[Federal Register: December 5, 1997 (Volume 62, Number 234)]



[Rules and Regulations]               



[Page 64306-64320]



From the Federal Register Online via GPO Access [wais.access.gpo.gov]



[DOCID:fr05de97-19]







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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