OARD OF SUPERVISORS OF THE COUNTY OF STANISLAUS ACTION figenda SUMMARY

Transcription

1 CUWxWkeeet~tumt OARD OF SUPERVISORS OF THE COUNTY OF STANISLAUS ACTION figenda SUMMARY DEPT: Plannina & Communitv Development BOARD AGENDA # D-3 Urgent Routine X AGENDA DATE: September 28, 2004 CEO Concurs with Recommendation YES NO- 415 Vote Required YES -. &- NO_- (Information Attached) SUBJECT: APPROVAL TO RESPOND TO U.S. FlSH AND WILDLIFE SERVICE'S PROPOSAL TO DESIGNATE CRITICAL HABITAT FOR THE CALIFORNIA TIGER SALAMANDER. STAFF RECOMMENDATION: DIRECT STAFF TO FINALIZE A RESPONSE, FOR THE CHAIRMAN'S SIGNATURE, TO U.S. FlSH AND WILDLIFE SERVICE'S PROPOSAL TO DESIGNATE CRITICAL HABITAT FOR THE CALIFORNIA TIGER SALAMANDER. FISCAL IMPACT: None.... BOARD ACTION AS FOLLOWS: NO On motion of Supervisor ---- Gro_v_e~, Seconded by Supervisor ---M_aufi?Id and approved by the following vote, Ayes: Supervisors:-P~~l,~a~ieId~~~~v_er, -S~QI!~ jln! C-h_airrn-arl G3tu.s~ Noes: Supervisors:N,o_n-eeeeeeeeeeeeeeeeeeeeeee Excused or Absent: Supervis0rs:N~ue Abstaining: Supervisor:None_... 1) X Approved as recommended 2) Denied 3)- Approved as amended 4) Other: MOTION: ATTEST: CHRISTINE FERRARO TALLMAN, Clerk File No.

2 APPROVAL TO RESPOND TO US FISH AND WILDLIFE SERVICE'S PROPOSAL TO DESIGNATE CRITICAL HABITAT FOR THE CALIFORNIA TIGER SALAMANDER. Page 2 DISCUSSION: On August 6, 2004, the U.S. Fish and Wildlife Service published a final rule listing the Central California Distinct Population Segment of the California tiger salamander as "Threatened". On August 10, 2004, the U.S. Fish and Wildlife Service published a proposal to designate 382,666 acres in California as "Critical Habitat" for the salamander. Approximately 27,000 acres of this proposed designation is in Stanislaus County. The Service has requested comments from interested individuals and agencies regarding this proposal (See attached). The deadline for comment is October 12, The Department of Planning and Community Development has reviewed the proposed designation and associated biological data provided by the Service, and has prepared a draft response letter to the Service opposing the designation at this time, due to the lack of credible scientific evidence, and, because of unknown economic impacts to landowners, governments, and other stakeholders in the County. The draft response letter is attached for Board review and comment. In summary, there are three "critical habitat" units proposed in the County. These include approximately 20,000 acres in the Milton Road- State Highway 4 area, approximately 1,000 acres in the Rodden Road-Eaton Road area near Oakdale, and approximately 6,000 acres in the La Grange area (including the County off road vehicle park and other County-owned properties). Each of these units is summarized in the draft response letter, and are evaluated as to their suitability for designation as "critical habitat". Further, the draft letter states that the designation of Critical Habitat is not supported by the best scientific information available, and encourages the Service to prepare a recovery plan and conservation strategy for the salamander prior to any designation of critical habitat. In addition, the letter summarizes concerns regarding potential economic impacts to local landowners and aggregate resource reserves. POLICY ISSUES: The Board should determine whether it is appropriate to respond to the U.S. Fish and Wildlife Service proposals, and oppose designation of "critical habitat" for the California tiger salamander until adequate data is provided or revisions made as outlined in the attached letter. STAFFING IMPACT: None. ATTACHMENTS: 1 : Draft Response Letter 2: U.S. Fish and Wildlife Service Referral I:\BOS\Salamander-critical habitat response - BOS Agenda Item.wpd

3 August 3 1,2004 Wayne White, Field Supervisor Sacramento Fish and Wildlife Service Office 2900 Cottage Way, Room Sacramento, CA RE: Comments on Proposed Delineation of Critical Habitat for the California tiger salamander Dear Mr. White: Stanislaus County has reviewed the Service's proposed delineation of Critical Habitat for the California tiger salamander and opposes the designation as proposed at this time. The County has the following comments: 1. The County believes that the proposed designation of critical habitat is not supported by the best scientific information available related to the biology and conservation of the species, and requests that the designation be postponed until such time as a thorough analysis regarding the conservation and recovery needs of the population is completed. The ESA defines critical habitat as including "the specific areas... occupied by the species... which are... essential to the conservation of the species" and the "specific areas outside the geographical area occupied by the species... that... are essential for the conservation of the species...." 16 U.S.C (5)(A) (emphases added). The Service has provided absolutely no scientific information regarding why the specific areas identified as critical habitat are or are not essential for the conservation of the California tiger salamander. The County requests that the Service to prepare a Recovery Plan and a detailed conservation strategy for the California tiger salamander prior to any final determination of critical habitat. The listing of the species was done without any population data or without any plan for conservation or recovery of the species. It seems inconceivable that the Service can determine the extent of habitat "essential to the conservation of the species" without first determining what the conservation (andlor recovery) of the species requires, or without having a plan for recovery of the populations. Further, with the recent Ninth Circuit Court decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, it is our understanding that the Service will now be required to consider critical habitat designations and recovery goals to a significantly greater extent than they have previously when reviewing public works or development projects. In this case, the court stated... "Clearly, then, the purpose of establishing "critical habitat" is for the ATTACHMENT 1

4 government to carve out territory that is not only necessary for the species' survival but also essential for the species' recovery." Without a recovery plan or a conservation strategy for the California tiger salamander, it seems impossible for the Service to determine what territory is in fact necessary for the species' survival and also essential for the species' recovery. Designating critical habitat and determining what specific areas are "essential for the conservation of the species" simply cannot be done yet. The County is extremely concerned that with recent court decisions (including Gifford Pinchot Task Force v. US. Fish and Wildlife Service, N.M Cattle Growers Ass 'n v. United States Fish and Wildlife Service, and Sierra Club v. United States Fish and Wildlife Service) strengthening the role of critical habitat designations, that these designations will require greater and greater restrictive land uses. Specifically, the County is concerned that a designation of "critical habitat" will allow (and perhaps force) the Service to enforce more restrictive local land uses, including restricting a landowner's ability to farm his land. Congress has told the FWS to designate critical habitat and ensure that the designated critical habitat is not adversely modified. The Court, in Gifford Pinchot Task Force v. US. Fish and Wildlife Service said..." what mattered to Congress, and what must matter to the agency, is to protect against loss or degradation of the designated "critical habitat" itself. " With the designation as proposed, local landowners may be in a position of being unable to till the soil or plant crops without adversely modifying critical habitat. The County believes that neither landowners nor the Service should be in this position without an approved and comprehensive formal plan for recovery and conservation and without the determination of critical habitat being made with the best available scientific information. This has not occurred. Please provide the County with a copy of any proposed recovery plan or conservation strategy for the California tiger salamander prior to issuing any final rule on designating Critical Habitat. 2. The County does not believe that the Service has considered the economic impacts of the proposed critical habitat designation and requests that the Service evaluate the potential economic impacts to local landowners and to the overall agricultural industry base that could result from the designation of critical habitat. Currently, with development of irrigation water, any of the landowners in these units could convert from annual grassland to row crop, orchard, vineyard or other agricultural cultivation or use without any discretionary approvals from the County. Our Zoning Ordinance requires use permits for some more intensive agricultural uses such as hullers, dehydrators, grain storage, and agricultural service and processing plants. These agricultural use permits are most often approved with minor conditions of approval and often may not be subject to California Environmental Quality Act review.

5 It is unclear as to whether landowners who may wish to convert their property from pasture or from one agricultural crop to another would be subject to any limitations to their activities, or be subject to federal enforcement activities. Further, it is unclear whether current farming practices on lands so designated would be subject to any restrictions. It is important for the Service to identify specific related potential economic impacts to property owners as it relates to allowable or conditionally allowable uses on their property. Additionally, none of the landowners have been notified directly by the Service as to the proposed designation of critical habitat on their land. The County requests that the Service contact each affected landowner directly with a full disclosure of what specific restrictions may be imposed by the Service or others on land uses in relation to the proposed Critical Habitat designation prior to issuing any final rule on the designation. The proposed designation of Critical Habitat includes portions of areas identified by the California Department of Conservation Division of Mines and Geology as Aggregate Resource Areas. In some cases, these areas support deposits of concrete-grade aggregate. In fact, the La Grange Ridge Unit includes an active, approved, permitted, and operating aggregate mine. It is unclear as to what the potential economic impact of designating entire Resource Areas as critical habitat will to be to our local aggregate mining industry, or what, if any, specific restrictions may be placed on any aggregate extraction operations (including those that are already permitted). The County requests that the Service provide a detailed economic impact analysis specifically related to impacts on aggregate resource extraction prior to issuing any final rule on this proposed designation. 4. The County received GIs-based copies of the proposed Critical Habitat units from the Service and has overlaid these on local aerial photographs and parcel layers. Large scale copies of these maps are included for your files. The following provides our analysis of each unit. Unit 6. "Rock Creek Unit" - 32,443 Acres - total This Unit is comprised of 63 individual parcels (covering 20,510 acres in Stanislaus County) currently zoned "General Agriculture" and designated "Agriculture" on our General Plan. 60 of the 63 parcels (20,428 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculture. The unit is currently primarily annual grassland with a few isolated houses, accessory agricultural buildings, and poultry houses. Several locations within this unit are of questionable value as habitat for California

6 tiger salamander. For example, portions of Assessor's parcels number , , and totaling approximately 53 acres include orchards and/or row crops. Additionally, parcel is comprised solely of a residence. Further, portions of Assessors parcels and totaling approximately 44 acres are similarly under production as alfalfa, oats or row crops. Portions of Assessors parcels , -01 9, and -021 include large confined poultry facilities. The County requests that these parcels be eliminated from any final designation. The entirety of the Calaveras River Terrace Aggregate Resource Area (ARA) is located in this Unit. This ARA has been identified by the California Department of Mines and Geology as containing high quality concrete-grade aggregate resources. Additionally, there are several areas of existing mine tailings located within this Unit. The Service has provided no economic analysis that evaluates what effect the proposed Critical Habitat designation will have on aggregate resource extraction. The County urges the Service to prepare such an analysis prior to issuing any final rule on the proposed Critical Habitat designation. The County fbrther requests that the parcels containing aggregate resources and mine tailings be eliminated from any final designation. These include Assessors Parcels ; , -004, -0 15, -0 16, and ' * Unit 7. "Rodden Lake Unit" - 1,O 10 Acres This unit is comprised of 58 individual parcels (covering a total of 1,447 acres) currently zoned "General Agriculture" and designated "Agriculture" on our General Plan. 39 of the 58 parcels (1,114 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculture. The unit is currently primarily annual grassland with scattered residences and agricultural crops. Several locations within this unit are of questionable value as habitat for California tiger salamander. Seven parcels located directly adjacent to Rodden and Eaton Roads are primarily residential "ranchettes" and do not offer

7 suitable habitat. These include approximately 34 acres of Assessors Parcels , -021, and -022; , -044, and -036; and Additionally, there are seventeen parcels that are actively farmed as orchards, row crops, alfalfa, andlor oats, or are disced and irrigated pasture. These include approximately 670 acres of all or part of Assessor's parcels , -029, -030, -032, -045, -046, -062; ; , -024, -026, -032, - 033; , -002, -003, These parcels are shown on the diagrams below and on the oversized maps provided. The County requests that these parcels be eliminated from any final designation. Unit 8. "La Grange Ridge Unit" - 6,070 Acres This unit is comprised of 99 individual parcels (covering a total of 10,375 acres) currently zoned "General Agriculture" and designated "Agriculture" on our General Plan. 54 of the 99 parcels (8,900 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculmre. The unit is currently primarily annual grassland with scattered houses and heavily used recreation areas including a Regional Off-Road Vehicle Park. Ten parcels totaling approximately 16 acres are small homesites, located adjacent to the Tuolumne River and are not suitable for critical habitat. These include Assessor's Parcels , -03, -04, -07, -08, -10, -1 1, -13, -14, and -15. The County requests that these parcels be eliminated from any final designation. Several recreational and historic areas and a County Park are in this Unit. The La Grange Regional Park includes 11 sites on 730 acres and includes two historic cemeteries, four sites with historical buildings, the La Grange Off Highway Vehicle Park, the La Grange Dredge Site, the Joe Domeq Wilderness area, the Kiwanis Youth Camp, and the Basso Bridge Day Use Area. These are heavily used recreation areas that are not suitable for critical habitat designation. Ongoing every day uses, operations and maintenance activities at Park facilities are not compatible with the proposed designation. The Park Master Plan also includes plans for numerous new or expanded improvements including construction of restrooms, shade structures, a Park headquarters, a Ranger Residence, Maintenance Yards, Parking Areas Picnic areas and additional developed multi-use trails and campgrounds. The proposed designation as critical habitat of the Park areas would result in significant impacts to existing recreational uses and potentially substantial economic impacts to the County. The County requests that all parcels owned by the County as part of the La Grange Regional Park be eliminated from the proposed designation. These include Assessor's Parcels , -03 1, -032, -033; , -009, -013, -015; and

8 Additionally, parcels in this Unit are currently under active agricultural production. Active agricultural production parcels are not suitable for critical habitat designation. The County requests that these parcels be eliminated from any final designation. These include all or a portion of Assessor's Parcels ; and and Additionally, there is an active aggregate mine located immediately south of the OHV Park. This site is not suitable for critical habitat designation. This includes a 93 acre portion of Assessor's Parcel Prior to approval of the mining permit, a biological resources mitigation plan was approved and accepted by the County, the Service and the California Department of Fish and Game. The County requests that all or a portion of this parcel including the active aggregate mine area be removed from the designation. In summary, although the County is supportive of the Service's efforts to conserve and recover endangered species, the County opposes the designation of critical habitat for the California tiger salamander as proposed. Specifically, the County believes that before any final ruling is issued on the proposed designation of critical habitat: The Service must prepare a comprehensive conservation strategy and recovery plan for the species; The Service must provide a detailed economic impact analysis of the proposed designation on local farmers and ranchers, and specifically evaluate what impact the designation may have on their ability to ranch or farm as currently allowed by local ordinance; The Service must provide a detailed economic impact analysis of the proposed designation as it applies to Aggregate Resources ; and The Service should remove the specific parcels as identified within each unit as being unsuitable for designation as critical habitat. Thank you for the opportunity to comment. Sincerely,

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12 I Click Here to Return to Agenda I /x'l~nl~ In reply refer to: LS FISH AND WILDLIFE SERVICE. Sacramento Fish and Wildlife Office V y" ' 2800 Cottage Way, Room W-2605 CoR@sSeOND~~~~ 2 Sacramento, California ve9e 3 o Pl0 Subject: Final Rule Designating the California Tiger Salamander as a Threatened Species, and a Proposed Rule to Designate Critical Habitat for this Animal Dear Interested Patty: The U.S. Fish and Wildlife Service (Service), under the authority of the Endangered Species Act of 1973 (Act), published the final rule designating the California tiger salamander (Amb~stoma californiense) across its range as a threatened species, and a proposed rule to designate critical habitat for the Central California population of the Califomia tiger salamander. On August 4,2004, we published the final rule in the Federal Register designating the California tiger salamander throughout its range as a threatened species with a special rule exempting existing routine ranching activities fiom the prohibitions of the Act. We made this determination based on a status review of the species, and after evaluating the best available scientific and commercial information on this amphibian. On August 10,2004, we published a proposed rule in the Federal Register to designate critical habitat for the Central California population of the California tiger salamander. This proposed designation does not include the Santa Barbara County and Sonoma County geographic regions. The term "critical habitat" refers to habitat with characteristics that are essential to the conservation of an endangered or threatened species. There are two main effects if the designation of critical habitat for the California tiger salamander is finalized: First, Federal agencies will be required to consult with the Service to ensure their actions do not destroy or adversely modify critical habitat; and second, the designation of critical habitat will provide guidance to the public and other interested parties regarding the specified areas which are considered essential for the conservation of the California tiger salamander and which may require special management considerations or protections. _ < ( We intend that any fmal action resulting fiom the proposal to designate critical habitat for the Central California population of the threatened California tiger salamander will be as accurate and as effective as possible. Therefore, we are interested in comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. Comments particularly are sought concerning:

13 1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation; 2) Specific information on the amount and distribution of California tiger salamander habitat, and what habitat is essential to the conservation of the species and why; 3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat; 4) Any foreseeable economic or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities; 5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments; 6) Specific information from present landowners regarding the current extent and quality of extant occurrences and breeding habitats found within the proposed designated geographic areas and units; 7) Whether or not private landowners are willing to enter into partnerships or conservation agreements with us for the benefit of the California tiger salamander and its habitats; and 8) Whether or not we should enter into conservation agreement or partnerships with private landowners for the conservation of the California tiger salamander and its habitats and, upon successful implementation of these agreements, if we remove proposed critical habitat areas from any areas that are covered by these conservation agreements. You may submit written comments and information via U.S. mail or hand delivery to the Field Supervisor of the Sacramento Fish and Wildlife Office at the letterhead address; or you may send comments by electronic mail ( ) to fwl CTSCH@rl.fws.gov. Additional copies of the listing rule and proposed designation may be obtained from the internet at Please contact Arnold Roessler of my staff at the letterhead address or at (9 16) if you have any questions.. ATTACHMENTS A\lAILP.SLE MOM YOUR CLERK Enclosures I- 9 Wayne $ White Field Supervisor \ 1

14 % De artment of the Interior ' U.l Fish Br Wildlife Service Sacramento Fish and Wildlife Office 2800 Cottage Way, Room W-2605 Sacramento, CA Phone: Fax: News Release d? July 26, For Immediate Release s% Contact: Jim Nickles, /C A1 Donner, 91 6/ % m % 6- For more information on today's actions, visit our Web site at CENTRAL POPULATION OF CALIFORNIA TIGER SALAMANDER LISTED AS THREATENED Sewice seeb to work with cattle ranchers to conserve species The U.S. Fish and Wildlife Service announced today that it has taken several actions under the Endangered Species Act with regard to the California tiger salamander: It has listed the Central population of the California tiger salamander as threatened. It has listed the species rangewide as threatened, changing the status of California tiger salamander populations in Santa Barbara and Sonoma counties from endangered to threatened. The Service has launched a special rule, authorized under section of 4(d) of the Endangered Species Act, to work cooperatively with ranchers to save the species. The Service also intends to propose 47 critical habitat units in 20 counties with a total of 382,666 acres. This proposal does not include Sonoma or Santa Barbara counties. Santa Barbara County already has proposed critical habitat, and critical habitat is not being proposed for Sonoma County at this time. The special rule helps ranchers preserve the rangeland that is critical to the California tiger salamander's survival. The rule strives to conserve salamander habitat while helping keep ranching viable. The special rule recognizes the pivotal role that ranchers play in restoring this species through the wise stewardship of their lands. The rule allows certain traditional ranching activities to continue without additional regulation. Such ranching activities, including stock pond construction and maintenance, can benefit California tiger salamanders. As natural vernal pools are lost, stock ponds created for livestock are important alternative breeding sites for California tiger salamanders. "This special rule will help preserve the salamanders and other wildlife that depend on rangeland," said Steve Thompson, manager of the Service's CalifornialNevada Operations Office. "At the same time, it will strengthen California's unique ranching heritage. Good ranchers are vital to the survival of the salamander and we want to help them stay in ranching.

15 "We believe this rule will promote conservation efforts and partnerships that are critical for species recovery," Thompson added. "We also believe it will encourage continued responsible land uses that provide an overall benefit to wildlife." The Central population of the California tiger salamander includes populations throughout the Central Valley, the Central Coast and the San Francisco Bay Area. The distinct population of salamanders in Santa Barbara County was listed as endangered in The Sonoma County population was listed as an endangered species under an emergency rule in The rule was made permanent in March The California tiger salamander - a stocky terrestrial amphibian with a broad rounded snout - is threatened by a variety of factors including habitat destruction, hybridization with non-native tiger salamanders, and predation by non-native species. The Service will propose 47 critical habitat units, encompassing a total of 382,666 acres, in portions of 20 counties in Central California: Alarneda, Amador, Calaveras, Contra Costa, Fresno, Kern, Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San Joaquin, San Luis Obispo, Santa Clara, Solano, Stanislaus, Tulare, and Yolo. Although some Federal, State, or local government lands occur within the boundaries of proposed critical habitat, the majority of the areas proposed for critical habitat designation occur on privately owned land. This critical habitat rule does not propose for San Mateo or Santa Cruz counties or for the Sonoma or Santa Barbara populations. Critical habitat for the Santa Barbara population was proposed in January and will be finalized in November Critical habitat for the Sonoma population will not be proposed at present. Critical habitat is a term in the Endangered Species Act identifying geographic areas essential for the conservation of a threatened or endangered species and which may require special management considerations. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands. The listing of the California tiger salamander was completed in response to several lawsuits filed in 2002 by the Center for Biological Diversity which addressed individual segments of the salamander's population. As part of a settlement agreement, the Service listed the northern and southern segments of the species population as distinct population segments. However, as part of the status review of the species, the Service determined that the species as a whole should be listed as threatened. This approach will lead to more uniform and effective conservation and management initiatives. The Service will receive public comment on the proposed critical habitat designation for 60 days commencing with publication of the proposal in the Federal Register. In 30 days, both the threatened listing for the Central population of the California tiger salamander and the special rule will take effect. In 30 years of implementing the ESA, the Service has found that the designation of critical habitat provides little additional protection to most listed species, while preventing the Service from using scarce conservation resources for activities with greater conservation benefits.

16 I Click Here to Mum (o Agenda I In almost all cases, recovery of listed species will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat. Habitat is also protected through cooperative measures under the Endangered Species Act including Habitat Conservation Plans, Safe Harbor Agreement, Candidate Conservation Agreements and state programs. Ln addition, voluntary partnership programs such as the Service's Private Stewardship Grants and Partners for Fish and Wildlife program also restore habitat. Habitat for endangered species is provided on many national wildlife refuges, managed by the U.S. Fish and Wildlife Service and State wildlife management areas. The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 95-million-acre National Wildlife Refuge System, which encompasses 544 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 69 national fish hatcheries, 63 Fish and Wildlife Management offices and 8 1 ecological services field stations. The agency enforces Federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Assistance program, which distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to State fish and wildlife agencies.

17 Background and Q&As About the California Tiger Salamander Prepared by the Sacramento Fish and Wildlife Office Updated July 2004 A summary of today's actions: The Service adopts a final rule listing the Central California distinct population segment (DPS) of the California tiger salamander as a threatened species under the Endangered Species Act. As part of the final rule, the Service adopts a special rule under Section 4(d) of the ESA granting an exemption from some provisions of the act for routine ranching activities. The final rule also changes the status of the Sonoma and Santa Barbara DPSs from endangered to threatened, consolidates the three DPSs into one rangewide listing as threatened, and extends the 4(d) rule to the Sonoma and Santa Barbara populations. The Service also will propose critical habitat for the Central California tiger salamander (not Sonoma and Santa Barbara), and at that point will open a 60-day comment period. Critical habitat for Santa Barbara County has already been proposed, whle the Service is not proposing critical habitat for Sonoma County at this time because it might conflict with ongoing conservation efforts. Description of the species: The California tiger salamander is a stocky terrestrial salamander with a broad, rounded snout. Adult males may reach a total length of 8.2 inches while females are slightly smaller, reaching approximately 6.8 inches in length. The dorsal areas of the salamander can have white or pale yellow spots or bars on a black background. The underside varies from almost uniform white or pale yellow to a varying pattern of white or pale yellow and black. Range: This species is restricted to California and does not overlap with any other species of tiger salamander. California tiger salamanders are restricted to vernal pools and seasonal ponds, including many constructed stockponds, in grassland and oak savannah plant communities from sea level to about 1,500 feet in central California. In the Coastal region, populations are scattered from the northern San Francisco Bay Area to Santa Barbara County, and in the Central Valley and Sierra Nevada foothills fiom Yolo to Kern counties. Life history: Subadult and adult California tiger salamanders spend much of their lives in burrows of ground squirrels and pocket gophers. Once rains begin they emerge from their burrows at night to feed and migrate to breed at vernal pools, seasonal ponds, or stock ponds. Adults may migrate up to 1.2 miles from their summering grounds to breeding areas. Males will remain in the breeding ponds for 6 to 8 weeks while females stay for about 1 to 2 weeks. Female

18 California tiger salamanders lay eggs singly or in small groups. Of the 400 to 1,300 eggs a female lays per breeding season, only a few animals survive. Eggs are generally attached to vegetation near the edge of the breeding pond, but in cases where there is little or no vegetation, the eggs may be attached to rocks or other material such as branches on the bottom of the pond. It takes about 10 to 14 days for the eggs to hatch. Larvae feed on algae, small crustaceans and mosquito larvae for about six weeks after hatching. After that time the larvae begin feeding on larger prey including small tadpoles as well as many aquatic insects. California tiger salamander larvae reach maturity in approximately 60 to 94 days. In late spring or early summer the salamanders leave the ponds to seek out small mammal burrows to begin their dormancy. Q. What is the population of the California tiger salamander? A. The total number of individual California tiger salamanders rangewide is not known. Q. Why does the Service believe the California tiger salamander is threatened, and what factors are causing its decline? A. In the absence of population data, the Service believes that habitat loss and fragmentation are valid indicators of the decline of the species. About 75 percent of California tiger salamander habitat has already been lost, and much of the remaining habitat is under threat fiom urban development and conversion of rangeland to intensive agriculture. Other primary threats are hybridization, or interbreeding, with non-native salamanders, and predation by non-native species. The threat of hybridization is particularly severe in the Central Coast Range and the Bay Area, and to a lesser extent the Central Valley. Q. Where are California tiger salamanders found? A. California tiger salamanders have been documented historically in 27 counties - Alameda, Amador, Butte, Calaveras, Contra Costa, Fresno, Glenn, Kern, Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San Joaquin, San Luis Obispo, Santa Barbara, Santa Clara, San Mateo, Santa Cruz, Solano, Sonoma, Stanislaus, Sutter, Tulare and Yolo. The species appears to have disappeared from three counties - Butte, Glenn, and Sutter. The Service believes it is still present in the remaining 24 counties. Q. What is the history of today's actions? A. The Service was petitioned in 1992 to list the species as endangered. The Service completed a review in 1994 that concluded that listing was warranted but precluded by higher priority listing actions. On February 27,2002, the Center for Biological Diversity filed a complaint in the Federal Court of the Northern District of California for the Service's failure to list the Sonoma County Distinct Population Segment of the California tiger salamander as endangered. On June 6,2002, based on a settlement agreement between the Service and the Center for Biological Diversity, the Court signed an order requiring the Service to submit for publication in the Federal Register a proposal to list the California tiger salamander (except for the Santa

19 Barbara County and Sonoma County Distinct Population Segments) on or before May 15, 2003 and to submit a final determination on that proposed rule for publication in the Federal Register on or before May 15,2004. Q. Why did the Service not meet the May 15,2004, deadline? A. On May 14, 2004, the Assistant Secretary for Fish and Wildlife and Parks at the U.S. Department of the Interior asked the Court for a six-month extension of the May 15,2004, deadline. The Assistant Secretary based the request on his assessment that there was substantial scientific disagreement on several issues, including current and future habitat losses. The Court granted an extension to July 23,2004, to give the Service time to resolve the issues. This final listing determination has considered the latest scientific information, including California Department of Conservation reports on the loss of farmland and rangeland. Q. How will the listing of the California tiger salamander affect landowners? A. Projects undertaken on Federal land, or projects on private lands that need Federal permits or funds, must be reviewed by the Service under the section 7 consultation provision of the Endangered Species Act, if tiger salamanders or their habitat are present. Private landowners who wish to undertake projects on private lands that do not have a Federal nexus (meaning no Federal permits or Federal funding is involved) don't have to "consult" under Section 7, but are prohibited by Section 9 of the ESA from the "take" of California tiger salamanders. However, non-federal parties may be granted incidental take permits through Section 10 of the ESA through a mechanism known as a habitat conservation plan, or HCP. An HCP allows the Service to issue a permit authorizing "take" of endangered or threatened species incidental to otherwise lawful activities when the taking is mitigated by agreed-upon conservation measures. Q. What is the special rule for routine ranching activities? A. To promote conservation efforts of the California tiger salamander, the Service is adopting a special rule under section 4(d) of the Act. Section 4(d) allows the Secretary of Interior to issue a "special rule" tailored to meet the conservation needs of a particular threatened species. (Special rules cannot be issued for endangered species.) In this rule, "take" of the threatened California tiger salamander caused by existing routine ranching activities on private, State or tribal lands is exempt from the prohibitions of the Act. The intent of the rule is to allow landowners and ranchers to continue activities that are important for livestock operations, because those activities also maintain habitat for the California tiger salamander. Q. Why is the Sewice changing the status of the Santa Barbara County and Sonoma County populations from endangered to threatened? A. There are geographic and genetic divisions within the California tiger salamander population. But after reviewing the species rangewide (Central California, Sonoma and Santa Barbara), the Service has concluded that several factors justify a uniform listing as threatened.

20 For instance, the primary threat for all three populations is habitat loss and fi-agmentation. Yet the salamander continues to exist throughout the majority of its historic range, and sufficient habitat remains to support species recovery. Thus, the Service believes that on a rangewide basis, the California tiger salamander is threatened throughout its range and it is not endangered with extinction in the foreseeable future. A uniform listing will also lead to more consistent and uniform conservation measures. In particular, the special rule for routine ranching activities, which will play a key role in protecting the remaining habitat for the California tiger salamander, can be applied in both Sonoma and Santa Barbara counties. The Endangered Species Act does not allow special rules for endangered species. In addition, the consolidation of the three populations is consistent with Congressional instruction to use the Endangered Species Act's policy on "distinct population segments" sparingly. Q. What is critical habitat? A. Critical habitat is a term used in the Endangered Species Act that identifies specific areas, both occupied and unoccupied by a listed species, which are essential to the conservation of the species and that may require special management considerations or protection. Q. What impact does critical habitat have on landowners? A. A designation does not set up a preserve or refuge and has no specific regulatory impact on landowners taking actions on their land that do not involve Federal agency funds, authorization or permits. However, landowners must consult with the Service before taking actions on their property which could harm or kill protected species or destroy their habitat, regardless of whether critical habitat has been designated. Q. Is it unusual for the Sewice to propose critical habitat at the same time as listing? A. No. The Service does not always have the resources to propose critical habitat at the time of listing. But since 200 I, the Service has proposed critical habitat at the same time it has proposed listing three times. Q. Where is critical habitat being proposed? The proposed critical habitat is in the following 20 counties in central California: Alameda, Amador, Calaveras, Contra Costa, Fresno, Kern, Kings, Madera, Mariposa, Merced, Monterey, Sacramento, San Benito, San Joaquin, San Luis Obispo, Santa Clara, Solano, Stanislaus, Tulare, and Yolo. Q. Why did the Sewice not propose critical habitat today for the Sonoma and Santa Barbara populations of the California tiger salamander? A. The Service proposed critical habitat for the Santa Barbara County population in January. The Service is not proposing to designate critical habitat for the Sonoma County population of the California tiger salamander at this time. We are currently in the process of developing a

21 management strategy for Sonoma County for the California tiger salamander and other listed and sensitive species. The planning efforts include various local, state and Federal agencies including the Fish and Wildlife Service, the U.S. Army Corps of Engineers, the California Department of Fish and Game, the County of Sonoma, the cities of Santa Rosa, Rohnert Park, and Cotati, and local and regional environmental organizations. We believe that currently designating proposed critical habitat would cause more harm to the species by causing delays to and confusing the current on-going process. Q. How can people comment on the proposed critical habitat? A. We will accept comments fiom interested parties during a 60-day comment period that begins when the proposed critical habitat is published in the Federal Register. The Service plans to schedule at least one and possibly more public hearings, where people can submit oral or written comments. The dates and times of those hearings have not been determined. Also, people may submit written comments and materials to the Service by any one of several methods: By mail to the Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (SFWO), 2800 Cottage Way, W-2605, Sacramento, CA By hand delivery to the address above. Or by to f?wlcentral~ctsqch@~s,gov More questions? Please write or call: The U.S. Fish and Wildlife Service Sacramento Fish and Wildlife Office 2800 Cottage Way, W-2605 Sacramento, Ca /

22 BOARD OF SUPERVISORS Pat Paul, 1 st District Thomas W. Mayfield, 2 nd District Jeff Grover, 3 rd District Raymond Clark Simon, 4 th District Paul W. Caruso, 5 th District 1010 Tenth Street, Suite 6500, Modesto, CA Phone: Fax: October 6, 2004 Wayne White, Field Supervisor Sacramento Fish and Wildlife Service Office 2800 Cottage Way, Room W-2605 Sacramento, CA RE: Comments on Proposed Delineation of Critical Habitat for the California Tiger Salamander Dear Mr. White: Stanislaus County has reviewed the Service s proposed delineation of Critical Habitat for the California tiger salamander and opposes the designation as proposed at this time. The County has the following comments: 1. The County believes that the proposed designation of critical habitat is not supported by the best scientific information available related to the biology and conservation of the species, and requests that the designation be postponed until such time as a thorough analysis regarding the conservation and recovery needs of the population is completed. The ESA defines critical habitat as including the specific areas... occupied by the species... which are... essential to the conservation of the species and the specific areas outside the geographical area occupied by the species... that... are essential for the conservation of the species U.S.C. 1532(5)(A) (emphases added). The Service has provided absolutely no scientific information regarding why the specific areas identified as critical habitat are or are not essential for the conservation of the California tiger salamander. The County requests that the Service to prepare a Recovery Plan and a detailed conservation strategy for the California tiger salamander prior to any final determination of critical habitat. The listing of the species was done without any population data or without any plan for conservation or recovery of the species. It seems inconceivable that the Service can determine the extent of habitat essential to the conservation of the species without first determining what the conservation (and/or recovery) of the species requires, or without having a plan for recovery of the populations. Further, with the recent Ninth Circuit Court decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, it is our understanding that the Service will now be required to consider critical habitat designations and recovery goals to a significantly greater extent than they have previously when reviewing public works or development projects. In this case, the court stated Clearly, then, the purpose of establishing critical habitat is for the government to carve out territory that is not only necessary for the species survival but also essential for the species recovery.

23 Without a recovery plan or a conservation strategy for the California tiger salamander, it seems impossible for the Service to determine what territory is in fact necessary for the species survival and also essential for the species recovery. Designating critical habitat and determining what specific areas are essential for the conservation of the species simply cannot be done yet. The County is extremely concerned that with recent court decisions (including Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, N.M. Cattle Growers Ass n v. United States Fish and Wildlife Service, and Sierra Club v. United States Fish and Wildlife Service) strengthening the role of critical habitat designations, that these designations will require greater and greater restrictive land uses. Specifically, the County is concerned that a designation of critical habitat will allow (and perhaps force) the Service to enforce more restrictive local land uses, including restricting a landowner s ability to farm his land. Congress has told the FWS to designate critical habitat and ensure that the designated critical habitat is not adversely modified. The Court, in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service said what mattered to Congress, and what must matter to the agency, is to protect against loss or degradation of the designated critical habitat itself. With the designation as proposed, local landowners may be in a position of being unable to till the soil or plant crops without adversely modifying critical habitat. The County believes that neither landowners nor the Service should be in this position without an approved and comprehensive formal plan for recovery and conservation and without the determination of critical habitat being made with the best available scientific information. This has not occurred. Please provide the County with a copy of any proposed recovery plan or conservation strategy for the California tiger salamander prior to issuing any final rule on designating Critical Habitat. 2. The County does not believe that the Service has considered the economic impacts of the proposed critical habitat designation and requests that the Service evaluate the potential economic impacts to local landowners and to the overall agricultural industry base that could result from the designation of critical habitat. Currently, with development of irrigation water, any of the landowners in these units could convert from annual grassland to row crop, orchard, vineyard or other agricultural cultivation or use without any discretionary approvals from the County. Our Zoning Ordinance requires use permits for some more intensive agricultural uses such as hullers, dehydrators, grain storage, and agricultural service and processing plants. These agricultural use permits are most often approved with minor conditions of approval and often may not be subject to California Environmental Quality Act review. It is unclear as to whether landowners who may wish to convert their property from pasture or from one agricultural crop to another would be subject to any limitations to their activities, or be subject to federal enforcement activities. Further, it is unclear whether current farming practices on lands so designated would be subject to any restrictions. It is important for the

24 Service to identify specific related potential economic impacts to property owners as it relates to allowable or conditionally allowable uses on their property. Additionally, none of the landowners have been notified directly by the Service as to the proposed designation of critical habitat on their land. The County requests that the Service contact each affected landowner directly with a full disclosure of what specific restrictions may be imposed by the Service or others on land uses in relation to the proposed Critical Habitat designation prior to issuing any final rule on the designation. 3. The proposed designation of Critical Habitat includes portions of areas identified by the California Department of Conservation Division of Mines and Geology as Aggregate Resource Areas. In some cases, these areas support deposits of concrete-grade aggregate. In fact, the La Grange Ridge Unit includes an active, approved, permitted, and operating aggregate mine. It is unclear as to what the potential economic impact of designating entire Resource Areas as critical habitat will to be to our local aggregate mining industry, or what, if any, specific restrictions may be placed on any aggregate extraction operations (including those that are already permitted). The County requests that the Service provide a detailed economic impact analysis specifically related to impacts on aggregate resource extraction prior to issuing any final rule on this proposed designation. 4. The County received GIS-based copies of the proposed Critical Habitat units from the Service and has overlaid these on local aerial photographs and parcel layers. Large scale copies of these maps are included for your files. The following provides our analysis of each unit. Unit 6. Rock Creek Unit - 32,443 Acres total This Unit is comprised of 63 individual parcels (covering 20,510 acres in Stanislaus County) currently zoned General Agriculture and designated Agriculture on our General Plan. 60 of the 63 parcels (20,428 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculture. The unit is currently primarily annual grassland with a few isolated houses, accessory agricultural buildings, and poultry houses. Several locations within this unit are of questionable value as habitat for California tiger salamander. For example, portions of Assessor s parcels number , -011, and -015 totaling approximately 53 acres include orchards and/or row crops. Additionally, parcel is comprised solely of a residence. Further, portions of Assessors parcels and totaling approximately 44 acres are similarly under production as alfalfa, oats or row crops. Portions of

25 Assessors parcels , -019, and -021 include large confined poultry facilities. The County requests that these parcels be eliminated from any final designation. The entirety of the Calaveras River Terrace Aggregate Resource Area (ARA) is located in this Unit. This ARA has been identified by the California Department of Mines and Geology as containing high quality concrete-grade aggregate resources. Additionally, there are several areas of existing mine tailings located within this Unit. The Service has provided no economic analysis that evaluates what effect the proposed Critical Habitat designation will have on aggregate resource extraction. The County urges the Service to prepare such an analysis prior to issuing any final rule on the proposed Critical Habitat designation. The County further requests that the parcels containing aggregate resources and mine tailings be eliminated from any final designation. These include Assessors Parcels ; , -004, -015, -016, and 017. Unit 7. Rodden Lake Unit - 1,010 Acres This unit is comprised of 58 individual parcels (covering a total of 1,447 acres) currently zoned General Agriculture and designated Agriculture on our General Plan. 39 of the 58 parcels (1,114 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculture. The unit is currently primarily annual grassland with scattered residences and agricultural crops. Several locations within this unit are of questionable value as habitat for California tiger salamander. Seven parcels located directly adjacent to Rodden and Eaton Roads are primarily residential ranchettes and do not offer suitable habitat. These include approximately 34 acres of Assessors Parcels , -021, and 022; , -044, and 036; and Additionally, there are seventeen parcels that are actively farmed as orchards, row crops, alfalfa, and/or oats, or are disced and irrigated pasture. These include approximately 670 acres of all or part of Assessor s parcels , -029, -030, -032, -045, -046, -062; ; , -024, -026, -032, - 033; , -002, -003, These parcels are shown on the diagrams below and on the

26 oversized maps provided. The County requests that these parcels be eliminated from any final designation. Unit 8. La Grange Ridge Unit 6,070 Acres This unit is comprised of 99 individual parcels (covering a total of 10,375 acres) currently zoned General Agriculture and designated Agriculture on our General Plan. 54 of the 99 parcels (8,900 acres) are currently restricted by Williamson Act contracts. The zoning, general plan designation, and Williamson Act contracts significantly restrict activities on the parcels to those activities related to agriculture. The unit is currently primarily annual grassland with scattered houses and heavily used recreation areas including a Regional Off-Road Vehicle Park. Ten parcels totaling approximately 16 acres are small homesites, located adjacent to the Tuolumne River and are not suitable for critical habitat. These include Assessor s Parcels , -03, -04, -07, -08, -10, -11, -13, -14, and 15. The County requests that these parcels be eliminated from any final designation. Several recreational and historic areas and a County Park are in this Unit. The La Grange Regional Park includes 11 sites on 730 acres and includes two historic cemeteries, four sites with historical buildings, the La Grange Off Highway Vehicle Park, the La Grange Dredge Site, the Joe Domeq Wilderness area, the Kiwanis Youth Camp, and the Basso Bridge Day Use Area. These are heavily used recreation areas that are not suitable for critical habitat designation. Ongoing every day uses, operations and maintenance activities at Park facilities are not compatible with the proposed designation. The Park Master Plan also includes plans for numerous new or expanded improvements including construction of restrooms, shade structures, a Park headquarters, a Ranger Residence, Maintenance Yards, Parking Areas Picnic areas and additional developed multi-use trails and campgrounds. The proposed designation as critical habitat of the Park areas would result in significant impacts to existing recreational uses and potentially substantial economic impacts to the County. The County requests that all parcels owned by the County as part of the La Grange Regional Park be eliminated from the proposed designation. These include Assessor s Parcels , -031, -032, -033; , -009, -013, -015; and Additionally, parcels in this Unit are currently under active agricultural production. Active agricultural production parcels are not suitable for critical habitat designation. The County requests that these parcels be eliminated from any final designation. These include all or a portion of Assessor s Parcels ; and and 083. Additionally, there is an active aggregate mine located immediately south of the OHV Park. This site is not suitable for critical habitat designation. This includes a 93 acre portion of Assessor s Parcel Prior to approval of the mining permit, a biological resources mitigation plan was approved and accepted by the County, the Service and the California

27 Department of Fish and Game. The County requests that all or a portion of this parcel including the active aggregate mine area be removed from the designation. In summary, although the County is supportive of the Service's efforts to conserve and recover endangered species, the County opposes the designation of critical habitat for the California tiger salamander as proposed. Specifically, the County believes that before any final ruling is issued on the proposed designation of critical habitat: The Service must prepare a comprehensive conservation strategy and recovery plan for the species; The Service must provide a detailed economic impact analysis of the proposed designation on local farmers and ranchers, and specifically evaluate what impact the designation may have on their ability to ranch or farm as currently allowed by local ordinance; The Service must provide a detailed economic impact analysis of the proposed designation as it applies to Aggregate Resources ; and The Service should remove the specific parcels as identified within each unit as being unsuitable for designation as critical habitat. Thank you for the opportunity to comment. \ i( Paul W. Caruso Stanislaus County Board of Supervisors Cc: Honorable Judge Craig Manson Department of Interior C Street N W Washington, DC The Honorable Dennis Cardoza 1321 I Street, Suite 1 Modesto, CA 95354

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