Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Arroyo Southwestern Toad

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Arroyo Southwestern Toad

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered

status for the arroyo southwestern toad (Bufo microscaphus

californicus) pursuant to the provisions of the Endangered Species Act

of 1973, as amended (Act). The arroyo toad occurs exclusively in

streams in southern California and northwestern Baja California,

Mexico. The arroyo toad has been extirpated from an estimated 75

percent of its former range. Threats to the survival of this species

include: habitat degradation, predation, and small population sizes.

Only 6 of the 22 extant populations south of Ventura are known to

contain more than a dozen adults. This rule implements the protection

and recovery provisions provided by the Act for the arroyo southwestern

toad.

EFFECTIVE DATE: January 17, 1995.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Ventura Field

Office, U.S. Fish and Wildlife Service, 2140 Eastman Avenue, Suite 100,

Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Ms. Cathy R. Brown at the above

address (805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

The arroyo toad (Bufo microscaphus californicus) is a small toad in

the family Bufonidae. This taxon was originally described as Bufo

cognatus californicus from a specimen collected at Santa Paula, Ventura

County (Camp 1915). Camp's specimen was later shown to differ in

several respects from Bufo cognatus and was afforded specific status as

Bufo californicus (Myers 1930). In the following two decades, this toad

was considered a subspecies of Bufo compactilis (Linsdale 1940) and of

B. woodhousei (Shannon 1949). The currently accepted taxonomy of the

arroyo toad as a subspecies of Bufo microscaphus, the southwestern

toad, is based on morphological similarities (Stebbins 1951, Price and

Sullivan 1988). The arroyo toad (B. microscaphus californicus) is

geographically isolated from the Arizona toad (B. microscaphus

microscaphus) by the Mojave and Colorado Deserts. Work is now in

progress to determine if the arroyo toad is genetically distinct at the

species level (S. Sweet, Univ. of Calif., Santa Barbara, pers. comm.,

1991).

The arroyo toad is a small (5 to 8 centimeters (cm) (2 to 3

inches)), light greenish gray or tan toad with warty skin and dark

spots. Its underside is buff colored and often without spots. A light-

colored stripe crosses the head and eyelids, and a light area usually

occurs on each sacral hump and in the middle of the back. Its movement

consists of hopping rather than walking. Its courtship vocalization is

a high trill, usually lasting 8 to 10 seconds.

The arroyo toad is restricted to rivers that have shallow, gravelly

pools adjacent to sandy terraces. Breeding occurs on large streams with

persistent water from late March until mid-June (Sweet 1989). Eggs are

deposited and larvae develop in shallow pools with minimal current and

little or no emergent vegetation and with sand or pea gravel substrate

overlain with flocculent silt. After metamorphosis (June or July), the

juvenile toads remain on the bordering gravel bars until the pool no

longer persists (3 to 8 weeks, depending on site and year) (Sweet

1992). Juveniles and adults forage for insects on sandy stream terraces

that have nearly complete closure of cottonwoods (Populus spp.), oaks

(Quercus spp.), or willows (Salix spp.), and almost no grass and

herbaceous cover at ground level. Adult toads excavate shallow burrows

on the terraces where they shelter during the day when the surface is

damp or during longer intervals in the dry season (Sweet 1989).

Arroyo toads were historically found along the length of drainages

in southern California from San Luis Obispo County to San Diego County,

but now they survive primarily in the headwaters as small isolated

populations (Sweet 1992, J. Stephenson, Cleveland National Forest, in

litt., 1993). Urbanization and dam construction beginning in the early

1900's in southern California caused most of the extensive habitat

degradation. The species was formerly distributed southward along the

northwestern coastal region of Baja California, Mexico, to the vicinity

of San Quintin (ca. 30.5 deg. N Lat.).

Most remaining populations in the United States occur on privately

owned lands, primarily within or adjacent to the Cleveland National

Forest. Less than 50 percent of the known extant populations of arroyo

toad occur in areas owned or managed by the Forest Service (Los Padres,

San Bernardino, and Cleveland National Forests) (Sweet 1992, J.

Stephenson, in litt., 1993). Due mostly to habitat destruction, only

eight drainages remain where populations of this species may be viable

(S. Sweet, pers. comm. 1993; J. Stephenson, in litt., 1993). In 1990,

only seven pairs of arroyo toads were known to have bred anywhere

within the toad's range (Sweet 1992). Due to the isolation and the

small sizes, almost all populations are at great risk of extinction.

Previous Federal Action

The arroyo toad was first included by the Service as a category 2

candidate species in the September 18, 1985, Notice of Review of

Vertebrate Wildlife (50 FR 37958). Category 2 applies to taxa for which

information now in the possession of the Service indicates that

proposing to list as endangered or threatened is possibly appropriate,

but for which conclusive data on biological vulnerability and threat

are not currently available to support proposed rules. The subspecies

also was included as a category 2 candidate in the January 6, 1989, and

November 21, 1991, Animal Notices of Review (54 FR 554 and 56 FR 58804,

respectively). After publication of the most recent Notice of Review,

the Service obtained substantial information on the biological

vulnerability and the environmental threats to elevate this species to

category 1. Category 1 species are those for which the Service

possesses sufficient data to support proposals for listing. Most of the

new information and analyses came from Dr. Samuel Sweet, University of

California, Santa Barbara; Dr. Mark Jennings, California Academy of

Sciences; and staff of the Los Padres National Forest.

On December 30, 1992, (not January 12, 1993, as indicated in

proposed rule (58 FR 41232)) the Service received a petition from Dr.

Sweet and Dr. Mark Jennings to list the arroyo toad as endangered

(Sweet and Jennings 1992). Section 4(b)(3)(A) of the Endangered Species

Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq), requires to the

maximum extent practicable, that the Secretary make a finding within 90

days of receipt of a petition, as to whether or not substantial

information indicates the requested action may be warranted. If such a

finding is made, the Service is directed to commence a review of the

status of the species. Within 12 months of receipt of a petition found

to present substantial information, the Secretary is further directed

to make a finding that the petitioned action is warranted, not

warranted, or warranted but precluded. In this instance, the

preparation of the proposed rule was nearly complete at the time the

petition was received, thus alleviating the need to commence the status

review that the Service would typically start in response to a

petition.

On August 3, 1993, the Service published a proposed rule in the

Federal Register (58 FR 41231) to list the arroyo toad as endangered.

That proposal was based primarily on information provided by the

petitioners, published literature, and contacts with various

herpetologists.

Summary of Comments and Recommendations

In the August 3, 1993, proposed rule and associated notifications

all interested parties were requested to submit factual reports or

information relevant to a final decision on the listing proposal.

Appropriate state agencies, county governments, Federal agencies,

scientific organizations, and other interested parties were contacted

and requested to comment. Notice of the publication of the proposal was

published in the Santa Barbara News Press, Los Angeles Times, and the

San Diego Union Tribune. Requests for a public hearing were received

from four parties: the California Cattlemen's Association, the Newhall

Land and Farming Company, Public Lands for the People, and United Water

Conservation District. On September 9, 1993, the Service published a

notice in the Federal Register announcing the hearing and extending the

comment period until October 15, 1993 (58 FR 47428). The Service

conducted a hearing on October 4, 1993, at the Minerals Management

Service in Camarillo, California. Thirteen parties presented testimony.

During the comment period, the Service received written and oral

comments from 27 parties, including those of three Federal agencies,

three State agencies, and 19 individuals or groups. The Santa Monica

Mountains National Recreation Area (National Park Service), U.S. Forest

Service, the U.S. National Biological Survey's National Ecology

Research Center, Southwestern Herpetologists Society, Keep the Sespe

Wild Committee, and the Environmental Defense Center were some of the

eight commenters expressing support for the listing proposal. Sixteen

commenters opposed the listing of the arroyo toad. Eight were neutral

on the proposal but offered clarification or additional information.

Written and oral statements obtained during the public hearing and

comment period are combined in the following discussion. In addition,

information submitted by the commenters, including updated locality and

population data from the Cleveland, San Bernardino, and Los Padres

National Forests, has been incorporated into this final rule. Opposing

comments and other comments questioning the rule have been organized

into specific issues. These issues and the Service's response to each

are summarized as follows:

Issue 1: One of the petitioners noted that the common name for the

species, Bufo microscaphus, is southwestern toad, whereas the common

name of the subspecies, B. microscaphus californicus, is arroyo toad.

In the proposed rule the Service referred to B. microscaphus

californicus as the arroyo southwestern toad.

Service Response: The Service acknowledges the nomenclatural

confusion in the proposed rule. The Service prefers to utilize common

names of subspecies that also reflect the species to which it is

presently assigned; such usage allows the general public to find

information on both the full species and the listed subspecies. The

common name of the subspecies appears as the ``arroyo southwestern

toad'' in the rule but is usually referred to as the ``arroyo toad'' in

the preamble text.

Issue 2: Several commenters believed that there was insufficient

scientific evidence to list the arroyo toad; that all the data on the

species came from a single ``biased'' source; and that more studies

should be conducted before a final decision on listing could be made.

Service Response: In researching the proposed rule, the Service

reviewed data and consulted publications from many sources, including

herpetologists at academic institutions, staff biologists with the U.S.

Forest Service, research biologists within the Fish and Wildlife

Service, and museum records. It is the consensus of the herpetologists

that contacted the Service that the arroyo toad is one of the most

threatened amphibians in southern California (see Issue 7). A recent

report prepared under contract to the California Department of Fish and

Game stated that the combination of threats ``probably make this taxon

the most vulnerable in California'' (Jennings and Hayes 1992). In

regard to recommendations that more studies are needed before listing

the arroyo toad, section 4 of the Act states that a determination to

list must be based on the best scientific and commercial data available

after conducting a review of the status of the species. The Service

completed such a review of the toad in preparing the proposed rule and

prior to the receipt of the petition. The best scientific and

commercial data now available supports listing the arroyo toad as

endangered.

Issue 3: Several commenters believed that the proposed rule did not

present any scientific evidence for the adverse effects of mining,

recreation, or grazing on arroyo toads.

Service Response: The proposed rule presented numerous examples of

habitat degradation caused by mining, recreation, and grazing (see

Factor A in the proposed rule and this final rule). As stated in the

proposed rule, mining, recreation, and grazing have all been observed

to alter microhabitat characteristics essential to successful breeding

of arroyo toads. Recreation and grazing are also implicated in

mortality of adult and juvenile arroyo toads. As directed by the Act,

the Service used the best available scientific and commercial data in

proposing to list the arroyo toad. These data demonstrate the potential

negative effects of these activities. Although the commenters do not

agree with the conclusions in the proposed rule, they did not submit

any information to disprove the Service's analysis of the effects of

mining, grazing, or recreation on arroyo toad populations.

Issue 4: Several commenters stated that the listing of the arroyo

toad should not proceed until the Service conducts the appropriate

National Environmental Policy Act review.

Service Response: The Service need not prepare environmental

assessments or environmental impact statements pursuant to the National

Environmental Policy Act (NEPA) for reasons outlined in the Federal

Register on October 25, 1983 (48 FR 49244). Basically, the listing of a

species is exempt as a matter of law for NEPA review. Listing decisions

are based upon biological, not sociological or economical,

considerations. This view has been upheld in at least one court case

(Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (1981))

Issue 5: One commenter was puzzled by the Service's statement in

the proposed rule that ``little opportunity exists for natural

dispersal and recolonization following local extirpations,'' because

volunteers of an off-road vehicle association had recently offered to

relocate toads into formerly occupied habitats.

Service Response: The Service's statement referred to the effects

of habitat fragmentation on the viability of arroyo toad populations

and their ability to disperse naturally to reoccupy former habitat. The

Service appreciates the offer for volunteer help and will consider such

offer in the recovery of the species. The reintroduction of arroyo

toads into habitats from which small, isolated populations had become

extirpated would likely require frequent, intensive management efforts.

In most cases, such efforts would be unsuccessful, especially if the

arroyo toads were placed in degraded areas. Section 2 of the Endangered

Species Act clearly states that the purpose of the Act is to provide a

means whereby the natural ecosystems upon which endangered and

threatened species depend may be conserved. However, such intensive

management actions may play a role in endangered species recovery, in

addition to habitat protection.

Issue 6: One commenter stated that failure to designate critical

habitat ``hampers the efforts of landowners and other interested

parties to locate additional populations of this species, possibly

precluding the need for protection under the act.''

Service Response: Designation of critical habitat for the arroyo

toad would not be prudent at this time. The arroyo toad is threatened

by taking, an activity difficult to control. Remaining populations of

the arroyo toad are small and geographically restricted, so that they

are now vulnerable to unrestricted collection. Publication of specific

localities, which would be required in proposing critical habitat,

would reveal precise locality data and thereby make the species more

vulnerable to additional collection and acts of vandalism, and increase

the difficulties of enforcement. Designation of critical habitat first

focuses on known occupied habitat, which would not aid in locating

additional populations.

Issue 7: One commenter believed that the Service was not justified

in keeping habitat and population data confidential, because this

practice ``does not allow for an independent assessment of the

vulnerability of the species and the critical need for listing.''

Service Response: The proposed and final rules contain a complete

summary of the data available to the Service regarding the status of

the arroyo toad. Habitat and population data have been available for

review (see ``Addresses'' section above). As discussed above (Issues 2

and 6), these data have been reviewed by the scientific community and

there is a consensus among herpetologists that the arroyo toad is one

of the most threatened amphibians in California.

Issue 8: Several commenters referred to the economic impacts of

listing the arroyo toad and recommended that the Service not proceed

with listing the species until the present and future economic impacts

of listing had been considered.

Service Response: Section 4 of the Act directs the Service to

consider only the best scientific and commercial data available when

making a decision regarding the appropriateness of listing a species as

endangered or threatened; economic impacts are not considered in this

evaluation. Economic factors are only to be considered in the

designation of critical habitat.

Issue 9: Several commenters contended that listing constitutes

taking of private property by the Federal government without

compensation to the landowner.

Service Response: Listing of the arroyo toad under the Endangered

Species Act will trigger the protective measures of section 9 of the

Act, prohibiting the take of this species. In addition, the Act

requires that Federal agencies insure that activities they authorize,

fund, or carry out are not likely to jeopardize the continued existence

of any listed species, or destroy or adversely modify its critical

habitat, if any is designated. Any activity on private land that

requires Federal involvement (such as a section 404 permit under the

Clean Water Act) that may affect this species would have to be reviewed

by the Service to insure that the continued existence of the species

would not be jeopardized.

Listing under the Act does not imply that private land would be

confiscated or taken without just compensation. Recovery planning for

the arroyo toad may include recommendations for land acquisition or

easements involving private landowners. These efforts only would be

undertaken with the cooperation of the landowner. In the majority of

cases, private landowners are not precluded from using their land in

the manner originally intended.

Issue 10: One commenter requested that the proposed listing of the

arroyo toad be delayed until the Service could investigate the

possibility of implementing an arroyo toad hatchery and transplanting

program.

Service Response: Section 2 of the Endangered Species Act states

that the purpose of the Act is to provide a means whereby the

ecosystems upon which endangered and threatened species depend may be

conserved. Captive breeding programs, such as the hatchery proposed by

the commenter, may be considered in planning for the recovery of some

listed species but are not a substitute for recovery of listed species

in the wild. See the Service's response to Issue 5 above.

Issue 11: One commenter asked if the arroyo toad's decline is tied

to the worldwide amphibian decline.

Service Response: The Endangered Species Act permits the listing of

species that have become rare due to both natural and manmade factors.

The decline of the arroyo toad may be due in part to the as-yet-unknown

factors causing the decline of amphibians throughout the world. As

summarized in the proposed rule, however, habitat degradation,

predation by introduced species, and the inadequacy of existing

regulatory mechanisms have played a significant role in the arroyo

toad's decline.

Issue 12: One commenter stated that the decision to list the arroyo

toad should be withheld until the genetic studies prove that the arroyo

toad is a distinct species.

Service Response: Section 3(15) of the Act states that ``(T)he term

``species'' includes any subspecies of fish or wildlife or plants . . .

which interbreeds when mature.'' Therefore, for the purposes of the

Act, this subspecies is treated as a species. Determination of full

species status is not necessary to proceed with listing the arroyo

toad.

Issue 13: One commenter questioned the Service's preparation of a

proposed rule prior to receipt of a petition. The commenter suggested

that this indicated impropriety, and an unacceptably close relationship

with the petitioners, on the part of the Service.

Service Response: Section 4(b) of the Act establishes two methods

by which a species may be considered for listing. Section 4(b)(1)(A)

describes the process followed by the Service when the Service

initiates a listing proposal. Section 4(b)(3)(A) describes the process

of initiating a listing action in response to a petition. In each case,

the Service conducts a status review of the species. A status review

takes into account the best available scientific and commercial

information, including published reports and consultations with

experts, regarding the species to determine if it should be provided

protection under the Act. In the case of the arroyo toad, as discussed

above, the Service had completed a status review of the species and

drafted a proposed rule (pursuant to section 4(b)(1)(A)) before the

petition was received.

Issue 14: Two commenters contended that adequate regulatory

mechanisms are currently in place to protect the arroyo toad, because

the species occurs largely on National Forest lands. Therefore, any

action that could affect the species would undergo environmental review

pursuant to National Environmental Policy Act.

Service Response: As stated in the proposed rule and this final

rule, the arroyo toad has been extirpated from an estimated 75 percent

of its former range. Although a substantial proportion of currently

occupied habitat is found on National Forest lands, recovery of arroyo

toads on privately owned lands will likely be necessary to restore the

species to levels that will permit removal from the endangered species

list. The commenters are correct in stating that actions on Federal

lands would be subject to review under the National Environmental

Policy Act (NEPA). However, the objective of NEPA is to ensure that

Federal agencies consider every significant aspect of the environmental

impact of a proposed action. The law does not guarantee that actions

with significant impacts will not be authorized. Therefore, NEPA will

be applied to actions that affect the arroyo toad, but it does not

assure protection for the species.

Issue 15: One commenter stated that listing will not alleviate the

effect of exotic predators, which was identified in the proposed rule

as one of the most severe threats to the survival of the arroyo toad.

Service Response: The Act provides for the determination of

endangered or threatened status to be based upon the five factors of

section 4(a)(1) and not upon whether or not certain threats can be

reduced or eliminated in a species' recovery. Section 4(f)(1) of the

Act directs the Service to develop and implement a recovery plan for

the conservation and survival of listed species. Most of the exotic

predators are either game fish (e.g., bass, trout) or the bullfrog (see

below). A recovery plan would address the reduction of some of the

impacts from those predators through State and Federal actions. Section

6 of the Act enables the Service to transfer funds to State endangered

species conservation programs for implementation of actions that will

further the conservation of the listed species. Thus, by listing the

arroyo toad, guidance and funding can be provided for habitat

management, including control of exotic predators in arroyo toad

habitats.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the arroyo toad should be

classified as an endangered species. Procedures found at section 4 of

the Endangered Species Act (16 U.S.C. 1531 et seq.) and regulations (50

CFR part 424) promulgated to implement the listing provisions of the

Act were followed. A species may be determined to be an endangered or

threatened species due to one or more of the five factors described in

section 4(a)(1). These factors and their application to the arroyo

southwestern toad (Bufo microscaphus californicus) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

Habitat destruction and alteration constitutes the most severe

threat facing the arroyo toad. This toad is now confined to the

headwaters of streams it occupied historically along their entire

lengths.

The arroyo toad was formerly found on rivers with near-perennial

flow throughout southern California from San Luis Obispo County to San

Diego County. It is believed to be extirpated in San Luis Obispo County

(S. Sweet, pers. comm., 1991). Populations persist in Santa Barbara,

Ventura, Los Angeles, Riverside, and San Diego Counties. Recent

sightings of scattered individuals have been reported from Orange, San

Bernardino, and southwest Imperial Counties.

The majority of the remaining populations in Santa Barbara and

Ventura Counties are located on the Los Padres National Forest. This

National Forest supports the majority of southern California's

remaining intact large river systems and maintains five viable

populations of arroyo toads. Sespe Creek in Ventura County has the

largest known population (Sweet 1992). Other populations are found on

the Sisquoc, Santa Ynez, and upper and lower Piru drainages (Sweet

1992).

Populations to the south are located primarily in San Diego and

Riverside Counties and are predominantly found in the vicinity of the

Cleveland National Forest and on private lands within or adjacent to

national forest. In San Diego County, arroyo toads have been found on

the Santa Margarita, Guejito, Sweetwater, Vallecito, San Luis Rey,

Santa Ysabel, Witch, Cottonwood, Temescal, Agua Caliente, Santa Maria,

Lusardi, Pine Valley, Noble, Kitchen, Long Potrero, Upper San Diego,

San Vincente, and Morena drainages. Populations on Temescal, Agua

Caliente, Pine Valley, and Cottonwood drainages may be considered

viable (J. Stephenson, in litt., 1993; J. Copp, California Academy of

Sciences, in litt., 1993). Recent surveys have located very small

populations of arroyo toads in four creeks in southwestern Riverside

County (Temecula, Arroyo Seco, San Mateo, and Tenaja Creeks) (J.

Stephenson, in litt., 1993). The single recent occurrence of arroyo

toads in San Bernardino County is on Deep Creek in the San Bernardino

National Forest.

Several factors presently threaten the remaining 25 percent of the

habitat of the arroyo toad including: (1) Short- and long-term changes

in river hydrology, including construction of dams and water

diversions; (2) alteration of riparian wetland habitats by agriculture

and urbanization; (3) construction of roads; (4) site-specific damage

by off-highway vehicle use; (5) development of campgrounds and other

recreational activities; (6) over-grazing; and (7) mining activities.

Dam construction was responsible for the loss of approximately 40

percent of the estimated original range of the arroyo toad. Twenty-six

large impoundments are currently located within the range of this

species, inundating over 190 km (120 miles) of suitable habitat.

Additional areas have been identified as potential dam sites and, if

constructed, would destroy 25 percent of the current range (6 to 7

percent of the original range) of the arroyo toad (Sweet 1991a).

In addition to habitat loss through direct inundation, dams can

have significant effects on habitat quality downstream. Artificial flow

regulation disrupts the natural processes that produce the terrace and

pool habitats required by arroyo toads. Unseasonal water releases may

prevent arroyo toads from breeding due to habitat changes (Sweet 1992).

Another consequence of sustained unnatural perennial flows below

dams is an adverse effect on the habitat of this species by encouraging

vegetative growth in a riparian corridor, which increases ground

stability and hence confines and deepens the creek channel. Water

temperatures are reduced below the temperatures needed for larval

development (Sweet 1991a).

The arroyo toad is also sensitive to stream diversions as they

cause the riparian areas to dry. Water diversions that alter normal

flows have degraded habitats and adversely affected arroyo toads by

leading to: (1) The early drying of breeding pools, causing breeding

failures or loss of the larval population; (2) restriction of the

period essential for rapid growth when newly-metamorphosed toads can

forage on damp gravel bars; and (3) loss of damp subsurface soil, which

may result in high adult mortality during late summer and early fall

(Sweet 1992).

Development projects in riparian wetlands have caused permanent

losses of riparian habitats and are the most conspicuous factor in the

decline of the arroyo toad (S. Sweet, pers. comm., 1991). Agriculture

and urbanization have already destroyed much of the suitable arroyo

toad habitat south of the Santa Clara River in Ventura County (S.

Sweet, pers. comm., 1991). Stream terraces have been converted to

farming, road corridors, and residential and commercial uses, while the

streams themselves have been channelized for flood control. Large

stretches of riparian corridor habitat have also been degraded or

destroyed by cattle and feral pigs (S. Sweet, pers. comm., 1991).

Recreational activities in riparian wetlands have had substantial

negative effects to arroyo toad habitat and individuals, as discussed

in Factor E. Off-highway vehicles cause extensive damage to the shallow

pools in which arroyo toads breed (Sweet 1992).

Streamside campgrounds in southern California national forests have

frequently been located adjacent to arroyo toad habitat (Sweet 1992).

In the Los Padres National Forest, each of the three campgrounds on

Piru and Sespe Creeks were developed on terraces used by arroyo toads

within 50 to 100 meters (150 to 300 feet) of their breeding pools. On

the upper Santa Ynez River, also in Los Padres National Forest, three

of four campgrounds are also located in arroyo toad habitat (Sweet

1991a, 1991b). The placement of campgrounds is similar in the Cleveland

National Forest in San Diego County; upper San Juan Creek, upper San

Luis Rey River, and Cottonwood Creek all have campgrounds situated

adjacent to arroyo toad breeding habitats (M. Jennings, in litt.,

1993).

The use of heavy equipment in yearly reconstruction of roads and

stream crossings in the national forests has had significant and

repeated impacts to arroyo toads and toad habitat. Maintenance of the

road to Ogilvy Ranch, a private inholding in the Los Padres National

Forest, is likely responsible for a depressed population of arroyo

toads in Mono Creek. The Ogilvy Ranch road makes 18 crossings of Mono

Creek, many directly through or near arroyo toad breeding pools. In

summer 1992, the Los Padres National Forest declined to open the Ogilvy

Ranch road in order to protect populations of arroyo toads and other

candidate amphibians and reptiles. However, the road was opened with a

bulldozer in the fall. As juvenile arroyo toads were likely burrowed in

the soft sand adjacent to the creek, grading the road up the creek

destroyed habitat and probably killed individual toads. Regular

maintenance of roads in the Los Padres National Forest negatively

affects arroyo toad individuals and toad habitat on the Santa Ynez

River, Piru and Sespe Creeks, as well.

Mining activities are an additional threat to this species.

Recreational suction dredging for gold adversely affects toad habitat

and individuals. Dredging destroys breeding pools used by arroyo toads

and causes excessive siltation downstream, which asphyxiates eggs and

small larvae. For example, during the Memorial Day weekend of 1991,

four small dredges operating on Piru Creek (Los Padres National Forest)

produced sedimentation visible more than 1 kilometer (0.6 mile)

downstream and adversely affected 40,000 to 60,000 arroyo toad larvae.

Subsequent surveys revealed nearly total destruction of the species in

this stream section; fewer than 100 larvae survived, and only 4

juvenile toads were located (Sweet 1992).

Several rivers in the Los Padres National Forest were recently

temporarily closed to gold mining, and it is uncertain whether the ban

will be made permanent. In December 1992, a group of miners challenged

the Forest Service's authority to close Piru Creek to mining. These

individuals practiced various methods of gold extraction until cited by

the Forest Service. It is probable that future challenges will occur

and, if successful, will threaten the population of arroyo toads on

Piru Creek.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Populations of the arroyo toad are becoming so small and confined

that even limited taking by campers, recreationists, and scientific

researchers could adversely affect this species' viability. These toads

are threatened from collecting by children near the campgrounds. No

data exists on the extent of such collection activities, but it is

probable that it continues to occur.

C. Disease or Predation

Over the past 20 years, at least 60 species of fishes have been

introduced to the western U.S. States, 59 percent of which are

predatory (Hayes and Jennings 1986; Jennings 1988). The introduction of

exotic predators to southern California waters has been facilitated, in

part, by the interbasin transport of water (e.g., California Aqueduct).

Introduced predators had substantial impacts on the sizes of extant

populations of arroyo toads and may have contributed to regional

extinctions (Hayes and Jennings 1986).

Virtually all rivers that contain or once contained arroyo toads

support populations of introduced predatory fish, such as green sunfish

(Lepomis cyanellus), largemouth bass (Micropterous salmoides),

mosquitofish (Gambusia affinis), black bullhead (Ictalurus nebulosus),

arroyo chub (Gila orcutti), prickly sculpin (Cottus asper), rainbow

trout (Oncorhynchus mykiss), oriental gobies (Tridentiger sp.), and red

shiners (Notropis lutrensis) (Sweet 1992). All of these introduced fish

prey on tadpoles and have been observed inducing high arroyo toad

larval mortality in breeding pools on the Piru, Sespe, and Santa Ynez

drainages. It is probable that predation by introduced fish species

occurs elsewhere (Sweet 1992).

Arroyo toads occur in streams with perennial or near perennial

flow. Most streams with populations of arroyo toads also have

populations of introduced bullfrogs (Rana catesbeiana). Adult bullfrogs

are highly predatory and have been observed to prey on adult arroyo

toads (Sweet 1993). Habitat for bullfrogs has been enhanced within the

existing range of the arroyo toad via diversions and artificially

maintained perennial flows below dams. Increased bullfrog populations

in these permanent water areas threaten the survival of arroyo toad

populations.

D. The Inadequacy of Existing Regulatory Mechanisms

The U.S. Army Corps of Engineers (Corps) is responsible for

administering section 404 of the Federal Water Pollution Control Act

Amendments of 1972 (Clean Water Act) and has authority to regulate the

placement of dredged and fill materials into waters of the United

States. Individual actions under nationwide permits undergo minimal

outside agency review. Individual permits, which are subject to more

extensive review, are required for projects that affect greater than 4

hectares (10 acres).

The Corps cannot issue a nationwide or individual permit where a

federally proposed or listed species may be affected, without first

conferring or consulting with the Service under section 7 of the

Endangered Species Act. In addition, the Service, as part of the

section 404 review process, provides comments on both pre-discharge

notices for nationwide permits and public notices for individual

permits.

Most construction projects in or near arroyo toad habitat would

require a permit from the Corps pursuant to section 404 of the Clean

Water Act. In practice, the Corps' actions under section 404 have not

adequately protected arroyo toads, as the Corps has rarely required

individual permits where impacts to the toad would occur. The Corps has

either approved the projects under nationwide permits, or there have

been repeated unauthorized activities. Federal listing of this species

will ensure greater consideration of the effects of permitted actions

during the review process, as well as provide the protection of section

7 of the Act.

The National Environmental Policy Act (NEPA) and California

Environmental Quality Act (CEQA) require an intensive environmental

review of projects that may adversely affect Federal candidate species.

However, project proponents are not required to avoid impacts to these

species, and proposed mitigation measures are frequently not adequately

implemented. As with section 404 permits, the Service's comments

through these environmental review processes are only advisory.

Forest Service policy, as described in the National Forest

Management Act, states ``Fish and wildlife habitat shall be managed to

maintain viable populations of existing native and desired non-native

vertebrate species in the planning area'' (36 CFR 219.19). The Los

Padres National Forest has recently funded studies on the ecology of

arroyo toads (Sweet 1992, 1993). The Los Padres and Cleveland National

Forests have begun to use this information to develop a riparian

habitat conservation strategy to provide better protection for arroyo

toads and other sensitive riparian species on the two forests. This

positive step may address the impacts associated with road maintenance,

off-highway vehicle use, placer mining, recreation, and the issuance of

special use permits for dam and water diversion construction, all of

which have contributed to the decline of the arroyo toad on national

forests lands in southern California. Conservation actions by the

Forest Service and the State of California will assist in the recovery

of the species. Recovery of the species can not be assured, however,

without the implementation of protective measures for arroyo toad

populations on private lands.

Alteration of the natural intermittent flow regimes by dams has had

significant adverse impacts to arroyo toads. Prior to 1992, the

California Department of Water Resources, which operates Pyramid Dam on

Piru Creek in the Los Padres and Angeles National Forests, frequently

discharged excess flows from the reservoir resulting in the depressed

population of arroyo toads on lower Piru Creek. Recent coordination

among the Department of Water Resources, Forest Service, and Fish and

Wildlife Service have resulted in releases from the dam that more

closely mimic natural flows, benefitting the arroyo toad. Water

releases of several million gallons per day from Barrett Dam on

Cottonwood Creek during the period when larval arroyo toads were

metamorphosing negatively affected the population in San Diego County

in summer 1993.

Although the arroyo toad is classified as a ``Species of Special

Concern'' by the State of California (Steinhart 1990) and may not be

taken without an approved scientific collecting permit, this

designation provides no special, legally mandated protection of the

species and its habitat.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Several other factors have also contributed to the decline of the

species including drought, fire, and light and noise pollution.

Additionally, there has been direct mortality of the toads due to road

construction and maintenance, water inundation or drainage from dams

and diversions, off-highway vehicle use, cattle and pig trampling,

mining, and recreational activities.

By far, the most significant natural factor adversely affecting the

arroyo toad is drought and resultant deterioration of riparian

habitats. Southern California recently experienced 5 consecutive years

of lower than average rainfall. These drought conditions, when combined

with human-induced water reductions (i.e., diversions of water from

streams), have degraded riparian ecosystems and have created extremely

stressful conditions for most aquatic species.

Drought also affects arroyo toads in another manner. Female arroyo

toads must feed for at least 2 months in order to develop the fat

reserves needed to produce a clutch of eggs (Sweet 1992). In drought

years, females may find insufficient insect prey to produce eggs before

males cease their courtship behavior of calling, resulting in no

reproduction in that year. The extremely low reproduction of 1990 was

likely due to 4 years of severe drought (Sweet 1992). Although rainfall

patterns in 1992 and 1993 returned to near normal levels, drought is a

naturally recurring phenomenon in southern California. There is no

doubt that arroyo toads evolved with periodic, severe drought. However,

the recurrence of this natural event combined with the many manmade

factors negatively affecting arroyo toad survival remains a significant

threat to the species persistence.

Periodic fires may adversely affect arroyo toads by causing direct

mortality, destroying streamside vegetation, or eliminating vegetation

that sustains the watershed. Recent natural and human-induced wildfires

had devastating effects on populations of arroyo toads. The 1991 Lions

Fire on upper Sespe Creek in the Los Padres National Forest destroyed

habitat containing the largest known extant population of arroyo toads

including 15 known breeding pools and over 50 percent of the known

adult population on the Sespe drainage (Sweet 1991c). Surveys in 1992

revealed that the effects of the fire and subsequent flooding, erosion,

and siltation caused the death of not less than 50 percent of the

resident adult population of arroyo toads.

The vocalizations of male toads are crucial to the breeding success

of this species, as their calls are the key factor to finding mates.

Light and noise pollution from adjacent developments or campgrounds may

also reduce arroyo toad reproductive success by disrupting the

vocalization behavior of males during the breeding season (M. Jennings,

in litt., 1993). Generally, the local population of arroyo toads

declines as campground use increases (Sweet 1992).

Unseasonal water releases from dams may prevent arroyo toads from

breeding altogether, as discussed in Factor A, or may wash away eggs

and larvae if releases are made after breeding has occurred (Sweet

1992). For example, large unscheduled releases from Pyramid Lake in May

1991 virtually eliminated all reproduction by arroyo toads below the

dam in Piru Creek in what would have been the best year for

reproduction following 5 years of drought (Sweet 1992). A proposal to

convey State Water Project water from Pyramid Lake to Piru Lake via

Piru Creek would also threaten arroyo toad survival on Piru Creek, if

releases substantially alter natural flow regimes.

Grazing brings another potential source of mortality to this

species. Horses and cattle graze in riparian areas and may trample eggs

and larvae of arroyo toads (S. Sweet, pers. comm., 1991). Grazing also

increases levels of sedimentation in streams that can smother eggs and

larvae (M. Jennings, in litt., 1993)

Off-highway vehicle use is believed to be the primary factor

responsible for the decimation of the Mojave River population of the

arroyo toad (Jennings 1991). On Memorial Day weekend in 1991, a fence

protecting a breeding pool on Piru Creek was cut, and off-highway

vehicles had access to the creek. The disturbance destroyed a small

sand bar that maintained a shallow pool, resulting in the loss of

12,000 to 16,000 arroyo southwestern tadpoles (Sweet 1992).

Recreational use of campgrounds is heaviest in early summer, when

arroyo toad larvae and juveniles are present and most vulnerable. As

the young toads are diurnal, sedentary, and live on the sand bars, they

are often crushed. Recreational use has resulted in the alteration of

stream and breeding pool morphology and trampling of juvenile toads

(Sweet 1992). Adult arroyo toads, which forage in open areas in the

campgrounds, are frequently killed on campground roads at night (Sweet

1992; M. Jennings, in litt., 1993).

Habitat loss, high mortality, and low reproduction from all of the

sources discussed above also result in the fragmentation of surviving

populations into isolated subpopulations. While these subpopulations

may continue to survive and reproduce over the short term, their long-

term survival is not secure, because little opportunity exists for

natural dispersal and recolonization following local extirpations

(Sweet 1991a). Habitat fragmentation increases the probability of local

extirpation due to stochastic events and also likely results in

reduction of genetic variability within the small, isolated

subpopulations.

The recent years of extremely low reproductive success have likely

been a bottleneck in the remaining populations of arroyo toads, in

which few individuals will reach sexual maturity until 1995 (Sweet

1992). As mature adults age and die in the next 2 years, little

recruitment into the breeding population is likely, and numerous local

extinctions of already small populations are probable. As individuals

may not survive and reproduce due to detrimental events such as drought

or road maintenance, and, as the population numbers are low and the

range is restricted, such events could cause the extinction of the

species.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present and future

threats faced by the arroyo toad in determining to make this final

rule. The arroyo toad has been extirpated from a substantial portion of

its historic range. Virtually all remaining populations are small and

face a variety of immediate threats to their continued viability. This

toad lives in highly specialized habitats that have been and will

continue to be targeted for development and degradation by human

activities and is extremely vulnerable to habitat modification and

water quality changes. Based on this evaluation, the preferred action

is to list the arroyo toad as endangered. Other alternatives to this

action were considered but not preferred because not listing this

species at all or listing it as threatened would not be in keeping with

the purposes of the Act. For the reasons discussed below, critical

habitat is not being proposed at this time.

Critical Habitat

Section 4(a)(3) of the Act requires to the maximum extent prudent

and determinable that the Secretary designate critical habitat at the

time a species is determined to be endangered or threatened. The

Service finds that designation of critical habitat is not presently

prudent for the arroyo toad.

As discussed under Factor B in the ``Summary of Factors Affecting

the Species,'' the arroyo toad is threatened by taking, an activity

difficult to control. Remaining populations of the arroyo toad are

small and geographically restricted, so that they are now vulnerable to

unrestricted collection. Publication of specific localities, which

would be required in proposing critical habitat, would reveal precise

locality data and, thereby, make the species more vulnerable to

additional collection and acts of vandalism and increase the

difficulties of enforcement.

The Forest Service has been notified of the locations and

importance of protecting this species' habitat. Protection of this

species' habitat will be addressed in the recovery process and through

the section 7 consultation process. Therefore, it would not now be

prudent to determine the critical habitat of the arroyo toad.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain activities. Recognition through listing encourages and

results in conservation actions by Federal, State, and private

agencies; groups; and individuals. The Endangered Species Act provides

for possible land acquisition and cooperation with the States and

requires that recovery actions be carried out for all listed species.

The protection required of Federal agencies and the prohibitions

against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(2) requires Federal agencies to insure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of a listed species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

The Forest Service (Department of Agriculture) and the Corps

(Department of Defense) are the main Federal agencies that will be

required to protect this species if it is listed. Federal agencies must

consult with the Service, as described in section 7 of the Act, on any

project that may affect this species. The Forest Service harbors a

substantial portion of known arroyo toad populations; hence, some of

Forest Service actions within the species' habitat may be affected.

Forest Service activities, such as the construction and maintenance of

roads, and the issuance of special use permits for dam and bridge

construction, mining, and water diversion projects would be subject to

the Act's section 7 requirements. Corps activities or issuances of

permits subject to section 404 of the Clean Water Act would be subject

to the Endangered Species Act section 7 requirements. Any Federal

actions that are subject to environmental review under the National

Environmental Policy Act may be subject to the requirements of section

7 of the Act.

Listing of the arroyo toad as endangered will provide for the

development of a recovery plan. Such a plan will bring together both

State and Federal efforts for its conservation. The plan will establish

a framework for cooperation and coordination among agencies in

conservation efforts. The plan will set recovery priorities and

estimate costs of various tasks necessary to accomplish them. It will

also describe site-specific management actions necessary to achieve

conservation and survival of the arroyo toad.

The Act and implementing regulations found at 50 CFR 17.21 set

forth a series of prohibitions and exceptions that apply to endangered

wildlife. These prohibitions, in part, make it illegal for any person

subject to the jurisdiction of the United States to take (includes

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect; or attempt any such conduct), import or export, transport in

interstate or foreign commerce in the course of commercial activity, or

sell or offer for sale in interstate or foreign commerce any listed

wildlife species. It is also illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that has been taken illegally.

Certain exceptions apply to agents of the Service and State

conservation agencies.

It is the policy of the Service (59 FR 34272) to identify to the

maximum extent practicable those activities that would or would not

constitute a violation of section 9 of the Act at the time of listing.

The intent of this policy is to increase public awareness of the effect

of this listing on proposed and ongoing activities within a species'

range. For further information, contact the Field Supervisor (see

``Addresses'' section). During the public comment period inquiries were

made as to the effect listing would have on the mining industry, water

projects, and recreational activities. The Service believes that, based

on the best available information, the following actions will not

result in a violation of section 9, provided these activities are

carried out in accordance with existing regulations and permit

requirements: momentary moving of individual adult toads out of danger

(e.g., road, path); release, diversion, or withdrawal of water in a

manner that does not displace tadpoles or eggs or disrupt breeding of

adults; normal lighting and noises around campgrounds; and non-

destructive recreational use of breeding habitat outside of the

breeding period (January through May).

Activities that the Service believes could potentially result in

the take of the arroyo toad, include, but are not limited to,

unauthorized collecting or capture of the species, except as noted

above to momentarily move an individual out of harm's way; introduction

of exotic species into occupied habitat (e.g., fish, other species of

toads); unauthorized destruction/alteration of the species' habitat

(e.g., in- stream dredging, rock removal, channelization, discharge of

fill material, operation of any vehicles within the stream channel);

violation of a construction, discharge or withdrawal permit that

affects occupied habitat; pesticide applications affecting occupied

habitat in violation of label restrictions; or other illegal discharges

or dumping of toxic chemicals, silt, or other pollutants into waters

supporting the species.

Other unauthorized activities not identified in the above two

paragraphs will be reviewed on a case-by-case basis to determine if a

violation of section 9 of the Act may have occurred. The Service does

not consider these lists to be exhaustive and provides them for the

information of the public.

The Act and 50 CFR 17.22 and 17.23 also provide for the issuance of

permits to carry out otherwise prohibited activities involving

endangered wildlife species under certain circumstances. Such permits

are available for scientific purposes, to enhance the propagation or

survival of the species, and for incidental take in connection with

otherwise lawful activities. Requests for copies of the regulations on

listed wildlife and inquiries regarding them may be addressed to the

U.S. Fish and Wildlife Service, Ecological Services, Endangered Species

Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-

2063; FAX 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment or Environmental Impact Statement, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited herein is available upon

request from the Ventura Field Office (see ADDRESSES above).

Author

The primary author of this final rule is Cathy R. Brown of the

Ventura Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations is amended, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical

order under AMPHIBIANS, to the List of Endangered and Threatened

Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate population

--------------------------------------------------- Historic range where endangered or Status When listed Critical Special

Common name Scientific name threatened habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Amphibians

* * * * * * *

Toad, arroyo Bufo microscaphus U.S.A. (CA), Mexico..... Entire................. E 568 NA NA

southwestern. californicus.

* * * * * * *

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Dated: November 22, 1994.

Mollie H. Beattie,

Director, U.S. Fish and Wildlife Service

[FR Doc. 94-30994 Filed 12-15-94; 8:45 am]

BILLING CODE 4310-55-P