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Federal Register / Vol. 86, No. 246 / Tuesday, December 28, 2021 / Proposed Rules
Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 D. Or. 2007;
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 W.D. Wash.
2002. Courts have also upheld 4d rules that do not address all of the threats a species faces see State of Louisiana v. Verity, 853 F.2d 322 5th Cir. 1988. As noted in the legislative history of the Act, once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him or her with regard to the permitted activities for those species. He or she may, for example, permit taking, but not importation of such species, or he or she may choose to forbid both taking and importation but allow the transportation of such species H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973.
Exercising this authority under section 4d, we have developed proposed rules that are designed to address the conservation needs of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog.
Although the statute does not require us to make a necessary and advisable finding with respect to the adoption of specific prohibitions under section 9, we find that these rules as a whole satisfy the requirement in section 4d of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog. As discussed above under Summary of Biological Status and Threats, we have concluded that the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog are likely to become in danger of extinction within the foreseeable future throughout their respective ranges primarily due to threats associated with altered stream hydrology, nonnative species, impacts to habitat agriculture, mining, urbanization, roads, recreation, disease, drought, extreme floods, highseverity wildfire, and the exacerbation of threats from the effects of climate change. The provisions of this proposed 4d rule would promote conservation of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog by encouraging management of the species stream habitat and landscape in ways that meet both resource management considerations and the conservation needs of the species. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog. This proposed 4d rule would apply only if
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and when we make final the listing of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog as threatened species.
Section 7a2 of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7a4 of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency action agency must enter into consultation with the Service. Examples of actions that are subject to the section 7
consultation process are actions on State, Tribal, local, or private lands that require a Federal permit such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act, a license from the Federal Energy Regulatory Commission under the Federal Power Act, or a permit from the Service under section 10 of the Act or that involve some other Federal action such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency. Federal actions not affecting listed species or critical habitatand actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agencydo not require section 7
consultation.
This obligation does not change in any way for a threatened species with a species-specific 4d rule. Actions that result in a determination by a Federal agency of not likely to adversely affect continue to require the Services written concurrence and actions that are likely to adversely affect a species require formal consultation and the formulation of a biological opinion.
Provisions of the Proposed 4d Rule for the North Feather DPS and the Central Coast DPS of the Foothill YellowLegged Frog This proposed 4d rule would provide for the conservation of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog by prohibiting the following activities, except as otherwise authorized or
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permitted: Import or export; take;
possession and other acts with unlawfully taken specimens; delivery, receipt, transportation, or shipment in interstate or foreign commerce in the course of commercial activity; or sale or offer for sale in interstate or foreign commerce. These prohibitions mirror those prohibitions afforded to endangered species under section 9a1 of the Act.
In addition to the prohibited activities identified above, we also provide standard and other exceptions to those prohibitions for certain activities as described below.
We note that the long-term viability of the North Feather DPS and Central Coast DPS of the foothill yellow-legged frog, as with many wildlife species, is intimately tied to the condition of their habitat. As described in our analysis of the species status, one of the major threats to the North Feather DPS and Central Coast DPS of the foothill yellowlegged frogs continued viability is habitat loss, degradation, and fragmentation resulting from past or current anthropogenic impacts or from catastrophic wildfires. The potential for an increase in frequency and severity of catastrophic wildfires from the effects of climate change subsequently increases the risk to the species posed by this threat. An additional threat is the occurrence of nonnative species that may predate upon and compete for resources with the foothill yellowlegged frog.
We have determined that actions taken by forest management entities in the range of the North Feather DPS and Central Coast DPS of the foothill yellowlegged frog for the purpose of reducing the risk or severity of catastrophic wildfires and protecting stream habitat, even if these actions may result in some short-term or low level of localized negative effect to North Feather DPS
and/or Central Coast DPS of the foothill yellow-legged frog, will further the goal of reducing the likelihood of either DPS
becoming endangered, and will also likely contribute to their conservation and long-term viability. This includes measures approved by the Service, to conduct wildfire prevention activities, non-emergency suppression activities, and other silviculture best management practices that are in accordance with an established forest or fuels management plan and that include measures that minimize impacts to the species and its habitat.
In addition, habitat restoration efforts that specifically provide for the habitat needs of the North Feather DPS and Central Coast DPS of the foothill yellowlegged frog as approved by the Service
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