Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Arroyo Toad

Federal RegisterFeb 9, 2011

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2009-0069; MO 92210-0-0009-B4]

RIN 1018-AV89

Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Arroyo Toad

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

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

Anaxyrus californicus, Bufo californicus

). We are designating approximately 98,366 acres (ac) (39,807 hectares (ha)) of habitat in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties, California, as critical habitat for the arroyo toad. This final revised designation constitutes an increase of approximately 86,671 ac (35,074 ha) from the 2005 designation of critical habitat for the arroyo toad. A taxonomic name change has occurred and been accepted for the arroyo toad. Throughout the remainder of this document we will use the currently recognized name for the listed entity,

Anaxyrus californicus,

for references to the arroyo toad.

DATES:

This rule becomes effective on March 11, 2011.

ADDRESSES:

The final rule, final economic analysis, and map of critical habitat will be available on the Internet at

http://www.regulations.gov

at Docket No. FWS-R8-ES-2009-0069,

http://www.fws.gov/ventura/

, and

http://www.fws.gov/carlsbad/.

Comments and materials received, as well as supporting documentation used in preparing this final rule, will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone 805-644-1766; facsimile 805-644-3958.

FOR FURTHER INFORMATION CONTACT:

Diane Noda, Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (

see

ADDRESSES

section) or Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-9624. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

We intend to discuss only those topics directly relevant to the designation of revised critical habitat for the arroyo toad under the Endangered Species Act, as amended (16 U.S.C. 1531

et seq.

), in this final rule. For more information on the taxonomy, biology, and ecology of the arroyo toad, refer to the final listing rule published in the

Federal Register

on December 16, 1994 (59 FR 64859); the final critical habitat rule published in the

Federal Register

on February 7, 2001 (66 FR 9414); the final revised critical habitat rule published in the

Federal Register

on April 13, 2005 (70 FR 19562); and the proposed revised critical habitat rule published in the

Federal Register

on October 13, 2009 (74 FR 52612). Additionally, information on this species can be found in the Recovery Plan for the Arroyo Southwestern Toad (

Bufo microscaphus californicus

) finalized on July 24, 1999 (Service 1999). The nomenclature for the listed entity has changed to “arroyo toad (

Anaxyrus californicus

)” but this change does not alter the description or distribution of the animals.

Change in Taxonomic Nomenclature

When we made the proposed revised critical habitat for the arroyo toad available on October 13, 2009 (74 FR 52612), we proposed a nomenclature change to the arroyo toad from

Bufo californicus

Anaxyrus californicus

and for that change to be published in the Code of Federal Regulations (CFR). Based on the information presented in the proposed revised rule (

see Taxonomy and Nomenclature

of the proposed rule (74 FR 52612; October 13, 2009)) and acceptance by the scientific community, we make that change and are amending the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to identify the listed entity as “arroyo toad (

Anaxyrus californicus

).”

New Information on Species' Description, Life History, Ecology, Habitat and Range

We did not receive any new information pertaining to the description, ecology, or habitat of the arroyo toad following the 2009 proposed rule to revise critical habitat (74 FR 52612; October 13, 2009). However, the following paragraphs discuss new information that we received regarding the species' life history and status, and the areas needed for arroyo toad conservation.

Life History

The following additional information and clarifications on the life history of the arroyo toad are based on comments from peer reviewers (

see

Peer Review

section below) received on the proposed revised rule (74 FR 52612; October 13, 2009).

We stated in the revised proposed rule that most arroyo toads become sexually mature in the spring following metamorphosis. However, we should clarify that unlike males, female arroyo toads generally do not become sexually mature until 2 years of age (Sweet 1992, p. 52).

In the proposed revised rule, we stated that arroyo toads need breeding pools that are less than 12 inches (in.) (30 centimeters (cm)) deep. However, a peer reviewer pointed out that pools “less than 12 in. (30 cm) deep” may not include any suitable breeding habitat in some cases. Breeding pools need a band of current-free water near the shoreline that is 2 to 4 feet (ft) (0.6 to 1.2 meters (m)) wide and less than 4 in. (10 cm) deep. The peer reviewer has found that arroyo toad egg clutches are laid entirely or mostly in water less than 4 in. (10 cm) deep with minimal current velocity because egg strands are not attached to any substrate features and can be swept away by even very small currents. Additionally, egg strands or portions of strands that end up in water over about 6 in. (15 cm) deep are often attacked by fungus and fail to hatch (Sweet 1992, p. 57). Based on the above information, we now specify that arroyo toads need breeding pools that are no more than 6 in. (15 cm) deep. We have also made changes as appropriate to the primary constituent elements (PCEs) in this final rule (

see

the “

Primary Constituent Elements for the Arroyo Toad”

section below). For more life history information, please

see

the “

Life History”

section in the proposed revised critical habitat designation published in the

Federal Register

on October 13, 2009 (74 FR 52612).

Reasons for Decline and Threats

Comments we received on the proposed revised rule (74 FR 52612; October 13, 2009) provided additional information and clarifications on threats to the arroyo toad.

In the 2009 proposed rule under the “

Reasons for Decline and Threats”

section, we stated that the introduction of aquatic species not native to southern California watercourses has been facilitated by construction of the California Aqueduct and other sources of inter-basin water transport (Service 1999, p. 48). We also stated that

currently, the California Aqueduct is linked directly to the Santa Ynez River, Santa Clara River, San Jacinto River, and Mojave River Basins. However, one peer reviewer noted that the Santa Ynez River is connected to the California Aqueduct only via many tens of kilometers of buried pipeline, with numerous pump stations. It is far less likely that macroscopic, nonnative organisms will survive such transport than is the case for the Santa Clara, San Jacinto and Mojave drainage connectors, so the threat posed to the San Ynez River populations from aqueduct transfer is not of the same order of magnitude as for the other systems.

In the 2009 proposed rule under the “

Reasons for Decline and Threats”

section, we also noted that nonnative species that compete for resources with or prey on arroyo toads pose a serious threat to arroyo toads. Nonnative amphibians, such as bullfrogs (

Lithobates catesbeianus

) and African clawed frogs (

Xenopus laevis

), are known to feed on arroyo toads at various life stages (Ramirez 2007, p. 102). Arroyo toad tadpoles are also subject to predation by introduced fish species, especially green sunfish (

Lepomis cyanellus

) and prickly sculpin (

Cottus asper

), whereas mosquitofish (

Gambusia affinis

) and crayfish (

Procambarus clarkii

) have been observed to prey on arroyo toad eggs in addition to tadpoles. The presence of deep and persistent pools during summer and fall constitute a threat to arroyo toads because such pools provide refuge and breeding habitat for nonnative predators such as crayfish, various warm-water fish species, African clawed frogs, and bullfrogs. Artificially sustained flow regimes and activities that create ponds (including the introduction of beaver (

Castor canadensis

) into central and southern coastal montane regions) make habitat more suitable for bullfrogs and African clawed frogs than for arroyo toads (Sweet 1992, p. 156). For example, the presence of bullfrogs is an indicator of how the natural hydrology of a stream drainage has been altered. Bullfrog tadpoles mature more slowly than arroyo toads and many other amphibians and require permanent water for a full year (Hecnar and M'Closkey 1997, p.146), whereas arroyo toads are essentially a terrestrial species and need aquatic habitats with shallow pools and minimal current only during the breeding season. In stream habitats with pools that predominately persist through the summer and then dry up by the fall, arroyo toads would be at an advantage in comparison to nonnative species. In a modified system with deep pools that persist year-round, both species must rely on the same habitat for breeding, even though their biological needs differ, which allows bullfrogs more opportunity to prey on essentially all life stages of arroyo toads.

We have also received new information on the threat that feral pigs (

Sus scrofa

) pose not only to amphibians in general, but in particular to arroyo toads in critical habitat units 15, 16, 17, and 18. The Forest Service is studying the effects of feral pigs in the San Diego River where pigs were released approximately 3 years ago on tribal lands. According to a forest biologist on the Cleveland National Forest, feral pigs have now spread as far north as Lake Henshaw and east into Cuyamaca State Park, possibly into the San Luis Rey River, San Vincente Creek, and Sweetwater River (Winter

in litt.

2010). In a recent study by Jolley

et al.

(2010, p. 519), wild pigs were found to negatively affect almost all aspects of ecosystem structure and function. Their rooting disturbs soil layers and natural decomposition cycles. Typically traveling in groups, areas where pigs have rooted appear as if rototilled, leaving large areas of bare earth that can be easily colonized by invasive weeds. In addition to rooting and habitat alteration, wild pigs prey on reptiles and amphibians, although the extent of predation has not been quantified (Jolley

et al.

2010, p. 520).

In recent decades, large fires in the West have become more frequent, more widespread, and potentially more deadly (Joint Fire Science Program (JFSP) 2007, pp. 1-12). Wildfire has always been a periodic visitor to southern California forests, as part of the cycle of natural dynamics that influences the composition of our forests (JFSP 2007, p. 1). However, recently there has been a shift to more severe fires in some locations and wildfire effects are often exacerbated by drought and insect attack. In addition, fire suppression activities such as fire line construction, hand line construction, bulldozing, water withdrawal using helicopters and pumps, backfiring, and fire camp and safety zone construction pose a threat to the arroyo toad.

Direct mortality to arroyo toads can result from construction of fuelbreaks and safety zones in stream terraces where arroyo toads are burrowed. Bulldozing operations can also severely degrade other essential upland habitats. For example, in response to the Zaca Fire that occurred on the Los Padres National Forest in 2007, a number of broad fuelbreaks and safety zones were bulldozed in several areas, including the lower portions of Mono and Indian Creeks (Sweet 2007a, pp. 1-9; 2007b, p. 1). Based on research along Mono and Indian Creeks prior to the fire (Sweet 1992, pp. 1-198; 1993, pp. 1-73), juvenile and adult arroyo toads were known to make extensive use of the stream terraces where several of the fuelbreaks and safety zones were constructed. In August and September of 2007 when construction occurred, a large proportion of the population would have been within burrows on the terraces and any toads that were in those burrows were very likely killed by the bulldozing (Sweet 2007a, p. 1). In addition to causing direct mortality, Sweet (2007a, p. 1) reported that the bulldozing operations severely degraded essential upland habitat by removing shade and the opportunity for toads to select microclimates based on soil temperature, moisture content, and ground cover. The bulldozing also created substantial barriers to toad movement through the placement of large piles of woody debris between the creek bed and the terraces. This formed ideal conditions for the terraces to become invaded by nonnative weeds, in particular yellow star thistle (

Centaurea solstitialis

), and thus created unsuitable habitat for arroyo toads because they are unable to dig burrows for shelter or aestivation in terraces where yellow star thistle is well-established (Sweet 2007a, p. 1). Based on the above information, we believe arroyo toads suffer direct mortality and habitat loss from fire suppression activities.

Previous Federal Action

On July 20, 2007 (Service 2007, pp. 1-2), we announced that we would review the April 13, 2005, final rule after questions were raised about the integrity of scientific information used and whether the decision made was consistent with the appropriate legal standards. Based on our review of the previous final critical habitat designation, we determined it was necessary to revise critical habitat, and we published a proposal to revise the designation on October 13, 2009 (74 FR 52612). Additionally, on December 19, 2007, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Southern District of California challenging our 2005 designation of critical habitat for the arroyo toad (

Center for Biological Diversity

U.S. Fish and Wildlife Service,

Case No. 07-2380-JM-AJB). On June 5, 2008, the court entered a consent decree requiring a proposed revised critical habitat rule to be submitted to the

Federal Register

by October 1, 2009,

and a final revised critical habitat designation to be submitted to the

Federal Register

by October 1, 2010. On June 29, 2010, we published in the

Federal Register

a notice reopening the comment period on the proposed rule and making available the draft economic analysis (75 FR 37358). On August 10, 2010, the U.S. District Court granted a motion to modify the stipulated settlement agreement to submit the final revised critical habitat determination to the

Federal Register

on January 21, 2011. For more information on previous Federal actions concerning the arroyo toad, refer to the proposed revisions to critical habitat published in the

Federal Register

on October 13, 2009 (74 FR 52612).

Summary of Changes From the 2005 Critical Habitat Designation

On April 28, 2004 (69 FR 23254), we proposed to designate 138,713 ac (56,133 ha) of critical habitat for the arroyo toad in 23 units. On April 13, 2005 (70 FR 19562), we designated approximately 11,695 ac (4,733 ha) of critical habitat for the arroyo toad in six units. We proposed to revise this designation to approximately 109,110 ac (44,155 ha) in 22 units on October 13, 2009 (74 FR 52612). This final revised critical habitat designation includes approximately 98,366 ac (39,807 ha) in 21 units, after excluding portions of Units/Subunits 6b, 8, 9, 10a, 10b, 11a, 13b, 13c, 14, 15, 16d, 17a, 18c, and 19a (approximately 11,697 ac (4,734 ha)) based on consideration of economic, national security, and other relevant impacts (

see

Exclusions Under Section 4(b)(2) of the Act

section below). The areas identified in this final revised rule constitute revisions of areas excluded and designated as critical habitat for the arroyo toad on April 13, 2005 (70 FR 19562; Figure 1), and proposed revisions to that rule published on October 13, 2009 (74 FR 52612). This final revised critical habitat designation includes approximately 98,366 ac (39,807 ha) of land in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties, California. Table 1 below outlines the differences between the 2005 final critical habitat rule (70 FR 19562; April 13, 2005), the 2009 proposed revisions to the critical habitat designation (74 FR 52612; October 13, 2009), and this final revised critical habitat designation for the arroyo toad. For more information on the differences between the 2005 critical habitat rule and the 2009 proposed revised critical habitat rule, please

see

the

Summary of Changes From Previously Designated Critical Habitat

section of the proposed revised critical habitat rule published in the

Federal Register

on October 13, 2009 (74 FR 52612).

Table 1—Changes Between the April 13, 2005, Arroyo Toad Revised Critical Habitat Designation; the October 13, 2009 and the June 29, 2010, Proposed Revised Designation; and This Revised Final designation. Acreage Values Are Approximate and May Not Total Due to Rounding

Critical habitat unit

in this final rule

County

2005 Designation of revised critical habitat and ac (ha)

2009 and 2010 Proposed

revisions to the critical

habitat designation and ac (ha)

2010 Final revised critical habitat designation and ac (ha)

1. San Antonio River

Monterey

Entire Unit excluded under 4(b)(2) for national security reasons

Entire Unit exempted under 4(a)(3)

Entire Unit exempted under 4(a)(3).

2. Sisquoc River

Santa Barbara

Designated as Unit 2: 4,800 (1,942)

Included as Unit 2: 3,775 (1,528)

Designated as Unit 2: 3,775 (1,528).

3. Upper Santa Ynez River Basin

Santa Barbara

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 3: 3,032 (1,227)

Designated as Unit 3: 3,032 (1,227).

4. Sespe Creek

Ventura

Designated as Unit 4: 4,008 (1,622)

Included as Unit 4: 2,760 (1,117)

Designated as Unit 4: 2,760 (1,117).

5. Piru Creek

Ventura

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 5: 2,507 (1,015)

Designated as Unit 5: 2,507 (1,015).

5a.

Included as Subunit 5a: 1,358 (550)

Designated as Subunit 5a: 1,358 (550).

5b.

Included as Subunit 5b: 1,149 (465)

Designated as Subunit 5b: 1,149 (465).

6. Upper Santa Clara River Basin

Los Angeles

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 6: 3,795 (1,537)

Designated as Unit 6: 2,802 (1,134).

6a.

Included as Subunit 6a: 520 (210)

Designated as Subunit 6a: 520 (210).

6b.

Included as Subunit 6b: 1,995 (807)

Designated as Subunit 6b: 1,003 (406).

6c.

Included as subunit 6c: 1,279 (518)

Designated as Subunit 6c: 1,279 (518).

7. Upper Los Angeles River Basin

Los Angeles

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 7: 1,190 (482)

Designated as Unit 7: 1,190 (482).

8. Lower Santa Ana River Basin

Orange

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 8: 2,182 (883)

Designated as Unit 8: 737 (298).

9. San Jacinto River Basin

Riverside

Designated as Unit 9: 700 (283)

Included as Unit 9: 2,406 (974)

Designated as Unit 9: 2,391 (968).

9a.

Included as Subunit 9a: 1,226 (496)

Designated as Subunit 9a: 1,226 (496).

9b.

Included as Subunit 9b: 1,180 (478)

Designated as Subunit 9b: 1,166 (472).

10. San Juan Creek Basin

Orange, Riverside

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 10: 5,667 (2,293)

Designated as Unit 10: 3,496 (1,415).

10a.

Included as Subunit 10a: 4,728 (1,913)

Designated as Subunit 10a: 3,096 (1,253).

10b.

Included as Subunit 10b: 939 (380)

Designated as Subunit 10b: 399 (161).

11. San Mateo Creek Basin

Orange, San Diego

Entire Unit either excluded under 4(b)(2) for economic reasons or exempted under 4(a)(3)

Included as Unit 11: 1,878 (758)

Designated as Unit 11: 1,820 (737).

11a.

Included as Subunit 11a: 1,034 (418)

Designated as Subunit 11a: 975 (395).

11b.

Included as Subunit 11b: 844 (341)

Designated as Subunit 11b: 844 (341).

12. Lower Santa Margarita River Basin

San Diego

Entire Unit either excluded under 4(b)(2) for economic reasons or exempted under 4(a)(3)

Included as Unit 12: 1,009 (408)

Designated as Unit 12: 1,009 (408).

12a.

Included as Subunit 12a: 394 (159)

Designated as Subunit 12a: 394 (159).

12b.

Included as Subunit 12b: 615 (248)

Designated as Subunit 12b: 615 (248).

13. Upper Santa Margarita River Basin

Riverside, San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 13: 8,137 (3,293)

Designated as Unit 13: 7,863 (3,182).

13a.

Included as Subunit 13a: 1,155 (467)

Designated as Subunit 13a: 1,155 (467).

13b.

Included as Subunit 13b: 4,756 (1,925)

Designated as Subunit 13b: 4,731 (1,914).

13c.

Included as Subunit 13c: 2,226 (901)

Designated as Subunit 13c: 1,977 (800).

14. Lower and Middle San Luis Rey River Basin

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 14: 12,906 (5,223)

Designated as Unit 14: 10,115 (4,093).

15. Upper San Luis Rey River Basin

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 15: 12,977 (5,252)

Designated as Unit 15: 8,368 (3,336).

16. Santa Ysabel Creek Basin

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 16: 15,494 (6,270)

Designated as Unit 16: 15,370 (6,220).

16a.

Included as Subunit 16a: 13,967 (5,652)

Designated as Subunit 16a: 13,865 (5,611).

16d.

Included as Subunit 16d: 1,527 (618)

Designated as Subunit 16d: 1,504 (609).

17. San Diego River Basin/San Vicente Creek

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 17: 4,263 (1,725)

Designated as Unit 17: 4,171 (1,688).

17a.

Included as Subunit 17a: 1,241 (502)

Designated as Subunit 17a: 1,149 (465).

17b.

Included as Subunit 17b: 1,865 (755)

Designated as Subunit 17b: 1,865 (754).

17d.

Included as Subunit 17d: 1,158 (469)

Designated as Subunit 17d: 1,158 (469).

18. Sweetwater River Basin

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 18: 4,783 (1,936)

Designated as Unit 18: 4,624 (1,871).

18a.

Included as Subunit 18a: 4,156 (1,682)

Designated as Subunit 18a: 4,156 (1,682).

18c.

Included as Subunit 18c: 627 (254)

Designated as Subunit 18c: 470 (189).

19. Cottonwood Creek Basin

San Diego

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 19: 14,375 (5,817)

Designated as Unit 19: 14,344 (5,804).

19a.

Included as Subunit 19a: 5,847 (2,366)

Designated as Subunit 19a: 5,816 (2,353).

19b.

Included as Subunit 19b: 5,129 (2,076)

Designated as Subunit 19b: 5,129 (2,076).

19c.

Included as Subunit 19c: 1,511 (611)

Designated as Subunit 19c: 1,511 (611).

19d.

Included as Subunit 19d: 938 (380)

Designated as Subunit 19d: 938 (380).

19e.

Included as Subunit 19e: 950 (384)

Designated as Subunit 19e: 950 (384).

20. Upper Santa Ana River Basin/Cajon Wash

San Bernardino

Designated as Unit 20: 1,119 (453)

Included as Unit 20: 1,775 (718)

Designated as Unit 20: 1,775 (718).

21. Little Rock Creek Basin

Los Angeles

Designated as Unit 21: 734 (297)

Included as Unit 21: 612 (248)

Designated as Unit 21: 612 (248).

22. Upper Mojave River Basin

San Bernardino

Entire Unit excluded under 4(b)(2) for economic reasons

Included as Unit 22: 5,919 (2,395)

Designated as Unit 22: 5,602 (2,267).

22a.

Included as Subunit 22a: 5,684 (2,300)

Designated as Subunit 22a: 5,602 (2,267).

22c.

Included as Subunit 22c: 235 (95)

Entire Subunit removed—does not meet the definition of critical habitat.

23. Whitewater River Basin

Riverside

Designated as Unit 23: 333 (135)

Included as Unit 23: 1,355 (548)

Entire Unit removed—does not meet the definition of critical habitat.

Total *

11,695 (4,733)

112,765 (45,634)

98,366 (39,807)

* Values in table may not sum due to rounding.

Summary of Changes From the 2009 Proposed Rule To Revise Critical Habitat

The most significant changes between the October 2009 proposed revision and this final revised rule are outlined in Table 1 above and include:

(1) In the document making available the draft economic analysis of revised critical habitat designation for the Arroyo toad (DEA) (75 FR 37358; June 29, 2010), we stated we were considering exclusion of the entirety of Subunit 6b from critical habitat based on the many conservation measures included in the Natural River Management Plan that protect the arroyo toad and its habitat on Newhall Ranch lands in Subunit 6b, the conservation easement lands that have already been conveyed to California Department of Fish and Game (CDFG) and are planned in the future in this subunit, and the valuable conservation partnership we have developed over the years with Newhall Ranch. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion for the lands covered by the conservation easements already conveyed to the CDFG and exclusion of these lands will not result in extinction of the species. Therefore, the Secretary is exercising his discretion to exclude approximately 330 ac (134 ha) of private land in Unit 6 under section 4(b)(2) of the Act (

see

Exclusions Under Section 4(b)(2) of the Act

section below).

(2) In the proposed revised critical habitat rule (74 FR 52612), we erroneously identified some of the upland habitat areas bordering the river corridors of the Santa Clara River and Castaic Creek as critical habitat in Subunit 6b. Upon closer examination, we have found that little of these lands remain as native habitats that would be useable as foraging areas by arroyo toads because these lands are either developed, used for intensive agriculture, or inaccessible to arroyo toads due to busy roads or steep slopes. We now find that these areas do not contain the physical or biological features that are essential to the conservation of the arroyo toad, and therefore we have removed approximately 662 ac (268 ha) from Subunit 6b.

(3) In the 2009 proposed revised rule, we included lands that encompass Santiago Creek from just below the confluence with Black Star Creek downstream to Irvine Lake in Unit 8. Following public comment, we reevaluated this area and determined that this area is unsuitable for arroyo toads because water from Irvine Lake frequently backs up into this area and creates conditions favorable for arroyo toad predators, and therefore it does not contain the physical or biological features essential to the conservation of the arroyo toad. Additionally, we removed other areas that do not contain the physical or biological features such as developed areas and roads. Therefore, we removed approximately 185 ac (75 ha) from Unit 8.

(4) In the 2009 proposed revised rule, we stated we were considering lands owned by or under the jurisdiction of the permittees of the Orange County Central-Coastal Subregional NCCP/HCP (Orange County Central-Coastal NCCP/HCP) and 670 ac (271 ha) of land in the associated North Ranch Policy Plan Area (NRPPA) for exclusion under section 4(b)(2) of the Act. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of these lands and the exclusion will not result in extinction of the species. Therefore, the Secretary is exercising his discretion to exclude a total of approximately 1,259 ac (508 ha) of land covered by the Orange County Central-Coastal NCCP/HCP plan area (including those lands associated with the NRPPA) in Unit 8 in this final designation. For a complete

discussion of the benefits of inclusion and exclusion

see

Exclusions Under Section 4(b)(2) of the Act

section below.

(5) In the 2009 proposed revised rule, we stated we were considering lands owned by or under the jurisdiction of the permittees of the Southern Orange County Natural Community Conservation Plan (NCCP)/Master Streambed Alteration Agreement/HCP (Southern Orange HCP), now known as the Orange County Southern Subregion HCP, for exclusion under section 4(b)(2) of the Act. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of lands conserved and managed by Orange County Southern Subregion HCP permittees and the exclusion will not result in extinction of the species. Therefore, the Secretary is exercising his discretion to exclude approximately 2,179 ac (882 ha) of lands conserved and managed consistent with the Orange County Southern Subregion HCP in Units 10 and 11 in this final designation. For a complete discussion of the benefits of inclusion and exclusion,

see

Exclusions Under Section 4(b)(2) of the Act

section below.

(6) In the 2009 proposed revised rule, we erroneously identified some areas as critical habitat in Subunit 10b. Upon closer examination, we determined that approximately 31 ac (13 ha) are developed (such as highways or buildings) and do not contain the physical or biological features essential to the conservation of the arroyo toad. Therefore, we removed these areas from Subunit 10b.

(7) In the 2009 proposed revised rule, we inadvertently included approximately 20 ac (8 ha) of land within Marine Corps Base Camp Pendleton in Subunit 11a. We have now exempted these areas from Subunit 11a. For a complete discussion of exemptions under section 4(a)(3)(B) of the Act,

see

Exemptions

section below.

(8) In the 2009 proposed revised rule, we stated we were considering lands owned by or under the jurisdiction of the permittees of the Western Riverside County Multiple Species Habitat Conservation Plan (Western Riverside County MSHCP) for exclusion under section 4(b)(2) of the Act. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of those lands owned by or under the jurisdiction of Western Riverside County MSHCP permittees that are conserved and managed, and that the exclusion will not result in extinction of the species. Therefore, the Secretary is exercising his discretion to exclude approximately 289 ac (118 ha) of lands conserved and managed consistent with the Western Riverside County MSHCP in Units 9 and 13 in this final designation. For a complete discussion of the benefits of inclusion and exclusion,

see

Exclusions Under Section 4(b)(2) of the Act

section below.

(9) In the 2009 proposed revised rule, we included approximately 57 ac (23 ha) of lands that fall within the Meadowwood project site (within Unit 14) north of State Route 76 along the San Luis Rey River in San Diego County. Following public comment, we reevaluated this area and determined that it does not contain suitable breeding or aestivation habitat and therefore does not contain the physical or biological features essential to the conservation of the arroyo toad. Thus, we removed these areas from critical habitat. We did not remove all lands north of State Route 76, as arroyo toads may access these other areas via Horse Ranch Creek, which flows underneath State Route 76 and connects with the San Luis Rey River.

(10) In the 2009 proposed revised rule, we erroneously identified some areas as critical habitat in Subunit 16a. Upon closer examination, we determined that approximately 101 ac (40 ha) do not contain the physical or biological features essential to the conservation of the arroyo toad, as these lands are developed and, in one area, the mapping did not accurately follow the boundaries of the essential features and does not contain suitable habitat. Therefore, we removed these areas from Subunit 16a.

(11) In the proposed revised rule, we stated we were considering excluding 4,046 ac (1,636 ha) of arroyo toad habitat in Units 14, 16, 17, and 18 under section 4(b)(2) of the Act. These areas overlap with tribal lands that are owned or managed by the following tribes: The Rincon Band of Luiseño Mission Indians of the Rincon Reservation (Rincon Band of Luiseño Mission Indians); the Pala Band of Luiseño Mission Indians of the Pala Reservation (Pala Band of Luiseño Mission Indians); Sycuan Band of the Kumeyaay Nation; the Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation (Mesa Grande Band of Diegueno Mission Indians); and the Barona Group of Capitan Grande Band of Mission Indians and the Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians, which jointly manage the Capitan Grande Band of Diegueno Mission Indians Reservation (Capitan Grande Reservation). We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of some of these tribal lands (

i.e.,

tribal trust lands and those off-reservation lands (fee-owned) within the Sycuan Band of the Kumeyaay Nation that are currently in the process of being transferred to trust) and the exclusion will not result in extinction of the species. We have not concluded that the benefits of exclusion outweigh the benefits of inclusion for the remaining 1,046 ac (423 ha) of off-reservation, fee-owned lands, and these lands are included in this final revised critical habitat designation (included in Table 2 within the private land ownership totals). Therefore, the Secretary is exercising his discretion under section 4(b)(2) of the Act to exclude a total of 3,000 ac (1,214 ha) as follows: 2,733 ac (1,103 ha) of tribal lands in Unit 14; 23 ac (9 ha) in Unit 16; 92 ac (37 ha) in Unit 17; and 152 ac (62 ha) in Unit 18 based on our government-to-government relationship with the tribes, and impacts to current and future partnerships with the affected tribes and other tribes we coordinate with on threatened and endangered species issues (

see

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

section below).

(12) In the 2009 proposed revised rule, we stated we were considering lands owned by or under the jurisdiction of the permittees of the San Diego Multiple Species Conservation Program (MSCP) for exclusion under section 4(b)(2) of the Act. After considering the relevant impacts, the Secretary is declining to exercise his discretion to exclude these lands. Therefore, we included approximately 9,339 ac (3,779 ha) of land owned by or under the jurisdiction of the permittees of the San Diego MSCP in Units 16, 17, 18 and 19 in this final designation.

(13) In the 2009 proposed revised rule, we erroneously identified some areas as critical habitat in Subunit 18c. Upon closer examination, we determined that a road exists on approximately 6 ac (2 ha), and we have determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad. Therefore, we removed these areas from Subunit 18c.

(14) In the document that made available the draft economic analysis of revised critical habitat designation for the Arroyo Toad (DEA) published in the

Federal Register

on June 29, 2010 (75 FR 37358), we stated we were considering exclusion of the Department of Defense (DOD) Remote Training Site Warner Springs and Camp Morena from critical habitat designation for reasons of national security. We have now made a final determination that the benefits of exclusion outweigh the benefits of

inclusion for these lands and exclusion of these lands will not result in extinction of the species. Therefore, the Secretary is exercising his discretion to exclude approximately 4,640 ac (1,878 ha) of Bureau of Land Management (BLM) and U.S. Forest Service (Forest Service) lands leased to the DOD in Unit 15 and Unit 19 for reasons of national security under section 4(b)(2) of the Act (

see

Exclusions Under Section 4(b)(2) of the Act—Impacts to National Security

section below).

(15) Based on information submitted by Summit Valley Ranch during the initial public comment period from October 13, 2009, to December 14, 2009, we removed approximately 82 ac (33 ha) of private land from Subunit 22a. The lands in question are located north of State Road 138 on Summit Valley Ranch, San Bernardino County. We included this area in the proposed revised critical habitat designation because we believed it contained suitable upland habitat for arroyo toads; however, it has come to our attention that: (1) Surveys have never detected arroyo toads in the area, (2) the area lacks the PCEs for the arroyo toad, and (3) State Route 138 serves as a barrier for arroyo toads to disperse into the area. Consequently, we determined that the area north of State Route 138 does not contain the physical or biological features essential to the conservation of arroyo toads and, therefore, does not meet the definition of critical habitat for the arroyo toad.

(16) We removed Subunit 22c (approximately 234 ac (95 ha)) from the final revised critical habitat designation. Subunit 22c is within the geographical area occupied by the species at the time of listing; however, this subunit was erroneously included in the 2009 revised proposed rule (74 FR 52612; October 13, 2009). Although we were not aware of this issue when we published the proposed rule, the existence of Cedar Springs Dam upstream of this subunit has altered the hydrology of the 1-mile (1.6 km) reach of the upper West Fork of the Mojave River to the upper end of Silverwood Lake to such an extent that it does not contain the features essential to the conservation of the species and, therefore, does not meet the definition of critical habitat for the arroyo toad.

(17) We removed lands within the jurisdiction of the Coachella Valley Multiple Species Conservation Plan (Coachella Valley MSHCP; Unit 23 (approximately 1,355 ac (548 ha)) from the final revised critical habitat designation. This unit was erroneously included in the proposed revised rule (74 FR 52612; October 13, 2009). Following examination of data used to map Unit 23 in the proposed rule and discussions with species experts regarding identification records, we determined that these records are not arroyo toads and do not support a determination that this area meets the definition of critical habitat. Therefore, Unit 23 is not included in this final revised critical habitat rule.

(18) A number of comments we received suggested editorial changes and technical corrections to sections of the rule pertaining to the

Background

and “

Criteria Used To Identify Critical Habitat”

sections of our proposed revised rule. These changes were recommended to improve clarity, include additional information, and correct minor errors. They have been incorporated into this final revised rule where appropriate.

(19) In the document making available the draft economic analysis (75 FR 37358; June 29, 2010), we added approximately 1,068 ac (432 ha) to proposed Subunit 11b, approximately 951 ac (385 ha) to proposed Unit 15, approximately 1,831 ac (741 ha) to proposed Subunit 16a, and approximately 96 ac (39 ha) to proposed Subunit 16d. For a complete discussion of these revisions,

see

Changes to Proposed Revised Critical Habitat

in the document making available the draft economic analysis (75 FR 37358; June 29, 2010).

(20) To prepare final critical habitat maps, we overlay maps of those lands we are excluding from this critical habitat designation on polygons that were used to delineate the areas proposed as critical habitat. This process can leave small fragments (generally less than an acre and not contiguous with designated critical habitat) of a proposed critical habitat unit or subunit that are not included in the excluded acreage but are instead removed due to discrepancies in the mapping process (such as differences in GIS layers that are mapped at different scales). These fragments in Unit 8, Subunit 10a, and Unit 14 were not included in the final revised critical habitat designation. As a result, the sum of the areas designated and excluded is slightly reduced in this final revised critical habitat designation compared to the size of the total proposed designation due to removal of these small artifacts or fragments created by the mapping discrepancies.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research; census; law enforcement; habitat acquisition and maintenance; propagation; live trapping and transplantation; and in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing activities that are likely to result in the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect 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 the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner seeks or requests Federal agency funding or authorization of an activity that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation under section 7(a)(2) of the Act is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, habitat within the

geographical area occupied by the species at the time it was listed must contain the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.

Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential for the conservation of the species and may be included in the critical habitat designation.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species and any previous designations of critical habitat. Additional information sources may include the recovery plan for the species, 5-year reviews for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity conservation because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah

et al.

2005, p.4). Current climate change predictions for terrestrial areas in the Northern Hemisphere indicate warmer air temperatures, more intense precipitation events, and increased summer continental drying (Field

et al.

1999, pp. 1-3; Hayhoe

et al.

2004, p. 12422; Cayan

et al.

2005, p. 6; Intergovernmental Panel on Climate Change 2007, p. 11; Cayan

et al.

2009, p. xi). However, predictions of climatic conditions for smaller sub-regions, such as California, remain uncertain. It is unknown at this time if climate change in California will result in a warmer trend with localized drying, higher precipitation events, or other conditions. Thus, the information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. Nor are we currently aware of any climate change information specific to the habitat of the arroyo toad that would indicate what areas may become important to the species in the future. Therefore, we are unable to determine what additional areas, if any, may be appropriate to include in the revised critical habitat for this species. Additionally, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated critical habitat area is unimportant or may not be required for recovery of the species.

Areas that are important to the conservation of the arroyo toad, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. 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 (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical and Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12 (b), in determining which areas within the geographical area occupied at the time of listing to designate as revised critical habitat, we consider the physical and biological features that are essential to the conservation of the species that may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth, and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, and rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific physical and biological features required for conservation of the arroyo toad from studies of this species' habitat, ecology,

and life history, as described below and in proposed revisions to critical habitat published in the

Federal Register

on October 13, 2009 (74 FR 52612). We have determined that the arroyo toad requires the following physical and biological features:

Space for Individual and Population Growth, and for Normal Behavior

The arroyo toad is found along medium-to-large streams in coastal and desert drainages in central and southern California, and Baja California, Mexico. It occupies aquatic, riparian, and upland habitats in a number of the remaining suitable drainages within its range. Suitable habitat for the arroyo toad is created and maintained by the fluctuating hydrological, geological, and ecological processes that naturally occur in riparian ecosystems and adjacent uplands (Campbell

et al.

1996, pp. 13-15; Sweet 1992, 1993

Service 1999, p. 39). 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 (Campbell

et al.

1996, p. 13; Sweet 1992, 1993

Service 1999, p. 39). This natural flooding regime helps maintain areas of open, sparsely vegetated, sandy stream channels and terraces.

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 of the arroyo toad (Campbell

et al.

1996, p. 12; Sweet 1992

Service 1999, pp. 32-34). Arroyo toads breed in the quiet margins of open streams and avoid sites with deep or swift water, tree canopy cover, or steeply incised banks. Larvae occupy shallow areas of open streambeds on substrates ranging from silt to cobble, with preferences for sand or gravel. Newly metamorphosed arroyo toads and juveniles remain on sparsely vegetated sand and gravel bars bordering the natal pool for 3 to 5 weeks (Sweet 1992, p. 52).

Arroyo toads must be able to move between the stream and upland foraging sites, as well as up and down the stream corridor. Juveniles and adult arroyo toads require and spend much of their lives in riparian and upland habitats adjacent to breeding locations (Campbell

et al.

1996, p. 12). Riparian habitats used for foraging and burrowing include sand bars, alluvial terraces, and streamside benches that lack vegetation, or are sparsely to moderately vegetated. Upland habitats used by arroyo toads during both the breeding and non-breeding seasons include alluvial scrub, coastal sage scrub, chaparral, grassland, and oak woodland.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Arroyo toad tadpoles eat microscopic algae, bacteria, and protozoans consumed from the spaces among pebbles, gravel, and sand, or abraded from stones (Sweet 1992, p. 82). Juveniles and adults eat insects, although ants are preferred. When foraging, arroyo toads are often found around the drip lines of oak trees. These areas often lack vegetation, yet have levels of prey that will support arroyo toads. When active at night, toads often are observed near ant trails feeding on ants, beetles, and other prey.

Cover or Shelter

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

in litt.

p. 2).

Sites for Breeding, Reproduction, and Rearing or Development of Offspring

The arroyo toad has specialized breeding habitat requirements. Arroyo toads are unusual in that females deposit their eggs at the male's calling site, rather than the behavior common in other toad species where the female transports the male to a deposition site of her choosing (Sweet 1992, p. 57). Because male toads stand on the substrate to call and their throats must be above water, eggs are laid in very shallow water. Female arroyo toads lay their eggs in water less than 4 in. (10 cm) (Sweet 1992, p. 37) but not greater than 6 in. (15 cm) deep over substrates of sand, gravel, or cobble in open sites such as overflow pools, old flood channels, and shallow pools along streams. These shallow pools are associated with open sand and gravel channels along low-gradient (typically less than 6 percent) reaches of medium-to-large streams (Campbell

et al.

1996, p. 12; Sweet 1992, p. 28). In at least some portions of its range, the species also breeds in smaller streams and canyons where low-gradient breeding sites are more patchily distributed. Streams where arroyo toads breed can have either intermittent or perennial streamflow and typically experience periodic flooding that scours vegetation and replenishes fine sediments. Such habitats rarely have closed canopies over the lower banks of the stream channel due to periodic flood 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.

Because the suitability of breeding pools may vary from year to year due to the dynamics of southern California riparian systems and flood regimes, adult arroyo toads may move up or down stream in search of suitable breeding pools, or not breed in certain years (Campbell

et al.

1996, p. 14). Pools less than 6 in. (15 cm) deep with clear water, 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, pp. 29-37). Breeding pools, especially those formed along intermittent streams, must persist a minimum of 2 months for the completion of larval development (Campbell

et al.

1996, p. 6). When warm rainy conditions occur in January, February, and March, arroyo toads become active and begin to forage on stream terraces and in channel margins. Breeding usually begins in late March at lower elevations but male calling peaks in early to mid-April and extends through late May, sometimes even into late June (Sweet 1992, p. 50). Breeding may occur on several dates at a single site, and eggs may be deposited over a period of 7 to 8 weeks (Campbell

et al.

1996, p. 6; Griffin and Case 2001, p. 634). Although egg strings are laid in very slow-moving water, larvae (tadpoles) can be found in water velocities of up to 1.0 to 1.3 ft per second (30 to 40 cm per second) (Sweet 1992, p. 29). Larvae usually hatch in 4 to 6 days at water temperatures of 54 to 59 degrees Fahrenheit (12 to 16 degrees Celsius) (Sweet 1992, p. 71). Tadpoles disperse from the pool margin into the surrounding shallow water, where they spend an average of 10 weeks (Sweet 1992, p. 50). After metamorphosis, the juvenile arroyo toads remain on the bordering gravel bars until the pool dries out (usually from 8 to 12 weeks depending on the site and rainfall) (Sweet 1992, p. 52).

Primary Constituent Elements for the Arroyo Toad

Under the Act and its implementing regulations, we are required to identify

the physical or biological features essential to the conservation of the arroyo toad in areas occupied at the time of listing (including areas currently occupied that based on biology we believe were likely occupied at the time of listing), focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.

Based on our current knowledge of the biology, and ecology of the species, and the habitat requirements for sustaining the essential life-history functions of the species, we determined the arroyo toad's PCEs 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. Breeding pools must persist a minimum of 2 months for the completion of larval development. However, due to the dynamic nature of southern California riparian systems and flood regimes, the location of suitable breeding pools may vary from year to year. Specifically, the conditions necessary to allow for successful reproduction of arroyo toads are:

• Breeding pools that are less than 6 in (15 cm) deep;

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

• Surface water that lasts for a minimum of 2 months during the breeding season (a sufficient wet period in the spring months to allow arroyo toad larvae to hatch, mature, and metamorphose).

(2) Riparian and adjacent upland habitats, particularly low-gradient (typically less than 6 percent) stream segments and alluvial streamside terraces 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; and adjacent valley bottomlands that include areas of loose soil where toads can burrow underground, to provide foraging and living areas for juvenile and adult arroyo toads.

(3) A natural flooding regime, or one sufficiently corresponding to natural, that: (A) Is characterized by intermittent or near-perennial flow that contributes to the persistence of shallow pools into at least mid-summer; (B) Maintains areas of open, sparsely vegetated, sandy stream channels and terraces by periodically scouring riparian vegetation; and (C) Also modifies stream channels and terraces and redistributes sand and sediment, such that breeding pools and terrace habitats with scattered vegetation are maintained.

(4) Stream channels and adjacent upland habitats that allow for movement to breeding pools, foraging areas, overwintering sites, upstream and downstream dispersal, and connectivity to areas that contain suitable habitat.

In summary, the need for space for individual and population growth and normal behavior is met by PCEs 1 and 4; the need for food, water, and physiological requirements is met by PCE 1; cover and shelter requirements are met by PCE 2; areas for breeding, reproduction, and rearing of offspring are met by PCEs 1, 2, and 3; and habitats representative of the historical, geographical, and ecological distributions of a species are met by PCE 4.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific areas within the geographical area occupied at the time of listing contain the physical or biological features essential to the conservation of the arroyo toad that may require special management considerations or protection.

The area designated as revised critical habitat may require some level of management or protection to address current and future threats to the arroyo toad and maintain the physical and biological features essential to the conservation of the species. Special management may be required in all units to ensure that aquatic and riparian upland habitats provide abundant breeding and non-breeding areas, prey species, shelter, and connectivity within the landscape.

A detailed discussion of threats to the arroyo toad and its habitat can be found in the final listing rule (59 FR 64859, December 16, 1994); the first critical habitat designation (66 FR 9414, February 7, 2001); the previous revised critical habitat designation (70 FR 19562, April 13, 2005); the proposed revised critical habitat designation (74 FR 52612, October 13, 2009); and the 1999 recovery plan (Service 1999, pp. 1-119). Maintaining the physical and biological features essential to the conservation of the arroyo toad may require special management considerations or protection to reduce effects that may result from the following threats, among others: Habitat destruction and alteration due to short- and long-term changes in river hydrology, including construction of dams and water diversions that alter natural water flow regimes; agriculture and urbanization; construction of roads; off-highway vehicle use and other recreational activities; mining activities; introduced nonnative predators (such as bullfrogs and predatory fish); drought; periodic fires and fire suppression activities; unseasonal water releases from dams; livestock grazing; and light and noise pollution from adjacent developments and campgrounds. These threats may cause habitat alteration, degradation, or fragmentation and the direct or indirect loss of arroyo toad eggs, juveniles, or adults.

Criteria Used To Identify Critical Habitat

As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining those areas that, within the geographical area occupied by the species at the time of listing (

see

“

Geographic Range”

section in the 2009 proposed revised critical habitat rule (74 FR 52612)), possess those physical or biological features essential to the conservation of the arroyo toad and which may require special management considerations or protection. We also considered the area outside the geographical area occupied by the species at the time of listing for any areas that are essential for the conservation of the arroyo toad. In designating critical habitat for the arroyo toad, we reviewed the relevant information available, including peer-reviewed journal articles, unpublished reports and materials (such as survey results and expert opinions), the final listing rule, the 2004 proposed critical habitat rule, the arroyo toad recovery plan (Service 1999, pp. 1-119), the 5-year review for the arroyo toad (Service 2009, pp. 1-51), and regional GIS coverages. We analyzed this information to develop criteria for identifying areas that contain the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the arroyo toad that may require special management considerations or protection, or that are essential for the conservation of the arroyo toad. The process we used is described below.

(1) To begin our analysis, we first examined the California Natural Diversity Database (CNDDB) current and historical records to get an indication of the habitat where arroyo toads are present; the CNDDB is a continually refined and updated inventory of location information gathered during species surveys and observations. We then examined the arroyo toad recovery

plan (Service 1999, pp. 1-119), which has a recovery strategy focused on providing sufficient breeding and upland habitat to maintain self-sustaining populations of arroyo toads (defined as populations that require little or no direct human assistance such as captive breeding or rearing, or translocation between sites) throughout the historical range of the species, and on minimizing or eliminating impacts and threats to arroyo toad populations (Service 1999, p. 67). The recovery plan states that in-stream and riparian habitats that support breeding, as well as upland habitats that provide foraging and overwintering habitat, need to be managed to maintain and enhance populations throughout the range of the arroyo toad (Service 1999, p. 68). The recovery plan divides the range of the arroyo toad into three large recovery units—northern, southern, and desert—and we considered the conservation of the arroyo toad in each of these as well as the species as a whole in our analysis. Using the recovery plan as our guide, we analyzed areas within the geographical area occupied by the arroyo toad at the time of listing to determine which areas contained the PCEs laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species (the physical and biological features).

(2) In determining the specific areas containing the essential physical and biological features, based on the recovery plan, 5-year review, previous critical habitat proposals for the arroyo toad, scientific literature, and results of studies that have been conducted since the species was listed, we made sure that we proposed critical habitat that would provide for the conservation of the species. Criteria for critical habitat units we used to assist our process included: (1) Representation of locations throughout the current geographical, elevational, and ecological distribution of the species; (2) maintenance of the appropriate population structure across the species' range; (3) retention or provision of the connectivity between breeding sites that allows for the continued existence of essential metapopulations (a group of subpopulations in somewhat geographically isolated patches, interconnected through patterns of gene flow, extinction, and recolonization (Soule 1987, p. 7), despite fluctuations in the status of subpopulations); and (4) presence of upland habitat around each breeding location to allow for survival and recruitment to maintain a breeding population over the long term.

We also evaluated the area outside the geographical area occupied by the species at the time of listing to identify any areas that are essential for the conservation of the arroyo toad. We looked at areas that may have been historically occupied by arroyo toads based on CNDDB records but were no longer occupied at the time of listing. We considered areas that may have the physical and biological features essential for the conservation of the species but have never been occupied. Based on our evaluation, we believe that areas currently occupied by arroyo toads are sufficient for the recovery of the species. The recovery plan for the arroyo toad also determined that occupied areas are sufficient for recovery and did not include any unoccupied areas. Therefore, based on available scientific information, we determined that there are no areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of the arroyo toad.

(3) To identify and map areas that we determined meet the definition of critical habitat, we used data on known arroyo toad locations and data on movement distances by arroyo toads. The main source for arroyo toad locations was the CNDDB (2008); we also obtained data on locations that have not yet been entered into the CNDDB directly from the biologists that collected them.

Areas meeting the definition of critical habitat for the arroyo toad include occupied areas on stream reaches containing suitable breeding and upland habitat. To determine the extent of suitable arroyo toad habitat as discussed in the “

Habitat

” section of the 2009 proposed revised critical habitat rule (74 FR 52612; October 13, 2009), we used spatial data on stream gradients with grades less than 6 percent, aerial photography, surveys of habitat suitability, and site visits. Additionally, we included higher gradient areas between breeding habitat because these areas are used by toads during the non-breeding period and allow toads to disperse between breeding areas. To delineate upland habitat areas, we used a GIS-based modeling procedure to identify alluvial terraces, valley bottomlands, and upland habitats adjacent to stream reaches 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. Based on the results of the GIS habitat model that incorporated average movement distances of arroyo toads, 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; therefore, steeper slopes away from the stream were eliminated. However, we truncated the upland habitat delineation in flat areas at 4,921 ft (1,500 m) from the stream channel (a distance based on known movement of arroyo toads,

see

below) 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 4,921 ft (1,500 m) from the mapped stream channel along the majority of the stream reaches, so the distance limit was often not a factor. These model parameters are based on the best scientific data available and are the same as those used in the 2004 proposed critical habitat designation (69 FR 23254; April 28, 2004), which was also included in the review process for the 2009 proposed critical habitat designation (74 FR 52612; October 13, 2009).

(4) To evaluate our critical habitat model, we assessed its effectiveness at capturing documented toad locations from studies that focused specifically on surveying toads in upland habitats and studies involving radio telemetry. Holland and Sisk (2000, pp. 1-28) established extensive pitfall trap arrays at discrete distances from two stream courses and operated these arrays at various periods throughout the year. They had 466 captures of arroyo toads, 35 (7.5 percent) of which were identified as being in upland areas. The low percentage of toads captured in upland areas may be because the vast majority of captures (98.7 percent) were during the months from January to September, when breeding and metamorphosis occurs and when toads would likely be in close proximity to the stream. Nevertheless, toads were captured at distances that ranged from 49 to 3,855 ft (15 to 1,175 m) from the upland-riparian ecotone (boundary) (Holland and Sisk 2000, pp. 1-28). For the two areas sampled in that study (Cristianitos Creek and the upper Santa Margarita River, San Diego County), we found that our critical habitat boundaries encompassed all of the pitfall trapping stations where arroyo toads were detected.

We also assessed studies that involved the tracking of arroyo toads with radio telemetry equipment. For example, in a number of studies by Ramirez (2002a, p. 10; 2002b, p. 50; 2002c, p. 23; 2003, pp. 72-81), arroyo toads were tracked from the end of

breeding activity until the commencement of aestivation, generally May through September. Cumulatively, these four studies involved tracking 77 adult arroyo toads in three separate critical habitat units in Orange, San Bernardino, and Los Angeles Counties. All but one of the numerous burrow sites chosen by these arroyo toads fell within our proposed revised critical habitat boundaries.

(5) To provide legal boundaries for the critical habitat areas, critical habitat boundaries for all drainages were mapped as contiguous blocks of 98-ft by 98-ft (30-m by 30-m) cells that conform to a Universal Transverse Mercator (UTM) grid. Due to the conversion of GIS data from two different geographic projections (UTM zone 10 and zone 11) and conversion of the data to acres and hectares, some rounding adjustments may be reflected in the total acreage of the units.

When determining revisions to critical habitat boundaries for this final rule, we made every effort to avoid developed areas, such as lands covered by buildings, pavement, and other structures, because such lands lack PCEs for the arroyo toad. We did not designate some areas if habitat was highly degraded and not likely restorable, nor did we designate areas that were highly fragmented or isolated. Such areas provide little or no long-term conservation value and do not support the physical and biological features essential to the conservation of the arroyo toad. Agricultural lands may have been included if they were within areas identified as necessary for dispersal or connectivity between known occurrences. However, we avoided known areas of intensive agriculture that lacked the PCEs for the arroyo toad. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this revised critical habitat are excluded by text in this final rule. Therefore, Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action may affect adjacent critical habitat.

Final Revised Critical Habitat Designation

We are designating approximately 98,366 ac (39,807 ha) as critical habitat for the arroyo toad within 21 units, identified as Units 2 through 22. The area identified as critical habitat Unit 1 (6,453 ac (2,612 ha)) was exempted in its entirety under section 4(a)(3) of the Act and, therefore, was not proposed. Table 2 outlines the areas included and excluded from this final revised critical habitat designation by land ownership. Units designated as critical habitat are discussed in detail below. The areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the arroyo toad.

Table 2—Critical Habitat Units for the Arroyo Toad by Land Ownership Noting the Areas Designated and Excluded From the Critical Habitat Designation

Critical habitat units and subunits

Land

ownership

Total area

proposed ac (ha)

Total area

removed ac (ha)

Total area

excluded ac (ha)

Total area

designated ac (ha)

1. San Antonio River—exempt

Federal

2. Sisquoc River

Federal

1,700 (688)

Private

2,073 (839)

3. Upper Santa Ynez River Basin

Federal

2,214 (896)

Private

818 (331)

4. Sespe Creek

Federal

2,498 (1,011)

Private

262 (106)

5. Piru Creek

Federal

2,105 (852)

Private

402 (163)

5a.

Federal

1,277 (517)

Private

81 (33)

5b.

Federal

828 (335)

Private

321 (130)

6. Upper Santa Clara River Basin

Federal

443 (179)

Private

3,351 (1,356)

662 (268)

330 (134)

2,359 (955)

6a.

Federal

284 (115)

Private

236 (96)

6b.

Private

1,995 (807)

662 (268)

330 (134)

1,003 (406)

6c.

Federal

159 (64)

Private

1,120 (453)

7. Upper Los Angeles River Basin

Federal

1,113 (451)

Private

77 (31)

8.Lower Santa Ana River Basin

Federal

54 (22)

Private

2,128 (861)

185 (75)

1,259 (508)

683 (276)

9. San Jacinto River Basin

Federal

505 (204)

545 (221)

State

210 (85)

232 (94)

Private

1,691 (684)

14 (6)

1,614 (653)

9a.

Federal

72 (29)

Private

1,154 (467)

9b.

Federal

433 (175)

473 (191)

State

210 (85)

232 (94)

Private

537 (217)

14 (6)

461 (187

10. San Juan Creek Basin

Federal

558 (225)

Local

1,909 (773)

16 (6)

1,854 (750

38 (15)

Private

3,200 (1,295)

15 (6)

285 (115)

2,900 (1,174)

10a.

Federal

547 (221)

Local

1,406 (569)

1,403 (568)

3 (1)

Private

2,775 (1,123)

1 (<1)

228 (92)

2,547 (1,031)

10b.

Federal

11 (4)

Local

503 (204)

16 (6)

452 (183)

35 (14)

Private

425 (172)

14 (6)

57 (23)

353 (143)

11. San Mateo Creek Basin

Federal

844 (341)

Private

1,034 (418)

39 (16)

975 (395)

11a.

Private

1,034 (418)

39 (16)

975 (395)

11b.

Federal

844 (341)

12. Lower Santa Margarita River Basin

State

5 (2)

Private

1,004 (406)

12a.

Private

394 (159)

12b.

State

5 (2)

Private

610 (247)

13. Upper Santa Margarita River Basin *

Federal

454 (184)

Private

7,682 (3,109)

275 (111)

7,409 (2,998)

13a.

Federal

337 (136)

Private

813 (329)

818 (331)

13b.

Federal

117 (47)

Private

4,640 (1,878)

26 (11)

4,614 (1,867)

13c.

Private

2,226 (901)

249 (101)

1,977 (800)

14. Lower and Middle San Luis Rey River Basin

Federal

4 (2)

State

10 (4)

Pala Tribe

2,385 (963)

1,662 (673)

**0

Rincon Tribe

1,155 (467)

1,071 (433)

**0

Private

9,351 (3,785)

58 (23)

10,101 (4,088)

15. Upper San Luis Rey River Basin

Federal

1,467 (594)

771 (312)

695 (281)

Private

11,511 (4,658)

3,838 (1,553)

7,673 (3,105)

16. Santa Ysabel Creek Basin

Federal

190 (77)

State

182 (74)

1 (<1)

175 (71)

Local

143 (58)

Tribal

23 (9)

Private

14,956 (6,053)

100 (40)

14,862 (6,014)

16a.

Federal

190 (77)

State

182 (74)

1 (<1)

175 (71)

Local

143 (58)

Private

13,452 (5,444)

100 (40)

13,357 (5,405)

16d.

Mesa Grande Tribe

23 (9)

Private

1,504 (609)

17. San Diego River Basin/San Vicente Creek

Federal

425 (172)

Tribal

92 (37)

Private

3,746 (1,516)

17a.

Federal

354 (143)

Capitan Grande Tribe

92 (37)

Private

795 (322)

17b.

Federal

48 (19)

Private

1,817 (735)

17d.

Federal

23 (9)

Private

1,134 (459)

18. Sweetwater River Basin

Federal

556 (225)

State

1,659 (671)

Tribal

391 (158)

152 (62)

**0

Private

2,178 (882)

6 (2)

2,410 (975)

18a.

Federal

553 (224)

State

1,554 (629)

Private

2,049 (829)

18c.

Federal

3 (1)

State

105 (42)

Sycuan Tribe

391 (158)

152 (62)

**0

Private

129 (53)

6 (2)

362 (146)

19. Cottonwood Creek Basin

Federal

4,118 (1,666)

Local

1,482 (600)

31 (13)

1,476 (597)

Private

8,778 (3,551)

8,751 (3,541)

19a.

Federal

2,128 (861)

Local

1,482 (600)

31 (13)

1,476 (597)

Private

2,237 (905)

2,212 (895)

19b.

Federal

209 (84)

Private

4,921 (1991)

19c.

Federal

809 (327)

Private

703 (284)

19d.

Federal

910 (368)

Private

28 (11)

19e.

Federal

61 (25)

Private

889 (360)

20. Upper Santa Ana River Basin/Cajon Wash

Federal

711 (288)

Private

1,065 (431)

21. Little Rock Creek Basin

Federal

612 (248)

22. Upper Mojave River Basin*

Federal

2,186 (885)

43 (17)

2,143 (867)

State

238 (96)

191 (77)

47 (19)

Private

3,494 (1,414)

82 (33)

3,412 (1,381)

22a.

Federal

2,143 (867)

State

47 (19)

Private

3,494 (1,414)

82 (33)

3,412 (1,381)

22c.

Federal

43 (17)

State

191 (77)

23. Whitewater River Basin

Federal

783 (317)

Private

572 (231)

Total ***

112,765

(45,634)

2,702

(1,091)

11,697

(4,734)

98,366 (39,807)

* Land ownership values differ from the proposed rule due to updated ownership data.

** Off-reservation lands (fee-owned) were not excluded and are included within the Private land ownership total.

*** Values in table may not sum due to rounding.

We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the arroyo toad below. The units are grouped by recovery unit as described in the recovery plan (Service 1999) and listed in order geographically north to south and west to east within each recovery unit. For more information about the areas excluded from critical habitat, please

see

Exclusions Under Section 4(b)(2) of the Act

section of this final rule.

Northern Recovery Unit

As described in the recovery plan (Service 1999, pp. 1-119), maintaining arroyo toad populations in the areas described by the following seven unit descriptions is necessary to conserve the species in the northern recovery unit. Because the toad populations in this recovery unit have been reduced in size and their habitat fragmented by road construction, dams, agriculture, and urbanization, it is important to protect all of them and safeguard against the loss of any one population due to random natural or human-caused events. The Forest Service is the primary landowner of revised critical habitat within the northern recovery unit.

Unit 1: San Antonio River: (6,453 ac (2,612 ha))

All lands in Unit 1 (approximately 6,453 ac (2,612 ha)) were exempted under section 4(a)(3)(B) of the Act in the October 2009 proposed revised designation for the arroyo toad (74 FR 52612; October 13, 2009) because they are subject to the 2007 Service-approved Integrated Natural Resources Management Plan (INRMP) for Fort Hunter Liggett. The INRMP provides a benefit to the arroyo toad, including monitoring arroyo toad population status, reducing public and military vehicle encroachment into arroyo toad habitats, reducing bullfrogs and other invasive species, and integrating species management and conservation with Fort Hunter Liggett training and maintenance activities. Please refer to the

Application of Section 4(a)(3) of the Act

section below for details on the INRMP and the benefits it provides to the arroyo toad.

Unit 2: Sisquoc River (3,775 ac (1,528 ha))

This unit is located in Santa Barbara County and encompasses approximately 33 miles (mi) (54 kilometers (km)) of the Sisquoc River and adjacent uplands from Sycamore Campground downstream to just below the confluence with La Brea Creek. Upper stretches of the river are within the Los Padres 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. The unit consists of 1,700 ac (688 ha) of Federal land and 2,073 ac (839 ha) of private land. This long, undammed river is one of the few remaining major rivers in southern California with a natural flow regime, and supports a core population of arroyo toads that is important for maintaining the genetic diversity of the species. Unit 2 contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy or fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and relatively undisturbed riparian and upland habitat for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from the removal and alteration of habitat due to sand and gravel mining, livestock overgrazing of riparian habitats, and limited recreational activities.

Unit 3: Upper Santa Ynez River Basin (3,032 ac (1,227 ha))

This unit is located in Santa Barbara County upstream of Gibraltar Reservoir and encompasses approximately 27 mi (43 km) of the upper Santa Ynez River, Indian Creek, Mono Creek, and adjacent uplands. The unit consists of 2,214 ac (896 ha) of Federal land and 818 ac (331 ha) of private land within the Los Padres National Forest, and supports a

large and well-studied arroyo toad population that likely experiences precipitation and soil moisture conditions not faced by toads at drier sites (Sweet 1992, pp. 1-198; 1993, pp. 1-73). Potential adaptations to these conditions make this unit important for maintaining the genetic diversity of the species. Unit 3 contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy or fine gravel substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and relatively undisturbed riparian and upland habitat for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats, primarily along the lower Santa Ynez River and lower Mono Creek, from nonnative species, recreation, and problems associated with an upstream dam (such as sediment trapping, altered hydrological regime, and temperature changes).

Unit 4: Sespe Creek (2,760 ac (1,117 ha))

This unit is located in Ventura County and encompasses approximately 27 mi (43 km) of Sespe Creek and adjacent uplands, from the lower end of Sespe Gorge (elevation approximately 3,530 ft (1,076 m)) downstream to the confluence with Alder Creek. The unit consists of 2,498 ac (1,011 ha) of Federal land and 262 ac (106 ha) of private land. This unit supports one of the largest arroyo toad populations on the Los Padres National Forest along Sespe Creek, which is undammed and retains its natural flooding regime. Up to several hundred adult arroyo toads inhabit this reach of the Sespe Creek (Sweet 1992, p. 192), and during years of successful reproduction, such as 2003, thousands of juveniles can be found as well (Murphy 2008, pers. comm.). Arroyo toads have been found up to 3,300 ft (1,000 m) in elevation in this area, which is one of the highest known occurrences in the northern recovery unit. Unit 4 contains the physical and biological features that are essential to the conservation of the species, including numerous suitable breeding pools (shallow, sand- or gravel-based pools with a minimum of vegetation along one or both margins during the breeding season from late March to June (Sweet 1992, p. 28)) and an abundance of sandy substrates (PCEs 1 and 2), unimpeded seasonal flood flows (PCE 3), and relatively undisturbed riparian habitat and upland benches for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from recreational activities and nonnative predators.

Unit 5: Piru Creek (2,507 ac (1,015 ha))

This unit is located in Ventura and Los Angeles Counties and consists of two subunits totaling 2,105 ac (852 ha) of Federal land and 402 ac (163 ha) of private inholdings.

Subunit 5a

Subunit 5a encompasses approximately 17 mi (27 km) of Piru Creek and adjacent uplands from the confluence with Lockwood Creek downstream to Pyramid Reservoir. The subunit consists of 1,277 ac (517 ha) of Federal land and 81 ac (33 ha) of private land. As recently as 2003, the upper portion of Subunit 5a was documented to be free of nonnative vertebrate predators, and the substantial arroyo toad population supported by this subunit was documented to be increasing and expanding over the course of several years (Uyehara 2003, pers. comm.). Subunit 5a contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and riparian habitat and upland benches for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from livestock grazing and recreational activities.

Subunit 5b

Subunit 5b is primarily within the Sespe Wilderness and encompasses approximately 15 mi (24 km) of Piru Creek from the confluence with Fish Creek downstream to Lake Piru, as well as Agua Blanca Creek from Devil's Gateway downstream to the confluence with Piru Creek. The subunit supports a substantial arroyo toad population and consists of 828 ac (335 ha) of Federal land and 321 ac (130 ha) of private land. Subunit 5b contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy substrates (PCEs 1 and 2), seasonal flood flows (modified to some extent below Pyramid Dam) (PCE 3), and riparian habitat and upland benches for foraging and dispersal (PCE 4). Because lower Piru Creek in Subunit 5b is downstream of a large dam, the habitat there has experienced some degradation over the years from perennial water releases, rapid changes in flow volume, excessive flows during the breeding season, and an increased presence of nonnative predators. However, in 2005, the California Department of Water Resources proposed to permanently change the water release schedule for Pyramid Dam to one that more closely mimics the pre-dam hydrograph and benefitted downstream habitat for the arroyo toad (State Water Board 2008, p. 3). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative predators and recreational activities.

Unit 6: Upper Santa Clara River Basin (2,802 ac (1,134 ha))

This unit is located in northwestern Los Angeles County and consists of three subunits totaling 443 ac (179 ha) of Federal land and 2,359 ac (955 ha) of private land.

Subunit 6a

Subunit 6a encompasses approximately 7 mi (12 km) of Castaic Creek from Bear Canyon downstream to Castaic Lake, and 0.7 mi (1.2 km) of Fish Creek from Cienaga Spring to the confluence with Castaic Creek. The subunit consists of 284 ac (115 ha) of Federal land and 236 ac (96 ha) of private land. Subunit 6a contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and riparian habitat and upland benches for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urban development, agriculture, recreation, mining, and nonnative predators.

Subunit 6b

Subunit 6b encompasses: (1) Approximately 2.6 mi (4.2 km) of Castaic Creek from the downstream edge of The Old Road right-of-way (adjacent to Interstate 5) down to the confluence with the Santa Clara River; and (2) 4 mi (6.4 km) of the Santa Clara River from the confluence with San Francisquito Creek down to the confluence with Castaic Creek. Subunit 6b consists of

1,003 ac (406 ha) of private land. This subunit allows for natural population expansion and fluctuation of the Santa Clara River population by connecting arroyo toad habitat in Castaic Creek with San Francisquito Creek and the occupied reach of the Santa Clara River. Subunit 6b contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and riparian habitat and upland benches for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urban development, agriculture, recreation, mining, and nonnative predators.

The Secretary is exercising his discretion under section 4(b)(2) of the Act to exclude 330 ac (134 ha) of Subunit 6b that we proposed as revised critical habitat. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion, and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below).

Additionally, based on closer examination of some upland areas that we proposed in the revised critical habitat proposal (74 FR 52612, October 13, 2009) and that we believed met the definition of critical habitat, we have found that these lands are either developed, used for intensive agriculture, or are inaccessible to arroyo toads due to busy roads or steep slopes. We now find that little of these lands remain as native habitats that would be useable as foraging areas by arroyo toads, do not contain the physical and biological features that are essential to the conservation of the arroyo toad, and therefore, do not meet the definition of critical habitat. Therefore, we have removed approximately 662 ac (268 ha) from Subunit 6b.

Subunit 6c

Subunit 6c encompasses approximately 11 mi (18 km) of upper Santa Clara River from Arrastre Canyon downstream to the confluence with Bee Canyon Creek. The subunit consists of 159 ac (64 ha) of Federal land and 1,120 ac (453 ha) of private land. This subunit is important for maintaining the arroyo toad metapopulation in the upper Santa Clara River Basin. Additionally, the upper portion of the Santa Clara River in this subunit supports a breeding population of arroyo toads (Farris 2001, pers. comm.; Hovore 2001,

in litt.;

Sandburg 2001,

in litt.

) that has the potential to greatly increase in size. Subunit 6c contains the physical and biological features that are essential to the conservation of the species, including breeding pools in low-gradient stream segments with sandy substrates (PCEs 1 and 2), seasonal flood flows (PCE 3), and riparian habitat and upland benches for foraging and dispersal (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urban development, agriculture, recreation, mining, and nonnative predators.

Unit 7: Upper Los Angeles River Basin (1,190 ac (482 ha))

This unit is located in central Los Angeles County and encompasses: (1) Approximately 8 mi (13 km) of upper Big Tujunga Creek from immediately above Big Tujunga Reservoir upstream to approximately 1.2 mi (2 km) above the confluence with Alder Creek, (2) almost 3.7 mi (6 km) of Mill Creek from the Monte Cristo Creek confluence downstream to Big Tujunga Creek, and (3) approximately 1.9 mi (3 km) of Alder Creek from the Mule Fork confluence downstream to Big Tujunga Creek. The unit consists of 1,113 ac (451 ha) of Forest Service land and 77 ac (31 ha) of private land. This unit supports an arroyo toad population in the Big Tujunga Creek Canyon watershed in the Upper Los Angeles River Basin within the Angeles National Forest. This population is important because it occurs at a relatively high elevation that is atypical for arroyo toads, and it is the only known substantial population remaining in the coastal foothills of the San Gabriel Mountains. Unit 7 contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from nonnative predators, such as crayfish, bullfrogs, and nonnative plants, such as

Arundo donax

(giant reed grass).

Southern Recovery Unit

As described in the recovery plan (Service 1999, pp. 1-119), maintaining arroyo toad populations in the areas described by the following 12 unit descriptions is necessary to conserve the species in the southern recovery unit. These critical habitat units consist of a range of geographic locations from coastal regions to interior mountains. Arroyo toads likely occurred throughout each of these river and creek basins, but are now found only in segments of the rivers and creeks due to loss or change of habitat and nonnative predators. Conserving arroyo toad populations in these river basins is necessary for preserving the species' full range of genetic and phenotypic variation.

Unit 8: Lower Santa Ana River Basin (737 ac (298 ha))

This unit is located in east-central Orange County and encompasses: (1) Approximately 5.8 mi (9 km) of Santiago Creek from just below the town of Modjeska downstream to the confluence with Black Star Creek, (2) approximately 2 mi (3 km) of Black Star Creek downstream to the confluence with Santiago Creek, (3) an approximately 2.4-mi (4-km) stretch of lower Baker Canyon downstream to the confluence with Santiago Creek, and (4) approximately 7.3 mi (12 km) of Silverado Creek from the eastern edge of section 11 (T05S, R07W) in the Cleveland National Forest downstream to the confluence with Santiago Creek. As proposed, Unit 8 included a total of 2,182 ac (883 ha). Of these lands, we have now removed approximately 185 ac (75 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

numbers 3 and 20 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Unit 8 totaling 1,259 ac (508 ha). The portion of Unit 8 we are designating as critical habitat consists of 54 ac (22 ha) of Forest Service land and 683 ac (276 ha) of private land. This unit contains a vital arroyo toad population in central Orange County that may represent one of the last remnants of a greater historical population from the Santa Ana River Basin that was mostly extirpated due to urbanization of the greater Los Angeles metropolitan area. It is also possible that this population belongs to a larger metapopulation that extends across the lower coastal mountain slopes of the Santa Ana Mountains from Santiago Creek to San Mateo Creek (including Units 10 and 11 discussed below). Unit 8 contains the physical and biological features that are essential to the

conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from nearby residential activities and degraded habitat conditions due to past commercial sand and gravel removal operations.

As indicated above, the Secretary is exercising his discretion to exclude approximately 1,259 ac (508 ha) that are owned by or are under the jurisdiction of the permittees of the Orange County Central-Coastal NCCP/HCP and the associated NRPPA. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Unit 9: San Jacinto River Basin (2,391 ac (968 ha))

This unit is located in west-central Riverside County and consists of two subunits totaling 14 ac (5 ha) of BLM land, 531 ac (215 ha) of Forest Service land, 232 ac (94 ha) of State land, and 1,614 ac (653 ha) of private land. This unit supports the most northeastern arroyo toad populations within the coastal region of the species' range. This unit also is geographically isolated from other known toad populations to the south in the Santa Margarita Watershed, to the west in the San Juan Watershed, and from residual populations to the north in the Santa Ana Watershed. Therefore, this location is important to maintain the current geographic extent of the species.

Subunit 9a

Subunit 9a encompasses approximately 6.3 mi (10 km) of the San Jacinto River from the Sand Canyon confluence downstream to the Soboba Indian Reservation border. The subunit consists of 64 ac (26 ha) of Forest Service land, 8 ac (3 ha) of BLM land, and 1,154 ac (467 ha) of private land. Subunit 9a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from human activities, including direct mortality from vehicular traffic, trampling by people during recreational activities or trash dumping, and collection (Ortega 2009,

in litt.

p. 1; Wilcox 2009, pers. comm.).

Subunit 9b

Subunit 9b encompasses approximately 7.4 mi (12 km) of Bautista Creek from near the eastern edge of section 20 (T6S, R2E) downstream to approximately the middle of section 27 (T5S, R1E), where the stream enters a debris basin. As proposed, Subunit 9b included a total of 1,180 ac (478 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 9b totaling 14 ac (6 ha). The portion of Subunit 9b we are designating as critical habitat consists of 467 ac (189 ha) of Forest Service land, 6 ac (2 ha) of BLM land, 232 ac (94 ha) of State land, and 461 ac (187 ha) of private land. Subunit 9b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from recreation and vehicular traffic (U.S. Geological Survey (USGS) 2001, p. 8).

As indicated above, the Secretary is exercising his discretion to exclude approximately 14 ac (6 ha) that are owned by or are under the jurisdiction of the permittees of the Western Riverside County MSHCP. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Unit 10: San Juan Creek Basin (3,496 ac (1,415 ha))

This unit is located in southern Orange County and southwestern Riverside County and consists of two subunits totaling 558 ac (226 ha) of Forest Service land, 38 ac (15 ha) of local government land, and 2,900 ac (1,174 ha) of private land. This unit supports a large arroyo toad population in the San Juan Creek Basin, and arroyo toad populations in this unit may function as an important linkage between toads in Santiago Creek (Unit 8) to the north and the San Mateo Creek Basin (Unit 11) to the south.

Subunit 10a

This subunit is located in southern Orange County and southwestern Riverside County. Subunit 10a encompasses: (1) Approximately 5 mi (8 km) of San Juan Creek from immediately above the Upper San Juan Campground downstream to Interstate 5, (2) approximately 9.9 mi (16 km) of Bell Canyon from the southern half of section 8 (T06S, R06W) in the Cleveland National Forest downstream to the confluence with San Juan Creek, and (3) approximately 1.2 mi (2 km) of an unnamed tributary to the west of Bell Canyon in sections 8 and 18 (T06S, R06W) downstream to the confluence with Bell Creek. As proposed, Subunit 10a included a total of 4,728 ac (1,913 ha). Of these lands, we have now removed approximately 1 ac (<1 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

number 20 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 10a totaling 1,631 ac (660 ha). The portions of Subunit 10a we are designating as critical habitat consist of 547 ac (221 ha) of Forest Service land, 3 ac (1 ha) of local government land, and 2,547 ac (1,031 ha) of private land. Subunit 10a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative predators (bullfrogs), water diversions, and residual effects of recent gravel mining operations (Bloom 1998, p. 2).

As indicated above, the Secretary is exercising his discretion to exclude approximately 1,631 ac (660 ha) that are owned by or are under the jurisdiction of the permittees of the Southern Orange County NCCP/Master Streambed Alteration Agreement/HCP. This

exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Subunit 10b

This subunit is located in southern Orange County. Subunit 10b encompasses 5.2 mi (8 km) of Trabuco Creek downstream from approximately the middle of section 6 (T06S, R06W) in the Cleveland National Forest. As proposed, Subunit 10b included a total of 939 ac (380 ha). Of these lands, we have now removed approximately 31 ac (13 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

number 6 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 10b totaling 509 ac (206 ha). The portion of Subunit 10b we are designating as critical habitat consists of 11 ac (4 ha) of Forest Service land, 35 ac (14 ha) of local government land, and 353 ac (143 ha) of private land. Subunit 10b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative predators (bullfrogs), water diversions, and residual effects of recent gravel mining operations (Bloom 1998, p. 2).

As indicated above, the Secretary is exercising his discretion to exclude approximately 509 ac (206 ha) that are owned by or are under the jurisdiction of the permittees of the Southern Orange County NCCP/Master Streambed Alteration Agreement/HCP. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Unit 11: San Mateo Creek Basin (1,820 ac (737 ha))

This unit is located in northwestern San Diego County, southern Orange County, and southwestern Riverside County and consists of two subunits totaling 844 ac (341 ha) of Forest Service land and 975 ac (395 ha) of private land. This unit supports large arroyo toad populations in close proximity to the coast. Nearly all of the other near-coastal, historical populations of arroyo toad were extirpated due to extensive urbanization and river channelization along the coastal regions of southern California. Distinctive climatic conditions near the coast may provide different selective pressures on toads in this area, and favor specific genetic characteristics that help maintain the genetic diversity of the species.

We exempted approximately 6,014 ac (2,427 ha) of military land under section 4(a)(3)(B) of the Act because the lands are subject to the 2007 INRMP for Marine Corps Base Camp Pendleton, and the INRMP provides a benefit to the arroyo toad (

see

the

Application of Section 4(a)(3) of the Act

section below for details on the INRMP and the benefits it provides to the arroyo toad).

Subunit 11a

Subunit 11a encompasses: (1) Approximately 1.7 mi (3 km) of Cristianitos Creek from just above Gabino Creek downstream to the MCB Camp Pendleton boundary; (2) approximately 3.1 mi (5 km) of Gabino Creek upstream from its confluence with Cristianitos Creek, including about 0.6 mi (1 km) of La Paz Creek; and (3) approximately 4 mi (6 km) of Talega Creek upstream from its confluence with Cristianitos Creek and beyond the boundaries of MCB Camp Pendleton. As proposed, Subunit 11a included a total of 1,034 ac (418 ha). Of these lands, we have now exempted approximately 20 ac (8 ha) (

see

number 7 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, a portion of Subunit 11a totaling 39 ac (16 ha). The portion of Subunit 11a we are designating as critical habitat totals 975 ac (395 ha), and is comprised entirely of private land. Subunit 11a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from human activities, including direct mortality from vehicle collisions and vehicular crossings of streambeds, grazing, and nonnative predators (Bloom 1996, pp. 4-5; Bloom 1998,

in litt.

, pp. 1, 3).

As indicated above, the Secretary is exercising his discretion to exclude approximately 39 ac (16 ha) that are owned by or are under the jurisdiction of the permittees of the Southern Orange County NCCP/Master Streambed Alteration Agreement/HCP. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Subunit 11b

Subunit 11b encompasses: (1) Approximately 9.3 mi (15 km) of San Mateo Creek from Los Alamos Canyon downstream to MCB Camp Pendleton, and (2) approximately 2.4 mi (4 km) of Los Alamos Canyon downstream to the confluence with San Mateo Creek. The subunit consists of 844 ac (341 ha) of Forest Service land. Subunit 11b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from habitat conditions favorable for nonnative predators (ECORP 2004, p. 16).

Unit 12: Lower Santa Margarita River Basin (1,009 ac (408 ha))

This unit is located in northwestern San Diego County and consists of two subunits totaling 5 ac (2 ha) of State land and 1,004 ac (406 ha) of private land. This unit supports large arroyo toad populations in proximity to other large arroyo toad populations to the north (Unit 11), and provides potential connectivity to populations in the upper Santa Margarita River Basin (Unit 13). We exempted approximately 7,239 ac (2,929 ha) of military land (7,016 ac (2,839 ha) on MCB Camp Pendleton and 223 ac (90 ha) on Fallbrook Naval

Weapons Station) in this unit under section 4(a)(3)(B) of the Act in the October 2009 proposed revised designation for the arroyo toad (74 FR 52612) because the lands are subject to the 2007 INRMP for MCB Camp Pendleton and the 2006 INRMP for the Fallbrook Naval Weapons Station, and each INRMP provides a benefit to the arroyo toad. Please refer to the

Application of Section 4(a)(3) of the Act

section below for details on the INRMPs and the benefits they provide to the arroyo toad.

Subunit 12a

Subunit 12a encompasses approximately 2.1 mi (3 km) of De Luz Creek from the town of De Luz downstream to the MCB Camp Pendleton boundary. The subunit consists of 394 ac (159 ha) of private land. Subunit 12a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from cumulative impacts to the species' habitat from recreation, nonnative predators, and nonnative plants (CNDDB 2008, EO 26).

Subunit 12b

Subunit 12b encompasses approximately 5.5 mi (9 km) of the Santa Margarita River upstream from the MCB Camp Pendleton boundary. The subunit consists of 5 ac (2 ha) of State land and 610 ac (247 ha) of private land. Subunit 12b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from cumulative impacts to the species' habitat from nonnative predators, nonnative plants, and vehicular traffic (Varanus Biological Services, Inc. 1999, pp. 34-35).

Unit 13: Upper Santa Margarita River Basin (7,863 ac (3,182 ha))

This unit is located in southern Riverside County and northern San Diego County and consists of three subunits totaling 22 ac (9 ha) of BLM land, 432 ac (174 ha) of Forest Service land, and 7,409 ac (2,998 ha) of private land. This unit provides potential links to arroyo toad populations in the lower Santa Margarita River Basin (Unit 12) and other nearby drainages containing suitable habitat.

Subunit 13a

Subunit 13a encompasses approximately 7.3 mi (12 km) of Arroyo Seco Creek from just south of the San Diego-Riverside County boundary downstream to Vail Lake. The subunit consists of 337 ac (136 ha) of Forest Service land and 818 ac (331 ha) of private land. Subunit 13a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative predators and campground activities (USGS 2000, p. 3).

Subunit 13b

Subunit 13b encompasses approximately 16.3 mi (26 km) of Temecula Creek from Dodge Valley downstream to Vail Lake. As proposed, Subunit 13b included a total of 4,756 ac (1,925 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 13b totaling 26 ac (11 ha). The portion of Subunit 13b we are designating as critical habitat consists of 95 ac (38 ha) of Forest Service land, 22 ac (9 ha) of BLM land, and 4,614 ac (1,867 ha) of private land. Subunit 13b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from road maintenance and sand-mining operations (HELIX 2004, p. 1).

As indicated above, the Secretary is exercising his discretion to exclude approximately 26 ac (11 ha) that are owned by or are under the jurisdiction of the permittees of the Western Riverside County MSHCP. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Subunit 13c

Subunit 13c encompasses approximately 6.5 mi (10 km) of Wilson Creek from the confluence with Cahuilla Creek downstream to Vail Lake. As proposed, Subunit 13c included a total of 2,226 ac (901 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 13c totaling 249 ac (101 ha). The portion of Subunit 13c we are designating as critical habitat totals 1,977 ac (800 ha), and is comprised entirely of private land. Subunit 13c contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from direct mortality and habitat degradation from off-highway vehicular traffic, and upstream sedimentation caused by urbanization, agriculture, or wildfire (R. Haase, MCAS Camp Pendleton,

in litt.

2009b, p. 1).

As indicated above, the Secretary is exercising his discretion to exclude approximately 249 ac (101 ha) that are owned by or are under the jurisdiction of the permittees of the Western Riverside County MSHCP. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Other Relevant Impacts

section below for a detailed discussion).

Unit 14: Lower and Middle San Luis Rey River Basin (10,115 ac (4,093 ha))

This unit is located in northern San Diego County and encompasses approximately 30 mi (48 km) of the San Luis Rey River from the western edge of the La Jolla Indian Reservation downstream to the confluence with Guajome Creek near the City of Oceanside. It also includes approximately 3.4 mi (5.5 km) of Pala Creek and 1.7 mi (2.7 km) of Keys Creek upstream from the confluence with the

San Luis Rey River. As proposed, Unit 14 included a total of 12,906 ac (5,223 ha). Of these lands, we have now removed approximately 58 ac (23 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

numbers 9 and 20 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Unit 14 totaling 2,733 ac (1,106 ha). The portion of Unit 14 we are designating as critical habitat consists of approximately 4 ac (2 ha) of BLM land, 10 ac (4 ha) of State land, and 10,101 ac (4,088 ha) of private land. This unit supports one of the largest contiguous river reaches that is occupied by the species. Unit 14 contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from dams and water diversions, intensive urbanization, agriculture, and nonnative predators and plants.

As indicated above, the Secretary is exercising his discretion to exclude approximately 1,071 ac (433 ha) of Rincon Band of Luiseño Mission Indians Tribal Lands and approximately 1,662 ac (673 ha) of Pala Band of Luiseño Mission Indians Tribal Lands. These exclusions are based on our determination that the benefits of exclusion outweigh the benefits of inclusion, and that exclusion of these areas will not result in extinction of the species (

See

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

section below.

Unit 15: Upper San Luis Rey River Basin (8,368 ac (3,386 ha))

This unit is located in northern San Diego County and encompasses: (1) Approximately 8.6 mi (14 km) of the West Fork of the San Luis Rey River from Barker Valley downstream to the upper end of Lake Henshaw, (2) approximately 3.5 mi (6 km) of Cañada Aguanga from just below Lake Jean downstream to the confluence with the San Luis Rey River, (3) approximately 11.4 mi (18 km) of the upper San Luis Rey River from the Indian Flats area downstream to the upper end of Lake Henshaw, and (4) approximately 6.9 mi (11 km) of Agua Caliente Creek from the western edge of section 13 (T10S, R3E) to the confluence with the San Luis Rey River. As proposed, Unit 15 included a total of 12,977 ac (5,252 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Unit 15 totaling 4,609 ac (1,865 ha). The portion of Unit 15 we are designating as critical habitat consists of 695 ac (281 ha) of Forest Service land and 7,673 ac (3,105 ha) of private land. This unit supports a unique assemblage of small, disjunct, high-elevation arroyo toad populations and one significant population on Agua Caliente Creek (Gergus 1992,

in litt.,

p. 1; Ervin 2000,

in litt.,

pp. 2-3, 5; CNDDB 2008, Element Occurrences (EOs) 27, 32) in an area where in-stream and overland dispersal between populations likely still is possible. Unit 15 contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from groundwater pumping on private lands, nonnative predators, feral pigs, and grazing (Winter

in litt.

2010).

As indicated above, the Secretary is exercising his discretion to exclude approximately 4,609 ac (1,865 ha) within the existing and proposed Remote Training Site Warner Springs. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Impacts to National Security

section below for a detailed discussion).

Unit 16: Santa Ysabel Creek Basin (15,370 ac (6,220 ha))

This unit is located in north-central San Diego County and consists of two subunits totaling 6 ac (2 ha) of BLM land, 184 ac (74 ha) of Forest Service land, 175 ac (71 ha) of State land, 143 ac (58 ha) of local government land, and 14,862 ac (6,014 ha) of private land. This unit supports large amounts of suitable habitat connecting large populations with several additional populations, thereby promoting the long-term persistence of the species in the area.

Subunit 16a

Subunit 16a encompasses: (1) Approximately 16.9 mi (27 km) of Santa Ysabel Creek from the northwestern quarter of section 24 (T12S, R01E) in the Cleveland National Forest downstream to the confluence with the San Dieguito River, (2) approximately 10 mi (16.1 km) of Guejito Creek from the 2,000 ft (610 m)-elevation contour downstream to the confluence with Santa Ysabel Creek, (3) approximately 2.5 mi (4.0 km) of Boden Canyon upstream from the Santa Ysabel Creek confluence, (4) approximately 4.3 mi (7 km) of Temescal Creek from the northern edge of Pamo Valley to the confluence with Santa Ysabel Creek, (5) approximately 9.1 mi (15 km) of Santa Maria Creek from the west side of Ramona to the confluence with Santa Ysabel Creek, and (6) approximately 1 mi (2 km) of the San Dieguito River upstream from the confluence with Santa Ysabel Creek. As proposed, Subunit 16a included a total of 13,967 ac (5,653 ha). Of these lands, we have now removed approximately 101 ac (40 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

number 10 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The subunit consists of 184 ac (74 ha) of Forest Service land, 6 ac (2 ha) of BLM land, 175 ac (71 ha) of State land, 143 ac (58 ha) of local government land, and 13,357 ac (5,405 ha) of private land. Subunit 16a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from grazing, nonnative predators, feral pigs, and urbanization (Tierra Environmental Services 2001,

in litt.;

CNDDB 2008, EOs 59, 61; Winter

in litt.

2010).

Subunit 16d

Subunit 16d encompasses approximately 6.2 mi (10 km) of Santa Ysabel Creek about 0.5 mi (0.8 km) east of Highway 79 downstream to Sutherland Reservoir. As proposed, Subunit 16d included a total of 1,527 ac (609 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, a

portion of Subunit 16d totaling 23 ac (9 ha). The portion of Subunit 16b we are designating as critical habitat totals 1,504 ac (609 ha), and is comprised entirely of private land. Subunit 16d contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from grazing and feral pigs (CNDDB 2008, EO 62; Winter

in litt.

2010).

As indicated above, the Secretary is exercising his discretion to exclude approximately 23 ac (9 ha) of Mesa Grande Band of Diegueno Mission Indians Tribal Land. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion, and that exclusion of these areas will not result in extinction of the species (

See

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

section below.

Unit 17: San Diego River Basin/San Vicente Creek (4,171 ac (1,688 ha))

This unit is located in central San Diego County and consists of three subunits totaling 35 ac (14 ha) of BLM land, 390 ac (158 ha) of Forest Service land, and 3,746 ac (1,516 ha) of private land. This unit supports suitable habitat for population expansion, thus increasing the probability of the long-term persistence of these populations.

Subunit 17a

Subunit 17a encompasses: (1) Approximately 8.7 mi (14 km) of the San Diego River from Temescal Creek downstream to the upper edge of El Capitan Reservoir, and (2) approximately 1 mi (2 km) of lower Cedar Creek. As proposed, Subunit 17a included a total of 1,241 ac (502 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 17a totaling 92 ac (37 ha). The portion of Subunit 17a we are designating as critical habitat consists of 354 ac (143 ha) of Forest Service land, and 795 ac (322 ha) of private land. Subunit 17a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urbanization, nonnative predators, and feral pigs (Winter

in litt.

2010).

As indicated above, the Secretary is exercising his discretion to exclude approximately 92 ac (37 ha) of Capitan Grande Band of Diegueno Mission Indians Tribal Lands. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion, and that exclusion of these areas will not result in extinction of the species (

See

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

section below.

Subunit 17b

Subunit 17b encompasses approximately 7.2 mi (12 km) of the San Diego River downstream from El Capitan Reservoir. The subunit consists of 12 ac (5 ha) of BLM land, 36 ac (15 ha) of Forest Service land, and 1,817 ac (735 ha) of private land. Subunit 17b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urbanization, agriculture, nonnative predators, and harmful water releases (based on timing or amount) from the El Capitan Reservoir.

Subunit 17d

Subunit 17d encompasses approximately 7.6 mi (12 km) of San Vicente Creek upstream from San Vicente Reservoir. The subunit consists of 23 ac (9 ha) of BLM land and 1,134 ac (459 ha) of private land. Subunit 17d contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urbanization, agriculture, nonnative predators, feral pigs, and harmful water releases (based on timing or amount) from the Sutherland/San Vicente Aqueduct (Varanus Biological Services, Inc. 1999, p. 20; RECON 2008, pp. 1, 3-4; Winter

in litt.

2010).

Unit 18: Sweetwater River Basin (4,624 ac (1,871 ha))

This unit is located in south-central San Diego County and consists of two subunits totaling 553 ac (224 ha) of Forest Service land, 3 ac (1 ha) of San Diego National Wildlife Refuge land, 1,659 ac (671 ha) of State land, and 2,410 ac (975 ha) of private land. This unit supports several large populations over large stretches of rivers and streams (Gergus 1992,

in litt.,

p. 1; Ervin 1997,

in litt.,

pp. 3-5; Varanus Biological Services, Inc. 1999, pp. 4-16; CNDDB 2008, EOs 38, 43, 67, 73, 77, 85, 99, 100). These populations may function as an important linkage between toads in the San Diego River Basin (Unit 17) to the north and Cottonwood Creek Basin (Unit 19) to the south.

Subunit 18a

Subunit 18a encompasses: (1) Approximately 26.6 mi (43 km) of the Sweetwater River from the top of Upper Green Valley in Cuyamaca Rancho State Park downstream to the top of Loveland Reservoir, (2) approximately 4.3 mi (7 km) of Viejas Creek from the western border of the Viejas Indian Reservation downstream to the confluence with the Sweetwater River, and (3) approximately 1.5 mi (2 km) of Peterson Canyon from just east of the Taylor Creek confluence downstream to the top of Loveland Reservoir. The subunit consists of 553 ac (224 ha) of Forest Service land, 1,554 ac (629 ha) of State land, and 2,049 ac (829 ha) of private land. Subunit 18a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from vehicular traffic, including off- highway vehicular traffic; horse-riding activities; nonnative predators; reservoir inundation; feral pigs; and direct mortality from trampling or dumping trash (Varanus Biological Services, Inc. 1999, p. 14; Mendelsohn

et al.

2005, pp. 10-11; Winter

in litt.

2010).

Subunit 18c

Subunit 18c encompasses approximately 5.8 mi (9.3 km) of the Sweetwater River from immediately below Loveland Dam downstream to just above the Sycuan Resort. As

proposed, Subunit 18c included a total of 627 ac (254 ha). Of these lands, we have now removed approximately 6 ac (2 ha), as we determined that these lands do not contain the physical or biological features essential to the conservation of the arroyo toad (

see

number 13 in

Summary of Changes from the 2009 Proposed Rule To Revise Critical Habitat

section above for a detailed discussion). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 18c totaling 152 ac (62 ha). The portion of Subunit 18c we are designating as critical habitat consists of 3 ac (1 ha) of San Diego National Wildlife Refuge land, 105 ac (42 ha) of State land, and 362 ac (146 ha) of private land. Subunit 18c contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from harmful water releases (based on timing or amount) from the Loveland Reservoir and gravel mining operations (Madden-Smith

et al.

2003, pp. 15, 17).

As indicated above, the Secretary is exercising his discretion to exclude approximately 152 ac (62 ha) of Sycuan Band of the Kumeyaay Nation Tribal Lands. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion, and that exclusion of these areas will not result in extinction of the species (see

Exclusions Under Section 4(b)(2) of the Act—Tribal Lands

section below).

Unit 19: Cottonwood Creek Basin (14,344 ac (5,804 ha))

Unit 19 is located in southern San Diego County and consists of five subunits totaling 190 ac (77 ha) of BLM land, 3,927 ac (1,588 ha) of Forest Service land, 1,476 ac (597 ha) of local government land, and 8,751 ac (3,541 ha) of private land. This unit encompasses a large number of arroyo toad occurrences (Gergus 1992,

in litt.;

Varanus Biological Services, Inc. 1999, pp. 2-3; Gergus 2000,

in litt.;

CNDDB 2008, EOs 20-22, 30, 40, 44, 63-65, 69, 79) in an area where in-stream and overland dispersal between populations likely still is possible and where there is room for population expansion. Additionally, this unit may function as an important linkage between toads in the Sweetwater River Basin (Unit 18) to the north and populations to the south in Mexico, as populations in this unit represent the most southern arroyo toad populations in the species' range within the United States.

Subunit 19a

Subunit 19a encompasses: (1) Approximately 7 mi (11.2 km) of Cottonwood Creek from Buckman Springs (near Interstate 8) downstream to Morena Reservoir, (2) approximately 2.8 mi (4.5 km) of Morena Creek downstream to the Cottonwood Creek confluence, (3) approximately 0.5 mi (1 km) of an unnamed tributary of Morena Creek in section 35 (T16S, R04E) downstream to the confluence with Morena Creek, (4) approximately 5 mi (8 km) of Kitchen Creek downstream to the Cottonwood Creek confluence, and (5) approximately 3.8 mi (6 km) of La Posta Creek downstream to the Cottonwood Creek confluence. As proposed, Subunit 19a included a total of 5,847 ac (2,366 ha). The Secretary is exercising his discretion to exclude from this final revised critical habitat designation, under section 4(b)(2) of the Act, portions of Subunit 19a totaling 31 ac (13 ha). The portion of Subunit 19a we are designating as critical habitat consists of 2,128 ac (861 ha) of Forest Service land, 1,476 ac (597 ha) of local government land, and 2,212 ac (895 ha) of private land. Subunit 19a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from grazing, recreational activities, and nonnative plants and predators (Ervin 2000,

in litt.;

TAIC 2005, p. 1; CNDDB 2008, EOs 20, 44, 69).

As indicated above, the Secretary is exercising his discretion to exclude approximately 31 ac (13 ha) within Camp Morena. This exclusion is based on our determination that the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these areas will not result in extinction of the species (

see

Exclusions Under Section 4(b)(2) of the Act—Impacts to National Security

section below for a detailed discussion).

Subunit 19b

Subunit 19b encompasses approximately 12.7 mi (20 km) of Cottonwood Creek from immediately below Barrett Lake downstream to the U.S.-Mexico border and includes 10.3 mi (17 km) of Potrero Creek from approximately the 2,466-ft (752-m) elevation benchmark downstream to the confluence with Cottonwood Creek. The subunit consists of 80 ac (32 ha) of Forest Service land, 129 ac (52 ha) of BLM land, and 4,921 ac (1,991 ha) of private land. Subunit 19b contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from grazing, and nonnative plants and predators (Ervin 1997,

in litt.;

TAIC 2005, pp. 1, 3; CNDDB 2008, EOs 40, 64, 65, 79).

Subunit 19c

Subunit 19c encompasses: (1) Approximately 7.6 mi (12 km) of Pine Valley Creek from the north edge of section 12 (T15S, R4E) downstream to approximately 0.6 mi (1 km) south of Interstate 8, (2) approximately 0.6 mi (1 km) of Noble Creek downstream to the confluence with Pine Valley Creek, (3) approximately 2.4 mi (4 km) of Scove Canyon downstream to the confluence with Pine Valley Creek, and (4) approximately 1.3 mi (2 km) of an unnamed tributary upstream of Scove Canyon in sections 25 and 36 (T15S, R04E). The subunit consists of 809 ac (327 ha) of Forest Service land and 703 ac (284 ha) of private land. Subunit 19c contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from urbanization, vehicular traffic, and nonnative predators (Holland and Sisk 2001, p. 9; CNDDB 2008, EOs 21, 22, 30).

Subunit 19d

Subunit 19d encompasses approximately 8 mi (13 km) of Pine Valley Creek from the Nelson Canyon confluence downstream to Barrett Reservoir and approximately 1.6 mi (3 km) of Horsethief Canyon downstream

to the confluence with Pine Valley Creek. The subunit consists of 910 ac (368 ha) of Forest Service land and 28 ac (11 ha) of private land. Subunit 19d contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from U.S. Border Patrol activities (Varanus Biological Services, Inc. 1999, p. 2).

Subunit 19e

Subunit 19e encompasses approximately 4.4 mi (7 km) of Campo Creek from Campo Lake downstream to the U.S.-Mexico border. The subunit consists of 61 ac (25 ha) of BLM land and 889 ac (360 ha) of private land. Subunit 19e contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from fire management activities along the U.S.-Mexico border (LEI 2008, p. 2).

Desert Recovery Unit

As described in the recovery plan (Service 1999, pp. 1-119), maintaining arroyo toad populations in the areas described by the following four unit descriptions is necessary to conserve the species in the desert recovery unit. Each of these units is isolated from each other and from any other recovery units, making the issues of inbreeding, fragmentation, and random negative impacts of great concern. However, this recovery unit also represents unique ecological conditions for arroyo toads, such as extremes in aridity, heat, and cold, and likely harbors important genetic diversity.

Unit 20: Upper Santa Ana River Basin/Cajon Wash (1,775 ac (718 ha))

This unit is located in southwestern San Bernardino County and encompasses approximately 7.9 mi (13 km) of Cajon Wash from approximately 0.2 mi (0.3 km) north of United States Highway 138 downstream to approximately 0.3 mi (0.5 km) northwest of the Interstate 15 crossing. The unit consists of 711 ac (288 ha) of Forest Service land and 1,065 ac (431 ha) of private land. This unit supports a population that may represent some of the last vestiges of a much greater population that historically existed along the upper Santa Ana River Basin, but was almost entirely extirpated due to urbanization of the greater Los Angeles area. Therefore, this location is important to maintain the current geographic extent of the species. Unit 20 contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from recreational activities.

Unit 21: Little Rock Creek Basin (612 ac (248 ha))

This unit is located in central Los Angeles County and encompasses: (1) Approximately 5.9 mi (9.5 km) of Little Rock Creek from the South Fork confluence downstream to the upper end of Little Rock Reservoir (in the vicinity of Rocky Point Picnic Ground), and (2) approximately 1.1 mi (1.8 km) of Santiago Creek upstream from the confluence with Little Rock Creek in the Little Rock Creek Basin. The unit consists of 612 ac (248 ha) of Forest Service land. This unit is on the periphery of the species' range in the Mojave Desert and geographically isolated from other known arroyo toad populations; therefore, it is important for maintaining the current geographic extent of the species. Unit 21 contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this unit may require special management considerations or protection to address threats from recreational activities.

Unit 22: Upper Mojave River Basin (5,602 ac (2,267 ha))

This unit is located in San Bernardino County and consists of one subunit totaling 2,143 ac (867 ha) of Federal land, 47 ac (19 ha) of State land, and 3,412 ac (1,381 ha) of private land.

Subunit 22a

Subunit 22a includes: (1) Approximately 9.3 mi (18 km) of Deep Creek from near Holcomb Creek downstream to the confluence with the West Fork; (2) approximately 4 mi (6 km) of Little Horsethief Creek upstream from its confluence with Horsethief Creek; (3) approximately 4 mi (6 km) of Horsethief Creek from approximately 1 mi (1.6 km) above the Little Horsethief Creek confluence downstream to the West Fork confluence; (4) approximately 6 mi (10 km) of the West Fork of the Mojave River from Highway 173 downstream to Mojave River Forks Dam; (5) approximately 1 mi (1.6 km) of the Mojave River below Mojave River Forks Dam; (6) approximately 1.4 mi (2.2 km) of Grass Valley Creek upstream from the confluence with the West Fork; and (7) approximately 2.8 mi (4.5 km) of Kinley Creek upstream from the Deep Creek confluence. Subunit 22a consists of 2,143 ac (867 ha) of Federal land, 3,412 ac (1,381 ha) of private land, and 47 ac (19 ha) of State land. This subunit contains Summit Valley, which encompasses the lower portions of Horsethief Creek and the West Fork of the Mojave River, a broad, flat, alluvial valley that supports a substantial arroyo toad population (Ramirez 2003, pp. 16-17). Additionally, the downstream portion of this subunit contains the driest conditions of any unit proposed for arroyo toad critical habitat (Teale Data Center 1998, p. 1; CIMS 2000, p. 1), Subunit 22a contains the physical and biological features that are essential to the conservation of the species, including aquatic habitat for breeding and non-breeding activities (PCEs 1, 2, and 3) and upland habitat for foraging and dispersal activities (PCE 4). The physical and biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative species, urban development, and recreation.

Based on information submitted by Summit Valley Ranch during the initial public comment period from October 13, 2009, to December 14, 2009, we removed approximately 82 ac (33 ha) of private land from Subunit 22a. The lands in question are located north of State Road 138 on Summit Valley Ranch, San Bernardino County. We included this area in the proposed revised critical habitat designation because we believed it contained suitable upland habitat for arroyo toads; however, it has come to our attention that (1) surveys have never detected arroyo toads in the area, (2) the area

lacks the PCEs for the arroyo toad, and (3) State Route 138 serves as a barrier for arroyo toads to disperse into the area. Consequently, we determined that the area north of State Route 138 does not contain the physical and biological features essential to the conservation of arroyo toads and therefore does not meet the definition of critical habitat for the arroyo toad.

Additionally, we removed Subunit 22c (approximately 234 ac (915 ha)) within Unit 22 from our revised critical habitat designation. Subunit 22c is within the geographical area occupied at the time of listing; however, this subunit was erroneously included in the proposed revised rule (74 FR 52612; October 13, 2009). Although we were not aware of this issue when we published the proposed rule, the existence of Cedar Springs Dam upstream of this subunit has altered the hydrology of the 1-mi (1.6-km) reach of the upper West Fork of the Mojave River above Silverwood Lake that extends to the upper end of the lake to such an extent that it does not contain the features essential to the conservation of the species and therefore does not meet the definition of critical habitat for the arroyo toad.

Unit 23: Whitewater River Basin

We removed Unit 23 (approximately 1,355 ac (548 ha)) from the final revised critical habitat designation. This unit was erroneously included in the proposed revised rule (74 FR 52612; October 13, 2009). Following examination of data used to map Unit 23 in the proposed rule and discussions with species experts regarding identification records, we determined that these records are not arroyo toads and do not support a determination that this area meets the definition of critical habitat. Therefore, Unit 23 is not included in this final revised critical habitat rule.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

Decisions by the Fifth and Ninth Circuit Courts of Appeal have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (

see Gifford Pinchot Task Force

U.S. Fish and Wildlife Service,

378 F.3d 1059 (9th Cir. 2004) and

Sierra Club

U.S. Fish and Wildlife Service et al.,

245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.

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. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251

et seq.

) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of this consultation, we document compliance with the requirements of section 7(a)(2) of the Act through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

An exception to the concurrence process referred to in (1) above occurs in consultations involving National Fire Plan projects. In 2004, the Forest Service and the BLM reached agreements with the Service to streamline a portion of the section 7 consultation process (BLM-ACA 2004, pp. 1-8; FS-ACA 2004, pp. 1-8). The agreements allow the

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