Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad (Bufo californicus)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT42

Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad (

Bufo californicus

)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the arroyo toad (

Bufo californicus

) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 11,695 acres (ac) (4,733 hectares (ha)) fall within the boundaries of the critical habitat designation. The critical habitat is located in Santa Barbara, Ventura, Los Angeles, San Bernardino, and Riverside, Counties, California.

DATES:

Effective Date:

May 13, 2005.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours at the Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766). The final rule, economic analysis, and maps will also be available via the Internet at

http://Ventura.fws.gov or http://Carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT:

For information about Monterey, San Luis Obispo, Santa Barbara, and Ventura Counties, northern Los Angeles County, and the desert portion of San Bernardino County, contact Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, at the address given above (telephone 805/644-1766; facsimile 805/644-3958). For information about Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties, contact Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the address given above (telephone 760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Designation Of Critical Habitat Provides Little Additional Protection To Species.

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 470 species or 38 percent of the 1,253 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat.

We address the habitat needs of all 1,253 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We note, however, that two courts found our definition of adverse modification to be invalid (March 15, 2001, decision of the United States Court Appeals for the Fifth Circuit,

Sierra Club

v.

U.S. Fish and Wildlife Service

et al.

, F.3d 434 and the August 6, 2004, Ninth Circuit judicial opinion,

Gifford Pinchot Task Force

v.

United State Fish and Wildlife Service

). In response to these decisions, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA). None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

Background information on the arroyo toad can be found in our previous final designation of critical habitat for this

species, published in the

Federal Register

(FR) on February 7, 2001 (66 FR 9414). Additional background information is also available in our recent proposal of critical habitat for the arroyo toad, published on April 28, 2004 (69 FR 23253). That information is incorporated by reference into this final rule. This rule, which becomes effective on the date listed under

Effective Date

at the beginning of this document, replaces the February 7, 2001, critical habitat designation for this species.

Previous Federal Actions

We designated a total of approximately 182,360 acres (ac) (73,780 hectares (ha)) of critical habitat for the arroyo toad on February 7, 2001 (66 FR 9414). On November 6, 2001, the Building Industry Legal Defense Foundation, Foothill/Eastern Transportation Corridor Agency, National Association of Home Builders, California Building Industry Association, and Building Industry Association of San Diego County filed a lawsuit in the District of Columbia against the Service challenging the designation of arroyo toad critical habitat and alleging errors by the Service in promulgating the final rule.

Building Industry Legal Defense Foundation,

et al.

v.

Gale Norton, Secretary of the Interior,

et al.

Civ. No. 01-2311 (JDB) (D.D.C.). On October 30, 2002, the court set aside the designation and ordered us to publish a new critical habitat designation final rule for the arroyo toad by July 30, 2004. On April 28, 2004, we published a proposed rule to designate approximately 138,713 acres (ac) (56,133 hectares (ha)) of critical habitat in Monterey, Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties, California (69 FR 23253). On June 25, 2004, the Court granted a motion by the Service to extend the deadline for the final rule to March 31, 2005. On February 14, 2005, we published a notice announcing the availability of the draft economic analysis (DEA), revisions to the proposed rule, and reopening of the public comment period (70 FR 7459).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the arroyo toad in the proposed rule published on April 28, 2004 (69 FR 23253). We also contacted the appropriate Federal, State, and local agencies, Tribes, scientific organizations, and other interested parties and invited them to comment on the proposed rule. In addition, we invited public comment through the publication of notices in the Monterey Herald on May 1, Ventura County Star on May 4, the Orange County Register on May 7, the San Diego Union Tribune on May 8, and the Santa Barbara News Press on May 12, 2004. We did not receive any written requests for a public hearing prior to the published deadline. The initial comment period ended May 28, 2004. A second comment period was open from February 14, 2005 to March 16, 2005 (70 FR 7459). All comments and new information received during the two comment periods have been incorporated into this final rule as appropriate.

A total of 60 commenters responded during the two comment periods, including 5 Federal agencies, 3 Tribes, 11 local agencies, 9 local organizations, 10 businesses and 5 individuals. Ten commenters submitted two separate sets of comments. During the comment period that opened on April 28, 2004, and closed on May 28, 2004, we received 42 comments directly addressing the proposed critical habitat designation: 2 from peer reviewers, 5 from Federal agencies, and 3 from Tribes. Of the 42 parties responding to the proposal during the first comment period, 12 supported the proposed designation, 30 were opposed (including those who thought we should have proposed more areas for critical habitat designation), and a few commenters simply provided additional information. During the second comment period that opened on February 14, 2005, and closed on March 16, 2005, we received 18 comments directly addressing the proposed critical habitat designation and DEA. Of these latter comments, 2 were from a Federal agency, 1 from a Tribe, 5 from local jurisdictions, 7 from businesses, and 3 from organizations or individuals. During the second comment period a total of 4 commenters supported the designation of critical habitat for the arroyo toad, and 14 opposed the designation. We reviewed all comments for substantive information and new data regarding the arroyo toad and its critical habitat. Comments have been grouped together by issue and are addressed in the following summary. All comments and information have been incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from at least three knowledgeable individuals who have expertise with the species, with the geographic region where the species occurs, and/or familiarity with the principles of conservation biology. Of the five individuals contacted, three responded. The peer reviewers that submitted comments generally supported the proposal and provided us with comments, which are included in the summary below and incorporated into the final rule, as appropriate. Unless otherwise noted, the peer review comments were on our proposed rule published April 28, 2004; subsequent changes to our proposal published in the

Federal Register

on February 14, 2005 (70 FR 7459) and in this final rule did not receive peer review comment.

Peer Review Comments

(1)

Comment:

A peer reviewer who conducts research on a variety of toad species at an academic institution found our proposal to be based on natural history studies that range in quality from perfectly adequate to superior. He commended us for basing much of our proposed rule on competent, truly scientific research. It was his opinion that the basic biology of the arroyo toad had been adequately reviewed and competently applied to the selection, delimitation, and designation of proposed sites. He endorsed the proposal and found it to be based on adequate research.

Our Response:

As noted by the peer reviewer, we have considered and applied every important study involving arroyo toads that is relevant to its ecology and protection that we could obtain.

(2)

Comment:

A peer reviewer who has extensive experience studying the dispersal of arroyo toads, and has conducted studies within nearly one-third of the critical habitat units across the range of the species, commented that our proposed critical habitat units are accurately characterized, appropriately referenced, do not exclude any local arroyo toad populations in the specific units he is familiar with, and include all breeding and upland habitats necessary for the long-term survival of the local populations.

Our Response:

We have identified all habitats that have the essential features, or primary constituent elements (PCEs) (see Primary Constituent Element section below), necessary for the conservation of the species. A portion of these essential areas are included in this final designation of critical habitat for the arroyo toad. Some essential areas have been excluded from critical habitat designation under section 4(b)(2) of the Act, primarily for economic reasons (see Application of Section 3(5)(A) and

4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion). After receipt of public and peer review comments, we revised the model we used to delineate essential and critical habitat, which is outlined in the February 14, 2005,

Federal Register

Notice (70 FR 7459) and this final rule (see Summary of Changes and Criteria Used to Identify Critical Habitat sections).

(3)

Comment:

A peer reviewer expressed concern that our choice of words in the Background section might imply that arroyo toads located at higher elevations move shorter distances than those found at lower elevations near the coast.

Our Response:

The studies we cited in the proposed rule (

e.g.

, Griffin 1999; Holland and Sisk 2000; Ramirez 2002a, 2002b, 2002c, 2003) indicate that arroyo toads found along streams with broad floodplains in coastal areas move farther into the uplands than those found along streams away from the coast with steeper slopes bordering the stream corridor. Although coastal areas may be at lower elevations, we suspect that it is the moderating effect of the ocean on coastal climates, including frequent fog, that may allow arroyo toads to disperse farther from a source of water without dehydrating, and that moderate slopes adjacent to a coastal stream corridor do not inhibit dispersal. More extreme temperatures and arid conditions away from the coast may inhibit dispersal by arroyo toads from a water source. Although arroyo toads can ascend and descend rather steep slopes, a sustained, steep gradient would likely inhibit dispersal. The elevation at which arroyo toads are found should have no influence on their willingness or ability to disperse from a water source.

(4)

Comment:

A peer reviewer suggested that we clarify our use of critical habitat regional classification units (northern, southern, and desert regions).

Our Response:

We have organized the critical habitat units for the arroyo toad into three regions (northern, southern, and desert regions) that reflect both the range of the species and the distinct ecological environments in which the species is found, similar to the system used in the recovery plan for the arroyo toad (Service 1999).

(5)

Comment:

A peer reviewer suggested that we clarify our statement about the use of areas with compact soils by arroyo toads.

Our Response:

Arroyo toads typically dig their own burrows in sandy soils or soft substrates where they remain underground during periods of inactivity (Service 1999). However, they have also been found in areas with harder, compact soils where they cannot burrow. In these cases, arroyo toads are likely using preexisting mammal burrows, or they are temporarily using these areas for foraging and dispersal at night and returning to areas where they can burrow prior to sunrise.

(6)

Comment:

A peer reviewer suggested that, in addition to agricultural fields, toads are found in orchards.

Our Response:

Although toad may use orchards, the likelihood of long-term persistence in this altered habitat is unknown and would depend on the level of agricultural activity. To the extent that heavy equipment and pesticides are used in an orchard, along with periods of intense human activity, mortality rates could exceed reproductive rates in and around a stream segment bordered by orchards. However, it is possible that resident toads may be able to survive in orchard areas set back from the floodplain that do not require intensive management or harvest practices.

(7)

Comment:

A peer reviewer stated that our discussion concerning the value of designating critical habitat, and the procedural and resource difficulties involved, should be addressed in a different forum, not in a critical habitat rule.

Our Response:

As discussed in the sections “Designation of Critical Habitat Provides Little Additional Protection to Species,” “Role of Critical Habitat in Actual Practice of Administering and Implementing the Act,” and “Procedural and Resource Difficulties in Designating Critical Habitat” and other sections of this and other critical habitat designations, we believe that, in most cases, conservation mechanisms provided through section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative programs with private and public landholders and tribal nations provide greater incentives and conservation benefits than does the designation of critical habitat.

(8)

Comment:

After examining the changes to our proposal published in the

Federal Register

on February 14, 2005 (70 FR 7459), one peer reviewer stated that the training activities of the military at Fort Hunter Liggett may have resulted in riparian habitat modifications that may be beneficial to the arroyo toad. The peer reviewer further noted that the military also prevents nonmilitary personnel from visiting the area which helps prevent the introduction of nonnative predatory aquatic vertebrates.

Our Response:

We agree that although some toads would be killed outright by ordinance, crushing by vehicles, prescribed burning, channel clearing, or other actions undertaken by the military, in some instances the resulting habitat modifications may enhance arroyo toad habitat, which favor more open habitats. It is unclear to what extent habitat modifications resulting from military actions have affected arroyo toad numbers at Fort Hunter Liggett, either positively or negatively. We also agree that minimizing human access to arroyo toad habitat is generally beneficial and can prevent the introduction of nonnative predatory aquatic vertebrates. However, certain nonnative predatory aquatic vertebrates have already become established at Fort Hunter Liggett, including bullfrogs. All military actions affecting arroyo toad habitat at Fort Hunter Liggett have been addressed in the Army's Endangered Species Management Plan for the arroyo toad at Fort Hunter Liggett, which is one of the primary reasons why we have excluded Fort Hunter Liggett from critical habitat designation (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).

Comments Related to Previous Federal Actions, the Act, and Implementing Regulations

(9)

Comment:

One commenter stated that, according to the Tenth Circuit Court of Appeals finding in

Catron County Board of Commerce, New Mexico

v.

United States Fish and Wildlife Service

, 75F.3d 1429 (10th Cir 1996) (

Catron

v.

FWS

), we are required to prepare an environmental assessment or environmental impact statement before designating critical habitat.

Our Response:

The commenter is correct in that the Tenth Circuit Court of Appeals determined that an environmental assessment or environmental impact statement as part of NEPA should be prepared before designating critical habitat. However, it is our position that, outside the jurisdictional area of the Tenth Circuit Court, we do not need to comply with NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the

Federal Register

on October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit Court (

Douglas County

v.

Babbitt

, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).

(10)

Comment:

Several commenters stated that the arroyo toad is everywhere in California and Mexico and that there is not enough scientific evidence proving that this species is really endangered, and therefore does not need protection under the Act.

Our Response:

The commenters may be confusing the arroyo toad with several other species of toads in the genus Bufo occurring in California and Mexico. The arroyo toad is just one species of toad, and the distribution of the arroyo toad is limited to central and southern California and northwestern Baja California, Mexico. While our knowledge of the arroyo toad's distribution in southern California has increased since it was listed in 1994, the species continues to be threatened by habitat destruction and alteration, over-collection, predation by introduced predatory fish, and inadequacy of existing regulatory mechanisms (59 FR 64859).

(11)

Comment:

One commenter stated that critical habitat will unnecessarily burden the regulated public and has overloaded Service staff.

Our Response:

Critical habitat designations do not by themselves constitute a burden in terms of Federal laws and regulations on private landowners carrying out private activities, but in California they may trigger additional State regulatory reviews and other requirements under the California Environmental Quality Act and other State laws and regulations. When a Federal approval or permit is required, or Federal funds are involved with a project proposed on private property, the critical habitat designation does impose a Federal regulatory burden for private landowners; absent this, the designation should not affect farming and ranching activities on private lands. Similarly, a Federal nexus could result in the designation affecting future land use plans, and the designation may trigger State requirements which could impact such plans.

Comments Related to Critical Habitat, Primary Constituent Elements, and Methodology

(12)

Comment:

Two commenters questioned the scientific evidence used to determine critical habitat.

Our Response:

In designating critical habitat for the arroyo toad, we have used the best available scientific and commercial information, including results of numerous surveys, peer-reviewed literature, unpublished reports by scientists and biological consultants, potential habitat maps developed by the Forest Service (Forest Service 2000), and expert opinion from biologists with extensive experience studying the arroyo toad. Further, information provided in comments on the proposed designation and the draft economic analysis were evaluated and taken into consideration in the development of this final designation, as appropriate. Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours at the Ventura Fish and Wildlife Office (see

ADDRESSES

section above).

(13)

Comment:

One commenter stated that at least 24 additional habitat areas should be designated as critical habitat in the final rule, including all populations and metapopulations identified in Table 1 of the arroyo toad recovery plan.

Our Response:

The Act states, at section 3(5)(C), that except in particular circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. It is not the intent of the Act to designate critical habitat for every population and every documented historic location of a species. We have designated habitat that contain features essential for the conservation of the species.

(14)

Comment:

One commenter stated that the proposed designation of critical habitat was overly broad and that we included areas that are not essential to the conservation of the species. Another commenter expressed a similar concern and stated that we proposed more areas than what is suitable for the toad in an attempt to make up for the limited precipitation in southern California.

Our Response:

As a result of revisions to the methodology used to delineate critical habitat, areas that do not contain the features essential to the conservation of the species have been removed from the final designation (see Summary of Changes and Criteria Used to Identify Critical Habitat sections below). Only areas that contain features essential to the conservation of the species were designated critical habitat; precipitation levels did not directly effect this designation.

(15)

Comment:

One commenter stated that the Service failed to identify the physical or biological features essential to the conservation and recovery of the species or the methods that would be used in the identification of such features.

Our Response:

In our “Primary Constituent Elements” section we have outlined as specifically as possible all of the physical and biological features essential to the conservation of the species. In our “Methods” and “Criteria Used to Identify Critical Habitat” sections we outlined the methods we used to identify and delineate critical habitat.

(16)

Comment:

Several commenters stated that we included areas where the arroyo toad and their primary constituent elements were absent, such as roads, developed areas, and particular natural features (

i.e.

, steep slopes), or where their status is uncertain. Another commenter acknowledged our attempts to remove these types of areas, but requested that we examine the units even more closely, particularly in San Diego County, and more finely remove areas that do not contain primary constituent elements.

Our Response:

As described below, we have revised the methodology used to determine critical habitat, and therefore have removed areas that did not contain features essential to the conservation of the species (see Summary of Changes and Criteria Used to Identify Critical Habitat sections below). We made an effort to exclude all developed areas, such as towns, housing developments, and other lands unlikely to contain primary constituent elements essential for arroyo toad conservation. However, as it is not possible to remove each and every one of these features, even at the refined mapping scale used, the maps of the proposed designation may still include areas that do not contain primary constituent elements (see Criteria Used to Identify Critical Habitat below). These areas are not being designated as critical habitat.

As to the comment about units in San Diego County, all units in San Diego County have been excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for detailed discussion of exclusions).

(17)

Comment:

One commenter stated that the revised criteria used to identify upland use by arroyo toads, which resulted in the reduction of the maximum distance from the stream to which critical habitat extended from 4,921 feet to 1,640 feet, is not supported in the proposed rule. Other commenters expressed opposition to our reduction in the amount of upland habitat included in our revised model and expressed concern that some of the upland habitat used by arroyo toads has been removed from consideration as critical habitat. In contrast, one commenter stated that the proposed designation of upland habitat was overly broad in mountainous areas away from the coast and we should have used

a shorter upland movement distance than 4,921 ft (1,500 m).

Our Response:

We based our decision to revise the model of what constitutes essential upland habitat on the best available science and data on arroyo toad upland habitat use. The study by Holland and Sisk (2000) demonstrated that 88% of the adult and subadult arroyo toad population was found within the riparian wash area. Of the remaining 12% of the arroyo toads in the upland areas, 68% of the arroyo toads were found within 1,640 ft (500 m) of the riparian wash area. Although some upland habitats shown to be used by arroyo toads in coastal areas are no longer within the critical habitat boundary, we believe the amount of upland habitat included in this final rule is enough to allow for the long-term persistence of the arroyo toad population in a given area and captures all areas essential for the conservation of the species.

(18)

Comment:

One commenter stated that in light of a recent court decision regarding the Alameda whipsnake final critical habitat,

Home Builders Association of Northern California

v.

U.S. Fish & Wildlife Service, 268 F. Supp. 2d

, we did not sufficiently explain why the designation of unoccupied linkage areas are essential for the conservation of the arroyo toad pursuant to 16 U.S.C. 1532(5)(A)(ii). The commenter stated that this approach threatens to eliminate the distinction between “areas within the geographic area occupied by the species at the time it is listed,” and “specific areas outside the geographic area occupied by the species at the time it is listed that are essential to the conservation of the species.”

Our Response:

We have not designated any critical habitat units outside the geographical area currently or historically occupied by the species. Arroyo toad breeding habitat is patchily distributed along stream courses. Linkage areas between breeding habitat are essential for the conservation of the species because they provide habitat for toads moving to and from breeding areas and habitat for foraging, breeding, and burrowing. Since these linkage areas are occupied by the species during some period of their life cycle, they were designated as critical habitat (see Summary of Changes from the Proposed Rule section for the definition of “occupied”).

(19)

Comment:

Several commenters generally stated that we should not rely on survey efforts when they are funded by landowners with an interest in obtaining negative results.

Our Response:

As per section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we used the best available scientific and commercial information available in the designation of critical habitat for the arroyo toad, which includes information from all valid survey efforts by all qualified biologists. If we receive evidence that survey results have been falsified or survey methods were unacceptable, we would not use those results. We have no evidence that any of the data we have referenced or used in formulating this rule has been falsified or based on unacceptable survey methods.

(20)

Comment:

One commenter stated that our 30-day comment period following the proposed rule was inadequate to allow the public to understand and comment meaningfully on the proposed rule and that this should have been extended to no less than 60 days.

Our Response:

The proposed critical habitat rule for the arroyo toad was available to the public for review and comment for 60 days. The first 30-day comment period opened on April 28, 2004 (60 FR 23254). On February 14, 2005, we reopened the public comment period for the proposed rule for an additional 30-day period upon publication of the Notice of Availability of the Draft Economic Analysis (70 FR 7459). We believe these two public comment periods provided adequate opportunity for public comment.

(21)

Comment:

One commenter stated that the Service did not adequately notify landowners where proposed critical habitat was located. Another commenter expressed concern that the revisions we made to critical habitat proposed for the arroyo toad (70 FR 7459) were not accompanied by revised maps, nor were revised maps available on any website. Without maps showing where revisions were made, the description of the changes made to the proposed rule was difficult to understand. This made it difficult for the public to adequately comment on the proposed revisions.

Our Response:

We issued a widely disseminated news release regarding our proposal and published legal notices in all major newspapers within the range of the species in California, including the Monterey Herald on May 1, Ventura County Star on May 4, the Orange County Register on May 7, the San Diego Union Tribune on May 8, and the Santa Barbara News Press on May 12, 2004. General maps delineating the boundaries of critical habitat were included in the April 28, 2004, proposed rule. Due to operational time constraints and a looming court-ordered deadline, we were unable to produce maps of the subsequent revisions and make them available to the general public. However, points of contact were given in the proposed rule for landowners needing assistance in determining whether their property was within designated critical habitat were able to contact the Ventura or Carlsbad Fish and Wildlife Office, and specific maps were provided upon request. We attempted to carefully describe in the

Federal Register

(70 FR 7459) all of the ways in which revisions were made to the proposed rule.

Comments Related to Site-Specific Areas

(22)

Comment:

One commenter stated that local land use controls provide sufficient protection for the arroyo toad in Santa Barbara County.

Our Response:

Although there are other State, local, and Federal laws that offer some protection to endangered species and their habitats (e.g., Clean Water Act and California Environmental Quality Act), none provide the same level of protection and review for threatened and endangered species as does the Endangered Species Act. These laws are not redundant and work in concert to provide protection for environmental resources.

(23)

Comment:

One commenter stated that Rancho Sisquoc (unit 2) has not been surveyed for arroyo toads and the Service does not know that arroyo toads occupy this portion of the Sisquoc River.

Our Response:

We agree that much of the Sisquoc River as it flows through the privately-owned Sisquoc Ranch has not been surveyed for arroyo toads. However, there are two reports of arroyo toads occupying the Sisquoc River within the Sisquoc Ranch; arroyo toads were observed there by M. Hanson in 1992 (CNDDB 1992) and also by LSA associates in 1993 (LSA Associates, Inc. 2000). Arroyo toads have also been reported along the Sisquoc River both upstream and downstream from the Sisquoc Ranch (CNDDB 1992, 1994).

(24)

Comment:

One commenter stated that the Service failed to explain its rationale regarding the need for special management considerations and protection on lands proposed for designation as critical habitat in unit 2. Specifically, it did not consider those already in place in the Mining and Reclamation Plan for mining activities on the Sisquoc River.

Our Response:

The Mining and Reclamation Plan for mining activities on the Sisquoc River outlines measures to reduce harm to the arroyo toad and its habitat, but it was written prior to the

designation of critical habitat for this species. Thus, neither designated, nor proposed, critical habitat for the arroyo toad is addressed in the Mining and Reclamation Plan. Additionally, the Mining and Reclamation Plan pertains only to those areas contemplated for sand and gravel mining, but does not cover a large portion of the Sisquoc River upstream from the mining area, which we have designated as critical habitat.

(25)

Comment:

Several commenters stated that the Santa Clara River is occupied by arroyo toads and should be protected as critical habitat.

Our Response:

Critical habitat was proposed along portions of the Santa Clara River known to be occupied by the arroyo toad (subunits 6b and 6c). However, unit 6 is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for detailed discussion of exclusions).

(26)

Comment:

One commenter stated that the Army Corps of Engineers 404 permit granted to Valencia Company and associated Natural River Management Plan does not adequately protect arroyo toad habitat along the Santa Clara River in and around Valencia (subunit 6b), and therefore should not be excluded from the critical habitat designation.

Our Response:

Although we believe the Natural River Management Plan does protect arroyo toad habitat (see 70 FR 7459 for a detailed discussion), unit 6 is excluded from critical habitat under section 4(b)(2) of the Act for economic reasons.

(27)

Comment:

One commenter stated that land within subunit 6b is already, or will be, protected through conservation easements and other management measures. This commenter also stated that this area is not truly essential to the conservation of the species due to limited arroyo toad observations, and would generate considerable costs for private landowners, and therefore should be excluded. During the second comment period this commenter offered support for our proposed exclusion of subunit 6b.

Our Response:

Although this area currently contains a small arroyo toad population, arroyo toad numbers likely were much larger in the past, and the number of arroyo toads has the potential to greatly increase once again throughout suitable habitat in this subunit. Therefore, we believe it is essential habitat for the arroyo toad. Although we agree that the protection provided by the conservation easements conveyed or proposed on lands within this subunit will benefit the arroyo toad, unit 6 is excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(28)

Comment:

One commenter stated that we should have included the portion of the Santa Clara River downstream of proposed subunit 6b between Castaic Creek and Piru Creek.

Our Response:

Although much of the habitat may be suitable for arroyo toads, they have never been reported from this portion of the Santa Clara River despite surveys (San Marino Environmental Associates 1995; RECON 1999; Impact Sciences 2002; Compliance Biology 2004). Habitat within the river corridor along this reach appears to be suitable for arroyo toads, but much of the upland habitats adjacent to the river corridor are unsuitable for arroyo toads because they consist of intensive agriculture. Also, most of the river corridor in the Los Angeles County portion of this reach will be or is proposed to be protected by a conservation easement associated with the Newhall Ranch Specific Plan.

(29)

Comment:

One commenter supported our inclusion of Castaic Creek and the Santa Clara River in the vicinity of the Castaic Creek confluence with the Santa Clara River. However, they felt that we should have also included the portion of Castaic Creek that is just downstream of the Castaic Dam and lagoon.

Our Response:

We have determined that this area should not be designated as critical habitat for the following reasons: (1) Surveys have indicated that arroyo toads do not occupy this portion of Castaic Creek; (2) suitable habitat extends along Castaic Creek for only a short distance (perhaps less than a mile) in this area; (3) it is isolated from upper Castaic Creek by Castaic Dam, which serves as a geographic barrier; and (4) it is isolated from suitable habitat along lower Castaic Creek by several miles of rather dry, marginal habitat lacking sufficient cover for upland migrating arroyo toads.

(30)

Comment:

Two commenters asserted that there is insufficient evidence to support our conclusion that the upper portion of the Santa Clara River (Soledad Canyon) supports a breeding population of arroyo toads. Another commenter stated just the opposite, that there is a breeding population of arroyo toads in this area.

Our Response:

Although it does not appear to be a large population, the best available science and survey results indicate arroyo toad presence and evidence of successful reproduction in the upper Santa Clara River (subunit 6b in this rule). As stated in a letter to the City of Santa Clarita by Frank Hovore & Associates (F. Hovore, in litt. 2001, p. 1), “There can be no doubt whatsoever that the arroyo toad maintains a breeding metapopulation unit on the TMC site, and that the upland areas around the river are essential to its out-of-channel biology, and ultimately, survival.” At least 70 arroyo toad tadpoles have been documented from the upper Santa Clara River in three different locations (N. Sandburg, in litt. 2001). We are also aware of at least three metamorphosed arroyo toads observed in two separate locations. These arroyo toad tadpoles and juveniles were observed and identified by at least five qualified biologists on a number of different occasions, although all sightings were made in the spring of 2001. The presence of arroyo toad tadpoles is, by itself, evidence of breeding. Arroyo toads in this area may have been missed prior to 2001 due to the lack of night surveys, surveys being conducted during a drought year when reproduction may not have taken place (1990), and because surveys were conducted late in the season (July of 1994) when this portion of the Santa Clara River may have already dried.

(31)

Comment:

A commenter further stated that the tadpoles and recently metamorphosed arroyo toads (“metamorphs”) found within the upper Santa Clara River [subunit 6c] are equivalent to “lone wolves” dispersing through an area, and do not constitute a population. The commenter cited the 2000 10th Circuit Court case,

Wyoming Farm Bureau Federation

v.

Babbitt

(199 F.3d 1224, 1234), which ruled that lone wolves do not constitute a population.

Our Response:

Movements of arroyo toad tadpoles, and even adults, are limited as they cannot disperse across the landscape like wolves. The nearest observations of the upper Santa Clara River arroyo toads would be those found at least 12 miles (mi) (19.3 kilometers (km)) downstream. According to the best available information, this is beyond the upstream dispersal capability of an adult arroyo toad. Given that most of the intervening habitat along the Santa Clara River between these two populations is typically dry, like adults, small, recently transformed individuals are certainly not capable of dispersing 12 miles upstream. Tadpoles do not disperse far from the pool where they were deposited as eggs, except for the possibility of being washed downstream during a flood event. We

are unaware of any arroyo toads existing in the Santa Clara River watershed upstream of this subunit (6c). Even if there was a population further upstream, it would be unlikely for the 70 arroyo toad tadpoles to have been washed downstream as a group to this point in Soledad Canyon and be found in good condition.

(32)

Comment:

Two commenters generally asserted that the upper Santa Clara River does not contain the primary constituent elements for arroyo toad and constitutes poor habitat for this species. In direct contrast to these comments, two other commenters stated that this area does contain suitable habitat and is important for the preservation of the arroyo toad.

Our Response:

Direct observations by Service biologists and that of other biologists conducting arroyo toad surveys show that the upper Santa Clara River within proposed subunit 6c does contain all of the primary constituent elements of arroyo toad critical habitat. Sandburg (in litt. 2001, p.3) states, “* * * the stream channel [of the Santa Clara River] widens with flat terraces, cottonwood overstory, extensive alluvial deposits and stream velocities suitable for arroyo toad clutches * * * A side tributary, referred to as Bear Creek, delineates another large area of optimal arroyo toad habitat with slower water velocities and wide alluvial terraces devoid of dense vegetation.” Thus, observations by the Service and independent biologists confirm the presence of arroyo toad habitat and the species' primary constituent elements.

(33)

Comment:

One commenter asserted that the upper Santa Clara River does not meet any of our criteria to be designated as critical habitat.

Our Response:

In the proposed rule we stated that the criteria we used to identify critical habitat are identical to the criteria outlined in the final designation previously published in the

Federal Register

on February 7, 2001 (66 FR 9414). In that rule, we outlined five criteria, which if any is found on a site, would warrant it to be designated as critical habitat. The second of those five criteria states that, if a site “supports at least a small toad population and possesses favorable habitat conditions for population expansion and persistence,” then this area would be considered critical habitat. Subunit 6c along the upper Santa Clara River meets this criterion. However, unit 6 is excluded under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(34)

Comment:

Two commenters referenced a letter from the Service stating that a project area on Rasmussen Company land in Soledad Canyon along the upper Santa Clara River has little habitat value for the arroyo toad. These commenters are concerned that this area, which lacks suitable habitat for the arroyo toad, has been proposed as critical habitat.

Our Response:

Unit 6, where the land referenced by the commenters is located, is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(35)

Comment:

One commenter stated that our revisions to proposed critical habitat in subunit 6c (70 FR 7459) are unwarranted. The commenter argued that we should have included the entire original Santa Clara River channel (below Agua Dulce Canyon) as critical habitat, as originally proposed, rather than removing the portion north of the railroad tracks, which traverse portions of the original river channel in some locations. The commenter stated that water extraction wells installed for mining purposes might now be installed in these areas resulting in adverse impacts to surface flows in the Santa Clara River.

Our Response:

We removed the areas in question north of the railroad tracks from critical habitat designation because some of these areas have been degraded by past mining activities. Also, the railroad tracks, which are often raised on rather steep banks, pose a likely barrier to arroyo toad movements in these areas. Thus, although arroyo toads may be able to cross the railroad tracks in some locations, both access and quality of these areas is limited. Therefore, we determined their inclusion into critical habitat was not warranted at this time. Additionally, any effects to the surface hydrology of the Santa Clara River from water withdrawal projects involving a federal nexus that adversely affect the arroyo toad or its critical habitat, whether they originate outside of critical habitat or not, would be subject to the section 7 consultation process under the Act.

(36)

Comment:

Two commenters opposed the designation of critical habitat on Rancho Las Flores Planned Community (Rancho Las Flores) land in Summit Valley, San Bernardino County, which surrounds the West Fork of the Mojave River. They pointed out that many acres in this area will be designated as open space or protected by conservation easement to protect the toad. They also stated that two biological opinions have been issued for projects in this area and a Habitat Conservation Plan (HCP) is being developed to cover lands not addressed in the biological opinions. Additionally, one of the commenters expressed concern that new housing, jobs, and other social benefits provided by the planned community may be jeopardized or constrained by a critical habitat designation.

Our Response:

We agree that greater conservation benefits to arroyo toad habitat on private property can result from carefully designed plans formulated cooperatively between the Service and private conservation partners. However, unit 22, which is the only proposed unit that includes Rancho Las Flores lands, is excluded under section 4(b)(2) of the Act for economic reasons under (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section).

(37)

Comment:

One commenter stated that we should have included the following additional areas in the critical habitat designation, which are listed in Table 1 of the recovery plan for the arroyo toad (Service 1999) and are found in the Northern Recovery Unit. These areas are the following: Upper Salinas River; Agua Caliente Creek in the upper Santa Ynez River Basin; and Agua Blanca, Bouquet, and Castaic Creeks in the Santa Clara River Basin.

Our Response:

We are unaware of any recent observations of arroyo toads in the upper Salinas River watershed or anywhere within San Luis Obispo County. Many of the other areas not considered for designation as critical habitat, which are identified in Table 1 of the recovery plan, are tributaries to larger streams where arroyo toads occur. We do not currently have information suggesting that these tributaries are occupied by arroyo toad or that these tributaries contribute a significant amount of habitat that would be used by the toads. Although arroyo toads are not known to occupy Agua Caliente Creek and we have not included Agua Caliente Creek as part of the critical habitat designation for the toad, we have included the confluence of Agua Caliente Creek and the Santa Ynez River because arroyo toads occupy the Santa Ynez River. Agua Blanca Creek is a tributary to Piru Creek; the portion of Agua Blanca Creek occupied by arroyo toads is included in critical habitat. When the recovery plan was published, it was thought that habitat suitable for the arroyo toad may be found along Bouquet Creek. However, more recent surveys have found Bouquet Creek to be

largely unsuitable for arroyo toads, and they have never been observed in this tributary.

(38)

Comment:

One commenter requested that their First and Second San Diego Aqueducts and proposed Moreno Lakes pipeline right-of-ways (ROWs) in the San Luis Rey River (Unit 14) and San Diego River (Unit 17c), respectively, be excluded from critical habitat so that their mission of providing water to their member agencies is not hindered. They state that their permits for facility operations would need to be modified to address a critical habitat designation.

Our Response:

After closer review of available information and comments, we have determined that areas on the San Diego River downstream from El Capitan Reservoir (Subunit 17c) are not essential to the conservation of the toad and are therefore removed from critical habitat. Accordingly, the Moreno Lakes ROW in Subunit 17c is no longer in critical habitat. Unit 14, the location of the First and Second aqueduct of concern to the commenter, is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(39)

Comment:

The same commenter asked whether their existing Section 7 permit that covers the coastal California gnatcatcher could be amended to cover the arroyo toad critical habitat for Units 14 and 17c.

Our Response:

Assuming the Federal agency that was subject to consultation under section 7 of the Act for another listed species still retains discretionary jurisdiction over the action, the Federal agency must reinitiate section 7 consultation if its action “may affect” designated critical habitat for the arroyo toad. See

Section 7 Consultation

below.

(40)

Comment:

One commenter stated several reasons why they believe that arroyo toad critical habitat rule improperly includes portions of Pardee's Meadowbrook project site north of Highway 76 along the San Luis Rey River in Unit 14. They state that this area does not contain suitable habitat, is not, and will never be occupied by toads because of the barrier created by Highway 76, that we did not provide special management considerations for Unit 14, and Unit 14 is outside the geographic area occupied by the species.

Our Response:

As a result of revisions to our methodology to delineate critical habitat (see the Criteria Used to Identify Critical Habitat section below), more than half of the critical habitat located north of Highway 76 was removed. The remaining areas were reevaluated using the best available information, including an upland habitat pitfall study in 2003. The results of this study indicate that the primary constituent elements, including soil type, are marginal on the property north of the highway. Based on these results and the spatial relation of this area to nearby areas of critical habitat, we are removing Pardee's Meadowbrook project site north of Highway 76 from critical habitat. The remainder of unit 14 is excluded from critical habitat designation under section 4(b)(2) of the Act for economic reasons (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(41)

Comment:

A couple of commenters stated that the portion of Whitewater River downstream of the Colorado River Aqueduct lacks the primary constituent elements, and therefore should be removed as essential habitat for the arroyo toad.

Our Response:

We have reevaluated all the available information and have concurred with the commenters that this area does not contain essential habitat.

(42)

Comment:

One commenter stated that lands owned by the Sweetwater Authority, Helix Water District, and Padre Dam Municipal District in San Diego County (portions of Units 17 and 18) should be excluded from designated critical habitat for the arroyo toad because the benefits of exclusion based on economic considerations far outweigh the benefits of inclusion.

Our Response:

We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion). Lands downstream of El Capitan Reservoir in subunit 17b and 17c were removed from critical habitat because they were not known to be occupied, and therefore were not considered to be essential for the conservation of the species (see the Summary of Changes and Criteria Used to Identify Critical Habitat sections for detailed discussions).

(43)

Comment:

One commenter stated that the Service failed to identify special management considerations related to lands owned by the Sweetwater Authority, Helix Water District, and Padre Dam Municipal District in San Diego County in Units 17 and 18.

Our Response:

We disagree with commenters and did identify special management considerations for these Units in the proposed arroyo toad critical habitat rule published on April 28, 2004 (69 FR 23254). We cited threats from development, exotic predators, timing and amount of water transfer as some of the threats that require special management considerations.

(44)

Comment:

One commenter stated that we should reconsider revising essential upland habitat in San Juan Creek for the arroyo toad to only capture the floodplain because adjacent alluvial flats and uplands are of questionable suitability for toad use, some upland areas included industrial land uses and are beyond busy paved roads that are not accessible to toads.

Our Response:

Even though all essential areas in San Juan Creek have been excluded from designated critical habitat due to economic reasons (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion), we still believe that upland areas containing primary constituent elements adjacent to riparian habitat are essential for the conservation of the toad. It has been well documented that the use upland areas by arroyo toads for burrowing, foraging, and aestivating is a normal part of their life history (Sweet 1993; Griffin and Case 2001; Holland and Sisk 2001). Therefore, protecting these upland areas is necessary for adequate conservation of the arroyo toad. In some cases, we agreed with the commenter and removed upland areas where there was heavy industrial land uses. We also examined whether all areas beyond paved roads were essential and removed areas where toads did not have stream undercrossings.

(45)

Comment:

A couple of commenters stated that we should reconsider revising the essential reach of San Juan Creek for the arroyo toad because we did not provide evidence that certain portions of the Creek are occupied, it lacks primary constituent elements, such as breeding pools, and contains exotic predators. One of these commenters also stated that some portions of San Mateo Watershed should be removed because they lack primary constituent elements, such as suitable sandy friable soils and contain exotic predators.

Our Response:

Even though all essential areas in San Juan Creek have been excluded from designated critical habitat due to economic reasons (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion), we still believe that all essential reaches of San Juan Creek are occupied because of several reports of toad occurrences in these

areas in the past 15 years as well the possibility for tadpoles to be washed downstream into less densely occupied areas (P. Bloom in litt. 1998). We agree that the density of occupancy along the Creek varies, but low density areas are still essential for arroyo toad conservation because they contain the primary constituent elements, are occupied, and contain special management considerations, such as exotic predator and plant control. If these special management considerations were applied, it would be likely that population densities would increase. All essential reaches of San Juan Creek and San Mateo Watershed in Units 10 and 11 have the primary constituent elements, which may include stream channels and upland areas adjacent to riparian areas that allow for migration between foraging, burrowing, or aestivating sites.

Comments Related to Military Lands

(46)

Comment:

The Army submitted several comments relating to the exclusion of Fort Hunter Liggett from critical habitat. They state that: (1) We have essentially approved an Integrated Natural Resource Management Plan (INRMP) for the installation; (2) the arroyo toad and its habitat are already being protected at Fort Hunter Liggett by the Army's Endangered Species Management Plan (ESMP) for the arroyo toad; (3) the INRMP and ESMP together provide a greater level of protection for the arroyo toad and its habitat than a designation of critical habitat would provide; and (4) that the designation of critical habitat at Fort Hunter Liggett would interfere with its mission of training soldiers. In contrast, a commenter unaffiliated with the military stated that the benefit of including Fort Hunter Liggett lands in the critical habitat designation outweighed the benefits of exclusion.

Our Response:

All lands essential to the conservation of the arroyo toad at Fort Hunter Liggett have been excluded under section 3(5)(A) and/or 4(b)(2) of the Act from the final designation of critical habitat because of alternative protective measures provided by the Army (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for detailed discussion of our exclusions below).

(47)

Comment:

One commenter stated that they oppose the designation of critical habitat for the arroyo toad on Naval Weapons Station, Seal Beach, Detachment Fallbrook (Detachment Fallbrook) because of the existence of an Integrated Natural Resources Management Plan (INRMP), potential complications in conservation efforts with other listed species, and adverse impacts on national security.

Our Response:

We have reviewed Detachment Fallbrook's Fire Management Plan and INRMP. The Secretary determined, in writing, that Detachment Fallbrook's INRMP provides a benefit to the arroyo toad and therefore, consistent with Public Law 108-136 (Nov. 2003): Nat. Defense Authorization Act for FY04 and Section 4(a)(3) of the Act, the Department of Defense's Detachment Fallbrook lands are exempt from critical habitat based on the adequacy of their legally operative INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion of this exemption below).

(48)

Comment:

A couple of commenters stated that the Service should exclude all essential lands on Camp Pendleton, including State lease lands and cantonment areas because of their Integrated Natural Resource Management Plan (INRMP).

Our Response:

We agree with the commenter and have excluded all essential areas, including State lease lands and cantonment areas, from designated critical habitat on Camp Pendleton based on their INRMP (see the Exemptions Under Section 4(a)(3) section for a detailed discussion).

(49)

Comment:

One commenter strongly supported the designation of critical habitat for the arroyo toad within those portions of Camp Pendleton that are leased to the State (San Onofre State Beach) because this area supports large numbers of arroyo toads and primary constituent elements.

Our Response:

We agree with the commenter that this area is very important for the conservation of the arroyo toad. However, we have excluded these lands that are leased to the State because they are within the area covered by Camp Pendleton's INRMP (see the Exemptions Under Section 4(a)(3) section for a detailed discussion).

Comments Related to Tribal Lands

(50)

Comment:

A few commenters stated that the Service needs to work more closely to meaningfully contact the Bureau of Indian Affairs and/or Tribes to fully meet the tenet of Executive Order 13175 and Secretarial Order 3206.

Our Response:

We agree that we need to work more closely with Tribes potentially impacted by the designation of critical habitat. We increased our efforts to work with the Tribes following the proposed rule by holding several meetings with various Tribes. We intend to keep improving our relationships with the Tribes and the Bureau of Indian Affairs following the tenets of Secretarial Order 3206 and Executive Order 13175.

(51)

Comment:

One commenter stated that no portion of the Soboba Indian Reservation should be designated as critical habitat for the arroyo toad.

Our Response:

We did not propose or designate any portions of the Soboba Indian Reservation as critical habitat for the arroyo toad.

(52)

Comment:

One commenter stated that the Service failed to provide a meaningful analysis required by Secretarial Order #3206 prior to designating Indian Lands because of the first paragraph in the benefits of inclusion analysis in the proposed critical habitat rule that was implied as meaning that there was a threat of loss of arroyo toad habitat on Tribal lands in the absence of critical habitat.

Our Response:

All essential areas proposed on Tribal lands are excluded from critical habitat for economic considerations (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion). However, we did not intend for our statement to imply that there was a threat of loss of arroyo toad habitat on Tribal lands in the absence of critical habitat. We were simply stating the significance of these areas as essential for the conservation of the species.

(53)

Comment:

One commenter stated that there are no special management considerations and protections on the Rincon Indian Reservation because of their Tribal Resource Conservation and Management Plan.

Our Response:

All lands on Rincon Indian Reservation are being excluded from designated critical habitat for the arroyo toad because of economic considerations. We agree with the commenter that their Tribal Resource Conservation and Management Plan will address special management considerations for the arroyo toad.

Comments Related to HCPs, NCCP Program, Section 7, and Section 404

(54)

Comment:

Several commenters were supportive of the policy that lands covered by approved and nearly completed HCPs that provide take authorization for the arroyo toad should be excluded from critical habitat. Several of these commenters also requested that HCP exclusions should also apply to draft HCPs, lands enrolled in the NCCP program, and lands covered by the Joint Water Agency (JWA) draft plan.

Our Response:

While we trust that jurisdictions will attempt to fulfill their commitment to complete conservation plans, this voluntary enrollment does not assure that such plans will be finalized. Protections for arroyo toad habitat provided through participating jurisdiction's enrollment in the NCCP processes are temporary and are not assured; such protections may be lost if the jurisdiction elects to withdraw from the NCCP program. Guidelines for the NCCP program direct habitat loss to areas with low long-term conservation potential that will not preclude the development of adequate NCCP plans and ensure that connectivity between areas of high habitat value will be maintained. We will consider excluding lands within pending HCP areas where we have received a permit application from the participants and an environmental analysis has been completed and released for public review and comment under the authority of NEPA. By completing these criteria, jurisdictions demonstrate their intent to finalize their HCP/NCCPs.

(55)

Comment:

Several commenters stated that the designation of critical habitat removes incentives to participate in NCCP and HCP processes, in part because of added regulatory uncertainty, increased costs to plan development and implementation, weakened stakeholder support, delayed approval and development of the plan, and greater vulnerability to legal challenge.

Our Response:

HCPs are one of the most important tools for reconciling land use with the conservation of listed species on non-Federal lands. We look forward to working with HCP applicants to ensure that their plans meet the issuance criteria and that the designation of critical habitat on lands where an HCP is in development does not delay the approval and implementation of their HCP.

(56)

Comment:

Some commenters stated that our policy to exclude the pending Western Riverside Multiple Species Habitat Conservation Plan (MSHCP), but not other pending HCPs or NCCPs, may amount to arbitrary and capricious administrative conduct.

Our Response:

As stated above, we will consider excluding lands within pending HCPs where we have received a permit application from the participants and an environmental analysis has been completed and released for public review and comment under the authority of NEPA. The Western Riverside MSHCP, for which a section 10(a)(1)(B) permit was issued on June 22, 2004, was proposed for exclusion in the proposed rule because it met these criteria.

(57)

Comment:

One commenter asked whether the designation of critical habitat would be considered a changed and unforeseen circumstance with respect to the various subarea plans presently approved or pending.

Our Response:

All approved or pending HCPs that were determined to provide a benefit to the conservation of the arroyo toad were excluded from the critical habitat designation (see Application of Sections 3(5)(A), 4(a)(3), and Exclusions Under Section 4(b)(2)of the Act). Therefore, there would be no changed or unforeseen circumstance resulting from this designation.

(58)

Comment:

One commenter stated multiple reasons for why essential arroyo toad habitat within several HCPs (including a draft HCP) and military installations should not be excluded from critical habitat. They stated that the benefit of designating these areas as critical habitat outweighs excluding them because exclusions are based partly on speculative and unproven future activities and critical habitat provides a greater benefit than measures contained in draft and approved conservation plans. They also stated that the Service unlawfully predetermined the benefits of excluding essential habitat because our determination was made prior to soliciting public review.

Our Response:

We agree that critical habitat designation is only one part—often the least important element—in the conservation of a species. In many cases, partnerships with individual landowners and conservation agreements with a variety of stakeholders can provide a much greater conservation benefit for arroyo toad and other species, as they offer positive management actions that cannot be achieved through a critical habitat designation. We have determined that the exclusion of lands covered by HCPs or INRMPs from critical habitat designation will not result in the extinction of the arroyo toad and that the HCPs and INRMPs we evaluated for exclusion will provide a greater benefit to the toad than critical habitat (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

However, we did not reach this conclusion prior to receipt of public comment as contended in this comment; areas excluded from the draft proposal because of their inclusion in HCPs or coverage by INRMPs were identified as such, proposed justifications offered for public review, and notice was provided that these areas might be included in the final designation based on public comments.

(59)

Comment:

One commenter asked whether areas covered under existing Section 7 permits can be excluded from critical habitat in manner similar to areas under existing Section 10 permits.

Our Response:

Consultation under Section 7 of the Act does not result in the issuance of a Section 7 “permit” per se. Federal actions that we conclude are not likely to jeopardize the continued existence of a listed species are exempted from the prohibition against take of listed animal species under Section 9 of the Act so long as the Federal agency and any permittee comply with the terms and conditions of the incidental take statement accompanying the Service's biological opinion. Typically HCPs provide greater conservation benefits to a covered species by assuring the long-term protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5-Point Policy for HCPs (64 FR 35242), the HCP No Surprises regulation (63 FR 8859), and relevant regulations governing the issuance and implementation of HCPs, such as those requiring the permittee to minimize and mitigate the taking to the maximum extent practicable. However, such assurances are typically not provided in connection with Federal projects subject to section 7 consultations which, in contrast to activities on non-Federal lands covered by HCPs, often do not commit to long-term special management or protections. Thus, a consultation unrelated to an HCP typically does not accord the lands it covers the extensive benefits an HCP provides. However, some landowners have agreed to provide extensive, permanent protection of arroyo toad habitat in conjunction with a section 7 consultation. In cases where we have determined that a conservation strategy agreed to by a private landowner provides a substantial, long-term benefit to the species, we have excluded these private lands from the critical habitat designation (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below).

(60)

Comment:

One commenter stated that all Coachella Valley Water District (CVWD) lands be excluded from critical habitat designation within the draft Coachella Valley MSHCP boundaries.

Our Response:

The draft Coachella Valley MSHCP has been in development for several years. In contrast to other HCPs under development, which contain essential arroyo toad habitat, the Coachella Valley MSHCP is near its

completion. As a result, the Service is very close to taking final action on the Coachella Valley Association of Government's incidental take permit application. On November 5th, 2004, the Service published a Notice of Availability of a Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the draft MSHCP. Although not yet completed, the draft Coachella Valley MSHCP plans on conserving 96% of the modeled arroyo toad habitat in the Whitewater River, acquiring private lands from willing sellers, minimize activities on public lands that threaten toads, and conserve other areas of potential habitat outside of Whitewater River. This plan will provide some level of conservation benefit to the arroyo toad and the habitat that it is known to occupy. CVWD is one of the permittees to the draft Plan. As result, we have excluded all CVWD lands within the draft Coachella Valley MSHCP from designated critical habitat for the arroyo toad. (see the Relationship of Critical Habitat to the Draft Coachella Valley Multiple Species Habitat Conservation Plan (MSHCP)—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(61)

Comment:

One commenter asked whether on-going activities, such as routine inspections, road grading, and construction adjacent to designated critical habitat are considered to appreciably decrease habitat values or quality through indirect effects.

Our Response:

The effects of any such activities on critical habitat must be considered by the Federal agency planning to conduct such activities. The action agency determines whether their action(s) “may affect” the arroyo toad or its primary constituent elements within the adjacent critical habitat based on their analyses. If so, the action agency would enter into consultation with us under Section 7.

Comments Related to Economic Impacts and Analysis; Other Relevant Impacts

(62)

Comment:

Several commenters expressed concern that commercial activities, such as mining, mineral prospecting, agriculture, and new home construction would be prohibited or severely restricted by a designation of critical habitat. Similarly, other commenters felt that critical habitat is a good way to stop activities that they do not agree with, such as some of the activities mentioned above.

Our Response:

Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or result in the destruction or adverse modification of 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 us. Through this consultation, the action agency ensures that their actions do not destroy or adversely modify critical habitat. Section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, and critical habitat designation would not provide any additional protections under the Act for private or non-Federal activities. Critical habitat does not prohibit private or commercial activities from occurring.

(63)

Comment:

Some commenters stated that critical habitat should not have been proposed before an analysis of economic and other relevant impacts was completed.

Our Response:

Pursuant to 50 CFR 424.19, we are not required to conduct an economic analysis at the time critical habitat is initially proposed. We evaluated and used comments received on the April 28, 2004, proposed critical habitat designation to develop the draft economic analysis, as appropriate. On February 14, 2005 (70 FR 7459), we published a notice in the

Federal Register

announcing the availability of the draft economic analysis and reopening the public comment period for 30 days. In making this final critical habitat designation, we used the economic analysis and considered all comments and information submitted during the public comment periods.

(64)

Comment:

Several private property owners commented that their property should be removed from critical habitat because the economic burden to them would be too great.

Our Response:

Extensive exclusions have been made for economic reasons (See Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act).

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Comment:

A couple of commenters stated that the Service should exclude all essential lands subject to the Rancho Mission Viejo Ranch Plan because the plan provides a conservation benefit to the arroyo toad.

Our Response:

We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(66)

Comment:

One commenter stated that the Service should exclude all essential lands where the proposed Foothill-South Transportation Corridor may be developed in southern Orange County because of the importance of the Corridor as a regional transportation solution and as a component of the Air Quality Management Plan.

Our Response:

We have excluded these essential areas from critical habitat based on economic considerations (see the Relationship of Critical Habitat to Economic Impacts—Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion).

(67)

Comment:

Several commenters questioned the accuracy of the 1.25-to-1 offsetting compensation ratio used by the draft economic analysis to estimate the amount of land that would potentially be set-aside due to arroyo toad conservation activities.

Our Response:

The Service has conducted four formal consultations concerning real estate development effects on the arroyo toad and arroyo toad habitat. The draft economic analysis relies on the average offsetting compensation ratio requested by the Service as part of these four historical consultations. The draft economic analysis notes that actual offsetting compensation ratio used in any particular case will depend on a variety of factors unique to the circumstance at hand. The 1.25-to-1 factor is used in the draft economic analysis as an average for the purpose of forecasting future set-aside acres across all proposed critical habitat. Given that this estimate is based on the full population of formal consultations concerning residential development and the arroyo toad, it represents the best information available during the preparation of the draft economic analysis.

(68)

Comment:

A number of comments state that the draft economic analysis does not rely on appropriate real estate values to estimate land value losses from critical habitat designations.

Our Response:

The draft economic analysis estimates the per-acre value of raw, unimproved, and residentially zoned land at 11 percent of the built value. The Service recognizes that the value of raw land as a percent of home price will depend on a variety of factors and can differ significantly by region. In general, raw land values for single-family homes of equal density are higher in areas with high land supply constraints. However, raw land values as a percent of home price also declines as density and development costs increase.

The draft economic analysis calculates residual land value based on an analysis that subtracts hard and soft real estate development costs from home prices in Southern California counties. The average home prices per county is based on data from Rand in

2002, the most recent year available, and inflated to 2004 dollars. Development cost estimates are based on data from Square Foot Costs by RSMeans. Rand reports the median price per square foot for single-family homes by county calculated from California Association of Realtors transaction records. Residential values are assumed to appreciate at a rate of 3.4 percent per year in real terms (

i.e.

, adjusted for inflation) over the next 21 years, or through 2025. To the extent that actual residual land values are higher or lower than those projected, the economic impacts will change accordingly.

(69)

Comment:

One commenter stated that the draft economic analysis fails to account for the limited supply of developable land and the corresponding impact on the Southern California housing market.

Our Response:

The draft economic analysis evaluates the potential for critical habitat designation to reduce consumer surplus by increasing real estate market prices. The analysis concludes that critical habitat designation will not affect regional real estate markets or prices, and thus consumer surplus, because the total reduction in land supply is expected to represent a very small component of total future market demand in the region. Specifically, the estimated amount of developable acres of habitat set-aside within critical habitat designation is estimated at about 0.7 percent of future market growth through 2025 in the eight counties where arroyo toad critical habitat designation is proposed. Supply adjustments by developers, including increased density and/or project reconfigurations, are likely to further cancel the market impact of the relatively small land supply reduction created by critical habitat designation.

(70)

Comment:

One commenter stated that the draft economic analysis should consider costs at the census tract level.

Our Response:

The draft economic analysis relies on the official real estate growth projections provided by SCAG, SANDAG and other regional agencies supported by the governmental jurisdictions located within arroyo toad critical habitat designation. These projections reflect economic and demographic trends at the county and regional level and incorporate local zoning and land use data at the census tract level. The draft economic analysis assumes that county-wide economic and demographic trends are the primary determinant of real estate prices. The draft economic analysis also acknowledges that the regional land supply is scarce relative to projected growth in several counties within the critical habitat designation. However, since the reduction in land supply resulting from critical habitat designation represents such a small fraction of the total market, the draft economic analysis assumes that it will not alter these regional market dynamics, or increase market prices resulting in consumer surplus losses.

(71)

Comment:

One commenter stated that the draft economic analysis focuses solely on the losses experienced by landowners as a result of critical habitat designation for the arroyo toad. In reality, housing projects generate a considerable amount of consumer surplus, and the temporary loss of this surplus is a major adverse effect of delay.

Our Response:

The draft economic analysis does not calculate consumer surplus losses associated with delay for a variety of reasons. First, it is possible that consumers will not experience any delay in the consumption of housing given the negligible effect arroyo toad critical habitat designation is expected to have on overall housing markets (

i.e.,

a variety of housing options exist and consumers may substitute between locations). Second, even if the real estate purchases of consumers are delayed, only a very small proportion of consumer surplus is likely to be lost as the delay period (estimated at six months in the first year after designation) is likely to be a small proportion of the ownership time horizon. Finally, consumer surplus losses due to delay, if any, are difficult to quantify.

(72)

Comment:

Several comments question the draft economic analysis estimates regarding the amount of land within arroyo toad critical habitat designation that would be developed absent arroyo toad conservation activities.

Our Response:

The draft economic analysis relies primarily on development projections generated by SCAG and SANDAG to determine the number of acres slated for real estate development. The draft economic analysis only evaluates the impact of the proposed designation on land that is within the critical habitat designation and forecasted (by SCAG or SANDAG) to be developed by the year 2025. These projections suggest that absent critical habitat designation a significant portion of the proposed critical habitat designation will not be developed by 2025.

Though SCAG and SANDAG projections do rely on general plan and zoning information, these projections may not reflect very recent amendments and changes. In reality, specific projects not anticipated in the SCAG and SANDAG forecasts may be developed, just as other projects included in these forecasts may never materialize. An evaluation of every local land use plan or proposal that could potentially affect arroyo toad critical habitat designation, and its probability of success, is beyond the scope of the draft economic analysis and would not likely lead to more accurate results. SCAG and SANDAG represent the best publicly available data sources reporting future land development within the proposed arroyo toad critical habitat designation.

In addition, it is important to note that the draft economic analysis estimates future offsetting compensation (

i.e.,

land set-aside) for arroyo toad impacts based on development projections and an offsetting compensation ratio. The estimated compensation for impacts to the arroyo toad is not in addition to specific measures already negotiated by regulators and project proponents. That is, in some cases, the draft economic analysis may estimate offsetting compensation when compensation has already been agreed upon by regulators and project proponents. The impacts estimated in the draft economic analysis should not be added to these existing agreements.

(73)

Comment:

One commenter stated that the draft economic analysis does not consider cumulative effects of the proposed rule.

Our Response:

The draft economic analysis only evaluated potential effects of the rulemaking, however, we did take into consideration the potential efffects of overlaping designations while evaluating potential exclusions from the designation under section 4(b)(2) of the Act.

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Comment:

One commenter stated that the draft economic analysis ignores arroyo toad-related delay impacts associated with transportation projects.

Our Response:

Major road projects generally occur over a very long time horizon and require interaction with and support from variety of local, State, and Federal agencies, including environmental review (i.e., CEQA/NEPA). Arroyo toad critical habitat designation is one of many issues that will need to be addressed and resolved during the long time frame associated with the project approval, entitlement, and funding process. Although arroyo toad critical habitat designation may increase the costs associated with the construction or completion of a major road project, it is not expected to extend the normal time frame for a project of

this nature. Consequently, the draft economic analysis does not estimate project delay costs associated with road construction projects.

(75)

Comment:

One commenter stated that the draft economic analysis ignores impacts on the Foothill Eastern Transportation Corridor Agency (TCA).

Our Response:

While the draft economic analysis does not refer to TCA projects explicitly, the draft economic analysis does estimate future costs associated with road projects in critical habitat designation Units 10 and 11. These costs reflect estimated economic impacts borne by major road projects occurring within those areas. The costs of arroyo toad conservation activities on local (non-arterial) roads construction projects are not estimated separately in the draft economic analysis. Rather, these costs are assumed to be captured in the reduced land-value estimates.

The estimate of future road projects is based on an extrapolation of SANDAG transportation planning data to the entire study area. This approach was developed based on the best readily available data at the time of the draft economic analysis, given the resources allotted to the study. While it is possible that detailed information on specific planned or proposed road projects may be missed given this methodology, it is also possible that the draft economic analysis includes costs for projects that may in fact never materialize as projected. Overall, the Service believes that the approach utilized in the draft economic analysis represents a reasonable estimate of future road project costs.

The draft economic analysis also assumes that arroyo toad conservation activities are unlikely to have an appreciable affect on regional mobility. Consequently, the draft economic analysis does not attempt to measure the economic cost associated with reduced transportation accessibility.

(76)

Comment:

One commenter stated that the draft economic analysis should consider the implications of the Gifford Pinchot Task Force v. US Fish and Wildlife Service litigation.

Our Response:

The draft economic analysis acknowledges that a recent Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. The Service is currently reviewing the decision to determine what effect it (and to a limited extent Center for Biological Diveristy v. Bureau of Land Management (Case No. C-03-2509-SI, N.D. Cal.)) may have on the outcome of consultations pursuant to section 7 of the Act.

(77)

Comment:

One commenter stated that the draft economic analysis fails to estimate economic impacts of critical habitat designation on tribal reservation lands.

Our Response:

The draft economic analysis estimates economic impacts attributable to arroyo toad critical habitat designation on tribal land. For example, development projections covering tribal lands are relied upon to estimate real estate development costs, infrastructure costs and road construction costs. However, due to data limitations, the impacts to tribal entities are not presented separately.

(78)

Comment:

The Service fails to use the proper baseline for the analysis.

Our Response:

The draft economic analysis estimates the total cost of species conservation activities without subtracting the impact of pre-existing baseline regulations (

i.e.

, the cost estimates are fully co-extensive). That is, the draft economic analysis complies with direction from the U.S. 10th Circuit Court of Appeals.

(79)

Comment:

One commenter refuted the draft economic analysis assumption that land contained within the 100-year floodplain is the most likely to be undevelopable even in the absence of arroyo toad conservation activities.

Our Response:

FEMA defines floodplains as Special Flood Hazard Areas and places special requirements on development. The lowest floor of all new residential buildings in the floodplain must be at or above the level of the 100-year flood, in order to qualify for FEMA-backed insurance. Non-residential buildings must be at or above the level of the 100-year flood, or be flood-proofed to that level. FEMA defines minimum requirements; local jurisdictions may place additional restrictions on construction. Given these requirements, floodplain development is more expensive than development outside the floodplain making it more likely to be set aside to compensate for impacts to arroyo toad habitat.

As noted in the draft economic analysis, development rarely occurs on 100 percent of the project area assembled by a developer regardless of what degree of arroyo toad protection is in place. A development site will naturally include a relatively large portion of undeveloped acres set aside for a variety of factors, including slope, avoidance of hydrologic features (

e.g.

, flood areas, wetlands, drainage channels), parcel configuration, and creation of “amenity features” such as landscaping, parks, and open space. The draft economic analysis uses the 100-year flood plain as a proxy for the “low quality” land that would not have been developed in the absence of arroyo toad habitat. In reality, some 100-year flood plain land will be developed while other areas outside the flood plain will not, due to other natural or geological factors. Nonetheless, GIS-based 100-year flood plain data represents the best available data upon which to estimate the proportion of “high-quality” to “low-quality” land within critical habitat.

(80)

Comment:

One commenter stated that the draft economic analysis fails to consider whether floodplain land might carry a development premium due to its proximity to rivers and streams.

Our Response:

The draft economic analysis relies on land values calculated at the county level. While there may be a land value premium associated with proximity to a variety of different amenities, estimation of such a premium is beyond the scope of the draft economic analysis.

(81)

Comment:

One commenter points out that floodplain boundaries change over time.

Our Response:

While floodplain boundaries are likely to change over time, it is impossible to accurately predict specific changes a-priori. The draft economic analysis relies on the most recent FEMA floodplain boundary data available.

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Comment:

One commenter stated that the draft economic analysis does not consider land use conversion from grazing to vineyard.

Our Response:

No publicly available data projects future vineyard development (or other agricultural production) in specific geographic areas. In addition, no historical formal biological opinions address the effect on the arroyo toad of land conversion to agriculture. Thus, the draft economic analysis does not address potential economic effects from agricultural development. If arroyo toad critical habitat designation does affect the feasibility of proposed agriculture conversion activities, the economic impacts would be in addition to those estimated by the draft economic analysis.

(83)

Comment:

One commenter stated that the draft economic analysis should consider the potential economic loss from closure of the Rancho Sisquoc cattle operation.

Our Response:

The draft economic analysis estimates that project modifications requested for the arroyo toad conservation on the Sisquoc grazing allotment would have cost about $422,000. Because the allotment was

abandoned, the draft economic analysis assumes that project proponents found the project modifications cost prohibitive. This suggests that the value of the ranching activity on the Sisquoc allotment is less than the $422,000 impact reported by the draft economic analysis.

(84)

Comment:

Several commenters stated that the draft economic analysis incorrectly reports that the Soledad Canyon sand and gravel mining project has been denied local permits by Los Angeles County, when in fact the project has been approved.

Our Response:

Local permits for the mining project was denied in 2002 due to a variety of factors, including environmental review procedures, water quality, and proximity to urban development. At the time research was conducted for the draft economic analysis, the project remained unapproved. However, during the public comment period, project proponents informed the Service that the project was approved in June of 2004. The project is likely to result in additional costs associated with arroyo toad conservation that are not included in the draft economic analysis.

(85)

Comment:

Several commenters stated that the draft economic analysis does not consider the potential for critical habitat designation to reduce the size of the Soledad Canyon sand and gravel mining project.

Our Response:

The draft economic analysis relies on historical biological opinions addressing mining projects in order to forecast conservation activities associated with similar projects in the future. In the case of the Soledad Canyon sand and gravel mining project, the Service issued a biological opinion in 2001 that requested various arroyo toad conservation activities. However, the biological opinion did not explicitly request a reduction in the size of the mining project. While the designation of critical habitat may trigger the reinitiation of the project consultation and result in additional measures to protect the arroyo toad, it is difficult to predict whether the additional measures will include a reduction in the size of the project. Furthermore, because no historical biological opinions addressing mining projects have resulted in a significant reduction in project size exclusively for the protection of the arroyo toad, there is no data or basis for forecasting such impacts. To the extent that reinitiation of the Soledad Canyon consultation results in a reduction in the size of the project due to the arroyo toad, there will be economic costs associated with the foregone mining opportunity that are not included in the draft economic analysis.

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Comment:

Several commenters stated that the designation does not adequately estimate costs associated with delays in permitting of mining projects.

Our Response:

The draft economic analysis assumes that given sufficient knowledge of the regulatory environment, the various administrative activities associated with the Act can generally be coordinated with other regulatory processes and do not necessarily increase the time to obtain approvals.

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Comment:

One commenter stated that critical habitat designation may create an additional administrative burden on mining projects due to increased litigation.

Our Response:

The draft economic analysis only considers costs that are reasonably foreseeable. While critical habitat designation may stimulate additional legal actions, there is no data to support this theory or estimate impacts. The number, scope and timing of potential legal challenges associated with the rulemaking would be difficult to quantify.

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Comment:

One commenter stated that the draft economic analysis is unclear regarding the basis of impacts to water management at Loveland and Cuyamaca Reservoir and how impacts are calculated.

Our Response:

In the future, the Service may request specific water management changes within arroyo toad critical habitat designation. The draft economic analysis assumes that the Service will request that the managers of the Loveland and Cuyamaca Reservoirs forego water releases during the arroyo toad breeding season to avoid impacts. The draft economic analysis calculates economic impacts based on the assumption that the Service will request that these water managers not conduct major water releases water during the arroyo toad breeding season (

i.e.

, March 15 through June 15). The draft economic analysis conservatively estimates that 50 percent of the foregone release volume will require replacement due to losses from percolation and evaporation. To calculate the expected water release volume during the breeding season, the analysis relies on historical water release data provided by the Sweetwater Authority and the Helix Water District. Expected water releases in the future are calculated based on historical averages.

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Comment:

Several commenters stated that the draft economic analysis adjusts water losses resulting from foregone releases using an arbitrary percentage.

Our Response:

In some cases, water releases may be conducted during winter months rather than during the breeding season. This operational flexibility may allow water managers to avoid cost impacts associated with arroyo toad conservation. The adjustment of water losses is intended to reflect the potential for operational flexibility in water system management. Due to uncertainty concerning the degree of operational flexibility, the draft economic analysis presents a sensitivity analysis addressing this assumption.

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Comment:

One commenter stated that the draft economic analysis fails to recognize that if more imported water is used, then less water will be available for water purveyors and water dependent species.

Our Response:

Water used (or lost) as a result of arroyo toad conservation activities will be a small proportion of total water demands, as discussed on page 58 of the draft economic analysis. While there may be localized supply impacts, the location and economic implication of such constraints are difficult to determine. Overall, these impacts are not expected to be significant.

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Comment:

One commenter stated that the draft economic analysis fails to recognize that water supplies are limited, especially during drought conditions. The commenter suggests that supply constraints will increase the economic burden on water agencies.

Our Response:

The draft economic analysis estimates costs to water managers based on average conditions. In reality, some years are wetter or dryer than others. Special operational constraints affecting water managers in dry years or drought years are not analyzed by the draft economic analysis. Development of an economic analysis evaluating all water-year types for each water agency and district affected by critical habitat designation is beyond the scope of the draft economic analysis. Dry-year constraints may create an additional economic burden for water managers.

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Comment:

One commenter stated that the draft economic analysis relies upon incorrect water replacement prices.

Our Response:

EPS contacted water managers to determine water replacement costs in areas expected to be affected by arroyo toad conservation efforts. The draft economic analysis relies on these reported costs. If the actual cost of water is higher (or lower) than the reported cost, the economic impacts will also be higher (or lower).

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Comment:

One commenter stated that the draft economic analysis fails to consider operational constraints related to dam safety and other protected species at Cuyamaca Reservoir.

Our Response:

The draft economic analysis assumes that the Service will request that water managers forego major water releases from Cuyamaca Reservoir during the arroyo toad breeding season. However, in reality the Service may need to alter this request to account for site-specific factors. This level of detail is beyond the scope of the draft economic analysis. The economic implications of site specific constraints on arroyo toad conservation are unknown.

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Comment:

One commenter stated that the draft economic analysis fails to consider economic impacts borne by Helix Water District due to potential management changes at El Capitan Reservoir.

Our Response:

The draft economic analysis estimates costs associated with potential management changes at El Capitan Reservoir. It is possible that some of these estimated costs will be passed on to the Helix Water District, affecting the distribution of economic impacts rather than the total economic impact.

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Comment:

One commenter stated that the draft economic analysis fails to include significant additional costs to water managers attributable to additional consultations and increased scrutiny from the California Department of Fish and Game and the Army Corps of Engineers.

Our Response:

While it is possible that critical habitat designation will increase scrutiny of water operations, any associated economic impacts are primarily administrative and not reasonably foreseeable. The draft economic analysis does not estimate these impacts due to their speculative nature.

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Comment:

One commenter stated that pipeline construction costs do not consider economic effects from potential mitigation measures, delay or uncertainty.

Our Response:

Because pipeline construction is intended to benefit the arroyo toad, the Service is unlikely to request additional mitigation. The historical record for arroyo toad protection by the Service supports this assumption. Consequently, the draft economic analysis does not estimate additional impacts associated with pipelines intended to improve habitat for the arroyo toad.

Summary of Changes From the Proposed Rule

In developing the final designation of critical habitat for the arroyo toad, we reviewed public comments received on the proposed designation of critical habitat published on April 28, 2004, and revisions to proposed critical habitat and the draft economic analysis published on February 14, 2005 (70 FR 7459); conducted further evaluation of lands proposed as critical habitat; refined our mapping methodologies; and excluded additional essential habitat from the final designation. Table 1, included at the end of this section, outlines changes in acreages for each subunit. Specifically, we are making the following changes to the final rule from the proposed rule published on April 28, 2004:

(1) We mapped critical habitat more precisely by eliminating habitat areas of marginal quality that we do not expect to be used by arroyo toads. In certain upland locations, we determined that busy, paved roads and railroads constituted barriers to toad movement into the uplands. These roads and railroads were found in areas of relatively steep slopes and were supported by steeply-constructed embankments. Where marginal upland habitat was found behind these barriers, it was removed from critical habitat because we did not consider it essential to the arroyo toad population. This more precise examination of essential areas led to a modest reduction in total designated critical habitat acreage from the proposed rule.

(2) Although we attempted to remove as many developed areas (areas that have no value as arroyo toad habitat) as possible before publishing the proposed rule, we were not able to eliminate all developed areas. Since publication of the proposed rule, we were able to further eliminate a small amount of developed area, which has resulted in a more precise delineation of essential habitat containing one or more of the primary constituent elements. This resulted in a minor reduction in the total acreage published in the proposed rule. However, it is not possible to remove each and every one of these developed areas even at the refined mapping scale used: therefore, the maps of the designation still include areas that do not contain primary constituent elements. These areas are not being designated as critical habitat.

(3) In some cases, the 82-foot (ft) (25-meter (m)) elevation criteria in the model used to determine the extent of the essential upland habitat for arroyo toads extended the upstream or downstream critical habitat boundary beyond the starting and ending points of the essential stream segment (

i.e.

, into areas containing habitat of lower quality). These areas were not intended to be included as critical habitat and were removed from the designation, leading to a minor reduction in the total acreage published in the proposed rule.

(4) We revised the criteria used to identify essential upland habitat. We modified the model to capture upland habitat up to a 1,640 ft (500 m) distance from the essential stream, rather than a 4,921 ft (1,500 m) distance, if the 82-ft (25-m) elevation limit had not yet been reached. In a majority of the stream reaches, the model reached the 82-ft (25-m) elevation limit before it reached the 1,640 ft (500 m) distance from the essential stream, and therefore the distance limit was often not a factor.

We based this 1,640 ft (500 m) distance limit on the results of an arroyo toad study on Marine Corps Base, Camp Pendleton (Camp Pendleton) in San Diego County (Holland and Sisk 2000), which is the most indepth, complete study of the distribution and use of upland habitat by arroyo toads. Holland and Sisk (2000) used extensive pitfall trap arrays at various distances from a riparian wash area to document toad use of adjacent upland areas. They captured approximately 12 percent of their toads in the upland areas, while the rest were caught in the riparian wash. Of the toads caught in uplands areas, 68 percent of the toads were captured within 1,640 ft (500 m) of the riparian wash. Although the absolute maximum distance toads may travel cannot be determined by the pitfall trapping method, a few toads were caught at distances greater than 3,281 ft (1,000 m) from the riparian wash area. Since it is not our intent to capture the maximum distance that toads have been recorded to travel from riparian areas as critical habitat, we have determined that upland habitat up to 1,640 ft (500 m) from riparian areas is habitat that is essential for the arroyo toad.

(5) We revised the criteria used to identify essential stream reaches. Upstream areas from known occupied sites were removed from the designation. Under the Act, the Secretary of the Interior may only include lands if she finds that those lands are essential to the conservation of the species. In the case of the arroyo toad, and based on the best scientific data available, it was not possible for the Secretary at this time to make such a determination for upstream areas that were not known to be occupied by the arroyo toad. We defined essential occupied areas as those areas within

approximately 0.7 miles (1.1 km) up and down stream from where the species is known to have occurred at the time of listing or subsequently. The arroyo toad was listed as an endangered species in 1994, and we define “at the time of listing” for the arroyo toad as the period from 1974 to 1994. The 0.7 mile (1.1 km) movement distance was selected from a variety of studies demonstrating that arroyo toads will move this distance over the course of a year or so (Sweet 1993; Griffin 1999; Holland and Sisk 2001; Ramirez 2002a; Hitchcock et al. 2004). The upper-bounds of essential streams were defined by the uppermost toad occurrence in a stream with its corresponding 0.7 mile (1.1 km) movement distance. Any proposed critical habitat areas not known to be occupied that were upstream from this were removed from designated critical habitat. This resulted in the removal of several upstream areas previously proposed as critical habitat in a number of units, but was greatest in (sub) units 2, 5a, 6c, 8, 10a, 11a, 12b, 13a and b, 16c and d, 17a, 17d, 18a, 19a and d, 20, 21, 22a, and 23. (Sub)units 7a, 17b, 17c, and 18d were completely removed from critical habitat because these (sub)units were not known to be occupied. We did not truncate or remove any critical habitat downstream from known observations because toads, particularly tadpoles, have been known to be washed downstream, particularly during rain events, into suitable habitat.

(6) In subunit 6b, we have determined that San Francisquito Creek above the Newhall Ranch Road bridge does not contain the primary constituent elements of arroyo toad critical habitat. It is drier than we had originally thought and lacks surface water for a sufficient duration during the spring time of most years to allow for arroyo toad tadpole development. Thus, this portion of San Francisquito Creek, which was included in the proposed rule, does not provide breeding habitat for arroyo toads and we no longer consider it to be essential for the conservation of the species. This resulted in a reduction of 1,463 acres in subunit 6b. Below the Newhall Ranch Road bridge, arroyo toads inhabiting the Santa Clara River may disperse into lower San Francisquito Creek to forage and aestivate; we still consider this reach of San Francisquito Creek to be essential habitat.

(7) We no longer consider the arroyo toad habitat within subunit 22b, a stretch of the Mojave River running through Victorville in San Bernardino County, to be essential to the conservation of the species and have therefore removed this subunit from the final designation. Although we do not have new data concerning arroyo toads in this area, we further analyzed and reevaluated the existing data (and lack thereof) to arrive at this decision. This subunit runs through the relatively urbanized area of Victorville and involves numerous private landowners. Much of the upland habitats along the Mojave River in this area have been developed, and even areas within the floodplain have been developed, which are protected by levees. Exotic predators of the arroyo toad have also invaded this portion of the river. Additionally, the occupancy of subunit 22b by arroyo toads is questionable at best. Arroyo toads were rumored to occur in the Victorville area sometime during the 1990s, probably associated with the last significant El Niño event; however, there have been no confirmed reports from this area since 1982. The recovery plan (Service 1999) states that arroyo toads are presumed extinct in this reach.

(8) We excluded several areas under Section 4(b)(2) of the Act and exempted several areas under section 4(a)(3) of the Act from the final critical habitat designation (see the Application of Sections 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion). This is the primary source of reduction in total designated critical habitat acreage that was identified in the proposed rule. Exemptions under section 4(a)(3) included portions of Units 11 and 12 on Marine Corps Base, Camp Pendleton and portions of Unit 12 on Naval Weapons Station, Seal Beach, Detachment Fallbrook based on their approved INRMPs. Exclusions pursuant to section 4(b)(2) based on economic considerations included all of Units 3, 5, 6, 7, 10, 13, 14, 15, 16, 17, 18, 19, and 22 and portions of Units 11 and 12. Other exclusions pursuant to section 4(b)(2) based on approved HCPs included Unit 8 (Orange County Central-Coastal Subregional HCP/NCCP) and portions of Unit 9 (Western Riverside MSHCP) and based on a nearly completed HCP included portions of Unit 23 (pending Coachella Valley MSHCP). Several portions of units that were formerly excluded in the proposed rule for being under approved HCPs or in the revised proposed rule for private lands covered under special management plans that were beneficial to the arroyo toad were changed in the final rule to be solely excluded for economic considerations pursuant to section 4(b)(2). This change included portions of Units 6, 13, 16, 17, 18, 19, and 22.

Table 1.—Critical Habitat Units for the Arroyo Toad

Critical habitat units/subunits

County

Proposed rule

(April 28, 2004)

ac; ha

Final rule

ac; ha

1. San Antonio River

Monterey

6,546; 2,649

0

2. Sisquoc River

Santa Barbara

6,574; 2,660

4,800; 1,942

3. Upper Santa Ynez River Basin

Santa Barbara

4,414; 1,786

0

4. Sespe Creek

Ventura

4,138; 1,675

4,008; 1,622

5. Piru Creek

Ventura, L.A

3,966; 1,6050

0

6. Upper Santa Clara River Basin

Los Angeles

7,398; 2,994

0

7. Upper Los Angeles River Basin

Los Angeles

4,213; 1,705

0

8. Black Star and Baker Creeks

Orange

172; 69

0

9. San Jacinto River Basin/Bautista Creek

Riverside

683; 277

700; 283

10. San Juan Creek Basin

Orange, Riverside

6,285; 2,543

0

11. San Mateo Basin

Orange, San Diego

4,580; 1,853

0

12. Lower Santa Margarita Basin

San Diego

1,840; 744

0

13. Upper Santa Margarita Basin

Riverside, San Diego

3,628; 1,468

0

14. Lower and Middle San Luis Rey Basin

San Diego

15,376; 6,222

0

15. Upper San Luis Rey Basin

San Diego

11,725; 4,745

0

16. Santa Ysabel Creek

San Diego

11,080; 4,484

0

17. San Diego River Basin

San Diego

2,309; 934

0

18. Sweetwater River Basin

San Diego

9,235; 3,737

0

19. Cottonwood Creek Basin

San Diego

15,800; 6,394

0

20. Upper Santa Ana River Basin/Cajon Wash

San Bernardino

1,263; 511

1,119; 453

21. Little Rock Creek

Los Angeles

941; 381

734; 297

22. Upper Mojave River Basin

San Bernardino

14,550; 5,848

0

23. Whitewater River

Riverside

1,997; 808

333; 135

Totals

138,713; 56,133

11,695; 4,733

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as—(i) the specific areas within the geographic 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 geographic 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 of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.

To be included in a critical habitat designation, the habitat within the area occupied by the species at the time of listing must first have features that are “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (

i.e.

, areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Specific areas within the geographic area occupied by the species at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).) Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species at the time of listing. An area currently occupied by the species but was not known to be occupied at the time of listing will likely be essential to the conservation of the species and, therefore, included in the critical habitat designation.

Our Policy on Information Standards Under the Endangered Species Act, published in the

Federal Register

on July 1, 1994 (59 FR 34271), and our associated Information Quality Guidelines, provides criteria and guidance, and establishes procedures to ensure that our decisions represent the best scientific and commercial data available. Our biologists are required, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are designated as critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include a recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties or other entities that develop HCPs, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available in determining areas that are essential to the conservation of the arroyo toad. Our methods for identifying the arroyo toad critical habitat included in this final designation are those methods we used to make our final designation for this species on February 7, 2001 (66 FR 9414) and in our subsequent proposal of critical habitat for the arroyo toad, published on April 28, 2004 (69 FR

23253) as modified in accordance with our discussion in the Summary of Changes section above. In addition, we used information and data (such as newly obtained survey results; San Marino Environmental Associates 1995, RECON 1999, Compliance Biology 2004) received during the public comment periods following both the April 28, 2004, proposed rule and the February 14, 2005, revisions to proposed critical habitat and notice of availability of the draft economic analysis, and communications with individuals inside and outside the Service who are knowledgeable about the species and its habitat needs.

We have also reviewed available information that pertains to the habitat requirements of this species, including material received since completion of the recovery plan. The material included data in reports submitted during section 7 consultations and by biologists holding section 10(a)(1)(A) recovery permits; research published in peer-reviewed articles and presented in academic theses and agency reports; regional Geographic Information System (GIS) coverages; occupied and potential habitat maps developed by the Forest Service (Forest Service 2000); habitat evaluation models for the San Diego County Multiple Species Conservation Program (MSCP), the North San Diego County Multiple Habitat Conservation Program (MHCP), and the North County Subarea of the MSCP for Unincorporated San Diego County; and a predictive habitat suitability map for San Diego County (Barto 1999).

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations and protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific PCEs required for the arroyo toad are derived from the biological needs of the arroyo toad as described in the Background section of the proposed rule (69 FR 23253). These specific biological and physical features, or PCEs, which are essential to the conservation of the arroyo toad are described below. Identified lands provide aquatic and terrestrial habitat containing the essential PCEs supporting the maintenance of self-sustaining populations and metapopulations (a set of local populations or breeding sites within an area, where typically migration from one local population or breeding site to other areas containing suitable habitat is possible, but not routine) of arroyo toads throughout its range.

Space for Individual and Population Growth, and for Normal Behavior

The arroyo toad is found along medium-to-large-sized streams in coastal and desert drainages in central and southern California and Baja, Mexico. It occupies aquatic, riparian (areas near a source of water), and upland habitats within its range. Suitable habitat for the arroyo toad is created and maintained by the fluctuating hydrological, geological, and ecological processes operating in riparian ecosystems and the adjacent uplands. Periodic flooding that modifies stream channels, redistributes channel sediments, and alters pool location and form, coupled with upper terrace stabilization by vegetation, is required to keep a stream segment suitable for all life stages of the arroyo toad. Periodic flooding helps maintain areas of open, sparsely vegetated, sandy stream channels and terraces (Sweet 1992; Griffin and Case 2001).

Eggs and tadpoles require aquatic habitat, as described below under “Sites for Breeding, Reproduction and Rearing of Offspring.” Juvenile and adult arroyo toads require and spend much of their lives in riparian and upland habitats adjacent to breeding locations. Riparian habitats used by subadults and adults for foraging and burrowing year round include sand bars, alluvial terraces, and streamside benches that lack vegetation, or are sparsely to moderately vegetated (Sweet 1992; Holland and Sisk 2001). Upland habitats used by arroyo toads during both the breeding and nonbreeding seasons include alluvial scrub, coastal sage scrub, chaparral (shrubby plants adapted to dry summers and moist winters), grassland, and oak woodland (Griffin and Case 2001). Arroyo toads also have been found in agricultural fields (Griffin 1999), but these lands may constitute sinks (areas where mortality rates are higher than reproduction rates) over the long-term, due to tilling, pesticide and fertilizer applications, and heavy equipment use (Griffin and Case 2001).

The substrate in habitats preferred by arroyo toads consists primarily of sand, fine gravel, or pliable soil, with varying amounts of large gravel, cobble, and boulders. Areas that are damp and have less than 10 percent vegetation cover provide the best conditions for juvenile survival and rapid growth (Sweet 1992). Arroyo toads must be able to move between the stream and upland foraging sites, as well as up and down the stream corridor. Holland and Sisk's (2001) study on arroyo toad habitat use in coastal San Diego County revealed toads traveling considerable distances (up to at least 0.71 mi (1.14 km)) from the edge of the upland/riparian ecotone (

i.e.

, boundary or interface). In all study areas, they found that toads were captured as far out as the pitfall trap arrays were set for them: 0.71 mi (1.14 km) at Cristianitos Creek (east side), 0.56 mi (0.9 km) at Cristianitos Creek (west side), and 0.37 mi (0.6 km) at Santa Margarita River. Given the contiguous nature of the habitat beyond where the traps were set, toads may have traveled farther from the riparian area had the pitfall arrays been set further back and not limited in distribution. Arroyo toads use a wide range of upland vegetation types, including chaparral, coastal sage scrub, oak woodland, grasslands, agricultural lands, and ruderal/disturbed areas for foraging, burrowing, and aestivating (Griffin and Case 2001; Holland and Sisk 2001). Friable or readily crumbled soils that allow toads to burrow are oftentimes patchily distributed in the upland areas. Upland areas not containing friable soils are still important for toads because they may still contribute as foraging grounds where toads can hunt for their prey or migration areas between foraging, burrowing, or aestivating areas; toads may also occupy the burrows of other animals in areas where the soils are too hard for them to burrow into (Griffin 1999).

Within stream and river movements by arroyo toads is another important aspect of their life history. Arroyo toads move within streams and rivers to find suitable breeding and foraging habitats as well as potential mating partners. In some situations, arroyo toad larvae swim or are flushed down stream due to heavy currents (Griffin 1999). Several radio telemetry studies by Ramirez (2002a, 2002b, 2002c) documented toads moving on several occasions around 0.7 miles. In one instance, a toad was recorded moving 0.6 mile within one week. These studies were never

more than approximately 5 months in duration and therefore it is possible that lifetime toad movements could be even longer. Sweet (1993) also documented toad movements of at least 0.7 mile before toads left his study area. Griffin (1999) documented a toad moving downstream 0.64 mi (1025 m) over 42 days before escaping its transmitter. Although it is well documented that toads can travel 0.7-0.8 mile within a stream or river over the course of a season, it is possible that these represent minimum distances since anecdotal evidence exists of toads recolonizing suitable breeding pools that are of greater distances from other breeding pools.

Food and Water

Arroyo toad tadpoles eat microscopic algae, bacteria, and protozoans from the spaces among pebbles, gravel, and sand or abraded from stones (Sweet 1992). Juveniles and adults feed on insects, but specialize on ants. When foraging, arroyo toads are often found around the driplines of oak trees (Sweet 1992). These areas often lack vegetation, yet have sufficient levels of prey. When active at night, toads often can be observed near ant trails feeding on ants, beetles, and other prey.

Water in the form of shallow pools along streams is essential for arroyo toad breeding (see Sites for Breeding, Reproduction and Rearing of Offspring below).

Cover or Shelter

During the day and other periods of inactivity, arroyo toads seek shelter by burrowing into the sand (Sweet 1992). Thus, areas of sandy or friable (readily crumbled) soils are necessary for the animals to burrow, but these soils can be interspersed with gravel or cobble deposits. Arroyo toads may also seek temporary shelter under rocks or debris and have been found in mammal burrows on occasion (Griffin 1999). Upland sites with extremely compact soils can also be used for foraging and dispersal (D. Holland, in litt. 2000).

Sites for Breeding, Reproduction and Rearing of Offspring

The arroyo toad has specialized breeding habitat requirements. They favor shallow pools located in open sand and gravel channels, along low-gradient (typically less than 6 percent) reaches of medium-to-large-sized streams (Sweet 1992). These streams can have either intermittent or perennial streamflow, and typically experience periodic flooding that scours vegetation and replenishes fine sediments. In at least some portions of its range, the species also breeds in smaller streams and canyons where low-gradient breeding sites are more sporadically distributed. Breeding pools must persist long enough for the completion of larval development (at least in most years), which is generally March through June, depending on location and weather. Sweet (1992) measured the average age-to-metamorphosis of arroyo toad larvae on the Los Padres National Forest at 71 days, with a predicted minimum age-to-metamorphosis of 62 days. Most arroyo toads metamorphose during June and July in the northern part of the toad's range, and from late April through June in the southern portion of its range, although it may be later, particularly at higher elevations (D. Holland, in litt. 2000).

Breeding arroyo toads lay their eggs in water over substrates of sand, gravel, or cobble in open sites such as overflow pools, old flood channels, and shallow pools along streams (Sweet 1992). Such habitats rarely have closed canopies over the lower banks of the stream channel due to periodic flooding events. Heavily shaded pools are generally unsuitable for larval and juvenile arroyo toads because of lower water and soil temperatures, and poor algal mat development. Pools less than 12 inches (30 centimeters (cm)) deep with clear water that have flow rates less than 0.2 ft per second (5 cm per second), and bottoms composed of sand or well-sorted fine gravel, are favored by adults for breeding and egg deposition (Sweet 1992). Larvae usually hatch in 4 to 6 days at water temperatures of 54 to 59 degrees Fahrenheit (12 to 16 degrees Celsius). Although egg strings are laid in slow moving water, larvae (tadpoles) can be found in streams with water velocities of up to 1.0 to 1.3 ft per second (30 to 40 cm per second) (Sweet 1992).

Pursuant to our regulations, we are required to identify the known physical and biological features or PCEs, essential to the conservation of the arroyo toad, together with a description of any critical habitat that is designated. Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the arroyo toad's primary constituent elements are:

1. Rivers or streams with hydrologic regimes that supply water to provide space, food, and cover needed to sustain eggs, tadpoles, metamorphosing juveniles, and adult breeding toads. Specifically, the conditions necessary to allow for successful reproduction of arroyo toads are:

a. Breeding pools with areas less than 12 in (30 cm) deep;

b. Areas of flowing water with current velocities less than 1.3 ft per second (40 cm per second); and

c. Surface water that lasts for a minimum length of 2 months in most years (

i.e.

, a sufficient wet period in the spring months to allow arroyo toad larvae to hatch, mature, and metamorphose).

2. Low-gradient stream segments (typically less than 6 percent slope) with sandy or fine gravel substrates that support the formation of shallow pools and sparsely vegetated sand and gravel bars for breeding and rearing of tadpoles and juveniles.

3. A natural flooding regime, or one sufficiently corresponding to a natural regime, that will periodically scour riparian vegetation, rework stream channels and terraces, and redistribute sands and sediments, such that breeding pools and terrace habitats with scattered vegetation are maintained.

4. Riparian and adjacent upland habitats (

e.g.

, alluvial scrub, coastal sage scrub, chaparral, and oak woodlands, but particularly alluvial streamside terraces and adjacent valley bottomlands that include areas of loose soil where toads can burrow underground) to provide foraging, aestivation, and living areas for subadult and adult arroyo toads.

5. Stream channels and adjacent upland habitats allowing for migration between foraging, burrowing, or aestivating sites, dispersal between populations, and recolonization of areas that contain suitable habitat.

These aquatic, riparian, and upland habitat PCEs form the bases of our critical habitat units. These features are essential to the conservation of the arroyo toad. All lands identified as essential and designated as critical habitat contain one or more of the PCEs for the arroyo toad.

Criteria Used To Identify Critical Habitat

We are designating critical habitat on lands that we have determined are occupied at the time of listing and contain the primary constituent elements of the arroyo toad. In a few instances, designated areas were not known to be occupied at the time of listing, but have been determined to be essential to the conservation of the species and have some or all of the toad's primary constituent elements (see unit descriptions for specific discussions). Drainage basins containing features essential to the conservation of the arroyo toad are generally reflected in this final critical habitat designation. This critical habitat designation focuses

on providing sufficient breeding, riparian, and upland habitats for the arroyo toad, thus promoting the conditions for maintaining self-sustaining arroyo toad populations and metapopulations across their historic range in California. Since arroyo toads are found in a variety of ecologically and geographically distinct areas, it is important to preserve the species' genetic diversity as well as the variety of ecological environments in which it is endemic.

We determined an area was essential if it had one or more of the following characteristics: (1) Supports a substantial core population of arroyo toads; (2) supports at least a small toad population and possesses favorable habitat conditions for population expansion and persistence; (3) suitable habitat situated in a location that appears to be crucial for maintaining the viability of a larger metapopulation; (4) occupied habitat on the periphery of the arroyo toad's geographic range; and (5) occupied habitat in atypical or underrepresented ecological environments (

e.g.

, high elevation or desert-edge populations). These areas were known to be occupied at the time of listing or subsequently and have one or more of the primary constituent elements described above.

Areas supporting core populations or that have the potential to support large populations were determined to be essential because they represent the foundation for continued persistence of the species. Furthermore, some habitat areas that would not be considered essential if geographically isolated, are in fact essential when situated in locations where they facilitate continued connectivity and dispersal of individuals between surrounding adjacent populations or play a significant role in maintaining metapopulation viability (

e.g.

, by providing additional areas of occupancy that provide resilience to periodic extirpations of adjacent habitat patches) (Hunter 2002). Populations on the periphery of the species range or in atypical ecological environments are important for maintaining the genetic diversity of the species, which is important for evolutionary adaptations to changing climatic and environmental conditions (Hunter 2002).

To identify and map areas that are essential, we determined areas that contained the essential features as described above, used data on known arroyo toad locations, and data on movement distances by arroyo toads. Arroyo toad locations were from the California Natural Diversity Data Base (CNDDB 2005) and information from biologists that have not yet been entered into the data base; only locations from the time of listing (1974 to 1994) up through the present were used. Spatial data on stream gradients with grades less than 6 percent, aerial photography, surveys of habitat suitability, and site visits were all used to determine the extent of suitable breeding habitat in these areas. We identified occupied areas on stream reaches containing suitable breeding habitat, along with interspersed, interconnecting higher gradient segments, as essential. Occupied areas were defined as stream reaches in which the species was observed that contain contiguous stretches of suitable habitat. Occupancy extended up to approximately 0.7 mile (1.1 km) upstream from the upper-most arroyo toad observation to accommodate within-stream movements by toads. The 0.7 mile (1.1 km) instream movement distance was selected from a variety of studies demonstrating that arroyo toads travel this distance over the course of about a year (Sweet 1993; Griffin 1999; Holland and Sisk 2001; Ramirez 2002a; Hitchcock

et al.

2004). Interspersed higher gradient stream segments are often patchily distributed within stream reaches and were included as essential stream reaches because of their proximity to suitable breeding habitat and their importance in facilitating movement between breeding sites. The upper most bound of an essential stream reach was determined by the upper most occupied area. The change in upstream critical habitat areas from the proposed critical habitat rule is discussed above in the Summary of Changes from the Proposed Rule section.

To delineate essential upland habitat areas, we used a GIS-based modeling procedure to identify alluvial terraces, valley bottomlands, and upland habitats adjacent to stream reaches known to be occupied by the arroyo toad. Lacking spatially explicit data on geomorphology, we used elevation above the stream channel as an indicator of the extent of alluvial and upland foraging habitat. After some experimentation, we determined that areas up to 82 ft (25 m) in elevation above the stream channel were most likely to contain the riparian and upland habitat elements essential to arroyo toads. Most arroyo toad activity and movement occurred within these areas and steeper slopes away from the stream were eliminated. However, in flat areas, we truncated the upland habitat delineation at a distance of 1,640 ft (500 m) from the stream channel if the 82 ft (25 m) elevation limit had not yet been reached at that point. The 82 ft (25 m) elevation limit was reached at distances less than 1,640 ft (500 m) from the mapped stream channel along the majority of the stream reaches, so the distance limit was often not a factor. We based the 82 ft (25 m) or 1,640 ft (500 m) limit on the results of an arroyo toad study on Camp Pendleton in San Diego County (Holland and Sisk 2000), which is by far the most indepth, complete study of the distribution and use of upland habitat by arroyo toads. Holland and Sisk (2000) established extensive pitfall trap arrays at different distances and locations and operated the traps at different times of the year over several years. Eighty-eight percent of the adult and sub-adult toads were captured in the riparian wash area. Although a few toads were caught at distances of 1,000 m or more from the riparian wash area, approximately 68 percent of the arroyo toads found in upland habitats were within 1,640 ft (500 m). The change in upland distance from the proposed critical habitat rule is discussed above in the Summary of Changes from the Proposed Rule section.

This GIS-based modeling technique was effective at capturing alluvial areas associated with river valleys, and thus, the width of the upland component of critical habitat varies based on topography. The critical habitat designation widens in broad alluvial valleys and narrows in places where streams run through constricted canyons or between surrounding hills.

To provide legal boundaries for the critical habitat areas, critical habitat boundaries for all drainages were mapped as contiguous blocks of 100 m-by-100 m cells that conform to a Universal Transverse Mercator (UTM) grid.

To identify critical habitat units, we first examined those lands under Federal jurisdiction. Those lands include areas managed by the Department of Defense (DOD), the U.S. Forest Service, the Bureau of Land Management (BLM), the U.S. Army Corps of Engineers (Army Corps), and the Service. We also considered the existing status of non-Federal and private lands in designating areas as critical habitat. We also determined the extent of Tribal land areas as part of the critical habitat designation process. We have coordinated with the respective Tribes on this designation under the guidance of the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, which requires us to coordinate with federally-recognized

Tribes on a Government-to-Government basis.

In determining critical habitat boundaries, we made every effort to exclude all developed areas, such as buildings, paved areas, and other lands unlikely to contain primary constituent elements essential for arroyo toad conservation. Our 100-meter UTM grid minimum mapping unit was used to minimize the amount of development along the urban edge included in our mapping areas. Any such structures, paved areas, or otherwise developed areas inadvertently left inside critical habitat boundaries are not considered part of the designated units. This also applies to the land on which such structures sit directly. Therefore, Federal actions limited to these areas would not trigger section 7 consultations, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

A brief discussion of each area designated as critical habitat is provided in the unit descriptions below. Additional detailed documentation concerning the essential nature of these areas is contained in our supporting record for this rulemaking.

Special Management Considerations or Protection

As a result of agriculture and urbanization, and the construction, operation, and maintenance of water storage reservoirs, flood control structures, roads, and recreational facilities such as campgrounds and off-highway vehicle parks, many arroyo toad populations have been reduced in size or extirpated (eliminated) due to extensive habitat loss from the 1920s into the 1990s (Campbell

et al.

1996). Although these factors have not dramatically reduced the range of the arroyo toad, within its range many of the habitats that were historically capable of supporting large numbers of arroyo toads have been lost in the last 100 years. Jennings and Hayes (1994) believe that the loss of habitat, coupled with the manipulation of water levels in many central and southern California streams and rivers, predation from introduced aquatic species, and habitat degradation from introduced plant species, caused arroyo toads to be extirpated from 76 percent of their previously occupied habitat in California. Through focused survey efforts over recent years, a few new arroyo toad populations have been discovered. Because of these recent efforts, however, it is unlikely that many more populations remain undiscovered, at least on public land.

When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing and contain the primary constituent elements may require special management considerations or protection. As discussed throughout this final rule, our proposed rule published on April 28, 2004 (69 FR 23253), and our previous final designation of critical habitat for the arroyo toad (66 FR 9414, February 7, 2001), the arroyo toad and its habitat are threatened by a multitude of human-related activities, including but not limited to: alteration of the natural hydrological regime (

e.g.

, inundation of habitat behind dams, sediment trapping behind dams, water flow manipulations from dams and waste water treatment plants, ground water pumping, water diversions, channelization, bank stabilization, water contamination); degradation and loss of habitat through urbanization; the inadvertent or intentional introduction of nonnative species (

e.g.

, exotic predators, plants, and diseases); mining (

e.g.

, sand and gravel and suction dredge); agriculture (

e.g.

, loss of upland habitat and use of pesticides and herbicides); road placement within, across, or adjacent to river corridors; off-highway vehicle use in stream channels; livestock grazing (

e.g.

, trampling of arroyo toads and compaction of soils); and recreation (

e.g.

, campground placement on stream terraces, anglers, equestrians, hikers, and mountain bikers). While many of these threats operate concurrently and cumulatively with each other and with natural disturbances (

e.g.

, droughts and wildfires), the loss of existing habitat, alteration of stream flows, and the continued colonization of habitat by nonnative species, likely represent the most significant current threats to arroyo toads. As such, we believe that each area designated as critical habitat may require some level of management and/or protection to address the current and future threats to the arroyo toad to ensure the overall recovery of the species. Such management considerations and protections would benefit the arroyo toad and its habitat because of the following: Exotic predators and pets may eat or injure arroyo toads; unnatural water releases from dams can wash away arroyo toad eggs and tadpoles, promote the growth of exotic species, or reduce the availability of open sand bar habitat; water diversions can dry a streambed prior to the completion of metamorphosis from tadpole to toad; toads can be crushed by channel maintenance, road construction, or the plowing of agricultural fields with heavy machinery; toads can be trampled during recreational activities; and arroyo toad habitat can be adversely affected by agricultural practices, the invasion of exotic species, and inundation from water impoundments. However, designation of critical habitat does not carry with it any requirement that landowners or land managers implement any special management or protection programs. Threats specific to each unit that may require special management considerations or protection are further discussed in the Unit Descriptions section.

Critical Habitat Designation

We are designating 6 units as critical habitat for the arroyo toad. The critical habitat areas described below constitute our best assessment at this time of areas we determined to be occupied at the time of listing, contain the primary constituent elements, and that may require special management. Units that are currently occupied, but were not known to be occupied at the time of listing, have been determined to be essential to the conservation of the species and have one or more of the species' primary constituent elements (see Unit Descriptions below). The 6 areas designated as critical habitat, plus the 17 units that have been excluded from critical habitat designation, are shown in Table 1 above. Table 2 below shows the approximate area designated as critical habitat for the arroyo toad by land ownership and county.

Table 2.—Approximate Critical Habitat in Acres (ac) (Hectares (ha)) by County and Land Ownership

County

Forest Service

BLM

FWS

Military

State/local

Tribal

Private

Total

Monterey

0

0

0

0

0

0

0

0

Santa Barbara

1,853 ac

(750 ha)

0

0

0

0

0

2,947 ac

(1,193 ha)

4,800 ac

(1,942 ha)

Ventura

3,668 ac

(1,494 ha)

0

0

0

0

0

340 ac

(138 ha)

4,008 ac

1,622 ha)

Los Angeles

734 ac

(197 ha)

0

0

0

0

0

0

734 ac

(297 ha)

San Bernardino

492 ac

(199 ha)

0

0

0

0

0

628 ac

(254 ha)

1,120 ac

(453 ha)

Riverside

700 ac

(283 ha)

333 ac

(135 ha)

0

0

0

0

0

1,033 ac

(418 ha)

Orange

0

0

0

0

0

0

0

0

San Diego

0

0

0

0

0

0

0

0

Total

7,447 ac

(3,013 ha)

333 ac

(135 ha)

0

0

0

0

3,915 ac

(1,585 ha)

11,695 ac

(4,733 ha)

Unit Descriptions

Critical habitat and essential habitat that has been excluded includes arroyo toad habitat throughout the species' range in Monterey, Santa Barbara, Ventura, Los Angeles, Riverside, San Bernardino, Orange, and San Diego Counties, California. Lands we considered for critical habitat are under private, local agency, county, State, Tribal, and Federal ownership. We divided the lands we determined to be essential to the conservation of the species into 23 units. We are designating critical habitat in 6 units, and excluding the remaining 17 units for various reasons, as described in the exclusions section below. For those areas that have been excluded, the unit description is provided to define the unit and identify why we consider it essential to the conservation of the species. Although all of the units are within the geographic range of the species, we are not designating all of the areas known to be occupied by the arroyo toad. A brief description of each unit, reasons why it contains the features essential for the conservation of the arroyo toad, and the special management considerations particular to each unit, are presented below. Additionally, if a unit was not known to be occupied at the time of listing, we have also described why we have determined these units to be essential to the conservation of the species. The unit boundaries are generally based on geographically distinct river basins. In several instances, a river basin has been broken into two or more units based on human or natural landscape features that effectively separate portions of the basin (

e.g.

, a large reservoir or gorge).

Unit 1: San Antonio River, Monterey County

We have excluded all essential lands in unit 1 including all lands on Fort Hunter Liggett from the final critical habitat designation under section 4(b)(2) of the Act (see Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section for a detailed discussion). Unit 1 consists of 6,775 ac (2,742 ha) of the San Antonio River and adjacent uplands, from about 2 mi (3 km) upstream of the confluence with Mission Creek downstream to San Antonio Reservoir, a distance of about 17 mi (27 km), and includes small portions of Mission Creek and other tributaries. The vast majority of the lands within this unit are owned by the Army. The northernmost known population of arroyo toads is located here, and is approximately 100 mi (160 km) north of the nearest documented extant population. Arroyo toads were not known to occur within this area at the time the species was listed, but have since been observed along the entire length of this segment of the San Antonio River (Service 1999), which is still in a relatively natural state and consists of high-quality arroyo toad habitat. This area contains all the primary constituent elements, including breeding pools in low-gradient stream segments, sandy substrates, seasonal flood flows, and relatively undisturbed riparian habitat and upland benches for foraging and dispersal. The protection of this area is essential to maintaining the complete genetic variability of the species and the full range of ecological settings within which it is found, which is essential to the ability of the arroyo toad to adapt to changing environmental conditions. For these reasons we have determined this unit to be essential to the conservation of the species. Military operations (including occasional troop movements and weed control) in and near the riparian zone may create the need for special management considerations in this unit.

Unit 2: Sisquoc River, Santa Barbara County

Unit 2 consists of approximately 22 mi (36 km) of the Sisquoc River and adjacent uplands, from the vicinity of Abel Canyon Campground downstream to the confluence with La Brea Creek. The unit encompasses approximately 4,800 ac (1,942 ha) of which 61 percent is private land and 39 percent is within the Los Padres National Forest. Upper stretches of the river are within the National Forest and mostly within the San Rafael Wilderness Area. Below the National Forest boundary, the river and adjacent uplands are on rural, private lands. This long, undammed stream is occupied arroyo toad habitat and is one of the few remaining major rivers in southern California with a natural flow regime. Arroyo toads were known to occur within this area at the time the species was listed and have been found during recent surveys. This area

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