USFWS Proposes Foothill Yellow-legged Frog for Listing Under the Federal Endangered Species Act
On December 28, 2021, the United States Fish and Wildlife Service (USFWS) announced through the Federal Register that it is proposing to list 4 of 6 defined Distinct Population Segments (DPSs) of Foothill Yellow-legged Frog (FYLF; Rana boylii) under the Federal Endangered Species Act (ESA). The USFWS proposes to list two DPSs as endangered species (South Sierra and South Coast DPSs) and two DPSs as threatened species (North Feather and Central Coast DPSs) under the ESA. DPSs not determined to warrant listing are FYLF populations in northern coastal California, north of San Francisco Bay, and Oregon, which make up the North Coast DPS and the North Sierra DPS, which is made up of FYLF from Yuba, Sierra, Nevada, and Placer counties in California are also not proposed for listing. The USFWS indicated that critical habitat for FYLF cannot be determined at this time. The DPSs and their respective, proposed statuses under the ESA are shown in the figure below.
The North Feather and Central Coast DPSs are proposed to have special conditions applied under the 4(d) rule, which allows for some take of threatened species to occur when it results from certain activities when such take would not interfere with the recovery of the species and would benefit the species. The proposed 4(d) rule for the two threatened DPSs of FYLF would allow exemptions for some wildfire prevention and fire-related forest management activities, clean-up and remediation of trespass cannabis operations and stream restoration activities, some stream restoration activities, and non-native species removal in areas unoccupied by the species. Additional activities that would benefit the species are also permissible upon evaluation on a case by case basis.
The USFWS’s action to move FYLF to proposed listing follows its 12-month investigation of whether the species (or DPSs of the species) warrant listing under the ESA. Comments on the proposed rule are due on or before February 28, 2022. As a proposed species some protections apply and effects to FYLF DPSs proposed for listing should be analyzed during Section 7 consultations with USFWS. A final rule is anticipated to follow within the year. Proponents will also want to follow the progress of the listing because once listed, the protections conferred by the ESA, including prohibition of take without a federal-issued permit will be in place. In 2020, the California Fish and Game Commission listed the species under the California Endangered Species Act and all populations, except those on the north coast of California. In several geographies, this means that both a USFWS-issued take permit or biological opinion and a CDFW-issued permit would be required if project activities would result in “take” of FYLF.
WRA Experts Weigh In
Given the demonstrable decline of the species over the past several decades in the geographies occupied (or formerly occupied) by the DPSs that are proposed for listing, it is expected that listing of some or all these DPSs will be finalized, relatively quickly. The USFWS review period may be extended before the final listing decision is made, however, this is most common when information to determine if the species qualifies for listing is sparse. Because FYLF is a widespread species and declines in the DPSs that are proposed for listing have been well documented, it seems less likely that the review period would drag on for an extended period. Critical habitat for FYLF will be addressed at a future date.
For more information contact WRA’s FYLF expert, Brian Freiermuth, or our regulatory specialists if you have questions on the implications of the proposed listing.