that Oregon spotted frogs are or will be able to use Deep Lake and Scott Lake, nor did WDFW provide information to support our finding that these areas are essential for the conservation of the species; therefore, we were unable to adequately justify revising the boundaries of Unit 4 to include these areas.
(9) Comment: The WDFW wanted to highlight the preparation of a Habitat Conservation Plan (HCP) that will cover multiple species across Washington State where they occur on WDFW-owned Wildlife Areas and requested that the Service provide the same consideration for exclusion of West Rocky Prairie Wildlife Area under section 4(b)(2) of the Act as the Service is providing to the Deschutes Basin Multispecies HCP.
Our response: The Service acknowledges the valuable effort on the part of WDFW to prepare the state-wide Wildlife Areas HCP. The protective provisions provided by completed HCPs are an important part of balancing species conservation with the needs of entities to manage their lands for public and private good. In the absence of an approved HCP, there are no concrete assurances of funding or implementation of the measures included in such a plan. Because there is no approved HCP for either the West Rocky Prairie Wildlife Area or the Deschutes Basin Multispecies area, we are unable to exclude either of these areas from the proposed designation of critical habitat.
(10) Comment: The Washington Department of Natural Resources (WDNR) expressed support for the designation of critical habitat on the Trout Lake Natural Area Preserve (NAP) in the absence of a completed Management Plan, stating that designation of critical habitat would be appropriate and may help strengthen conservation support at the site.
Our response: In our proposed designation of critical habitat for the Oregon spotted frog (78 FR 53538), we stated that we were considering the exclusion of the Trout Lake NAP if conservation efforts identified in a revised and finalized NAP management plan would provide a conservation benefit to the Oregon spotted frog. Based on comments from WDNR, we understand that the management plan for this area cannot be updated and finalized before final designation of critical habitat. Therefore, with WDNR's support, Trout Lake NAP was not excluded from critical habitat. We appreciate the WDNR's commitment to managing the Trout Lake NAP for the benefit of the Oregon spotted frog.
(11) Comment: The WDNR stated that the proposed critical habitat in areas regulated by WDNR presents a potential conflict between the long-
term Washington State Forest Practices Rules and their associated HCP, citing a misalignment between management strategies for wetlands and riparian areas and the habitat maintenance and enhancement needs for the Oregon spotted frog. Because the Oregon spotted frog is not a covered species under the Forest Practices HCP and the proposed listing decision does not draw a specific determination regarding the ``potential for incidental take of the species while conducting forest management activities covered by the Forest Practices HCP,'' the regulating State agency expressed its desire to ``avoid a circumstance where actions approved to benefit one set of listed species may potentially adversely impact another listed species.''
Our response: The Oregon spotted frog, as a species, is not generally dependent on a forested landscape; therefore, there is a lower likelihood that Oregon spotted frogs or their habitat will be negatively affected by forest management activities. That said, Oregon spotted frogs may occur in areas delineated as forested wetlands (e.g., along Trout Lake Creek) or located downstream or downslope from forest management activities, and management agencies should be aware of the activities that may negatively impact them. An example of such activity may include upslope management actions that alter the hydrology of streams, springs, or wetlands upon which Oregon spotted frogs depend. Activities that are currently allowed under the Forest Practices HCP do have the potential to impact Oregon spotted frogs or their habitat. Conversely, disallowing management actions that could improve habitat for Oregon spotted frogs could hinder or prolong their recovery. For example, a lack of options to manage trees and/or shrubs that encroach into the wetlands could reduce the availability of suitable egg-laying habitat. We note that areas of concern are limited to a very small subset of lands included or covered under the Forest Practices HCP. If there is a process for landowners to obtain a variance from WDNR in order to reestablish or enhance Oregon spotted frog habitat, the Service recommends that WDNR make that process available to willing landowners.
Comments From Tribes
(12) Comment: The Yakama Nation asserted that Critical Habitat Unit 6 lies entirely within the boundaries of the Yakama Reservation, despite the statement in the proposed rule that the Service ``determined that the proposed designation does not include any tribal lands'' (78 FR 53553). The Yakama Nation further stated that Critical Habitat Unit 6 is within the Tract D Area and explained that this area was included in the Yakama Nation's
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homelands, which was expressly reserved by the Treaty of 1855 ``for the exclusive use and benefit'' of the Confederated Tribes and Bands of the Yakama Nation. The Yakama Nation contends that Tract D was erroneously excluded from the Yakama Reservation's original boundaries and directed the attention of the Service to the correction of this mistake through the return of Tract D to the Yakama Nation in 1972 under Executive Order 11670. The Yakama Nation requested that the critical habitat designation be amended to reflect consideration of the Yakama Nation's concerns regarding long-term management implications and objected to the proposed Oregon spotted frog critical habitat designation for the area entitled, Critical Habitat Unit 6: Middle Klickitat River.
Our response: While we understand that the Yakama Nation disputes the ownership in this area, it is our current understanding that the Federal lands are under ownership of the U.S. Fish and Wildlife Service's Conboy Lake National Wildlife Refuge. Based upon consultation with the Yakama Nation, it is our understanding that the Nation would like assurances that designation of critical habitat will not infringe on tribal treaty rights that may be exercised on the lands that fall within Unit 6. FWS sought information from NWR staff and Yakama Nation representatives regarding exercising tribal treaty rights on the lands included in the critical habitat designation. Whether or not treaty rights have been exercised on these lands is unclear; however, it is our opinion that designation of critical habitat for the Oregon spotted frog on lands owned by the Conboy Lake NWR will not affect the exercise of treaty rights by the Yakama Nation.
Public Comments
Service Authorities and Policy Compliance
(13) Comment: One commenter observed that the annual water regulation of the Deschutes River for the purpose of irrigation has had negative impacts on the populations of fish and other wildlife for which the river provides habitat. The commenter expressed frustration about mortality to wildlife and questioned the utility of a Federal agency listing another species and designating associated critical habitat under the Act to address these impacts.
Our response: The Act requires the Service to designate critical habitat for listed species to the maximum extent prudent and determinable. This designation will not, standing alone, suffice to address impacts to Oregon spotted frogs that result from water management, which is governed primarily by Oregon law. The Service is working with irrigation districts and other entities in the Deschutes River Basin to develop a habitat conservation plan aimed at minimizing the impacts of irrigation diversions on Oregon spotted frogs and listed fish species.
(14) Comment: One commenter expressed concern about the lack of regulatory oversight for federally permitted grazing where it may overlap with critical habitat on USFS land.
Our response: The Service coordinates and provides technical assistance to other Federal agencies, including the USFS, on a broad scope of work. The USFS has been proactive in developing site management plans specific to Oregon spotted frogs. However, development of their Forest Plans, land use classifications, standards and guidelines, and project planning remains under the purview of the Federal agencies developing such products. Additionally, if a federally authorized, funded, or conducted action could affect a listed species or its critical habitat, the responsible Federal agency is then required to enter into consultation with the Service under section 7 of the Act.
(15) Comment: One commenter expressed concern that groundwater pumping conveyed as surface water for long distances or across lands that may be considered critical habitat will be regulated and ultimately result in less water available for irrigation. Currently groundwater pumping and use is monitored and regulated by the Oregon Water Resources Department in accordance with State law. The commenter is concerned that additional regulation could ultimately result in less water available for irrigation. In addition, the commenter expressed the opinion that groundwater pumping practices should not be identified as an action that could negatively affect Oregon spotted frog habitat because such a connection is not supported by science.
Our response: The critical habitat designation will have no effect on pumping or conveyance of groundwater where there is no Federal nexus to that action. On actions where there is a Federal nexus the Service will analyze groundwater pumping effects to Oregon spotted frog critical habitat on a case-by-case basis. Our current understanding of the sources of surface water within the designated critical habitat is that the seasonally flooded areas are fed by winter rains or snowmelt, not groundwater pumping. Pumping of groundwater can result in lower water levels in groundwater systems, diminished flow of springs, and reduced streamflow (Gannett et al. 2007, pp. 59-60, 65), and could adversely affect wetland habitats occupied by Oregon spotted frog that are supported by springs. Therefore, the Service appropriately identified groundwater pumping as a potential threat to Oregon spotted frog. A determination of whether such pumping poses a threat to the frog's habitat at any particular site will depend on site-specific analysis. The Service assesses impacts on critical habitat only in the context of consultation with Federal agencies on the effects of their actions. Hence, if groundwater pumping in a particular instance does not involve a nexus with a Federal agency action, designation of critical habitat for the Oregon spotted frog will have no impact on such pumping.
(16) Comment: One commenter stated that the Service's Director should not be able to certify whether the critical habitat rule will have a significant economic impact. The commenter speculated that the decisionmaking process represents a conflict of interest and does not allow any protections for the private landowners.
Our response: We assume the commenter is referring to our determination under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) that this final critical habitat designation will not have a significant economic impact. Under section 605 of the RFA, ``the head of the agency'' can make a certification ``that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.'' The Director of the Service is in the approval chain for Service designations of critical habitat. However, the Principal Deputy Assistant Secretary for Fish and Wildlife and Parks within the Department of the Interior has the ultimate signature authority for Service designations of critical habitat.
As described in our response to Comment 17 and later in this document under Required Determinations, under section 7 of the Act only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, our position is that only Federal action agencies will be directly regulated by this designation, and Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, we certify that, if promulgated, the final critical
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habitat designation will not have a significant economic impact on a substantial number of small entities.
(17) Comment: A representative of Modoc County, California, expressed the opinion that the Service had not complied with the Regulatory Flexibility Act (RFA) when proposing critical habitat.
Our response: Oregon spotted frogs are not known to occur in Modoc County, and we did not propose to designate critical habitat in that county. When publishing a proposed or final rule that may have a significant economic impact on a substantial number of small entities, a Federal agency is required by the RFA to prepare and make available for public comment a regulatory flexibility analysis describing the effects of the rule on the small entities (i.e., small businesses, small organizations, and small government jurisdictions) directly regulated by the rulemaking itself, and the potential impacts to indirectly affected entities. This designation of critical habitat will directly regulate only Federal agencies, which are not by definition small entities. And as such, this designation of critical habitat would not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis was not required.
However, because we acknowledge that, in some cases, third-party proponents of actions subject to Federal agency permitting or funding may participate in a section 7 consultation, our DEA considered the potential effects to these third-party project proponents. The DEA was made available for a 30-day comment period beginning on June 18, 2014, and for another 14 days beginning September 9, 2014. The economic analysis determined that the designation has the potential to cause ranchers and landowners to perceive that private lands will be subject to use restrictions. However, the designation of critical habitat for the Oregon spotted frog is not expected to trigger additional requirements under State or local regulations that would restrict private land use.
(18) Comment: One commenter stated that the Service is required to conduct a National Environmental Policy Act (NEPA) compliance analysis before finalizing the designation of proposed critical habitat in Washington, Oregon, and California.
Our response: It is the position of the Service that preparation of environmental analysis pursuant to NEPA is not required prior to designation of critical habitat outside of the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit. We published a notice in the Federal Register outlining our reasoning for this determination on October 25, 1983 (48 FR 49244), and our position has been 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)).
(19) Comment: One commenter requested an extension of the public comment period for the proposed critical habitat designation due to the Federal Government shutdown that occurred from October 1-16, 2013. The commenter stated that the shutdown effectively truncated the initial public comment period by 16 days. During the comment period opened for the DEA and proposed critical habitat designation on June 18, 2014, another commenter requested a reopening of the comment period to give the public additional time to review the DEA, including the perceptional effects memo.
Our response: The Service is committed to receiving and evaluating feedback from all interested parties. We regret any difficulties experienced during the government shutdown. The comment period for the proposed critical habitat rule was extended an extra 15 days from October 28, 2013, until November 12, 2013. In addition, another comment period of 30 days was available from June 18, 2014, to July 18, 2014. We also reopened the comment period for an additional 14 days from September 9, 2014, to September 23, 2014.
(20) Comment: A representative of Modoc County, California, asserted that the Service failed to follow Federal procedures when publishing the proposal to designate critical habitat for the Oregon spotted frog. The commenter cited case law holding that the Service is required to give actual notice to local governments of its intent to propose a species for listing.
Our response: The ESA at 16 U.S.C. 1533(b)(5)(A)(ii) requires the Secretary to provide actual notice of a proposed critical habitat designation only to each county in which the species at issue is believed to occur. The Oregon spotted frog is not currently known or believed to occur in either Modoc or Siskiyou Counties in California; therefore, the Service did not provide notification of proposed critical habitat for the species to these counties. Notice was provided, however, to the counties where Oregon spotted frog does occur; these include Klickitat, Skagit, Skamania, Thurston, and Whatcom in Washington, and Deschutes, Jackson, Klamath, Lane, and Wasco Counties in Oregon.
(21) Comment: One commenter stated that the Service failed to release viewable maps of the proposed designated habitat in the La Pine, Oregon, basin, and that residents and other stakeholders need to see in sufficient detail the areas that the Service proposes to designate.
Our response: The Service provided the required maps in the proposal to designate critical habitat (78 FR 53538). In addition, the Service made maps with aerial photos and finer scale critical habitat unit boundaries available at http://www.regulations.gov and http://www.fws.gov/wfwo. The geographic information system shapefiles were also available for download at http://www.fws.gov/wfwo. In addition, the Service convened a public meeting in the La Pine, Oregon, area where larger scale maps were available for viewing. Therefore, the Service believes we have provided clear maps to inform the general public about the critical habitat designation.
(22) Comment: One commenter requested both a public meeting and a public hearing and specifically requested that they be held in Siskiyou County, California.
Our response: The Service held a public hearing in Lacey, Washington, on October 21, 2013. Public meetings were conducted in Deschutes County, Oregon, in December 2013 and Klamath County, Oregon, in September 2013. The Service did not accommodate the request to hold a public meeting or a public hearing in Siskiyou County, California, because we did not propose to designate any critical habitat in Siskiyou County, California, and as such, there are no affected parties in that county.
(23) Comment: One commenter expressed concern that the designation of critical habitat would preclude small mining activities in southern Oregon and northern California and suggested that the designation of critical habitat would convert land from other ownership or designation to ownership by the Service as part of the wildlife refuge system.
Our response: The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, through 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. Where a landowner requests Federal agency funding or authorization
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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. If a consultation were to find that actions would result in the destruction or adverse modification of affected habitat, the obligation of the Federal action agency and the landowner in this case is not to restore or to recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. In light of this provision of the law, the Service does not agree that the designation of critical habitat will have the effects suggested by the commenter as implementation of any reasonable and prudent alternatives would not result in a change in land ownership.
Critical Habitat Delineation Criteria
(24) Comment: Several commenters were unclear about the criteria used to designate critical habitat. Several commenters requested that unoccupied and currently unsuitable habitat be designated as critical habitat. Other commenters stated that areas included in the proposed designation of critical habitat should be removed for various reasons (e.g., fluctuating water levels and property boundaries) or that boundaries should be adjusted.
Our response: We mapped critical habitat at a large spatial scale (1:24,000) using NWI and NAIP imagery, per parameters for publication within the Code of Federal Regulations. Because of the scale of mapping, there may be areas where the delineation of critical habitat in populated areas may not precisely include all of the habitat with PCEs, or may include some areas that do not have the PCEs. Based upon comments received, we refined the boundaries of the critical habitat delineation to align more closely with the areas containing the PCEs, in particular along the Deschutes River. However, due to the scale of mapping, the final critical habitat designation may still include developed areas such as lands covered by buildings, pavement, and other structures. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text and are not designated as critical habitat (See paragraph (3) in the rule portion of this document.).
We acknowledge there may be portions of critical habitat units that are not known to be used, may not be consistently used, or may be currently unsuitable (see Criteria Used To Identify Critical Habitat). However, we have determined that all of the critical habitat units meet our definition of occupied at the time of listing and contain sufficient elements of physical or biological features to support Oregon spotted frog life-history processes. In addition, there are areas within these critical habitat units that are considered to be essential for the conservation of the species (and are, therefore, designated as critical habitat) even though Oregon spotted frog use or the presence of the physical or biological features may be uncertain, seasonal, or sporadic. Both areas outside the geographical area occupied by the species at the time of listing, as well as unsuitable areas located greater than 3.1 mi (5 km) upstream of habitat currently known to be used by Oregon spotted frog, are not likely to support Oregon spotted frogs without human intervention (i.e., translocation), and we have not determined that reestablishment in these unoccupied or unsuitable areas is essential for the conservation of the species. Therefore, there is no Oregon spotted frog critical habitat designated in unoccupied or unsuitable areas outside of currently known occupied sub-basins or farther than 3.1 mi (5 km) from habitat known to be used at the time of listing.
One commenter suggested that Tumalo Creek in the Upper Deschutes River sub-basin be considered as critical habitat for Oregon spotted frog. Although Tumalo Creek contains wetland habitats similar to those that support Oregon spotted frog, there are no historical or current records that indicate that spotted frogs inhabit the Tumalo Creek watershed. Furthermore, Tumalo Creek is greater than a 3.1-mi (5-km) distance from occupied habitat. Therefore, Tumalo Creek does not meet our criteria for critical habitat designation.
Reservoirs in the Upper Deschutes River sub-basin are used by Oregon spotted frogs. Although the current system of reservoir management results in significant fluctuations in water levels within the reservoirs, the increasing water depth from November to March provides overwintering habitat, and inundation of wetland areas along the reservoir margins allows for breeding to occur in the spring. The Service determined that PCEs are present in the reservoirs and that these PCEs vary spatially and temporally with reservoir storage and release operations. For example, Oregon spotted frog breeding habitat shifts depending on water elevation in the reservoirs. When water levels are too high for frogs to access breeding habitat, they move to shallow margins where habitat may be available. The Deschutes River and associated wetlands downstream of Wickiup Dam experience reduced water levels during the reservoir storage season (October through mid April), such that PCEs shift seasonally depending on water elevations in the areas downstream of the dam. Therefore, all of these geographic areas are included in the critical habitat designation.
(25) Comment: Two commenters expressed confusion regarding the exclusion of deep water in our description of Critical Habitat Subunit 8B in the preamble to the proposed rule and how the buffers were developed for the proposed critical habitat. One commenter questioned the application of buffers around waters that connect occupied habitat.
Our response: See the responses to Comments 5 and 6 regarding our revised text description of areas along designated river miles that are considered to be critical habitat. We have removed language referring to the exclusion of deep water in the description of Critical Habitat Subunit 8B in the preamble to the final rule.
(26) Comment: A few commenters were unclear about why the Service proposed critical habitat in wetlands and areas that have been extensively farmed in the past because most of these areas already receive protection under existing regulations and conservation programs, making additional regulation unnecessary. Two commenters stated that residential properties should be excluded from critical habitat because the existing regulatory mechanisms are adequate to protect the species and the designation of critical habitat would not provide additional regulatory benefits.
Our response: We acknowledge that there are multiple regulatory mechanisms in both Washington and Oregon that afford some conservation benefits to the Oregon spotted frog. However, as determined in our final listing determination (79 FR 51658, August 29, 2014), current regulatory mechanisms are not adequate to reduce or remove threats to Oregon spotted frog habitat, particularly the threat of habitat loss and degradation. While some setbacks are required, not all ``wetlands'' are equivalent, and not all counties or States have equivalent regulations. Additionally, not all Oregon spotted frog habitat is classified as ``wetland'' under county or State regulations. In any case, while existing regulatory mechanisms are considered when listing a species, current regulatory protection is not a consideration in the determination of whether an area meets the definition of critical habitat. We are designating critical habitat within areas that we
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identified as occupied by the species at the time of listing that contain the physical or biological features essential to the conservation of the species, and which may require special management consideration or protection.
We are especially concerned about ongoing loss of wetlands due to both development (including urban and agricultural) and wetland modification from restoration and conservation programs that are actively planting willows and other riparian shrubs in wetland and riparian areas that currently provide egg-laying habitat. In the absence of a Federal nexus, designation of critical habitat does not impose an additional regulatory burden on private lands, but does serve to educate private landowners, as well as State and county regulators, of the importance of the area for the species.
(27) Comment: One commenter expressed concern that no tribal lands were proposed as critical habitat despite appearing to have wetland habitat of similar quality to the wetlands proposed as critical habitat.
Our response: The identification of critical habitat followed a specified protocol as set out in the proposed critical habitat rule and does not take land ownership into consideration. There are no areas currently known to be occupied by Oregon spotted frogs on tribally owned lands, nor are there areas not currently occupied that we determined to be essential for the conservation of the species. Therefore, Tribal lands have not been designated as critical habitat.
(28) Comment: One commenter stated an opinion that the distribution of proposed critical habitat was strategically spread across the range of assumed historical Oregon spotted frog habitat and asked, if frogs were found in these areas, why would it not be possible that more populations of Oregon spotted frogs may be discovered to exist in other similar habitats?
Our response: The distribution of critical habitat includes all sub-basins/watersheds that are currently known to be occupied. This distribution does not encompass the historical range. Sixteen sub-
basins in Puget Sound, Willamette Valley, and northern California, within which Oregon spotted frogs were historically documented, have not been included in the designation. While it is possible that other populations of Oregon spotted frogs may be located in the future, critical habitat units were established in sub-basins with positive detections no older than 2000.
(29) Comment: Several commenters highlighted the value of beaver activity in maintaining suitable Oregon spotted frog habitat, pointing out that some areas adjacent to proposed critical habitat units currently have suitable habitat that was not included in the proposed designation. Two of these commenters suggested additional areas that they believed met the criteria for critical habitat due to beaver activity.
Our response: As stated above, we propose critical habitat in the specific areas within the geographical area occupied by a species at the time it is listed on which are found those physical or biological features essential for the conservation of the species and which may require special management considerations or protection. In addition, if such areas are not adequate to provide for the conservation of the species, we may propose critical habitat in specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. For more information on how we determined what areas to include in the final designation for the Oregon spotted frog, see our discussion in the section Criteria Used To Identify Critical Habitat.
Based on information received, we proposed a refinement of unit 14 in the Federal Register on June 18, 2014 (79 FR 34685). The refinement included an additional portion of the Buck Lake drainage system of canals, as well as a portion of Spencer Creek. Not all of the inclusions suggested by the commenters were included in the proposed refinements because, based on our delineation process, the refinements were limited to 3.1 mi (5 km) from the last known location occupied by Oregon spotted frog. We did not receive comments that disagreed with our refinements, therefore, the final designation includes the areas added through the refinement process.
(30) Comment: A commenter from Jackson County, Oregon, argued that critical habitat should not be designated in Jackson County because only 245 ac (99 ha) of land in the county were proposed as critical habitat, which represents a very small proportion of the overall proposed acreage and is not essential to the recovery of the species. In addition, the commenter was concerned that the critical habitat proposed in this county would have a negative economic impact due to the current regulations governing the proposed acreage under the Oregon and California Railroad Revested Lands (O&C Lands) Act of 1937, which is administered by the Bureau of Land Management (BLM).
Our response: The criteria for the designation of critical habitat can be found in the proposed rule, this final rule, and in the responses to Comments 8, 24, and 29. As required under the Act, the Service delineated the specific areas within the geographical area occupied by the species at the time of 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 protection. Regardless of the small amount of critical habitat in Jackson County, Oregon, these areas meet the definition of critical habitat for the species.
The O&C Lands Act mandates the protection of watersheds as part of its regulatory function. The Oregon spotted frog population at Parsnips Lakes occurs entirely within the boundary of the Cascade-Siskiyou National Monument (CSNM). The presidential proclamation that established the monument reserved the CSNM in recognition of its remarkable ecology and to protect a diverse range of biological, geological, aquatic, archeological, and historic objects. The CSNM Management Plan (BLM 2008) promotes the protection, maintenance, restoration, or enhancement of monument resources as required by the proclamation. Because Oregon spotted frog conservation falls in line with the purpose and priorities of the CSNM, the critical habitat designation is not anticipated to add additional restrictions in this area.
(31) Comment: One commenter requested that the Service clarify, and amend where necessary, the rule to omit manmade features such as golf courses, fairways, greens, cart paths, mowed rough areas, lawns, turf grass, landscaped areas, open meadows, pastures, walking paths, and other areas of nonnative vegetation. The rationale provided was that such areas have been excluded from other critical habitat designations because these manmade features are actively managed and no longer resemble native habitat.
Our response: The Service determined in the final listing document (79 FR 51658, August 29, 2014) that the vegetated areas supporting Oregon spotted frogs are largely management-dependent and in many cases no longer contain native vegetation. Most of the known breeding areas, particularly in Washington, are located on lands that could be termed mowed rough areas, open meadows, pastures, and other areas of nonnative vegetation. The areas in Unit 8, specifically concerning to the commenter, are being excluded from critical habitat because the lands are being managed under a management
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plan in such a way that the benefits of excluding outweigh the benefits of including these areas in critical habitat.
The final critical habitat designation may still include developed areas such as lands covered by buildings, pavement, and other structures. Manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located that fall inside critical habitat boundaries shown on the maps of this final rule have been excluded by text and are not designated as critical habitat. See Criteria Used To Identify Critical Habitat and the responses to Comments 5, 6, and 24 for further information.
Occupancy
(32) Comment: Two commenters questioned the Service's conclusion that the upper Klamath basin is occupied and argued that surveys conducted as recently as 2011 confirm that no Oregon spotted frogs occur in the areas where critical habitat has been proposed.
Our response: We provided citations in both our proposed listing (78 FR 53582, August 29, 2013) and proposed critical habitat (78 FR 53538, August 29, 2013) rules for the sources we relied upon for evidence that all three critical habitat units (Units 12, 13, and 14) in the Klamath basin are occupied by the Oregon spotted frog. These sources include data provided by the USFS, U.S. Geological Survey (USGS), BLM, and the Klamath Marsh National Wildlife Refuge (NWR). All of these sources document occupancy as recently as 2012, and we have received additional information further documenting occupancy in 2013. Therefore, we believe there is sufficient evidence supporting our determination of occupancy in the Klamath basin, specifically, within critical habitat Units 12, 13, and 14.
(33) Comment: One commenter stated that the Service lacks population trend data for 90 percent of the known Oregon spotted frog populations and, without this information, the Service cannot determine how designating particular areas as critical habitat will affect those populations.
Our response: A listing determination is an assessment of the best scientific and commercial information available regarding the past, present, and future threats to the Oregon spotted frog. While the loss of Oregon spotted frogs across the historical distribution and the status of the species within the current range is considered in the listing decision, the designation of critical habitat is focused on the ongoing and future threats to the PCEs and the special management necessary for the conservation of the species. All of the designated critical habitat units were known to be occupied by the species at the time of listing and contain the physical or biological features essential to the conservation of the Oregon spotted frog and require special management considerations or protection.
Primary Constituent Elements
(34) Comment: One commenter expressed the opinion that wetted corridors alone do not necessarily provide Oregon spotted frog habitat and we should consider rephrasing PCE 2 to define aquatic movement corridors as those that contain slow-moving water, gradual topographic gradient, and emergent vegetation with a minimum summer water temperature (not provided by the commenter), and the presence of connectivity to other suitable habitats. The commenter stated that corridors that may be cold, high-velocity streams with no aquatic vegetation should not be considered critical habitat because frogs would avoid these areas. In addition, the commenter opined that movement corridors that do not connect occupied or suitable habitats (e.g., no suitable habitat downstream) should be removed from critical habitat.
Our response: While we acknowledge that Oregon spotted frogs likely prefer slow-moving water, PCE 2 is intended to represent both movement corridors that are necessary for year-round movements between breeding, rearing, dry season, and overwintering habitat, as well as corridors that facilitate dispersal between occupied areas or into new areas. In addition, in many cases, streams may not maintain high velocity throughout the year. Therefore, these areas may also be defined with characteristics consistent with PCE 1 in addition to PCE 2.
(35) Comment: One commenter questioned our lack of information regarding the presence and impacts of warm-water fishes in Oregon spotted frog areas because the information was extrapolated from impacts on other amphibian species.
Our response: The 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), such as smallmouth bass (Micropterus dolomieu), largemouth bass (Micropterus salmoides), pumpkinseed (Lepomis gibbosus), yellow perch (Perca flavescens), bluegill (Lepomis macrochirus), brown bullhead (Ameriurus nebulosus), black crappie (Pomoxis nigromaculatus), warmouth (Lepomis gulosus), and fathead minnow (Pimephales promelas) (Hayes and Jennings 1986, pp. 494-496; Hayes 1997, pp. 42-43; Hayes et al. 1997; McAllister and Leonard 1997, p. 14; Engler 1999, pers. comm.) and mosquitofish (Gambusia affinis) (Wydoski and Whitney 2003, p. 163; Johnson 2008, p. 5). Information presented in the Physical or Biological Features discussion is directly derived from Oregon spotted frog-specific studies. Factor C (Disease or Predation) in our final listing document (79 FR 51658, August 29, 2014) includes a more thorough discussion of the impacts resulting from the presence of nonnative fish species. Some of these references involve other western amphibians and closely related frog species. We often find it informative to consider appropriate research on closely related species, particularly when species-specific research is lacking. In this case, there is both direct Oregon spotted frog evidence, as well as evidence derived from closely related frog species. Further information on the sub-basins within which warm-water fish are known to occur is available in the Threats Synthesis document available at www.regulations.gov (docket #FWS-R1-ES-2013-0013). Accordingly, we maintain that the presence of warm-water fishes requires special management considerations, and, therefore, changes to the Physical or Biological Features section are unnecessary.
(36) Comment: One commenter had questions about the definition of ``barriers to movement'' and requested clarification on the parameters of the environment that constitute barriers.
Our response: Impediments to upstream movement may include, but are not limited to, hard barriers such as dams, impassable culverts, and lack of water, or biological barriers, such as lakes or rivers/creeks without refugia from predators. Additional text clarifying this definition has been added to the Physical or Biological Features section of the preamble to this rule and the actual rule text.
(37) Comment: One commenter disagreed with the Service's conclusion that PCEs are present and require special management on privately owned lands in Unit 6. The commenter further stated that Oregon spotted frogs are found in the unit because of the existing management on the private lands.
Our response: Unit 6 is currently occupied by the Oregon spotted frog. The species carries out all life stages (egg laying, rearing, and over-wintering) in this unit, on all land ownerships. All
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of the PCEs are present in this unit; however, it is not a requirement of critical habitat designation that all of the acres within each unit contain all of the PCEs. As the commenter points out, land managers are ``managing'' the lands, such that Oregon spotted frogs remain present, which demonstrates that special management is required. Thus, the lands included in the designation for Unit 6 meet all of the criteria required to be designated as critical habitat. However, a number of these private lands that were proposed for critical habitat in Unit 6 have been excluded from the final designation under section 4(b)(2) of the Act (see Comment 42 below and Exclusions Based on Other Relevant Impacts section).
Exclusions
(38) Comment: Several commenters questioned the benefits of including private lands in the proposed designation of critical habitat and argued that the designation of critical habitat on private lands would discourage the kind of land stewardship that is beneficial to the Oregon spotted frog and its habitat. These commenters further argued that designation of critical habitat on private property could potentially limit future partnerships between the Service and private land holders. Some of these commenters requested that all private lands be excluded from critical habitat, stating that the exclusion of private lands would provide a greater conservation benefit than inclusion.
Our response: Under the Act, critical habitat is defined as those specific areas within the geographical area occupied by the species at the time it is listed on which are found the physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and specific areas outside of the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. All of the critical habitat units designated for Oregon spotted frog were known to be occupied at the time the species was listed (79 FR 51658, August 29, 2014). The Act does not provide for any distinction between land ownerships in those areas that meet the definition of critical habitat. However, the Act does allow the Secretary to consider whether certain areas may be excluded from final critical habitat. An area may be excluded under section 4(b)(2) of the Act if the benefits of excluding it outweigh the benefits of including it in critical habitat, unless that exclusion would result in the extinction of the species. With respect to private landowners, the Secretary has excluded private lands from the final designation of critical habitat in cases where conservation agreements or other partnerships resulted in a conclusion that the benefits of excluding those areas outweigh the benefits of including them in critical habitat (see Exclusions Based on Other Relevant Impacts section of this document). Unless a private landowner has an existing conservation agreement or an established partnership with the Service before the finalization of critical habitat (that provides a demonstrable conservation benefit to the Oregon spotted frog and its habitat), it is unlikely that there is a basis for concluding that the benefit of exclusion outweighs the benefit of inclusion.
In areas occupied by a federally listed species and designated as critical habitat, Federal agencies are obligated under section 7 of the Act to consult with us on actions that may affect that species to ensure that such actions do not jeopardize the species' continued existence or adversely modify critical habitat. However, in the case of privately owned lands, there is a low likelihood of a Federal consultation responsibility (nexus) because Federal agencies rarely carry out discretionary actions on private land, and future Federal actions that might trigger such a Federal nexus are limited. Therefore, the regulatory benefit of including these lands in critical habitat is reduced.
We encourage any landowner concerned about potential take of listed species on their property to contact the Service (see FOR FURTHER INFORMATION CONTACT) to explore options for developing a safe harbor agreement or HCP that can provide for the conservation of the species and offer management options to landowners associated with a permit to protect the party from violations under section 9 of the Act.
(39) Comment: One commenter requested that the Service consider exclusion of all areas that would be covered under the proposed Upper Deschutes Basin Multispecies HCP. Alternately, the commenter requested that if these areas are not excluded from the designation of critical habitat, that these areas be removed from critical habitat upon completion of the HCP. Conversely, one commenter stated the Service should not exclude these areas because of the uncertainty regarding the final agreed-upon conservation measures applicable to the Oregon spotted frog.
Our response: When deciding whether to exclude an area from designation of critical habitat under section 4(b)(2) of the Act, the Service assesses the level of assurance an entity can provide that it will actually fund and implement the conservation measures identified within the plan. The same process would hold true when evaluating the Upper Deschutes Basin Multispecies HCP. Because we have not received a complete draft of the HCP document to review in order to make an assessment and would require a final approved HCP, the Service declined to exclude these areas at this time. Removal of designated critical habitat upon future completion of an HCP would require an evaluation of the HCP through a separate rulemaking process to revise critical habitat.
(40) Comment: One commenter stated that it is important for the Service to understand that the private landowners in Klickitat County, Washington, utilize irrigation water via their Washington State recorded and recognized water rights. The commenter further asserted that in Washington water rights are considered property rights and any regulatory actions that the Service might implement that limits or impairs those rights could be viewed as a taking and may be grounds for litigation from the private landowners. Finally, the commenter suggested that potential litigation could be avoided by not designating critical habitat on private property in Klickitat County.
Our response: Though private lands may be subject to State or local governmental regulatory mechanisms, the designation of critical habitat on private lands has no Federal regulatory impact on the owner of such lands unless a Federal nexus is present. 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. If a consultation were to find that actions would result in the destruction or adverse modification of affected habitat, the obligation of the Federal action agency and the landowner is not to restore or to recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. In the Service's experience with other species, it is generally possible to devise such alternatives in a way that permits continued economic use of designated lands (also see response to comment 53).
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(41) Comment: One commenter requested the Service to consider excluding private lands within the Crosswater Resort that are managed according to the Crosswater Environmental Plan and private lands within the Sunriver Community that are managed according to the Sunriver Great Meadow Management Plan.
Our response: Based on our analysis of these Plans and our determinations that the benefits of excluding lands covered by these plans outweigh the benefits of including them, we are excluding private lands within the Crosswater Resort and Sunriver Community from critical habitat. See Exclusions Based on Other Relevant Impacts for the complete analyses.
(42) Comment: Three commenters requested that the Service consider excluding private lands within Unit 6 that will be operated under the Coordinated Resource Management Plan and Conservation Agreement between Glenwood Valley Ranchers and the Service.
Our response: Based on our analysis of this Agreement and our determinations that the benefits of excluding lands covered by these plans outweigh the benefits of including them, we are excluding those private lands covered under the Agreement from critical habitat. See Exclusions Based on Other Relevant Impacts for the complete analyses.
(43) Comment: One commenter requested that the Service consider excluding private lands within Unit 3 that will be operated under the Coordinated Resource Management Plan and Conservation Agreement between Skagit Valley Ranchers and the Service.
Our response: Upon further coordination between the commenter and the Service, this request for exclusion was withdrawn.
Economic Analysis
(44) Comment: Two commenters expressed concern that critical habitat would be designated before an economic analysis of the effects of critical habitat would be completed. Both commenters stated that their preferred timing of events would have included the availability of the completed economic analysis before the publication of the proposed critical habitat.
Our response: Under the Act, the Service is required to consider economic impacts prior to finalizing the proposed designation of critical habitat, but not prior to the proposal of critical habitat. The DEA was made available for public review and comment on June 18, 2014, in the Federal Register (79 FR 34685) and in a separate comment period that opened September 9, 2014 (79 FR 53384). We have considered all comments received on the DEA and proposed critical habitat designation in this final designation.
(45) Comment: One commenter pointed out what appears to be an inconsistency within our Incremental Effects Memorandum (IEM) regarding how we expect private landowners in Washington to behave (i.e., fence-
off lands and discontinue management) versus private landowners in Oregon to behave (i.e., designing projects to be compatible with Oregon spotted frog needs) in response to a critical habitat designation. The commenter believes there is a lack of data to support this distinction and that Oregon landowners are ``almost certain'' to respond similarly to landowners in Washington.
Our response: Even though the designation of critical habitat for Oregon spotted frog will not put any additional regulatory burden on private landowners in either Oregon or Washington, the reaction of landowners in Washington to the designation may be influenced by their previous experience working to comply with Washington State's stream management guidelines.
The State of Washington developed water quality standards for temperature and intergravel dissolved oxygen that were approved by the Environmental Protection Agency in February 2008. The temperature standards are intended to restore thermal regimes necessary to protect native salmonids and sustain viable salmon populations. Water quality management plans developed by Washington State recommend planting trees and shrubs and excluding cattle from riparian areas to improve thermal conditions for salmonids. Some Washington landowners find it more expedient to fence off the riparian areas and reduce the perceived conflict between a State water quality regulation and the habitat necessary to support a listed species. The IEM anticipates that some landowners in Washington may respond to the designation of Oregon spotted frog critical habitat by installing fencing because that action is already a preferred option for these landowners in dealing with the proximity of their land to the habitat of listed salmonid species.
The areas within proposed critical habitat in Oregon do not support ESA-listed salmonid species and, therefore, fencing of the riparian areas along the Little Deschutes River, where most of the private grazing lands occur, is not a common practice nor is it regulated by the implementation of water quality management plans. The Service held public meetings in Sunriver and La Pine, Oregon, in December 2013 for private landowners within the proposed critical habitat designation. During the meetings, the Service explained that grazing does not always result in a negative impact to critical habitat for the Oregon spotted frog. Rather, low-intensity grazing could be used to maintain breeding habitat for spotted frogs by improving ground-level solar exposure and maintaining early seral emergent vegetation within wetlands. The Service does not anticipate that private lands in Oregon will be fenced as they are in Washington State where water quality standards are designed to support salmon. The Service is already working with local Soil and Water Conservation Districts in Oregon to implement appropriate conservation practices for Oregon spotted frogs within the proposed critical habitat designation.
(46) Comment: Several commenters assert that the Economic Screening Analysis does not adequately consider impacts to private landowners and local communities. One commenter states that the Economic Screening Analysis should include impacts associated with reductions in land value and income of landowners.
Our response: As stated in the analysis, the quality of Oregon spotted frog habitat is closely linked to species survival. Specifically, the Service states that ``in occupied critical habitat, it is unlikely that an analysis would identify a difference between measures needed to avoid the destruction or adverse modification of critical habitat from measures needed to avoid jeopardizing the species.'' As such, section 7 impacts in occupied areas are anticipated to be limited to administrative costs. These costs include costs to private landowners, where applicable.
In addition to these costs, the analysis discusses potential perceptional impacts that the critical habitat designation could have on the value of private land. The analysis recognizes that a property that is inhabited by a threatened or endangered species, or that lies within a critical habitat designation, could have a lower market value than an identical property that is not inhabited by the species or that lies outside of critical habitat. This lower value, if any, would result from a perception that critical habitat will preclude, limit, or slow development, or somehow alter the highest and best use of the property (e.g., grazing). Public attitudes about the restrictions and costs that the Act can impose can cause real economic effects to the owners of property, regardless of whether such restrictions are actually
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imposed. Over time, as public understanding of the actual regulatory burden placed on designated lands grows, particularly where no Federal nexus compelling section 7 consultation exists, the perceptional effect of critical habitat designation on private properties may subside.
(47) Comment: One commenter stated that extensive Federal funding for restoration activities in the Klamath Basin that is stipulated by various settlement agreements through the Klamath Basin Adjudication process will create a Federal nexus that is unaccounted for in the DEA.
Our response: Our forecast of future actions likely to result in section 7 consultations include consultations associated with participation in Natural Resource Conservation Service and Farm Service Agency programs such as the Wetland Reserve Enhancement Program, the Conservation Reserve Enhancement Program, and the Environmental Quality Incentives Program in the critical habitat area. As such, our analysis does include a Federal nexus and includes administrative cost estimates related to section 7 consultations for the restoration projects in these areas.
(48) Comment: One commenter asked if the Economic Screening Analysis surveyed private landowners in order to detail types of land use.
Our response: A survey of private landowners was not conducted as part of the Economic Screening Analysis. However, based on information in the proposed rule, the Incremental Effects Memorandum, as well as visual examination of satellite imagery of the designation, we determined that the proposed critical habitat for the Oregon spotted frog on privately owned lands is located mainly in areas that are seasonally flooded, protected from development by county restrictions, and/or are used for grazing or crop agriculture; the primary use of land within the designation is for livestock grazing.
(49) Comment: Two commenters took issue with the Service's assumption that Federal agencies will treat unoccupied areas as if they were occupied for purposes of section 7 consultation, stating that relying on this assumption causes the Economic Screening Analysis to underestimate the economic impacts of critical habitat designation for the Oregon spotted frog. In unoccupied areas, the commenters believe that incremental economic impacts should include costs associated with project modifications, delay, and restrictions on land use.
Our response: In the proposed critical habitat rule (78 FR 53538, August 29, 2013), the Service proposed to designate areas that were currently ``not known to be occupied.'' The Service has since reclassified these areas as ``occupied'' based on the fact that these areas are within occupied sub-basins, contain habitat features similar to known occupied areas, are hydrologically connected (via surface waters) to occupied areas, and do not contain barriers that would inhibit Oregon spotted frog movement between occupied areas. The Service recognizes that the physical or biological features may only be present seasonally in some areas because aquatic systems are not static; water levels fluctuate between seasons, severe flood events occur, and beavers abandon and recolonize sites. As a result of these changing habitat conditions, some areas may only be occupied intermittently or seasonally; however, we consider the entire critical habitat unit to be occupied. Therefore, impacts in these areas are anticipated to be limited to administrative costs.
(50) Comment: One commenter stated that some of the private lands considered in the perceptional effects analysis are used for hay production rather than grazing and the value of irrigated land is considerably higher than non-irrigated rangeland.
Our response: The analysis recognizes that the proposed critical habitat for the Oregon spotted frog on privately owned lands is located primarily in areas that are seasonally flooded, protected from development by county restrictions, and/or are used for grazing or crop agriculture. It also recognizes that public perception of critical habitat impacts may diminish land values by some percent of these total values, though it is unlikely that total land values would be lost due to these perceived economic impacts. However, because data limitations prevent us from estimating the size of this percent reduction or its attenuation rate, the analysis used USDA National Agricultural Statistics Service pasture-land-per-acre values data to estimate the per-acre value for agricultural lands. We applied this value to all private acres other than those considered to be developable for residential use. To the extent that the value of some of these acres is, in fact, higher, this total value would be underestimated. However, we reiterate that perceived economic effects are likely to represent only a portion of the total value of the properties. Hence, it is uncertain to what extent this effect would be understated by figures reported.
(51) Comment: One commenter asserted that the Service has the ability to sue or threaten to sue private landowners if the Service deems take or potential harm to the species or if the Service deems that modification of critical habitat has occurred.
Our response: Designation of critical habitat has no effect on the liability of non-Federal parties for actions that may affect listed species. While private landowners may be liable for civil or criminal penalties under section 9(a)(1) of the Act for actions that harm the Oregon spotted frog, any such liability would arise from the listing of the species, and not from the designation of critical habitat. Absent evidence of harm to Oregon spotted frogs, the Act does not give the Service authority to institute an enforcement action for modification of critical habitat on private lands.
(52) Comment: One commenter stated that the Economic Screening Analysis fails to consider costs associated with ``potentially modified management of storage levels and releases from Wickiup, Crane Prairie, and Crescent Lake Reservoirs.'' The commenter included an Economic Review conducted by Highland Economics, which concludes that a 10 percent reduction in water to Deschutes River water districts would result in total direct economic losses of approximately $4.3 million related to farm income and hydroelectric generation losses, and additional indirect and induced regional losses of approximately $3.5 million. The Economic Review also suggests that reduction in water supplies could have adverse impacts on recreation and tourism in the area.
Our response: As stated in Section 2, the Economic Screening Analysis considers effects of the designation of critical habitat that are incremental to the baseline for the analysis. The baseline includes the economic impacts of listing the species under the Act, even if the listing occurs concurrently with critical habitat designation. Wickiup, Crane Prairie, and Crescent Lake Reservoirs are occupied by the Oregon spotted frog (see the responses to comments 24 and 46). Because the quality of Oregon spotted frog habitat is closely linked to species survival, the Service states that ``in occupied critical habitat, it is unlikely that an analysis would identify a difference between measures needed to avoid the destruction or adverse modification of critical habitat from measures needed to avoid jeopardizing the species.'' Therefore, most costs associated with section 7 impacts to Oregon spotted frog habitat at these reservoirs would be
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included in the baseline, and any incremental section 7 costs associated with the critical habitat designation are anticipated to be limited to administrative costs.
(53) Comment: One commenter stated that the Economic Screening Analysis should take into account beneficial uses of water rights. The commenter further stated that there are numerous privately held water rights for diversion and use of water totaling tens of thousands of acre-feet within Unit 6, Middle Klickitat River. The commenter mentioned one specific water right claim within Unit 6 of 33,500 acre feet, which the commenter estimated could be valued at $25 million to $122 million. The commenter also stated that the issue of takings is addressed in the supplemental proposed rule (79 FR 34685, June 18, 2014) where it states that it is not likely that economic impacts on a property owner would be of a sufficient magnitude to support takings action. The commenter questioned whether the Service considered the value of water rights and the economic impacts associated with restricting the beneficial use of these rights when it made this determination regarding the likelihood of takings.
Our response: The issue that the commenter raises rests on an assumption that the presence of critical habitat designation would restrict use of the water rights held by private landowners whose lands fall within the critical habitat designation. However, the rationale for this assumption is not explained. Indeed, it is unlikely that any restrictions on the beneficial use of water rights would occur as a result of critical habitat designation for two primary reasons. First, many actions that involve the beneficial use of water rights do not involve a Federal nexus; hence, critical habitat could have no direct effect. Second, as noted previously in this document, we consider the proposed critical habitat areas to be occupied by the species. Thus, we would expect that, even if water rights are held on a system that involved a Federal nexus, and a consultation occurred that resulted in a change in the availability of water in the system for beneficial use, this action would occur even without critical habitat designation and, hence, is not appropriately characterized as an incremental impact of critical habitat designation.
(54) Comment: Multiple commenters expressed concern about the economic impact of the designation of critical habitat on grazing and associated activities. One commenter stated that the Economic Screening Analysis does not provide a complete analysis of impacts to grazing conducted on Federal lands because grazing on Federal lands could be restricted, removed, or modified. Specifically, the commenter feared that critical habitat designation could delay turn-out dates for cattle grazing or result in other seasonal restrictions. One commenter stated that the Economic Screening Analysis should include costs per animal unit months (AUM) associated with the feeding of hay to cattle and use of alternative pastures during non-use periods. One commenter also stated that the Service should consider impacts to haying including those related to altered planting and harvest dates, or irrigation schedules.
Our response: See the response to Comment 52. Consultations for grazing activities on Federal lands are anticipated in areas proposed as critical habitat for the Oregon spotted frog. However, economic impacts of critical habitat designation are expected to be limited to additional administrative effort to consider adverse modification in section 7 consultations. This finding is based on the following factors: (1) In occupied areas, activities with a Federal nexus will be subject to section 7 consultation requirements regardless of critical habitat designation, due to the presence of the listed species; (2) in areas not known to be occupied, agencies are in most cases likely to treat areas as potentially occupied due to their proximity to occupied areas; and (3) project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy.
(55) Comment: One commenter stated that the Economic Screening Analysis is inconsistent in how it presents incremental costs. The commenter noted that the Economic Screening Analysis presents incremental costs as costs associated with all known future actions at one point, and as costs in a typical year at another point.
Our response: The Economic Screening Analysis includes all known probable projects that may affect the critical habitat designation which may require consultation under section 7 of the Act. Timing of many of these projects is unknown, thus the analysis conservatively assumes that all projects would occur in the first year following designation (approximately a total of $190,000 in administrative costs), even though it is likely some projects will not be implemented that quickly. In the summary of the Screening Analysis (p. 15), we say, ``The economic impacts of implementing the rule through section 7 of the Act are expected to be limited to additional administrative effort to consider adverse modification in section 7 consultations, which are not expected to exceed $200,000 in a typical year.'' If $190,000 is anticipated to be the maximum (most conservative) total administrative cost of the critical habitat designation incurred in a year, then a typical year would not have greater administrative costs than $200,000.
(56) Comment: Two commenters stated that the Service does not show costs of section 7 consultation to a private landowner.
Our response: Private landowners are not involved in section 7 consultation unless there is a nexus with a Federal agency action, such as issuance of a permit to a private landowner. Exhibit 3 of the Economic Screening Analysis presents average consultation costs applied in the analysis. The costs estimates are based on data from Federal Government Schedule Rates and a review of consultation records from several Service field offices across the country conducted in 2002. Exhibit 3 separates costs specific to third parties, which includes private landowners involved in section 7 consultations. Third party costs range from between $260 and $880 per consultation. For further clarification, see response to Comment 54.
(57) Comment: One commenter stated that the Economic Screening Analysis is inadequate in its consideration of perceptional costs. The commenter questioned the use of a bounding analysis and states that the Economic Screening Analysis should quantify specific perceptional impacts rather than simply concluding that these impacts are more than zero but less than $100 million. The commenter also states that the analysis' consideration of perception costs is flawed because it defines the incremental perceptional costs too narrowly. Another commenter suggested that the Service show the reduction in private land values by multiplying per-acre values by critical habitat acres across the range of the Oregon spotted frog.
Our response: The findings on perceptional impacts presented in the Economic Screening Analysis are supported by the memorandum on Supplemental Information on Perceptional Effects on Land Values. In this memorandum, we estimate the total land value for developable acres in Unit 9 of the designation to be approximately $42 million. In addition, we estimate the total value of private acreage used for grazing in other units to be approximately $12 million by applying U.S. Department of Agriculture (USDA) National Agricultural Statistics Service
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pasture land per-acre values. Because data availability limits our ability to estimate what percentage of these values would be lost as a result of perceptional effects, we conservatively estimate that the full value is lost. Therefore, we conclude that the critical habitat designation for the Oregon spotted frog is unlikely to generate costs exceeding $100 million in a single year.
(58) Comment: One commenter stated that the Economic Screening Analysis should consider the loss of Federal lands intermingled with private lands and entire pastures adjacent to critical habitat. The commenter stated that the closing off of proximate riparian areas may result in negative impacts to the value and income utility of large swaths of pastureland. The commenter went on to state that the benefits from these pasture lands are often higher than the value of the land, and suggested that the Economic Screening Analysis consider the annual loss of reduced benefits of the land rather than the one-time value. The commenter further suggested quantifying the costs of fencing and developing alternative water sources.
Our response: Grazing activities on private lands typically do not have a Federal nexus and, therefore, would not be directly affected by section 7 consultation. In a section 7 consultation with a Federal agency, the Service may recommend excluding grazing from certain riparian areas; however, we anticipate that we would do so because of the presence of the listed frog, and not solely because the areas are critical habitat. Therefore, other than some additional administrative costs, potential economic impacts associated with these actions, including the cost of fencing and water source development, as well as any quantifable loss in benefit of the land, are anticipated to occur even absent critical habitat designation and are, therefore, considered part of the baseline for the economic analysis. Any measures to avoid adverse modification of critical habitat would be the same as those required by the Service to avoid jeopardy to the species.
In addition to administrative costs, the Economic Screening Analysis recognizes potential perceptional impacts that the critical habitat designation could have on private land value. Public attitudes about the limits and costs that the Act may impose can cause real economic effects to the owners of property, regardless of whether such limits are actually imposed. Over time, the perceptional effect of critical habitat designation on properties may subside as the public gains a better understanding of the regulatory burden, or lack thereof, placed on designated lands (particularly where no Federal nexus compelling section 7 consultation exists). Economic benefits of grazing lands are captured by the one-time land values used in our analysis.
(59) Comment: Multiple commenters stated that the screening analysis only focuses on costs and ignores benefits of the designation. Several commenters suggested that tourism and recreation would benefit from the designation of critical habitat for the Oregon spotted frog, highlighting the contributions that protected riverine ecosystems bring to the local economy. Two commenters requested that the economic analysis specifically take into consideration the economic benefits that the designation of critical habitat could impart to Oregon in tourism and recreation dollars based on the preservation of healthy riverine ecosystems. One commenter specifically identified benefits to fisheries as being excluded from the analysis. One commenter suggested that the economic analysis be conducted by an independent third party in order to examine the true economics, including the benefits of a healthier river.
Our response: Portions of the economic analysis were conducted by an independent third party. As stated in Section 5 of the screening analysis, the primary intended benefit of critical habitat designation for the Oregon spotted frog is to support the species' long-term conservation. Critical habitat designation may also generate ancillary benefits, which are defined as favorable impacts of a rulemaking that are typically unrelated, or secondary, to the statutory purpose of the rulemaking. Critical habitat aids in the conservation of species by protecting the PCEs on which the species depends. To this end, management actions undertaken to conserve a species or habitat may have coincident, positive social welfare implications, such as increased recreational opportunities in a region or improved property values on nearby parcels. Quantification and monetization of species conservation benefits requires information on: (1) The incremental change in the probability of frog conservation that is expected to result from the designation; and (2) the public's willingness to pay for such beneficial changes. If water management activities change as a result of the critical habitat designation, various benefits could occur within aquatic ecosystems, including improvements in the quality of recreational activities. If perceptional effects cause changes in future land use, benefits to the species and environmental quality may also occur. However, due to existing data limitations, we are unable to assess the magnitude of such potential benefits.
(60) Comment: One commenter stated that the Screening Analysis should consider whether the benefits of exclusion of a particular area outweigh the benefits of specifying that area as critical habitat. One commenter stated that the Screening Analysis overstates the conservation benefits that may result from the proposed designation. The commenter stated that the Screening Analysis discusses benefits in only a very general way, which results in an overstatement of the conservation benefits of the proposed designation.
Our response: The lack of quantification of benefits is not intended to suggest that the proposed designation will not result in benefits. As stated in Section 5 of the Screening Analysis, quantification and monetization of species conservation benefits requires information on the incremental change in the probability of Oregon spotted frog conservation that is expected to result from the designation and the public's willingness to pay for such beneficial changes. These sorts of data are unavailable for the frog, thus precluding quantification of benefits.
(61) Comment: One commenter stated that the Screening Analysis should consider small business impacts. The commenter also disagreed with the statement that, because no small entities are directly regulated by the rulemaking, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
Our response: Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), Federal agencies are only required to evaluate the potential incremental impacts of a rulemaking on directly regulated 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 adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction or adverse modification of critical habitat) imposed by critical habitat designation. Under these circumstances, it is the Service's 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 critical habitat rule will not have a significant economic impact on a substantial
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number of small entities. Because certification is possible, no regulatory flexibility analysis is required.
Summary of Changes From Proposed Rule
We are designating a total of 65,038 ac (26,320 ha) and 20.3 river mi (32.7 km) of critical habitat for the Oregon spotted frog. We received a number of site-specific comments related to critical habitat for the species, completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act or for exemption under section 4(a)(3) of the Act, reviewed the application of our criteria for identifying critical habitat across the range of these species to refine our designations, and completed the final economic analysis of the designation as proposed. We fully considered all comments from the public and peer reviewers on the proposed rule and the associated economic analysis to develop this final designation of critical habitat for Oregon spotted frog. This final rule incorporates changes to our proposed critical habitat based on the comments that we received and have responded to in this document.
Some technical corrections to the document including our final designation of critical habitat reflect the following changes from the proposed rule as summarized here:
(1) Based on comments received from Whatcom County, WDOE, WDFW, and the Environmental Protection Agency, we have revised Unit 1 by removing Swift Creek and the Sumas River downstream from the confluence with Swift Creek. The final critical habitat designation is reduced by 137 acres (55 hectares) and 3.2 river mi (5.1 river km) from the proposed rule.
(2) In the proposed rule, we did not identify the scale at which occupancy was to be determined. Therefore, the proposed rule included occupied and ``not known to be occupied'' segments within a single critical habitat unit. In this final rule, we have clarified the scale of occupancy to be a sub-basin (hydrologic unit code 8, 4th field watershed) or 5th field watershed when more appropriate (hydrologic unit code 10). Therefore, all designated critical habitat units are known to be occupied at the time the species was listed in 2014, and language pertaining to ``not known to be occupied'' critical habitat has been removed. For further information, see Criteria Used To Identify Critical Habitat.
(3) Trout Lake Natural Area Preserve was not excluded, based on comments received from WDNR.
(4) Based on comments received regarding the complexity with implementing the textual exclusion of the deep-water areas, we have removed language referring to the exclusion of deep water from the unit description of Critical Habitat Subunit 8B in the preamble to this final rule.
(5) Based on comments received, we have revised the boundaries of the critical habitat delineation within Units 8 and 9 using NAIP imagery to align more closely with the areas containing the PCEs. The areas where boundaries were refined are primarily along the Deschutes and Little Deschutes Rivers where developed areas do not provide PCEs. These refinements resulted in a net removal of approximately 45 ac (18 ha) in Subunit 8a and 207 ac (84 ha) in Unit 9. In Subunit 8A, a segment of the Deschutes River was removed from final critical habitat designation because it did not contain the PCEs nor could it contain PCEs in the future due to the geometry of the river channel (narrow and steep gradient) and distance (i.e., greater than 3.1 mi (5 km)) from known populations of Oregon spotted frogs. This segment of the Deschutes River (approximately 88 ac (36 ha) of proposed critical habitat was also ground-verified for presence of PCEs, and the Service determined that the PCEs were not present.
(6) Minor corrections in acres and river miles were made to correct errors made in the area calculations found between proposed and final. Updated ownership layers were used to calculate final acres/river miles, resulting in increased acres/river miles for some land ownerships (Units 4, 6, and 13) and decreased acres/river miles for others (Units 4 and 12), even though no other changes were made. In Unit 7, 6 ac (2 ha), were incorrectly double-counted in the proposed refinement (79 FR 34685, June 18, 2014), and the final critical habitat acres have been adjusted accordingly.
(7) A total of 3,083 ac (1,248 ha) has been excluded under section 4(b)(2) in three units: 2,627 ac (1,062 ha) in Unit 6; 335 ac (136 ha) in Subunit 8a; and 121 ac (49 ha) in Unit 9.
Due to these changes in our final critical habitat designation, we have updated unit descriptions and critical habitat maps, all of which can be found later in this document. This final designation of critical habitat represents a reduction of 3,463 ac (1,401 ha) and 3.2 river mi (5.1 river km) from our proposed critical habitat for Oregon spotted frog for the reasons detailed above.
Critical Habitat
Background
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 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
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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 that are 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 (PCEs such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. PCEs 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 and commercial 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 insure 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, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
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 essential for the Oregon spotted frog from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on August 29, 2013 (78 FR 53538), and in the information presented below. Additional information can be found in the final listing rule published in the Federal Register on August 29, 2014 (79 FR 51658). We have determined that the Oregon spotted frog requires the following physical or biological features:
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, as it is the only frog species that does not have a terrestrial life stage. It is found in or near perennial bodies of water, such as springs, ponds, lakes, sluggish streams, irrigation canals, and roadside ditches. 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.
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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 upstream movement may include, but are not limited to, hard barriers such as dams, impassable culverts, lack of water, and biological barriers, 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, dissolved oxygen, temperature, nutrients, and uncontaminated water (see Water Quality and Contamination is the Final Listing Document (79 FR 51688-51690).
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 our final listing rule published in the Federal Register on August 29, 2014 (79 FR 51658)). 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 68 degrees Fahrenheit (F) (20 degrees Celsius (C)) 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 68 degrees F (20 degrees C) and when the differentiation between surface and subsurface is greater than 37 degrees F (3 degrees C) (Watson et al. 2003, p. 299). Warmer water is important for embryonic development and plant food 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. The off-shore vegetation mats also 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 (see Factor C. Disease or Predation in our final listing rule published in the Federal Register on August 29, 2014 (79 FR 51658)), 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 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). Winter survival rates of Oregon spotted frog males and females are higher in overwintering locations where nonnative fish have limited or no access (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). Predation is believed to be more pronounced in spatially constrained overwintering habitats where frogs and fish both seek flowing water with dissolved oxygen; however, these negative effects can be mediated by habitat complexity and the seasonal use of microhabitats, and Oregon spotted frogs can benefit from fish-free overwintering sites, even if fish are present in other local habitats (Pearl et al. 2009a, p. 143). 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,
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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 conditions (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 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 ( 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) PCE 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 3.1 mi (5 km) linear distance from breeding areas;
Impediment free (including, but not limited to, hard barriers such as dams, impassable culverts, lack of water, or biological barriers such as abundant predators, or lack of refugia from predators).
(3) PCE 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 that are 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 protection that may be required for the physical or biological features identified as essential for the
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Oregon spotted frog. The specific critical habitat units and subunits where these management considerations or protection 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 final listing rule (79 FR 51658). 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 and features created by 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)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If, after identifying currently occupied areas, we determine that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e) we then consider whether designating additional areas--
outside those currently occupied--are essential for the conservation of the species.
We equate the geographical area occupied at the time of listing with the current range for the species; see the final listing rule (79 FR 51658, August 29, 2014; Current Range/Distribution and Table 1) for a description of the current range of the Oregon spotted frog, which is identified at the scale of sub-basin/5th field watershed. 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 2013; older occurrence data were not considered to be a reliable predictor for current occupancy. In only one location (Davis Lake in the Upper Deschutes River) 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.
To determine whether the specific areas within the occupied sub-
basins/watersheds contain the PCEs, 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 NAIP digital imagery, 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 PCEs. 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 and areas of use; in these cases, NAIP imagery, slope, and local knowledge were utilized to approximate the areas that are most likely to contain the PCEs. These areas are referred to as ``seasonally wetted'' in the unit descriptions. In order to capture PCE 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).
In Washington, within five of the sub-basins/watersheds, NWI and NAIP imagery were not sufficient to map the seasonally flooded areas adjacent to rivers/streams. In these areas, we relied on the NHD line features (adjusting where needed to reflect the actual water course) to delineate river miles. The lateral extent of critical habitat in these segments is defined as the stream and the associated hydrologic floodplain. The hydrologic floodplain is the relatively flat, depositional surface adjacent to the channel, formed by the river under its present climate and sediment load, and overflowed during moderate peak flow events. The hydrologic floodplain can be distinguished from the abutting upland by the presence of soils derived from alluvial sediments, wetland soils, and riparian/wetland vegetation.
Within the geographical area occupied at the time of listing we identified specific areas that are known to be occupied by the Oregon spotted frog on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection. Additionally, in the proposed rule (78 FR 53538, August 29, 2013) we proposed to designate areas that are currently ``not known to be occupied.'' Although we acknowledged in the proposed rule our uncertainty about the occupancy status of these areas based on a lack of specific survey data, we determined that these areas are occupied under the definition of critical habitat based on the following factors: These areas (1) are within occupied sub-basins, (2) contain habitat features similar to known occupied areas, (3) hydrologically connect (via surface waters) to occupied areas, and (4) do not contain barriers that would inhibit Oregon spotted frog movement between occupied areas.
We recognize that the physical or biological features may only be present seasonally in some areas because aquatic systems are not static; water levels fluctuate between seasons, severe flood events occur, and beavers abandon and recolonize sites. As a result of these changing habitat conditions, some areas may not have continuous Oregon spotted frog presence. Therefore, we also applied the standard for unoccupied areas and evaluated whether all areas are essential for the conservation of the species. In evaluating this, we considered: (1) The importance of the area to the future recovery of the species; (2) whether the areas have or are capable of providing the essential physical or biological features; and (3) whether the areas provide connectivity between upstream and downstream populations, thus facilitating gene flow and allowing for recolonization of sites that may become lost due to threats or other factors, such as natural catastrophic or stochastic
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events that render existing occupied areas nonfunctional. We determined that all of the areas included in critical habitat also meet these three factors; therefore, we consider all lands and waters included in the designation to be essential for the conservation of the species.
Areas designated as critical habitat for the Oregon spotted frog are not representative of the entire known historical geographic distribution of the species. We are not designating critical habitat in areas where the species may be 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.
When determining critical habitat boundaries within this final rule, 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 the 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 final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will 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.
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 http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0088, on our Internet site http://www.fws.gov/wafwo/osf.html, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above).
In summary, we are designating 14 units of critical habitat that we determined were occupied at the time of listing and contain sufficient elements of physical or biological features being present to support Oregon spotted frog life-history processes. 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 above, see Primary Constituent Elements for Oregon spotted frog. In addition, where occupancy or the presence of the physical or biological features may be uncertain, seasonal, or sporadic, we also consider those areas to be essential for the conservation of the species. These units are delineated by the sub-
basins/watersheds where Oregon spotted frogs remain extant, based on occurrence data as described above. Within each unit, the physical or biological features necessary to support life-history processes require special management (see Special Management Considerations or Protections above). 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.
Final Critical Habitat Designation
We are designating 14 units as critical habitat for the Oregon spotted frog. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those 14 units 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. Table 1 shows the critical habitat units.
Table 1--Approximate Area and Landownership in Designated Critical Habitat Units for the Oregon Spotted Frog
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Private/local
Critical habitat unit Federal Ac (Ha) State Ac (Ha) County Ac (Ha) municipalities Ac Total
(Ha)
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Washington
-
Lower Chilliwack River............................ 0 0 0 143 (58) 143 (58)
-
South Fork Nooksack River......................... 0 0 0 111 (45) 111 (45)
-
Samish River...................................... 0 1 (
