[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)]
[Rules and Regulations]
[Pages 64306-64320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31836]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC32
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Callippe Silverspot Butterfly and the
Behren's Silverspot Butterfly and Threatened Status for the Alameda
Whipsnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Fish and Wildlife Service (Service) determines endangered
status pursuant to the Endangered Species Act of 1973, as amended (Act)
for the callippe silverspot butterfly (Speyeria callippe callippe) and
Behren's silverspot butterfly (Speyeria zerene behrensii) and
threatened status for the Alameda whipsnake (Alameda striped racer)
(Masticophis lateralis euryxanthus). The callippe silverspot butterfly
is found at two sites on grasslands in the San Francisco Bay
[[Page 64307]]
area. Behren's silverspot butterfly is found within coastal terrace
prairie at one site in southern Mendocino County. These butterflies are
imperiled by overcollecting, urban development, alien plant invasion
and competition, and excessive livestock grazing. The Alameda whipsnake
occurs in the northern coastal scrub and chaparral habitats of Contra
Costa and Alameda counties. This snake and its associated habitat are
threatened by fire suppression and related wildfire problems associated
with lack of fuel reduction, urban development, genetic isolation, and
excessive livestock grazing. This rule implements Federal protection
and recovery provisions afforded by the Act for these animals.
DATES: Effective December 5, 1997.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours, at the
Sacramento Field Office, U.S. Fish and Wildlife Service, 3310 El Camino
Ave., Suite 130, Sacramento, California 95821.
FOR FURTHER INFORMATION CONTACT: Mike Westphal or Diane Windham, staff
biologists, at the above address or by telephone (916/979-2725).
SUPPLEMENTARY INFORMATION:
Background
The callippe silverspot butterfly (Speyeria callippe) is a member
of the brush foot family (Nymphalidae). The animal was described by
J.A. Boisduval (1852) from specimens collected during the month of June
by Pierre Lorquin in San Francisco, California (dos Passos and Grey
1947). It is a medium sized butterfly with a wingspan of approximately
5.5 centimeters (cm) (2.2 inches (in)). The upper wings are brown with
extensive black spots and lines, and the basal areas are extremely
melanic (dark-colored). Wing undersides are brown, orange-brown, and
tan with black lines and distinctive black and bright silver spots.
Basal areas of the wings and body are densely pubescent (hairy).
The discal area on the upper hind wings of the callippe silverspot
butterfly is a darker, more extensive yellow than on the related
Lilian's silverspot butterfly (Speyeria callippe liliana). The callippe
silverspot butterfly is larger and has a darker ground color with more
melanic areas on the basal areas of the wings than Comstock's
silverspot butterfly (Speyeria callippe comstocki), another related
taxon.
The callippe silverspot butterfly is found in native grassland and
associated habitats (Thomas Reid Associates 1982; Steiner 1990;
Mattoon, in litt., November 22, 1992). The females lay their eggs on
the dry remains of the larvae foodplant, Johnny jump-up (Viola
pedunculata), or on the surrounding debris (Arnold 1981, Thomas Reid
Associates 1982). Within about 1 week of hatching the larvae eat their
egg shells. The caterpillars wander a short distance and spin a silk
pad upon which they pass the summer and winter. The larvae are dark
colored with many branching sharp spines on their backs.
The caterpillars immediately seek out the foodplant upon
termination of their diapause in the spring. In May, after having gone
through five instars, each larva forms a pupa within a chamber of
leaves drawn together with silk. Adults emerge in about 2 weeks and
live for approximately 3 weeks. Depending upon environmental
conditions, the flight period of this single-brooded butterfly ranges
from mid-May to late July. The adults exhibit hilltopping behavior, a
phenomenon in which males and virgin or multiple-mated females seek a
topographic summit on which to mate (Shields 1967).
Arnold (1983, 1985) conducted taxonomic studies on the subspecies
of Speyeria callippe using wing characters. He concluded that the
species consisted of 3 subspecies rather than the widely recognized and
accepted 16 subspecies. Based on his study, the range of Speyeria
callippe callippe would extend from Oregon to southern California and
east into the Great Basin (Arnold 1985). A comprehensive analysis of
this species found that the original classification remains more
appropriate and that subspecies callippe is restricted to the San
Francisco Bay region (Hammond 1986; Murphy undated). The Service
recognizes the conclusions of Hammond (1986) and the distribution of
the callippe silverspot butterfly as described by Sterling Mattoon (S.
Mattoon, in litt., November 22, 1992).
The callippe silverspot butterfly is known from 14 historic
populations in the San Francisco Bay region. The historic range of the
callippe silverspot butterfly includes the inner Coast Ranges on the
eastern shore of San Francisco Bay from northwestern Contra Costa
County south to the Castro Valley area in Alameda County (S. Mattoon,
in litt., November 22, 1992). On the west side of the Bay, it ranged
from San Francisco south to the vicinity of La Honda in San Mateo
County. Five colonies, including the one located at Twin Peaks in San
Francisco have been extirpated for a variety of reasons. Currently,
extant colonies are known only from private land on San Bruno Mountain
in San Mateo County, and a city park in Alameda County (S. Mattoon, in
litt., November 22, 1992).
Behren's silverspot butterfly (Speyeria zerene behrensii) is also a
member of the brush foot family (Nymphalidae). William H. Edwards
described this taxon in 1869 based on an adult male collected by an
unknown lepidopterist in Mendocino, California (Edwards 1869, dos
Passos and Grey 1947). It is a medium-sized butterfly with a wingspan
of approximately 5.5 cm (2.2 in). The upper surfaces are golden brown
with numerous black spots and lines. Wing undersides are brown, orange-
brown, and tan with black lines and distinctive silver and black spots.
Basal areas of the wings and body are densely pubescent.
Behren's silverspot butterfly is similar in appearance to two other
subspecies of Speyeria zerene (Howe 1975, Hammond 1980, McCorkle and
Hammond 1988). The Oregon silverspot butterfly (Speyeria zerene
hippolyta), federally listed as threatened, has lighter basal suffusion
on the upper sides of the wings than Behren's silverspot butterfly.
Another related taxon, the endangered Myrtle's silverspot butterfly
(Speyeria zerene myrtleae) is larger in size and also lighter in color
than Speyeria zerene behrensii.
Behren's silverspot butterfly inhabits coastal terrace prairie
habitat. The life history of Behren's silverspot butterfly is similar
to the callippe silverspot butterfly. The females lay their eggs in the
debris and dried stems of the larval foodplant, violet (Viola adunca)
(McCorkle 1980, McCorkle and Hammond 1988). Upon hatching, the
caterpillars wander a short distance and spin a silk pad upon which
they pass the fall and winter. The larvae are dark-colored with many
branching, sharp spines on their backs. The caterpillars immediately
seek out the foodplant upon termination of their diapause in the
spring. They pass through five instars before forming a pupa within a
chamber of leaves that they draw together with silk. The adults emerge
in about 2 weeks and live for approximately 3 weeks. Depending upon
environmental conditions, the flight period of this single-brooded
butterfly ranges from July to August. Adult males patrol open areas in
search of newly emerged females.
The historic range of Behren's silverspot butterfly extends from
the mouth of the Russian River in Sonoma County northward along the
immediate coast to southern Mendocino County in the vicinity of Point
Arena (S. Mattoon, in litt., August 4, 1989). Six historic populations
are known from coastal terrace prairie and associated habitats.
[[Page 64308]]
The single extant population is located on private land near Point
Arena in Mendocino County.
The Alameda whipsnake (Alameda striped racer) (Masticophis
lateralis euryxanthus) is a member of the family Colubridae (Stebbins
1985). It was described by William J. Riemer (1954) from a total of six
specimens collected in the vicinity of Berkeley, Alameda County, and
near Somersville, Contra Costa County, and from Mount Diablo, Contra
Costa County, California. The Alameda whipsnake is a slender, fast-
moving, diurnal snake with a narrow neck and a relatively broad head
with large eyes. The dorsal surface is colored sooty black with a
distinct yellow-orange stripe down each side. The anterior portion of
the ventral surface is orange-rufous colored, the midsection is cream
colored, and the posterior and tail are pinkish. Adults range in length
from 91 to 122 cm (3 to 4 feet (ft)).
The Alameda whipsnake inhabits the inner Coast Ranges in western
and central Contra Costa and Alameda counties (Jennings 1983, McGinnis
1992, Swaim 1994). Urban development has fragmented the originally
continuous range of the whipsnake into five populations centered in the
(1) Sobrante Ridge, Tilden/Wildcat Regional Parks area to the Briones
Hills, in Contra Costa County (Tilden-Briones population); (2) Oakland
Hills, Anthony Chabot area to Las Trampas Ridge, in Contra Costa County
(Oakland-Las Trampas population); (3) Hayward Hills, Palomares area to
Pleasanton Ridge, in Alameda County (Hayward-Pleasanton Ridge
population); (4) Mount Diablo vicinity and the Black Hills, in Contra
Costa County (Mount Diablo-Black Hills population); and (5) Wauhab
Ridge, Del Valle area to the Cedar Mountain Ridge, in Alameda County
(Sunol-Cedar Mountain population). These populations all occur on
private or public, non-Federal, land.
Due to the fragmentation of the range of the Alameda whipsnake,
little or no interchange occurs among the five populations. The ability
of the whipsnake to interchange among the first three populations
described above is contingent on their dispersing over the Caldecott
Tunnel in Contra Costa County and under Highway 580 in Alameda County
at the Eden Canyon interchange, the Dublin Boulevard undercrossing, or
where San Lorenzo Creek passes under the highway. The ability of the
Alameda whipsnake to interchange between the Hayward-Pleasanton Ridge
and Sunol-Cedar Mountain populations depends on their dispersing along
Alameda Creek in Alameda County and crossing under Highway 680 where
the creek passes under the highway, or crossing under the highway at
Scott's Corner along Vallecitos Creek, or where two unnamed tributaries
to Arroyo de la Laguna cross under Highway 680 north of Scott's Corner.
The Mount Diablo-Black Hills population has no path for dispersal to
any of the other populations.
The Alameda whipsnake is distinguished from the chaparral whipsnake
(Masticophis lateralis lateralis) by its sooty black dorsum, by wider
yellow-orange stripes that run laterally down each side, the lack of a
dark line across the rostral, an uninterrupted light stripe between the
rostral and eye, and the virtual absence of spotting on the venter of
the head and neck.
The Alameda whipsnake is typically found in northern coastal scrub,
coastal sage scrub and chaparral plant communities (Ornduff 1974, Swaim
1994), but may also occur in adjacent grasslands and oak and oak/bay
woodlands (Swaim 1994). They demonstrate a preference for open-canopy
stands and habitats with woody debris and exposed rock outcrops, and
they tend to be found on southeast, south, and southwest facing slopes
(Swaim 1994). This extremely fast-moving snake holds its head high off
the ground to peer over grass or rocks for potential prey and is an
active diurnal predator. Its diet includes lizards, small mammals,
snakes, and nesting birds.
Radiotelemetry data suggest that Alameda whipsnakes can occupy home
ranges varying in size from 1.9 to 8.7 hectares (ha) (5.0 to 21.5 acres
(ac)). Home ranges of marked snakes overlapped (Swaim 1994). Some
animals were recorded to have moved over 1.8 kilometers (km) (1 mile
(mi)) while crisscrossing their areas (McGinnis 1992).
Alameda whipsnakes breed from March through June, with mating
appearing to occur near the hibernacula of the female (Swaim 1994).
Whipsnakes lay clutches of 6 to 11 eggs, May through July (Stebbins
1985), and the young hatch and emerge in the late-summer to early-fall
(Swaim 1994).
Previous Federal Action
A proposed rule to list the callippe silverspot butterfly as
endangered with critical habitat was published on July 3, 1978 (43 FR
28938). The critical habitat portion of this proposal was withdrawn by
the Service on March 6, 1979 (44 FR 12382) because of procedural and
other substantive changes in the Act by the amendments of 1978. The
Service again published a proposed rule to designate critical habitat
for the callippe silverspot butterfly on March 28, 1980 (45 FR 20503).
The proposal to list the callippe silverspot butterfly and the
reproposal of critical habitat were withdrawn on September 30, 1980 (45
FR 64607) because the Act amendments of 1978 required that the final
rule for the species be completed within 2 years after the date of
publication of the proposal to list it as endangered or threatened.
This insect was listed as a category 2 candidate species in the Animal
Notice of Review on May 22, 1984 (49 FR 21664) and January 6, 1989 (54
FR 554). Category 2 species were those taxa for which the Service had
data that indicated listing was possibly appropriate, but for which
substantial data on their biological vulnerability and threats was not
currently available to support issuance of proposed listing rules. The
callippe silverspot butterfly was listed as a category 1 species in the
Animal Notice of Review on November 21, 1991 (56 FR 58804), because of
increased threats from overcollecting (see Factor B in the ``Summary of
Factors Affecting the Species'' section of this rule). Category 1
species were those taxa for which the Service had on file sufficient
information on biological vulnerability and threats to support proposed
listing rules. As announced in a notice published in the February 28,
1996, Federal Register (61 FR 7596), the designation of multiple
categories of candidates has been discontinued, and only former
category 1 species are now recognized as candidates for listing
purposes.
Ms. Dee Warenycia petitioned the Service to list the callippe
silverspot butterfly as an endangered species in a letter dated January
14, 1991, which was received on January 22, 1991. The Service completed
a status review and determined that sufficient information existed to
propose the species for listing. The 12-month petition finding was
published on February 4, 1994, with the proposed rule (59 FR 5377).
On March 20, 1975, Behren's silverspot butterfly was listed as one
of 42 insects whose status was being reviewed for listing as either
endangered or threatened by the Service (40 FR 12691). This insect was
listed as a category 2 species in the Animal Notice of Review on May
22, 1984 (49 FR 21664), and January 6, 1989 (54 FR 554). Dr. Dennis
Murphy of Stanford University petitioned the Service to list Behren's
silverspot butterfly as an endangered species in a letter dated June
28, 1989, which was received on June 29, 1989. The Service determined
that the petition contained substantial information indicating that the
action requested may be warranted and
[[Page 64309]]
published notice of the 90-day finding on November 1, 1990 (55 FR
46080). It was listed as a category 1 species in the Animal Notice of
Review on November 21, 1991 (56 FR 58804), on the basis of significant
increases in habitat loss and threats occurring throughout its range.
The 12-month petition finding was published with the proposed rule to
list the species on February 4, 1994 (59 FR 5377).
On September 18, 1985, the Service published the Vertebrate
Wildlife Notice of Review (50 FR 37958) which included the Alameda
whipsnake as a category 2 candidate species for possible future listing
as endangered or threatened. The January 6, 1989, Animal Notice of
Review (54 FR 554) solicited information on its status as a category 2
candidate species. The Alameda whipsnake was moved to category 1 in the
November 21, 1991, Animal Notice of Review (56 FR 58804) on the basis
of significant increases in habitat loss and threats occurring
throughout its range. On February 4, 1994, the Service published a
proposed rule in the Federal Register (59 FR 5377) to list the Alameda
whipsnake as an endangered species.
The processing of this final rule follows the Service's listing
priority guidance published in the Federal Register on December 5, 1996
(61 FR 64475). This guidance clarifies the order in which the Service
will process rulemakings following two related events--(1) the lifting,
on April 26, 1996, of the moratorium on final listings imposed on April
10, 1995 (Public Law 104-6), and (2) the restoration of significant
funding for listing through passage of the Omnibus Budget
Reconciliation Act following severe funding constraints imposed by a
number of continuing resolutions between November 1995 and April 1996.
Under this guidance, highest priority (Tier 1) is given to processing
emergency listings, and second highest priority (Tier 2) is given to
resolving the listing status of outstanding proposed listings. The
third highest priority (Tier 3) is assigned to resolving the
conservation status of candidate species and processing administrative
findings on petitions to add species to the lists or reclassify species
from threatened to endangered status. The lowest priority (Tier 4) is
given to processing critical habitat determinations, delistings, and
other types of reclassifications. Processing of this final rule is a
Tier 2 action.
Summary of Comments and Recommendations
In the February 4, 1994, proposed rule (59 FR 5377) and associated
notifications, all interested parties were requested to submit factual
information that might assist the Service in determining whether these
taxa warrant listing. Appropriate State and Federal agencies, county
governments, scientific organizations, and other interested parties
were contacted and requested to comment. Notices of this proposal were
published in the San Francisco Chronicle and San Mateo Times on
February 8, 1994, and the Oakland Tribune on February 10, 1994.
During the comment period, the Service received comments from 16
commenters. Six commenters supported the listing of all three taxa.
Five commenters supported the listing of the callippe silverspot. The
East Bay Regional Park District (EBRPD) supported the listing of the
Alameda whipsnake. One commenter provided information on conservation
methods for the callippe silverspot, but did not express an opinion on
the listing. Letters from the City of Danville, California Department
of Parks and Recreation (CDPR), and the U.S. National Biological Survey
(now the Biological Resources Division of the U.S. Geological Survey)
provided additional information on the Alameda whipsnake but did not
express an opinion on the listing. No public hearing was requested.
On November 1, 1996, the Service published in the Federal Register
(61 FR 56501) a notice reopening the comment period for 30 days for
these taxa. The basis for this reopening was the length of time that
had elapsed since closure of the initial comment period, changing
procedural and biological circumstances, and the need to review the
best scientific information available during the decision-making
process. Specifically, the Service requested information regarding--(1)
the known or potential effects of fire suppression and general fire
management practices on the Alameda whipsnake and its habitat; (2) any
other threats to these taxa; and (3) the size, number, or distribution
of populations of these taxa. During the 30-day reopened comment
period, the Service received comments from 10 entities and individuals.
One commenter stated that the listing of the callippe silverspot
butterfly would not be beneficial. Two commenters supported listing of
all three taxa and one commenter expressed no opinion on the listing of
all three taxa. The remaining letters mentioned only the Alameda
whipsnake, with two supporting the listing, one opposing the listing,
and three expressing no opinion. In accordance with the Service policy
on peer review, published in the Federal Register on July 1, 1994 (59
FR 34270), the opinions of three independent scientists were also
solicited. No responses were received from these specialists.
The Service has reviewed all of the written comments described
above. New information received since publication of the proposed rule
is incorporated in the ``Background'' and ``Summary of Factors
Affecting the Species'' sections of this final rule. The issues raised
in comments received and the Service's responses are summarized as
follows:
Issue 1: One commenter disagreed that the Alameda whipsnake would
not be impacted by construction and operation of the proposed Los
Vaqueros Reservoir. The commenter stated that the snake would be
adversely affected by the reservoir project if there are historic
records of the snake from the areas that would be inundated.
Service Response: The quarrying operations for the Los Vaqueros
project will not be undertaken at the location first proposed for the
project, where an Alameda whipsnake was observed (Jones and Stokes
1992). The Service is not aware of any records showing that this
species had ever occurred in the inundation zone.
Issue 2: One commenter stated that feral pigs (Sus scrofa) prey on
snakes and other wildlife.
Service Response: The Service has incorporated this information in
this final rule.
Issue 3: One commenter believed that commercial collecting of the
Alameda whipsnake was an overstated threat and contended that this was
incorrectly used as a justification for not designating critical
habitat. Another commenter stated that the location of the callippe
silverspot butterfly population at San Bruno Mountain was well known to
butterfly collectors. He asserted that the threat of collecting was not
a justification for determining that designation of critical habitat is
not prudent for the callippe silverspot butterfly.
Service Response: Under section 4(a)(3)(A) of the Act and 50 CFR
424.12, the Secretary must designate critical habitat if such
designation is prudent and determinable. Section 4(b)(2) of the Act
further states that any area may be excluded from critical habitat if
it is determined that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat. In
the case of the
[[Page 64310]]
Alameda whipsnake and callippe silverspot butterfly, the Service
believes that designation of critical habitat for these species would
confer little, if any, conservation benefit to these species beyond
that provided by listing. Application of the statute and its
regulations are described in more detail in the ``Critical Habitat''
section of this rule.
Issue 4: Several commenters contended that the failure of the San
Bruno Mountain Habitat Conservation Plan (HCP) is the primary cause of
the decline of the callippe silverspot butterfly.
Service Response: In 1982, a Section 10(a)(1)(B) incidental take
permit was issued to the cities of Brisbane, Daly City, South San
Francisco, and the County of San Mateo for the endangered mission blue
butterfly (Icaricia icarioides missionensis), San Bruno elfin butterfly
(Incisalia mossii bayensis), and San Francisco garter snake (Thamnophis
sirtalis tetrataenia). This permit and HCP is described in the
``Available Conservation Measures'' section of this rule. The Service
is not aware of any documented evidence or data showing that the
callippe silverspot butterfly is declining as a result of the San Bruno
Mountain HCP. However, the HCP does not regulate collecting threats to
the callippe silverspot butterfly or other butterfly species inhabiting
San Bruno Mountain. Listing the callippe silverspot butterfly will
provide this species with regulatory protection from collection and
other impacts.
Issue 5: One commenter thought that designation of San Bruno
Mountain as critical habitat for the callippe silverspot butterfly
would lead to increased levels of environmental review and greater
protection for the species.
Service Response: Critical habitat extends additional protection to
listed species through section 7 of the Act by requiring that Federal
agencies ensure that any actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat. However, because
development activities on callippe silverspot butterfly habitat on San
Bruno Mountain have already been completed, designation of critical
habitat would not provide additional benefits to the species. A section
10(a)(1)(B) HCP currently protects habitat in the area.
Issue 6: One commenter was concerned that particulate matter from
vehicle exhaust and quarry operations may pose a significant threat to
the callippe silverspot butterfly.
Service Response: The adult and early stages of the callippe
silverspot butterfly and other lepidopterans may be prone to injury and
mortality from dust because their respiratory apparatus (spiracles) are
easily clogged. The Service is concerned that high levels of dust from
quarry operations on San Bruno Mountain may adversely affect the
butterflies in areas immediately bordering this location.
Issue 7: One commenter claimed that the three species are being
used by environmentalists as ``roadblocks'' to economic uses of private
property. Another commenter stated that public lands should be managed
for productivity and sustainability and that the economic impact,
customs, traditions and culture of local communities should be
considered during the listing process.
Service Response: Under section 4(a)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available. The legislative history of this provision
clearly states the intent of Congress to ``ensure'' listing decisions
are ``based solely on biological criteria and to prevent non-biological
considerations from affecting such decisions'' (H.R. Rep. No. 97-835,
97th Cong. 2d Sess. 19 (1982)). As further stated in the legislative
history, ``* * * economic considerations have no relevance to
determinations regarding the status of species * * *.'' Because the
Service is specifically precluded from considering economic impacts,
either positive or negative, in a decision on listing any species, the
Service does not evaluate or consider the economic impacts of listing
these species.
Section 2(a)(3) of the Act recognizes that species of fish,
wildlife, and plants are of esthetic, ecological, educational,
historical, recreational, and scientific value to the Nation and its
people. The Service recognizes that the species included in this
listing have esthetic, ecological, education, historical and scientific
value.
Issue 8: One commenter thought it would be prudent for the Service
to indicate the percentage of Alameda whipsnake habitat lost since
1971, the year the species was listed as ``threatened'' under the
California Endangered Species Act, to document the level of protection
afforded the species with State listing.
Service Response: The Service mapped Alameda whipsnake habitat that
was extant in 1970 and identified areas where conversion and
encroachment into potential habitat had occurred from then until 1996.
To the extent determinable from aerial photographs and slides, projects
impacting habitat during the 1970-1996 period were mapped. Such
projects included road construction and widening, subdivision
construction and expansion, and brush removal. Approximately 25
projects in Alameda County and 41 projects in Contra Costa County
either converted or encroached upon chaparral in the 1970-1996 period.
The extent of conversion and encroachment ranged from approximately 0.8
to 2.0 ha (2 to 5 ac) to approximately 8 to 20 ha (20 to 50 ac) for
larger projects. Freeway construction and residential and commercial
development have added dispersal barriers measuring up to 4.8 km (3.0
mi) wide. The Service's conclusion, from this review, was that regional
development has significantly fragmented the remaining Alameda
whipsnake populations and that natural genetic exchange between the
five remaining populations is unlikely.
A precise assessment of the amount of habitat loss is difficult,
because Alameda whipsnakes are known to use adjacent habitats at a high
level (McGinnis 1992), and may be found at distances up to
approximately 500 meters (1,640 feet) from scrub and chaparral habitat
and utilize riparian habitat as a corridor (Swaim 1994). The
substantial amount of habitat loss documented by the Service brings
into question the effectiveness of current regulatory protection which
is further discussed under factor D in the ``Summary of Factors''
section of this rule.
The issues raised in comments received during the 30 days that the
comment period was reopened and the Service's responses to these issues
are summarized as follows:
Issue 9: Several commenters noted the benefits of fuels management
for snake habitat maintenance and public safety. One commenter noted
the difficulty in conducting prescribed burns near residential
communities. Another commenter recommended that the Service explicitly
recognize the tradeoff between protecting individual snakes from
mortality during fuels management and the benefits of maintaining long-
term suitable habitat conditions. The commenter further noted that
restrictions on fuels treatment activities should meet appropriate
standards for reasonableness, given the critical need to provide for
public safety.
Service Response: The subject of the effects of fire suppression
and general fire management practices on the Alameda whipsnake and its
habitat was a factor in deciding to reopen the comment period. The
Service is concerned that fire suppression has had, and continues to
have, negative impacts
[[Page 64311]]
on habitat for the Alameda whipsnake. Fire suppression is discussed in
depth under factor E of the ``Summary of Factors'' section of this
rule. The Service also recognizes the need for efficient fire control
in urban areas and would work with appropriate management agencies to
develop fuels management plans that protect the public while affording
the maximum practicable conservation benefit to Alameda whipsnakes.
Issue 10: One commenter expressed concern that the proposed rule to
list these taxa may not have complied with the regulatory policies
announced by the Department of the Interior on July 1, 1994. In
particular, the commenter expressed concern that the listing proposal
had not been subjected to peer review, as required by the Notice of
Policy Statement published in the Federal Register on that date (59 FR
34270).
Service Response: The proposed rule to list these taxa was
published on February 4, 1994 (59 FR 5377), predating the Service's
formal policy on peer review made final on July 1, 1994 (59 FR 34270).
However, the list of interested parties to whom the Service sent the
proposed rule for comment included several experts on the life history,
taxonomy, and ecology of the taxa proposed for listing. During the
reopened comment period discussed above in the ``Previous Federal
Actions'' section, the opinions of three independent specialists were
solicited in accordance with this policy. No responses were received
from these specialists.
Issue 11: One commenter noted that because California has
experienced severe fires during the past several years, fire
suppression may not be a threat to the Alameda whipsnake.
Service Response: Several areas of California, particularly
southern California, have recently experienced wildfires. Within the
range of the Alameda whipsnake, however, there have been few large
wildfires within the last 10 years with the notable exception of the
Oakland Hills firestorm of 1991. Although this fire occurred within the
range of the species, the burned areas were mostly located in developed
portions of the Oakland Hills that did not contain habitat suitable for
the whipsnake. Fire suppression practices that do not include
controlled burning can lead to severe fires that damage both urban and
wildlife areas, whereas controlled burning can benefit both wildlife
habitat and reduce the risk of catastrophes such as the 1991 fire. Fire
suppression is discussed in detail under factor E of the ``Summary of
Factors'' section of this rule.
Issue 12: One commenter was concerned over the method by which
information was gathered on private property.
Service Response: The Service is not aware of any information that
was gathered without the permission of the property owner. Information
was obtained from Environmental Impact Reports or Statements that are
required under the California Environmental Quality Act (CEQA) or
National Environmental Protection Act, reports and data summaries
prepared by State agencies and independent scientists, information
submitted during public comment periods, and other information
published in the scientific journals or available in student
dissertations.
Issue 13: One commenter stated that the Service did not use sound
scientific information as indicated by its use of phrases such as ``may
be threatened.''
Service Response: Section 4(b)(a)(A) of the Act requires that
listing determinations be based on the best scientific and commercial
data available. The Service has relied on the best available scientific
and commercial data in making this listing determination. The data upon
which this determination is based were collected by the petitioners and
qualified scientists. The phrase ``may be threatened,'' in particular,
is used to indicate that a potential threat may become an actual one in
the foreseeable future. The Service believes that it is sound and
responsible science to acknowledge a lack of absolute certainty when
that is the case.
Issue 14: One commenter asked what scientific information was used
to determine what constitutes ``inappropriate grazing levels.''
Service Response: The final rule includes livestock grazing as one
of many factors affecting the species, and ranks it as a contributing
factor, rather than as a major factor. Indeed, this final rule states
that some grazing could help to keep other plants from outcompeting the
butterflies' host plants. Studies on Alameda whipsnakes that have been
equipped with radiotelemetry units have shown that the whipsnake
forages in grassland between stands of scrub. Livestock grazing that
significantly reduces or eliminates plant cover in these grasslands
would lead to an increased loss of snakes and their prey to other
predators. The Service believes that livestock grazing, if
appropriately managed, can benefit both the Alameda whipsnake and the
two species of butterflies.
Issue 15: One commenter stated that involvement of State and local
governments, as well as all types of land users, should be required
prior to listing a species.
Service Response: To solicit comments from the public, a notice of
the February 4, 1994, proposed rule (59 FR 5377) was published in the
San Francisco Chronicle and San Mateo Times on February 8, 1994, and in
the Oakland Tribune on February 10, 1994. In addition, appropriate
State agencies, county governments, Federal agencies, scientific
organizations, and other interested parties were contacted and
requested to comment. On November 1, 1996 (61 FR 56501), the Service
reopened for public comment the proposed listing of the three species
with a closing date of December 2, 1996, to allow further comments from
the public.
Issue 16: One commenter stated that the expense of amending the San
Bruno Mountain HCP to permit incidental take of callippe silverspot
butterflies would preclude other habitat management activities.
Service Response: The Service will work with the permit holders
involved in the San Bruno Mountain HCP to ensure that the process of
amending their Section 10(a)(1)(B) permit will not cause undue
diversion of funding from other habitat management activities.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that the callippe silverspot
butterfly (Speyeria callippe callippe) and Behren's silverspot
butterfly (Speyeria zerene behrensii) should be classified as
endangered species, and the Alameda whipsnake (Masticophis lateralis
euryxanthus) should be classified as a threatened species. Procedures
found at section 4(a)(1) of the Act and regulations (50 CFR part 424)
implementing the listing provisions of the Act were followed. A species
may be determined to be endangered or threatened due to one or more of
the five factors described in section 4(a)(1). These factors and their
application to the callippe silverspot butterfly (Speyeria callippe
callippe), Behren's silverspot butterfly (Speyeria zerene behrensii),
and Alameda whipsnake (Masticophis lateralis euryxanthus) are as
follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Habitat or Range
The primary causes of the decline in the callippe silverspot
butterfly and
[[Page 64312]]
Behren's silverspot butterfly is the loss and degradation of habitat
from human activities, including off-road vehicle use, trampling by
hikers and equestrians, inappropriate levels of livestock grazing, and
invasive exotic vegetation. Off-road vehicles and uncontrolled off-
trail foot traffic pose a threat to the colonies of the two butterfly
species. These activities could harass, injure, or kill individuals of
the two species by trampling or crushing the early life stages, the
foodplants of the larvae, or the adults' nectar sources. The Behren's
silverspot butterfly also is imperiled by residential and commercial
development.
The callippe silverspot butterfly was once considerably more
widespread in the San Francisco Bay area, and at least five populations
of this species have been eliminated by urban development and other
causes. The species was known historically from 14 sites in San Mateo,
Alameda, Sonoma, and Solano counties, only 2 of which are still extant.
One of the known extant populations of the callippe silverspot
butterfly is located in a city park in Alameda County. This colony is
small and likely to be imperiled by anthropogenic and natural causes
(S. Mattoon, in litt., November 22, 1992). The population at San Bruno
Mountain in San Mateo County is largely protected against further loss
of habitat, which will remain undeveloped in perpetuity by virtue of
the San Bruno Mountain HCP (Thomas Reid Associates 1982; S. Mattoon, in
litt., November 22, 1992). However, overcollection of specimens by
lepidopterists at San Bruno Mountain and at sites where hybrids can be
found in Solano County continues to pose a threat (see Factor B).
Behren's silverspot butterfly has been extirpated from a
significant portion of its former range, which extended from the mouth
of the Russian River in Sonoma County north to southern Mendocino
County. One of the six historically known colonies was eliminated by a
housing development (S. Mattoon, in litt., August 7, 1989). Currently,
this species is known from a single locality near Point Arena in
Mendocino County (Sally DeBecker, Pacific Gas and Electric, in litt.,
1990). The site is subject to grazing by livestock. Although no
development plans have been proposed for this site, urban development
is occurring in the vicinity. No specimens have been observed at the
sites of the other historically known colonies since 1987.
The current threats to the habitat of the Alameda whipsnake are
urban development and associated impacts due to increased population
densities, inappropriate grazing practices, and alteration of suitable
habitat from fire suppression (see factor E below for a full discussion
of the effects of fire suppression on Alameda whipsnake habitat). The
central and western portions of Alameda and Contra Costa counties are
highly urbanized and continue to be subject to increased urbanization.
Habitat fragmentation from urban development and associated highway and
road construction has led to isolation of the five populations by
wholly preventing or severely reducing movement of individuals between
areas of suitable habitat as described earlier in this rule. These
activities have also reduced the total amount of suitable habitat
available for the Alameda whipsnake. Swaim (1994) listed 55 historical
localities for this species, of which only 25 are considered to be
extant.
McGinnis (1992) documented colonies scattered throughout the range
of the snake that are likely to be adversely impacted by various
residential developments. In addition, the Service has identified
numerous housing developments that threaten the Alameda whipsnake
populations. Some housing developments in Alameda County will further
fragment habitat areas of the Hayward-Pleasanton Ridge population.
These developments include the proposed 200 ha (500 ac) Schaefer Ranch
Project with approximately 474 homes, and the 58 ha (146 ac) Hansen
Ranch Project, both of which could potentially impact suitable habitat
for the Alameda whipsnake. The Schaefer Ranch contains suitable habitat
and the adjacent Hansen Ranch is in close proximity to an Alameda
whipsnake sighting (California Department of Fish and Game (CDFG), in
litt., February 13, 1996). In addition, the proposed dedication of
approximately 64 ha (161 ac) of the Schaefer Ranch project to the EBRPD
will increase public use and associated recreational impacts to habitat
of the Alameda whipsnake. The proximity of urban development will also
increase the likelihood of predation from domestic and feral cats to
EBRPD lands that are otherwise protected from development (DelVecchio
1997) (see factor C below).
Two other proposed projects to the south affect the Hayward-
Pleasanton Ridge population. The 632 ha (1,580 ac) Hayward 1900 project
and the 156 ha (391 ac) Bailey Ranch are adjacent housing developments
along Walpert Ridge in Hayward (Planning Collaborative 1995, City of
Hayward 1996). Both the Walpert Ridge and the Bailey Ranch sites have
habitat occupied by the Alameda whipsnake (McGinnis 1992). In addition,
contiguous habitat exists between known occupied habitat to the west
and east of the Bailey Ranch and Hayward 1900 development projects.
Although Bailey Ranch has proposed mitigation to offset impacts to the
Alameda whipsnake, both developments will further impact and fragment
the Hayward-Pleasanton Ridge population. Hayward 1900 has proposed open
space but is planning to construct trails and vineyards in the proposed
open space (Planning Collaborative 1995). Vineyards, associated
agricultural land uses, and trails could eliminate and fragment
whipsnake habitat and further restrict the movement of snakes.
Within the Oakland-Las Trampas population, several proposed
developments may impact Alameda whipsnakes and their habitat. Several
of these proposed projects are located contiguous to the east side of
Las Trampas Regional Wilderness and contain habitat known to be
occupied by Alameda whipsnakes. The proposed 9 ha (22 ac) Rossmoor
Neighborhood Nine Project would result in the direct loss of snake
habitat and could potentially impact mitigation habitat previously
provided to offset impacts from an earlier phase of the project (CDFG,
in litt., November 25, 1995). The proposed expansion of the Oakland Zoo
could potentially impact suitable snake habitat (K. Swaim and S.
McGinnis, Hayward State University, pers. comm., 1996). Some of these
projects have, or may, set aside suitable habitat for the Alameda
whipsnake, preserved either as open space or as mitigation for habitat
losses associated with the project. Although these proposed
developments may mitigate for impacts to Alameda whipsnakes, the
undeveloped hillsides that support chaparral growth will be subject to
increased fire suppression due to the close proximity of urban
development. This fire suppression will result in habitat degradation
and an increased probability of catastrophic wildfires as discussed
under factor E below.
The Mount Diablo-Black Hills, Tilden-Briones, and Sunol-Cedar
populations are indirectly threatened by urban development. The Mount
Diablo-Black Hills population will be adversely affected by the urban
expansion of the cities of Pittsburg, Oakley, Brentwood, and Antioch.
These cities are projected to expand by over 40,000 units, which will
result in increased visitation and
[[Page 64313]]
associated impacts to nearby EBRPD parks and Mt. Diablo State Park.
Specific developments such as the 115-unit Clayton Ranch (412 ha (1,030
ac)) and 5,200-unit Cowell Ranch (1,709 ha (4,272 ac)) will expose the
eastern flank of the Mt. Diablo-Black Hills population to these
indirect impacts of urbanization. The Mt. Diablo-Black Hills population
is also subject to increased urban impacts on the south side from the
proposed Dougherty Valley (2,400 ha (6,000 ac)) and Tassajara Valley
(1,600 ha, (4,000 ac)) projects, which total over 17,000 units. The
Tilden-Briones population will be subject to increased population
pressure from the north by the approved 800-unit Franklin Canyon (392
ha (980 ac)) projects (Mooers, 1996). Additional developments are
approved or proposed adjacent to the Sunol-Cedar population in the
rapidly growing areas near Dublin and Pleasanton in Alameda County.
These projects will increase human disturbance from recreational use on
regional and state parks, and as urban development encroaches into the
current open space buffers between existing developments and whipsnake
habitat on public lands, the threat of predation and harassment from
domestic and feral cats increases (Coleman et al. 1997). Predation
threats are discussed in more detail under factor C below.
The past and ongoing fragmentation of Alameda whipsnake habitat
makes some populations of this species more vulnerable to extinction.
The Tilden-Briones and Oakland-Las Trampas populations occupy a narrow,
interrupted band of ridgetop chaparral dividing the heavily urbanized
Oakland/Berkeley region to the west from the rapidly urbanizing Highway
680 corridor to the east (USGS 1997). Habitat patches with high ratios
of edge to interior are known to provide less value for some species
than round or square patches provide (Jimerson and Hoover 1991;
Saunders et al. 1991). In fragmented habitats, species most prone to
extinction are those that depend on native vegetation, require
combinations of different habitat types, require large territories, and
exist at low densities (Saunders et al. 1991). Alameda whipsnakes have
been shown to be associated with native Diablan sage scrub, to forage
in adjacent grasslands, and to migrate along riparian corridors. While
the home range of the Alameda whipsnake, estimated to vary between 2
and 9 ha (5 and 20 ac), is not large compared to that of some animals,
the narrow habitats of the Tilden-Briones and Oakland-Las Trampas
populations, less than 1.6 km (1 mi) wide in some places, may impose a
significant constraint on the species. Few individuals have been
captured during trapping studies conducted over thousands of trap days,
indicating that Alameda whipsnakes may be sparse even in suitable
habitat (Swaim 1994). These factors may combine to cause Alameda
whipsnakes to be vulnerable to extinction in small habitat patches
resulting from habitat fragmentation.
B. Overutilization for Commercial, Recreational, Scientific or
Educational Purposes
The callippe silverspot butterfly and Behren's silverspot butterfly
are highly prized by insect collectors. Although no studies
specifically document the impact of the removal of individuals on
natural populations of either butterfly species, based on studies of
another endangered nymphalid butterfly (Gall, 1984a and 1984b) and a
lycaenid butterfly (Duffey 1968), both butterflies are vulnerable to
impacts from collection due to their isolated, possibly small
populations. Butterfly collectors have been observed on San Bruno
Mountain (S. Stern, in litt., June 21, 1994). Some of these specimens
are being traded for other butterfly taxa or are being held by the
collectors in anticipation of their greater value should the species be
listed. The Service also is aware of reports that Behren's silverspot
butterfly is actively sought by amateur lepidopterists. Both collecting
from small colonies and scientific studies that repeatedly handle and
mark individuals (particularly of females and in years of low
abundance) could seriously damage the populations through loss of
individuals and the resulting loss of genetic variability within the
population (Singer and Wedlake 1981, Gall 1984b, Murphy 1988).
Collection of females dispersing from a colony also can reduce the
probability that new colonies will be founded. Collectors pose a threat
because they may be unable to recognize when they are depleting
butterfly colonies below the thresholds of survival or recovery,
especially when they lack appropriate biological training or when they
visit the area for a short period of time (Collins and Morris 1985).
An extensive commercial trade has been documented for the callippe
silverspot butterfly and the Behren's silverspot butterfly, as well as
for other imperiled and rare butterflies (U.S. Attorney's Office 1994,
United States v. Richard J. Skalski, Thomas W. Kral, and Marc L.
Grinnell, Case No. CR932013, 1993). The Service is concerned that
issuance of a final rule for these animals that is not effective
immediately upon publication will result in greatly intensified level
of collecting and commercial trade in the callippe silverspot butterfly
and Behren's silverspot butterfly. Because of the immediate threat
posed by these on-going activities, the Service finds that good cause
exists for this rule to take effect immediately upon publication in
accordance with 5 U.S.C. 553(d)(3).
The Alameda whipsnake does not appear to be particularly popular
among reptile collectors; however, Federal listing could raise the
value of the animals within reptilian trade markets and increase the
threat of unauthorized collection above current levels (K. McCloud,
U.S. Fish and Wildlife Service, Law Enforcement Division, pers. comm.,
1994 and 1996). Even limited interest in the species among reptile
collectors could pose a serious threat to smaller populations of the
snake.
C. Disease or Predation
It appears that predation or disease do not pose a significant
threat to the callippe silverspot butterfly or Behren's silverspot
butterfly. The potential impact of disease on the Alameda whipsnake is
unknown.
A number of native and exotic mammals and birds are known or likely
to be predators of the Alameda whipsnake including the California
kingsnake (Lampropeltis getula californiae), raccoon (Procyon lotor),
striped skunk (Mephitis mephitis), opossum (Didelphis virginianus),
coyote (Canis latrans), gray fox (Vulpes cinereoargenteus), and hawk
(Buteo species). Urbanization can lead to increased numbers and access
to habitat by native predators, leading to increased levels of
predation on native fauna (Goodrich and Buskirk 1995). The recent
introduction of the red fox (Vulpes vulpes), a species not native to
this region of the State, poses an additional threat to the Alameda
whipsnake. In situations where Alameda whipsnake habitat has become
fragmented, isolated, and otherwise degraded by human activities,
increased predatory pressure may become excessive, especially where
alien species, such as rats (Rattus species), feral pigs (Sus scrofa),
and feral and domestic cats (Felis domestica) and dogs (Canis
familiaris) are introduced. These additional threats become
particularly acute where urban development immediately abuts Alameda
whipsnake habitat. A growing movement to maintain feral cats in
parklands is an additional potential
[[Page 64314]]
threats from predation on wildlife (Coleman et al. 1997, Roberto 1995).
The EBRPD is currently facing public pressure to allow private
individuals to maintain feral cats on park lands (DelVecchio 1997).
Although the actual impact of predation on Alameda whipsnakes under
such situations has not been studied, feral cats are know to prey on
reptiles, including yellow racers (Hubbs 1951), a fast, diurnal snake
closely related to the Alameda whipsnake (Stebbins 1985). Predation
pressure on Alameda whipsnakes may increase from maintained colonies of
feral cats in Alameda whipsnake habitat.
D. The Inadequacy of Existing Regulatory Mechanisms
The callippe silverspot butterfly and Behren's silverspot butterfly
are not specifically protected under any Federal, State or local law.
The California Endangered Species Act (CESA) does not provide
protection to insects (sections 2062, 2067 and 2068, Fish and Game
Code). Although the San Bruno Mountain HCP provides protection from
habitat destruction, butterfly collectors have been observed on San
Bruno Mountain (S. Stern, in litt., June 21, 1994) and unauthorized
collection remains an ongoing threat. The extent of illegal trade in
these and other butterfly species and the potential threat poaching
poses to small populations is discussed in detail under factor B above.
The California Environmental Quality Act (CEQA) requires a full
public disclosure of the potential environmental impact of proposed
projects. The public agency with primary authority or jurisdiction over
the project is designated as the lead agency and is responsible for
conducting a review of the project and consulting with other agencies
concerned with resources affected by the project. Section 15065 of the
CEQA guidelines requires a finding of significance if a project has the
potential to ``reduce the number or restrict the range of a rare or
endangered plant or animal.'' Species that are eligible for listing as
rare, threatened, or endangered but are not so listed are given the
same protection as those species that are officially listed with the
State. Once significant impacts are identified, the lead agency has the
option to require mitigation for effects through changes in the project
or to decide that overriding considerations make mitigation infeasible.
In the latter case, projects may be approved that cause significant
environmental damage, such as destruction of endangered species.
Protection of listed species through CEQA is, therefore, at the
discretion of the lead agency. The CEQA provides that, when overriding
social and economic considerations can be demonstrated, project
proposals may go forward, even in cases where the continued existence
of the species may be jeopardized, or where adverse impacts are not
mitigated to the point of insignificance. In addition, proposed
revisions to CEQA guidelines, if made final, may weaken protections for
threatened, endangered, and other sensitive species.
The CEQA and CESA afford the Alameda whipsnake some conservation
benefits. The animal was listed as a threatened species by the State of
California in 1971 (CDFG 1987). Although these State laws provide a
measure of protection to the species, resulting in the formulation of
mitigation measures to reduce or offset impacts for projects proposed
in certain areas of Alameda whipsnake habitat, these laws are not
adequate to protect the species in all cases. Further, only State, and
not Federal, agencies are required to consult under CESA. In response
to a comment on the proposed rule, the Service mapped Alameda whipsnake
habitat that was extant in 1970 and identified areas where conversion
and encroachment into suitable habitat has occurred since the State
listed the Alameda whipsnake as threatened in 1971. Based upon this
analysis, the Service has determined that approximately 25 projects in
Alameda County, and approximately 41 projects in Contra Costa County,
either converted or encroached upon suitable habitat from 1970 to 1996.
The extent of conversion and encroachment ranged from approximately 2
to 5 ac to approximately 20 to 50 ac for larger projects. Although some
of these projects were required to set aside and preserve suitable
habitat for the Alameda whipsnake as open space or as mitigation for
habitat losses associated with the project, many of these preserved
areas remain threatened by fire suppression practices and catastrophic
wildfire for the reasons identified and discussed in factor E below.
With appropriate management, areas of open space managed by the
EBRPD, East Bay Municipal Utilities District (EBMUD), and Mount Diablo
State Park, conservation strategies for Alameda whipsnake may be
developed. Although these public lands include substantial areas
occupied by the whipsnake, the quality of the habitat continues to
decline because of surrounding urban encroachment. Urban encroachment
also exacerbates the habitat fragmentation problems, and greatly
restricts the ability of these agencies to conduct effective fire
management practices that have the potential to sustain suitable
habitat for the Alameda whipsnake and prevent catastrophic wildfires.
E. Other Natural or Man-Made Factors Affecting Their Continued
Existence
The use of insecticides would threaten the callippe silverspot
butterfly and the Behren's silverspot butterfly if use occurred in
proximity to occupied habitat. Silverspot butterfly larvae are
extremely sensitive to pesticides, and even the accumulation of runoff
in the soil after spraying has proven lethal to the larvae of members
of the genus Speyeria (Mattoon et al. 1971). However, the Service is
not aware of plans to apply insecticides or pesticides on or near the
habitat occupied by either of these two species.
Livestock grazing could threaten the two butterfly species if it
occurs at harmful levels, such that the vegetation is overgrazed and
the foodplants and nectar sources of these butterflies are eliminated
or greatly reduced in abundance. Grazing animals can also trample the
larval foodplants and adult nectar sources. Significant reduction or
loss of these food sources could threaten the population viability of
these butterflies. However, some livestock grazing could keep other
plants from outcompeting the butterflies' host plants.
McGinnis (1992) has suggested that grazing has impacted the habitat
of the Alameda whipsnake in many areas east of the Coast Range.
Livestock grazing that significantly reduces or eliminates shrub and
grass cover can be detrimental to this snake. Many snake species,
including the Alameda whipsnake, avoid such open areas because of the
increased danger from predators and the lack of prey (McGinnis 1992).
The invasion of California's native grassland and coastal prairie
by alien plants has adversely affected native flora and fauna. Numerous
non-native species have invaded these plant communities (Heady 1988,
Heady et al. 1988). Introduced alien plants, such as iceplant
(Carprobrotus sp.), gum trees (Eucalyptus spp.), and gorse (Ulex
europaeus), often outcompete and supplant native vegetation. In the
absence of control and eradication programs, invasive alien plants may
eliminate the remaining native plants, including the host plants of
Behren's and callippe silverspot butterflies. Adequate levels of Viola
species are
[[Page 64315]]
especially critical for the long term survival of populations of these
butterflies (S. Mattoon, in litt., August 4, 1989, and November 22,
1992). Non-native plants may also replace native vegetation in habitat
for the Alameda whipsnake, potentially degrading the habitat and
reducing the prey base. Radiotelemetry data indicate that Alameda
whipsnakes tend to avoid dense stands of eucalyptus (Swaim 1994).
Periodic fires can be an important factor in maintaining the
grassland and coastal prairie habitat of the callippe silverspot
butterfly and the Behren's silverspot butterfly. Without fire,
succession will eliminate the foodplants of the larvae of the two
butterflies (Orsak 1980, Hammond and McCorkle 1984). Periodic cool,
fast-moving fires appear important for the maintenance of the habitat
of these two species. Dead grass and other vegetation from previous
years may not decay quickly enough and may gradually accumulate to form
a thick layer of thatch that smothers violets. The larvae of the
silverspot butterflies may survive fires that move rapidly through
grassland habitats, whereas hotter, slow-moving brush and woodland
fires may kill them (Orsak 1980, Hammond and McCorkle 1984). In
addition, under windy conditions, fast-moving grassland fires burn in
patches that leave ``islands'' of unburned habitat where any
butterflies present are not harmed.
The Alameda whipsnake is threatened directly and indirectly by the
effects of fire suppression. Fire suppression exacerbates the effects
of wildfires through the buildup of fuel (underbrush and woody debris),
creating conditions for slow-moving, hot fires as described above. The
highest intensity fires occur in the summer and early fall when
accumulated fuel is abundant and dry. During this period, hatchling and
adult Alameda whipsnakes are aboveground (Swaim 1994), and populations
are likely to sustain the heaviest losses from fires. The development
of a closed scrub canopy also results in a buildup of flammable fuels
over time (Parker 1987, Rundel 1987). Fire suppression has led to the
encroachment of nonindigenous and ornamental trees into grassland
habitats, further increasing flammable fuel loads in and around Alameda
whipsnake habitat.
Fire suppression can alter the structure of snake habitat by
allowing plants to establish a closed canopy (Parker 1987) that will
tend to create relatively cool conditions. Alameda whipsnakes have a
higher mean active body temperature (33.4 degrees centigrade) and a
higher degree of body temperature stability (stenothermy) than has been
documented in any other species of snake under natural conditions
(Swaim 1994). Alameda whipsnakes apparently can maintain this high,
stable body temperature by using open and partially open and/or low
growing shrub communities that provide cover from predators while
providing a mosaic of sunny and shady areas between which Alameda
whipsnakes can move to regulate their body temperatures (Swaim 1994).
Tall, shaded stands of vegetation, such as poison oak (Toxicodendron
diversilobum), coyote brush (Baccharis pilularis), or other vegetation
may not provide the optimum temperature gradient for Alameda
whipsnakes. Survey data show that Alameda whipsnakes are less likely to
be found where these plant species create a closed canopy (Swaim 1994).
In addition, many of the native coastal scrub and chaparral plant
species require periodic fires to stimulate new sprouting, seedling
recruitment, and seed dispersal (Parker 1987; Keeley 1987, 1992). The
natural fire frequency necessary to provide this stimulus in this
habitat type is debated by scientists but ranges from 10 to 30 years
(Keeley and Keeley 1987, Rundel 1987). Therefore, depending on the rate
of fuel accumulation, prescribed burns can be conducted in areas where
fires have been suppressed with a frequency of 10 to 30 years (J.
Ferreira, CDPR, pers. comm. 1996).
The California Department of Forestry and Fire Protection (CDFFP)
has primary authority for wildfire management in the State of
California. Where joint jurisdiction exists, such as with regional or
State park lands, a memorandum of understanding (MOU) is often
developed. Through these MOUs, consideration of cultural, esthetic, and
natural resources, can be addressed during planning and implementation
of wildfire management. However, CDFFP has the final decision on
wildfire management. The policy of the CDFFP for unprescribed fires,
such as those resulting from lightning strikes, is to put them out
immediately (B. Harrington, CDFFP, pers. comm. 1996). Similarly, while
CDFFP is engaging in some prescribed burn programs, they remain
hesitant to fully endorse prescribed burning, especially where there is
an urban-parkland interface (CDFFP 1989; J. Di Donato, EBRPD, pers.
comm. 1996).
The CDPR has management responsibilities for Mount Diablo State
Park, where a considerable portion of the suitable whipsnake habitat
occurs. Residential development has occurred around most of the
perimeter of the Park (J. Ferreira, pers. comm. 1996). The urban-
parkland interface has necessitated that CDPR, with CDFFP, develop and
implement a wildfire management plan and program. According to a MOU
with CDPR, the CDFFP is the designated lead agency on fire management
in Mount Diablo State Park and, therefore, has the final decision on
how to manage each fire on CDPR lands (CDPR and CDFFP 1995). The CDPR
drafted the Mount Diablo Wildfire Management Plan for the Park in 1987.
This plan originally sought to reduce the high levels of livestock
grazing on parklands to an ``interpretive level'' to manage more
successfully for wildlife values (J. Ferreira, pers. comm. 1996). Local
ranchers who grazed cattle on or adjacent to parklands were opposed to
this plan and gained the support of local fire agencies to continue
grazing because grazing was seen as a form of fire management (J.
Ferreira, pers. comm. 1996).
In 1995, grazing pressure was significantly reduced and CDPR took a
new approach in fire management planning by revising the Mount Diablo
Wildfire Management Plan. The revised plan was developed in
coordination with CDFFP and outlines presuppression, suppression, and
fire management programs (CDPR and CDFFP 1995). These programs identify
areas for prescribed burns, fire breaks to be maintained, and unique
cultural resources, rare and endangered plants, and structures. Rare
and endangered animal species (including the Alameda whipsnake) are not
specifically identified in the plan. The ultimate decision on ``initial
attack'' of any given fire occurrence still lies with CDFFP, which
generally prefers to suppress fires on Mount Diablo. In addition, CDFFP
has been concerned about conducting prescribed burns due to the
proximity of the urban-parkland interface (J. Ferreira, pers. comm.,
1996).
Encroaching urban development has necessitated the implementation
of rigorous fire suppression practices in and around suitable habitat
areas for the Alameda whipsnake by land management agencies to protect
people and property. The EBRPD guidelines state that opportunities for
prescribed burning on their lands is limited because of the urban-
parkland interface and the risk of the fire escaping control lines
(EBRPD 1992). Another obstacle the regional climatic conditions
required to conduct prescribed burning safely. Although the EBRPD has
developed prescribed burning plans and strategies to manage their
lands, implementation of these plans has been
[[Page 64316]]
hindered by the close proximity of adjacent residential and commercial
development areas (J. Di Donato, pers. comm., 1996). Although the EBRPD
is in the process of updating their prescribed burn program in response
to the 1991 Oakland Hills firestorm, the public does not fully endorse
prescribed burning (EBRPD 1995).
The breeding of closely related individuals can cause genetic
problems in small populations, particularly the expression of
deleterious genes (known as inbreeding depression). Both the callippe
silverspot butterfly and the Behren's silverspot butterfly exist only
as very small, isolated populations (S. Mattoon, in litt., August 4,
1989, and November 22, 1992). Alameda whipsnakes tend to be relatively
rare even in suitable habitat as is indicated by trapping studies that
show low capture rates and relatively high recapture rates (about 3
captures, 1 recapture per 1,000 trap days) (Swaim 1994). Individuals
and populations possessing deleterious genetic material are less able
to adapt to changes in environmental conditions, even relatively minor
changes. Further, small populations are vulnerable to the effects of
genetic drift (the loss of genetic variability). This phenomenon also
reduces the ability of individuals and populations to successfully
respond to environmental stresses. Overall, these factors influence the
survivability of smaller, genetically isolated populations of each of
the three species listed herein.
The callippe silverspot butterfly, Behren's silverspot butterfly,
and the Alameda whipsnake are all vulnerable to the effects of habitat
fragmentation. Subdivision of natural land into smaller blocks of
suitable habitat is often the result of human activities such as urban
development, road construction, fire management policies, and
inappropriate livestock grazing practices. Further reduction of
population size and genetic interchange among populations through
isolation, genetic drift, and inbreeding depression, may result in less
vigorous and adaptable populations of these three species listed
herein. Small, isolated populations are vulnerable to extinction from
random fluctuations in population size or variations in population
characteristics (e.g., sex ratios) caused by annual weather patterns,
food availability, and other factors. Because most of the populations
of these species are isolated from other conspecific populations,
natural recolonization from other populations is unlikely or
impossible, and the vulnerability of each population to natural events
is high.
An additional threat to the San Bruno Mountain population of the
callippe silverspot butterfly is the high level of dust from quarry
operations in the vicinity. Adult and early stages of the taxon may be
prone to injury and mortality from dust because their respiratory
apparatus (spiracles) are easily clogged.
The Service has carefully assessed the best scientific and
commercial information regarding past, present, and future threats
faced by these species in determining this final rule. Based on this
evaluation, the preferred action is to list the callippe silverspot
butterfly and Behren's silverspot butterfly as endangered species, and
the Alameda whipsnake as a threatened species. The current range
restrictions of these species make them increasingly vulnerable to
threats described above under factors A through E.
Urban development threatens both the callippe silverspot butterfly
and Behren's silverspot butterfly. One of the two known extant colonies
of the callippe silverspot butterfly is imminently imperiled, and both
colonies are threatened by overcollection. The single known population
of Behren's silverspot butterfly is similarly threatened. Available
habitat and population levels are depleted to the extent that these
butterflies are near the brink of extinction. Because the callippe
silverspot butterfly and Behren's silverspot butterfly are in danger of
extinction throughout all or a significant portion of their ranges,
these species fit the definition of endangered as defined by the Act.
All five remaining populations of the Alameda whipsnake are
threatened by a variety of factors. Each of these populations consist
of several to numerous subpopulations with varying degrees of
connectivity between them. In the western portion of the species'
range, the Tilden-Briones population is threatened by a high potential
for catastrophic wildfire and urban development. However, the remaining
habitat, regional parklands, and municipal watersheds in this area
overlap to the extent that a regional preserve may be possible. The
Oakland-Las Trampas population is threatened by a high potential for
catastrophic wildfire and the effects of habitat fragmentation and
urban development. The Hayward-Pleasanton Ridge population is the most
susceptible to extirpation. This population is scattered in
distribution and is, therefore, more vulnerable to the effects of
development and subsequent habitat fragmentation. In the eastern
portion of the species' range, the Mount Diablo-Black Hills population
is threatened by a high potential for catastrophic wildfire,
development and its associated impacts, and inappropriate grazing
practices. Because of the location of public lands and the potential
for improved fire and grazing management on parklands, this population
is a good candidate for recovery, if urbanization threats can be
controlled. The Sunol-Cedar Mountain population is threatened by
development and inappropriate grazing practices. Overall, the Oakland-
Las Trampas and Hayward-Pleasanton Ridge populations are the most
immediately imperiled with habitat fragmentation becoming prevalent
enough to compromise their long-term viability.
In the proposed rule (59 FR 5377), the Service proposed to list the
Alameda whipsnake as endangered based primarily on the threats of
urbanization and invasive alien vegetation. The Service has reevaluated
the available information, including information provided during the
public comment period, regarding threats to the species. Urbanization
and the negative effects of structural changes in both the native and
alien vegetative component of whipsnake habitat continue to threaten
the survival of the Alameda whipsnake. However, these threats are not
now of sufficient magnitude to create a danger of extinction throughout
all, or a significant portion, of the range of the species. The Service
now concludes that the failure to implement appropriate fire management
practices on public lands to sustain suitable Alameda whipsnake
habitat, coupled with the rate of loss of suitable habitat on private
lands, make it likely that the Alameda whipsnake will become in danger
of extinction throughout all, or a significant portion, of its range in
the foreseeable future. Because the Alameda whipsnake is likely to
become an endangered species within the foreseeable future, this
species fits the definition of threatened as defined by the Act.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use
[[Page 64317]]
of all methods and procedures needed to bring the species to the point
at which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Service
regulations (50 CFR 424.12(a)) state that critical habitat is not
determinable if information sufficient to perform required analyses of
the impacts of the designation is lacking or if the biological needs of
the species are not sufficiently known to permit identification of an
area as critical habitat. Section 4(b)(2) of the Act requires the
Service to consider economic and other relevant impacts of designating
a particular area as critical habitat on the basis of the best
scientific data available. The Secretary may exclude any area from
critical habitat if he determines that the benefits of such exclusion
outweigh the conservation benefits, unless to do such would result in
the extinction of the species. Service regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist--(1) The species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of threat to
the species, or (2) such designation of critical habitat would not be
beneficial to the species.
The Callippe Silverspot and Behren's Silverspot Butterflies
As discussed under factor B in the ``Summary of Factors Affecting
the Species'' section above, an extensive international commercial
trade has been documented to exist for butterflies in general (Collins
and Morris 1985) and for threatened or endangered species of
butterflies in particular, which are accorded higher value because of
the formal recognition of their rarity (United States v. Richard J.
Skalski, Thomas W. Kral, and Marc L. Grinnell, Case No. CR932013,
1993). This trade includes several species of the genus Speyeria,
including the callippe silverspot butterfly which was illegally
collected after the species was proposed for listing under the Act, the
Myrtle's silverspot butterfly (Speyeria zerene myrtleae), and the
Oregon silverspot butterfly (S. zerene hippolyta), the last two of
which are listed federally subspecies that are similar in appearance to
the Behren's silverspot butterfly (S. zerene behrensii) included in
this rule (Howe 1975, Hammond 1980, McCorkle and Hammond 1988). Illegal
collecting has been observed at one of the two remaining sites for the
callippe silverspot butterfly (S. Stern, in litt., 1994).
The Service is also aware of reports that Behren's silverspot
butterfly is actively sought by collectors. The fact that this species
is not yet a commodity in illegal trade is likely attributable to the
lack of specific knowledge of the location of its sole remaining
population. Trade in these specimens is not limited to the occasional
adult butterfly, but can include dozens of individuals and hundreds of
larvae (United States v. Richard J. Skalski, Thomas W. Kral, and Marc
L. Grinnell, Case No. CR932013, 1993). The effects that even limited
collecting can have on small populations are discussed in detail under
factor B in the ``Summary of Factors Affecting the Species'' section
above. Because of the increased value of listed species, the illicit
commercial trade in the callippe silverspot butterfly and Behren's
silverspot butterfly would be likely to increase upon listing. Although
the San Bruno Mountain locality is purportedly known to collectors (see
issue 3 under the ``Summary of Comments and Recommendations'' section
above), this is a large area (340 ha (850 ac)) and precise maps and
descriptions of critical habitat, such as those which would appear in
the Federal Register if critical habitat was designated, are not now
available to the general public. The specific localities of the two
other localities of the callippe or silverspot butterflies are not well
known, but they are near roads or trails and could be easily accessed
by the public if precise locality information is provided.
In addition, neither the callippe silverspot butterfly nor the
Behren's silverspot butterfly would receive any benefit from the
designation of critical habitat beyond that provided by listing.
Critical habitat only applies to activities on Federal lands and
activities on private lands involving Federal authorization or funding.
All known populations of these species occur on non-Federal land. The
only Federal land within the historical range of Behren's silverspot
butterfly is a small parcel at the U.S. Coast Guard lighthouse at Point
Arena. Although this installation is in close proximity to the only
known site for this species, no specific records document any
historical occurrence at this site. The habitat at this site, and
elsewhere within the historical range of the species, is presumed to be
currently unsuitable for the species. No activity involving a Federal
action currently occurs on the sole site where the species remains.
Even if a future Federal project were to occur in the area, it would
require consultation with the Service pursuant to section 7 of the Act
before it could be implemented. Because this butterfly exists only as a
single, small population, any future activity involving a Federal
action that would adversely modify critical habitat, that is, would
appreciably diminish the value of the critical habitat for the survival
and recovery of the species, would also likely jeopardize the species'
continued existence.
Colonies of the callippe silverspot butterfly are known only to
exist at two sites, both of which are privately owned. The callippe
silverspot butterfly was considered during the formulation of the San
Bruno Mountain HCP under the provisions of a section 10(a)(1)(B) of the
Act. This HCP, in which the callippe silverspot butterfly was
designated as a species of concern, permanently protects approximately
92 percent of its habitat on San Bruno Mountain. The HCP also includes
management activities, funded by development projects, that benefit the
butterfly including annual monitoring of the colonies on the site (V.
Harris, in litt., 1996). Habitat for the other known population is
partially protected in a city park in Alameda County. No Federal
actions, authorizations, or licensing currently occurs on this site.
Although there are scattered Federal landholdings throughout the
historical range of the callippe silverspot butterfly, there are no
historical collections of this species from any Federal lands. Because
of the extensive urbanization within its historical range, no suitable
habitat remains for the species other than at the two sites at which it
is currently known to persist (Orsak 1980; Steiner 1990; S. Mattoon, in
litt., 1992). Federal agency involvement, therefore, is not likely to
occur on either of the two sites at which the callippe silverspot
butterfly persists. Even if a future Federal project were to occur at
either site, it would require consultation with the Service pursuant to
section 7 of the Act before it could be implemented. Because only two
small populations of this butterfly remain, any future activity
involving a Federal action that would adversely modify critical
habitat, that is, would appreciably diminish the value of the critical
habitat for the survival and recovery of the species, would also likely
jeopardize the species' continued existence.
Critical habitat designation in areas outside of the currently
occupied territory of the callippe silverspot butterfly also would
serve no purpose
[[Page 64318]]
because these areas are highly urbanized and essentially have no
practical value for the survival and recovery of the species. In
addition, activities within these areas are very unlikely to involve a
Federal action which would trigger section 7 consultation. Furthermore,
in the unlikely event that an activity involving a Federal action is
proposed in one of these areas, it is very unlikely that the Service
would determine that the activity would appreciably diminish the value
of the area for the survival and recovery of the species because these
areas essentially have no such value to the species currently. Critical
habitat designation in areas outside of the currently occupied
territory of the Behren's silverspot butterfly also would serve little
purpose because activities within these areas are very unlikely to
involve a Federal action which would trigger section 7 consultation.
The Service finds, therefore, that designation of critical habitat
for the callippe silverspot butterfly and the Behren's silverspot
butterfly is not prudent because doing so would make these butterflies
more vulnerable to incidents of collection further contributing to
their decline. Designation of critical habitat for the callippe
silverspot butterfly and the Behren's silverspot butterfly is also not
prudent because it would confer no benefit to the species beyond that
provided by listing.
Alameda Whipsnake
As discussed earlier, the historical range of the whipsnake has
been fragmented by urbanization into five populations, each of which is
effectively isolated from the others. The core of each of these five
populations is comprised of relatively large expanses of public, non-
Federal lands, which comprise about 80 percent of known whipsnake
habitat. Although these public lands are protected from development,
other threats to the whipsnake remain, including the negative effects
of fire suppression on the structure of whipsnake habitat, the indirect
effects of urban development (e.g., increased recreational use of the
public lands, increased predation by pets, etc.), and other factors
discussed in the ``Summary of Factors Affecting the Species'' section
above. The Service is not aware of any Federal lands within the range
of the Alameda whipsnake, and activities involving a Federal action are
not likely to occur on the public, non-Federal lands.
Private lands comprise the other 20 percent of known whipsnake
habitat. There is a remote possibility of Federal agency involvement on
these lands in the form of insurance provided by the Department of
Housing and Urban Development (HUD) for housing loans. Such actions
within whipsnake habitat, however, are likely to be rare. In addition,
urban development will only occur along the periphery of the core areas
of whipsnake populations. Because of the need for an active fire
management program in the form of prescribed burns to maintain the
necessary habitat structure for the whipsnake, areas slated for
development in this urban-wildland interface do not offer suitable
long-term habitat potential for the whipsnake and, therefore, cannot be
considered to be habitat essential to the conservation of the species
nor habitat requiring special management considerations. Even if
Federal involvement in the form of housing loans were to occur in these
areas, it would require consultation with the Service pursuant to
section 7 of the Act before it could be implemented. The potential for
the involvement of other Federal agencies within the historical range
of the Alameda whipsnake is discussed in the ``Available Conservation
Measures'' section below.
Critical habitat designation outside of the areas where the Alameda
whipsnake currently occurs also would serve no purpose because these
areas are not essential for the survival and recovery of the species.
The Service believes that sufficient occupied habitat remains which, if
managed for greater benefits for the Alameda whipsnake, would ensure
the survival and provide for the recovery of the species.
Any potential conservation benefit from designation of critical
habitat for the Alameda whipsnake is undermined by the risk of
overcollection. The demand for live reptiles as collectibles and exotic
pets has increased rapidly in recent years and the high level of demand
by reptile collectors often encourages smuggling of wild-caught
specimens (U.S. Fish and Wildlife Service 1996). While the Alameda
whipsnake has not been particularly popular among reptile collectors in
the past, the act of listing increases the attractiveness and value of
listed entities to collectors, thereby potentially increasing the
threat of unauthorized collection (K. McCloud, pers. comm. 1994, 1996).
The identification of localities of the whipsnake through designation
of critical habitat would exacerbate the threat of overcollection
because many areas in which the whipsnake occurs are readily accessible
by road or public trail. The effects that even limited collecting can
have on small populations are discussed in detail under factor B in the
``Summary of Factors Affecting the Species'' section above. Because of
the likelihood for an increase in the value of a species upon listing,
any current illicit commercial trade in the Alameda whipsnake would
likely increase with this listing.
Because of the expected rarity of Federal agency involvement and
the low conservation value of lands on which Federal involvement is
most likely to occur, the Service finds that critical habitat
designation is not prudent for the Alameda whipsnake due to lack of any
significant benefit beyond that conferred by listing. Moreover, the
publication of precise maps and descriptions of critical habitat in the
Federal Register would make this snake more vulnerable to incidents of
collection further contributing to its decline. Any benefit which might
be derived from the designation of critical habitat for the Alameda
whipsnake is outweighed by the increased threat of collection.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires recovery actions be carried
out for all listed species. The protection required of Federal agencies
and prohibitions against taking are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
As noted previously, HUD may insure housing loans in areas that
presently support the Alameda whipsnake. Such actions are likely to be
rare but these loans would be subject to review by the Service under
section 7 of the Act.
[[Page 64319]]
Other Federal agencies that possibly could be affected if these animals
are listed would include the Army Corps of Engineers and the Department
of Transportation (Federal Highways Administration). Both agencies
cooperate in projects within the historical range of the Alameda
whipsnake. The projects, however, are typically confined to waterways
and highways both of which occur in low-lying areas that no longer
provide suitable habitat for the whipsnake. Such areas are surrounded
by intense urban development and are, in combination with the urban
areas, the primary landscape components that have already effectively
isolated the five core populations of the whipsnake. Involvement by the
Army Corps of Engineers or the Federal Highway Administration in the
core areas that comprise the remaining habitat for the whipsnake is
highly unlikely since these areas are comprised primarily of steep
mountainous terrain where projects that impact regulated wetlands,
flood control projects, and highway construction projects rarely occur.
No populations of the callippe silverspot butterfly, Behren's
silverspot butterfly, or Alameda whipsnake are known to occur on
property owned by the Federal government.
One of the two known extant populations of the callippe silverspot
butterfly is protected by the San Bruno Mountain HCP (USFWS permit
number PRT 2-9818). In 1982, a Section 10(a) incidental take permit was
issued to the cities of Brisbane, Daly City, South San Francisco, and
the County of San Mateo, for the endangered mission blue butterfly, San
Bruno elfin butterfly, and San Francisco garter snake. The permit
allows for the loss of animals and habitat through urban development of
approximately 344 ha (850 ac) of San Bruno Mountain. The HCP
permanently protects about 1,114 ha (2,752 ac) of natural habitat at
this site. The conference report on the 1982 amendments to the Act
indicates that Congress intended HCPs to encompass both listed and
unlisted species, especially unlisted species that may later require
protection. Although the callippe silverspot butterfly was not included
as a ``covered'' species in the Section 10(a) permit, the HCP included
specific provisions for the butterfly in the event it did become listed
by the Service. These provisions protect 92 percent of the species'
habitat at the site through various mechanisms (such as landowner
obligations for land dedications, open space set-asides, mitigation
measures, and habitat enhancement), implement annual monitoring of its
population, and allow for adaptive management to conserve the species.
However, no specific provisions were included in the HCP to protect the
callippe silverspot butterfly from poachers.
The listing of the callippe silverspot butterfly, Behren's
silverspot butterfly, and the Alameda whipsnake will also bring
sections 5 and 6 of the Act into effect. Section 5 authorizes
acquisition of lands by the Secretary of the Interior (and Secretary of
Agriculture in certain cases) for the purposes of conserving endangered
and threatened species. Pursuant to section 6, the Service would be
able to grant funds to affected states for management actions aiding in
protection and recovery of these animals.
Listing the callippe silverspot butterfly and the Behren's
silverspot butterfly as endangered and the Alameda whipsnake as
threatened provides for the development of recovery plans for them.
Such plans will bring together State and Federal efforts for
conservation of the animals. The plans will establish a framework for
agencies to coordinate activities and cooperate with each other in
conservation efforts. The plans will set recovery priorities and
estimate costs of various tasks necessary to accomplish them. They also
will describe site-specific management actions necessary to achieve
conservation of the species.
Listing of the Alameda whipsnake will likely result in the
increased ability of public land agencies to promote management plans
that address the need to manage for Alameda whipsnakes, including, but
not limited to, increased ability to conduct prescribed burns, manage
predators, control feral pigs and other feral animals, regulate
recreational use, and develop educational programs for the benefit of
the Alameda whipsnake.
The Act and implementing regulations found at 50 CFR 17.21 for
endangered species and 17.31 for threatened species set forth a series
of prohibitions and exceptions that apply to all endangered wildlife
and to threatened wildlife not covered by a special rule. These
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to take, import or export, transport
in interstate or foreign commerce in the course of commercial activity,
or sell or offer for sale in interstate or foreign commerce any such
species. It also is illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that was illegally taken. Certain
exceptions can apply to agents of the Service and State conservation
agencies.
It is the policy of the Service published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify, to the maximum extent
practicable at the time a species is listed, those activities that
would or would not constitute a violation of section 9 of the Act. The
intent of this policy is increase public awareness of the effect of
this listing on proposed and ongoing activities within a species'
range.
With respect to the callippe silverspot butterfly or Behren's
silverspot butterfly, the Service believes that neither observing the
species (without capture) nor light to moderate grazing of its habitat
by livestock would likely result in a violation of section 9.
With respect to the callippe silverspot butterfly or Behren's
silverspot butterfly, the following actions likely would be considered
a violation of section 9:
(1) Capture or collection of adults or any other life history
stages;
(2) Collection, damage, or destruction of foodplants (Viola
species) or other nectar sources within the species range; and,
(3) Destruction of the species' occupied habitat by actions
including, but not limited to, road, street or highway construction;
subdivision construction; application of herbicides or other chemical
agents; brush removal; or off-road vehicle use.
With respect to the Alameda whipsnakes, the following actions
likely would be considered a violation of section 9:
(1) Unauthorized collecting or handling of whipsnakes;
(2) Destruction or degradation of occupied whipsnake habitat by
actions including, but not limited to, road construction, road
widening, subdivision construction, brush removal, or off-road vehicle
use; and,
(3) Destruction or degradation of occupied whipsnake habitat by
livestock grazing if conducted following notification by the Service
that such grazing constitutes ``take'' of whipsnakes.
Permits may be issued to carry out otherwise prohibited activities
involving endangered and threatened animal species under certain
circumstances. Regulations governing permits are found in 50 CFR 17.22,
17.23, and 17.32. For endangered species, such permits are available
for scientific purposes, to enhance the propagation or survival of the
species, to alleviate economic hardship in certain circumstances, and/
or for incidental take in connection with otherwise
[[Page 64320]]
lawful activities. For threatened species there are also permits for
zoological exhibition, educational purposes or other purposes
consistent with the purposes of the Act. Further information regarding
regulations and requirements for permits may be obtained from the U.S.
Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 11th
Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063, facsimile
503/231-6243).
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
References Cited
A complete list of all references cited in this rule are available
upon request from the Sacramento Field Office (see ADDRESSES section).
Authors
The primary authors of this final rule are Mike Westphal, Sheila
Larsen and Diane Windham, Sacramento Field Office (see ADDRESSES
section).
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulations Promulgation
Accordingly, Part 17, Subchapter B of Chapter I, Title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for Part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.11(h) by adding the following in alphabetical
order under REPTILES to the List of Endangered and Threatened Wildlife:
3. Amend Sec. 17.11(h) by adding the following in alphabetical
order under INSECTS to the List of Endangered and Threatened Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reptiles
* * * * * * *
Whipsnake, Alameda (=striped Masticophis U.S.A. (CA)........ NA................. T 628 NA NA
racer, Alameda). lateralis
euryxanthus.
* * * * * * *
Insects
* * * * * * *
Butterfly, Behren's silverspot... Speyeria zerene U.S.A. (CA)........ NA................. E 628 NA NA
behrensii.
Butterfly, callippe silverspot... Speyeria callippe U.S.A. (CA)........ NA................. E 628 NA NA
callippe.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: November 18, 1997.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 97-31836 Filed 12-4-97; 8:45 am]
BILLING CODE 4310-55-P
