Wednesday, April 13, 2005

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad (Bufo californicus); Final Rule

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DEPARTMENT OF THE INTERIOR most listed species, while consuming Procedural and Resource Difficulties in significant amounts of available Designating Critical Habitat Fish and Wildlife Service conservation resources. The Service’s We have been inundated with present system for designating critical lawsuits for our failure to designate 50 CFR Part 17 habitat has evolved since its original critical habitat, and we face a growing RIN 1018–AT42 statutory prescription into a process that number of lawsuits challenging critical provides little real conservation benefit, habitat determinations once they are Endangered and Threatened Wildlife is driven by litigation and the courts made. These lawsuits have subjected the and Plants; Final Designation of rather than biology, limits our ability to Service to an ever-increasing series of Critical Habitat for the Arroyo Toad fully evaluate the science involved, court orders and court-approved (Bufo californicus) consumes enormous agency resources, settlement agreements, compliance with and imposes huge social and economic AGENCY: Fish and Wildlife Service, which now consumes nearly the entire costs. The Service believes that Interior. listing program budget. This leaves the additional agency discretion would ACTION: Final rule. Service with little ability to prioritize its allow our focus to return to those activities to direct scarce listing SUMMARY: We, the U.S. Fish and actions that provide the greatest benefit resources to the listing program actions Wildlife Service (Service), are to the species most in need of with the most biologically urgent designating critical habitat for the protection. species conservation needs. arroyo toad (Bufo californicus) pursuant Role of Critical Habitat in Actual The consequence of the critical to the Endangered Species Act of 1973, Practice of Administering and habitat litigation activity is that limited as amended (Act). In total, Implementing the Act listing funds are used to defend active approximately 11,695 acres (ac) (4,733 lawsuits, to respond to Notices of Intent hectares (ha)) fall within the boundaries While attention to and protection of (NOIs) to sue relative to critical habitat, of the critical habitat designation. The habitat is paramount to successful and to comply with the growing number critical habitat is located in Santa conservation actions, we have of adverse court orders. As a result, Barbara, Ventura, Los Angeles, San consistently found that, in most listing petition responses, the Service’s Bernardino, and Riverside, Counties, circumstances, the designation of own proposals to list critically California. critical habitat is of little additional imperiled species, and final listing DATES: Effective Date: May 13, 2005. value for most listed species, yet it determinations on existing proposals are all significantly delayed. ADDRESSES: Comments and materials consumes large amounts of conservation The accelerated schedules of court received, as well as supporting resources. Sidle (1987) stated, ‘‘Because ordered designations have left the documentation used in the preparation the Act can protect species with and Service with almost no ability to of this final rule, are available for public without critical habitat designation, provide for adequate public inspection, by appointment, during critical habitat designation may be participation or to ensure a defect-free normal business hours at the Ventura redundant to the other consultation rulemaking process before making Fish and Wildlife Office, U.S. Fish and requirements of section 7.’’ Currently, decisions on listing and critical habitat Wildlife Service, 2493 Portola Road, only 470 species or 38 percent of the proposals due to the risks associated Suite B, Ventura, CA 93003 (telephone 1,253 listed species in the U.S. under with noncompliance with judicially- 805/644–1766). The final rule, economic the jurisdiction of the Service have imposed deadlines. This in turn fosters analysis, and maps will also be available designated critical habitat. a second round of litigation in which via the Internet at http:// We address the habitat needs of all those who fear adverse impacts from Ventura.fws.gov or http:// 1,253 listed species through critical habitat designations challenge Carlsbad.fws.gov. conservation mechanisms such as those designations. The cycle of listing, section 7 consultations, the FOR FURTHER INFORMATION CONTACT: For litigation appears endless, is very Section 4 recovery planning process, the information about Monterey, San Luis expensive, and in the final analysis Section 9 protective prohibitions of Obispo, Santa Barbara, and Ventura provides relatively little additional unauthorized take, Section 6 funding to Counties, northern Los Angeles County, protection to listed species. and the desert portion of San the States, and the Section 10 incidental The costs resulting from the Bernardino County, contact Diane K. take permit process. The Service designation include legal costs, the cost Noda, Field Supervisor, Ventura Fish believes that it is these measures that of preparation and publication of the and Wildlife Office, at the address given may make the difference between designation, the analysis of the above (telephone 805/644–1766; extinction and survival for many economic effects and the cost of facsimile 805/644–3958). For species. requesting and responding to public information about Los Angeles, San We note, however, that two courts comment, and in some cases the costs Bernardino, Riverside, Orange, and San found our definition of adverse of compliance with the National Diego Counties, contact Jim Bartel, Field modification to be invalid (March 15, Environmental Policy Act (NEPA). None Supervisor, Carlsbad Fish and Wildlife 2001, decision of the United States of these costs result in any benefit to the Office, at the address given above Court Appeals for the Fifth Circuit, species that is not already afforded by (telephone 760/431–9440; facsimile Sierra Club v. U.S. Fish and Wildlife the protections of the Act enumerated 760/431–9624). Service et al., F.3d 434 and the August earlier, and they directly reduce the SUPPLEMENTARY INFORMATION: 6, 2004, Ninth Circuit judicial opinion, funds available for direct and tangible Designation Of Critical Habitat Provides Gifford Pinchot Task Force v. United conservation actions. Little Additional Protection To Species. State Fish and Wildlife Service). In In 30 years of implementing the Act, response to these decisions, we are Background the Service has found that the reviewing the regulatory definition of Background information on the arroyo designation of statutory critical habitat adverse modification in relation to the toad can be found in our previous final provides little additional protection to conservation of the species. designation of critical habitat for this

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species, published in the Federal invited public comment through the geographic region where the species Register (FR) on February 7, 2001 (66 publication of notices in the Monterey occurs, and/or familiarity with the FR 9414). Additional background Herald on May 1, Ventura County Star principles of conservation biology. Of information is also available in our on May 4, the Orange County Register the five individuals contacted, three recent proposal of critical habitat for the on May 7, the San Diego Union Tribune responded. The peer reviewers that arroyo toad, published on April 28, on May 8, and the Santa Barbara News submitted comments generally 2004 (69 FR 23253). That information is Press on May 12, 2004. We did not supported the proposal and provided us incorporated by reference into this final receive any written requests for a public with comments, which are included in rule. This rule, which becomes effective hearing prior to the published deadline. the summary below and incorporated on the date listed under Effective Date The initial comment period ended May into the final rule, as appropriate. at the beginning of this document, 28, 2004. A second comment period was Unless otherwise noted, the peer review replaces the February 7, 2001, critical open from February 14, 2005 to March comments were on our proposed rule habitat designation for this species. 16, 2005 (70 FR 7459). All comments published April 28, 2004; subsequent and new information received during changes to our proposal published in Previous Federal Actions the two comment periods have been the Federal Register on February 14, We designated a total of incorporated into this final rule as 2005 (70 FR 7459) and in this final rule approximately 182,360 acres (ac) appropriate. did not receive peer review comment. (73,780 hectares (ha)) of critical habitat A total of 60 commenters responded for the arroyo toad on February 7, 2001 during the two comment periods, Peer Review Comments (66 FR 9414). On November 6, 2001, the including 5 Federal agencies, 3 Tribes, (1) Comment: A peer reviewer who Building Industry Legal Defense 11 local agencies, 9 local organizations, conducts research on a variety of toad Foundation, Foothill/Eastern 10 businesses and 5 individuals. Ten species at an academic institution found Transportation Corridor Agency, commenters submitted two separate sets our proposal to be based on natural National Association of Home Builders, of comments. During the comment history studies that range in quality California Building Industry period that opened on April 28, 2004, from perfectly adequate to superior. He Association, and Building Industry and closed on May 28, 2004, we commended us for basing much of our Association of San Diego County filed a received 42 comments directly proposed rule on competent, truly lawsuit in the District of Columbia addressing the proposed critical habitat scientific research. It was his opinion against the Service challenging the designation: 2 from peer reviewers, 5 that the basic biology of the arroyo toad designation of arroyo toad critical from Federal agencies, and 3 from had been adequately reviewed and habitat and alleging errors by the Tribes. Of the 42 parties responding to competently applied to the selection, Service in promulgating the final rule. the proposal during the first comment delimitation, and designation of Building Industry Legal Defense period, 12 supported the proposed proposed sites. He endorsed the Foundation, et al. v. Gale Norton, designation, 30 were opposed proposal and found it to be based on Secretary of the Interior, et al. Civ. No. (including those who thought we should adequate research. 01–2311 (JDB) (D.D.C.). On October 30, have proposed more areas for critical Our Response: As noted by the peer 2002, the court set aside the designation habitat designation), and a few reviewer, we have considered and and ordered us to publish a new critical commenters simply provided additional applied every important study involving habitat designation final rule for the information. During the second arroyo toads that is relevant to its arroyo toad by July 30, 2004. On April comment period that opened on ecology and protection that we could 28, 2004, we published a proposed rule February 14, 2005, and closed on March obtain. to designate approximately 138,713 16, 2005, we received 18 comments (2) Comment: A peer reviewer who acres (ac) (56,133 hectares (ha)) of directly addressing the proposed critical has extensive experience studying the critical habitat in Monterey, Santa habitat designation and DEA. Of these dispersal of arroyo toads, and has Barbara, Ventura, Los Angeles, San latter comments, 2 were from a Federal conducted studies within nearly one- Bernardino, Riverside, Orange, and San agency, 1 from a Tribe, 5 from local third of the critical habitat units across Diego Counties, California (69 FR jurisdictions, 7 from businesses, and 3 the range of the species, commented 23253). On June 25, 2004, the Court from organizations or individuals. that our proposed critical habitat units granted a motion by the Service to During the second comment period a are accurately characterized, extend the deadline for the final rule to total of 4 commenters supported the appropriately referenced, do not March 31, 2005. On February 14, 2005, designation of critical habitat for the exclude any local arroyo toad we published a notice announcing the arroyo toad, and 14 opposed the populations in the specific units he is availability of the draft economic designation. We reviewed all comments familiar with, and include all breeding analysis (DEA), revisions to the for substantive information and new and upland habitats necessary for the proposed rule, and reopening of the data regarding the arroyo toad and its long-term survival of the local public comment period (70 FR 7459). critical habitat. Comments have been populations. grouped together by issue and are Our Response: We have identified all Summary of Comments and addressed in the following summary. habitats that have the essential features, Recommendations All comments and information have or primary constituent elements (PCEs) We requested written comments from been incorporated into the final rule as (see Primary Constituent Element the public on the proposed designation appropriate. section below), necessary for the of critical habitat for the arroyo toad in conservation of the species. A portion of the proposed rule published on April Peer Review these essential areas are included in this 28, 2004 (69 FR 23253). We also In accordance with our peer review final designation of critical habitat for contacted the appropriate Federal, State, policy published on July 1, 1994 (59 FR the arroyo toad. Some essential areas and local agencies, Tribes, scientific 34270), we solicited independent have been excluded from critical habitat organizations, and other interested opinions from at least three designation under section 4(b)(2) of the parties and invited them to comment on knowledgeable individuals who have Act, primarily for economic reasons (see the proposed rule. In addition, we expertise with the species, with the Application of Section 3(5)(A) and

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4(a)(3) and Exclusions Under Section have also been found in areas with the introduction of nonnative predatory 4(b)(2) of the Act section below for a harder, compact soils where they cannot aquatic vertebrates. detailed discussion). After receipt of burrow. In these cases, arroyo toads are Our Response: We agree that although public and peer review comments, we likely using preexisting mammal some toads would be killed outright by revised the model we used to delineate burrows, or they are temporarily using ordinance, crushing by vehicles, essential and critical habitat, which is these areas for foraging and dispersal at prescribed burning, channel clearing, or outlined in the February 14, 2005, night and returning to areas where they other actions undertaken by the Federal Register Notice (70 FR 7459) can burrow prior to sunrise. military, in some instances the resulting and this final rule (see Summary of (6) Comment: A peer reviewer habitat modifications may enhance Changes and Criteria Used to Identify suggested that, in addition to arroyo toad habitat, which favor more Critical Habitat sections). agricultural fields, toads are found in open habitats. It is unclear to what (3) Comment: A peer reviewer orchards. extent habitat modifications resulting expressed concern that our choice of Our Response: Although toad may use from military actions have affected words in the Background section might orchards, the likelihood of long-term arroyo toad numbers at Fort Hunter imply that arroyo toads located at higher persistence in this altered habitat is Liggett, either positively or negatively. elevations move shorter distances than unknown and would depend on the We also agree that minimizing human those found at lower elevations near the level of agricultural activity. To the access to arroyo toad habitat is generally coast. extent that heavy equipment and beneficial and can prevent the Our Response: The studies we cited in pesticides are used in an orchard, along introduction of nonnative predatory the proposed rule (e.g., Griffin 1999; with periods of intense human activity, aquatic vertebrates. However, certain Holland and Sisk 2000; Ramirez 2002a, mortality rates could exceed nonnative predatory aquatic vertebrates 2002b, 2002c, 2003) indicate that arroyo reproductive rates in and around a have already become established at Fort toads found along streams with broad stream segment bordered by orchards. Hunter Liggett, including bullfrogs. All floodplains in coastal areas move farther However, it is possible that resident military actions affecting arroyo toad into the uplands than those found along toads may be able to survive in orchard habitat at Fort Hunter Liggett have been streams away from the coast with areas set back from the floodplain that addressed in the Army’s Endangered steeper slopes bordering the stream do not require intensive management or Species Management Plan for the arroyo corridor. Although coastal areas may be harvest practices. toad at Fort Hunter Liggett, which is one at lower elevations, we suspect that it is (7) Comment: A peer reviewer stated of the primary reasons why we have the moderating effect of the ocean on that our discussion concerning the value excluded Fort Hunter Liggett from coastal climates, including frequent fog, of designating critical habitat, and the critical habitat designation (see that may allow arroyo toads to disperse procedural and resource difficulties farther from a source of water without involved, should be addressed in a Application of Section 3(5)(A) and dehydrating, and that moderate slopes different forum, not in a critical habitat 4(a)(3) and Exclusions Under Section adjacent to a coastal stream corridor do rule. 4(b)(2) of the Act section). not inhibit dispersal. More extreme Our Response: As discussed in the Comments Related to Previous Federal temperatures and arid conditions away sections ‘‘Designation of Critical Habitat Actions, the Act, and Implementing from the coast may inhibit dispersal by Provides Little Additional Protection to Regulations arroyo toads from a water source. Species,’’ ‘‘Role of Critical Habitat in Although arroyo toads can ascend and Actual Practice of Administering and (9) Comment: One commenter stated descend rather steep slopes, a sustained, Implementing the Act,’’ and that, according to the Tenth Circuit steep gradient would likely inhibit ‘‘Procedural and Resource Difficulties in Court of Appeals finding in Catron dispersal. The elevation at which arroyo Designating Critical Habitat’’ and other County Board of Commerce, New toads are found should have no sections of this and other critical habitat Mexico v. United States Fish and influence on their willingness or ability designations, we believe that, in most Wildlife Service, 75F.3d 1429 (10th Cir to disperse from a water source. cases, conservation mechanisms 1996) (Catron v. FWS), we are required (4) Comment: A peer reviewer provided through section 7 to prepare an environmental assessment suggested that we clarify our use of consultations, the section 4 recovery or environmental impact statement critical habitat regional classification planning process, the section 9 before designating critical habitat. units (northern, southern, and desert protective prohibitions of unauthorized Our Response: The commenter is regions). take, section 6 funding to the States, the correct in that the Tenth Circuit Court Our Response: We have organized the section 10 incidental take permit of Appeals determined that an critical habitat units for the arroyo toad process, and cooperative programs with environmental assessment or into three regions (northern, southern, private and public landholders and environmental impact statement as part and desert regions) that reflect both the tribal nations provide greater incentives of NEPA should be prepared before range of the species and the distinct and conservation benefits than does the designating critical habitat. However, it ecological environments in which the designation of critical habitat. is our position that, outside the species is found, similar to the system (8) Comment: After examining the jurisdictional area of the Tenth Circuit used in the recovery plan for the arroyo changes to our proposal published in Court, we do not need to comply with toad (Service 1999). the Federal Register on February 14, NEPA in connection with designating (5) Comment: A peer reviewer 2005 (70 FR 7459), one peer reviewer critical habitat under the Act. We suggested that we clarify our statement stated that the training activities of the published a notice outlining our reasons about the use of areas with compact military at Fort Hunter Liggett may have for this determination in the Federal soils by arroyo toads. resulted in riparian habitat Register on October 25, 1983 (48 FR Our Response: Arroyo toads typically modifications that may be beneficial to 49244). This assertion was upheld by dig their own burrows in sandy soils or the arroyo toad. The peer reviewer the Ninth Circuit Court (Douglas County soft substrates where they remain further noted that the military also v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. underground during periods of prevents nonmilitary personnel from 1995), cert. denied 116 S. Ct. 698 inactivity (Service 1999). However, they visiting the area which helps prevent (1996)).

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(10) Comment: Several commenters and expert opinion from biologists with essential to the conservation of the stated that the arroyo toad is everywhere extensive experience studying the species. In our ‘‘Methods’’ and ‘‘Criteria in California and Mexico and that there arroyo toad. Further, information Used to Identify Critical Habitat’’ is not enough scientific evidence provided in comments on the proposed sections we outlined the methods we proving that this species is really designation and the draft economic used to identify and delineate critical endangered, and therefore does not need analysis were evaluated and taken into habitat. protection under the Act. consideration in the development of this (16) Comment: Several commenters Our Response: The commenters may final designation, as appropriate. stated that we included areas where the be confusing the arroyo toad with Comments and materials received, as arroyo toad and their primary several other species of toads in the well as supporting documentation used constituent elements were absent, such genus Bufo occurring in California and in the preparation of this final rule, are as roads, developed areas, and Mexico. The arroyo toad is just one available for public inspection, by particular natural features (i.e., steep species of toad, and the distribution of appointment, during normal business slopes), or where their status is the arroyo toad is limited to central and hours at the Ventura Fish and Wildlife uncertain. Another commenter southern California and northwestern Office (see ADDRESSES section above). acknowledged our attempts to remove Baja California, Mexico. While our (13) Comment: One commenter stated these types of areas, but requested that knowledge of the arroyo toad’s that at least 24 additional habitat areas we examine the units even more closely, distribution in southern California has should be designated as critical habitat particularly in San Diego County, and increased since it was listed in 1994, the in the final rule, including all more finely remove areas that do not species continues to be threatened by populations and metapopulations contain primary constituent elements. habitat destruction and alteration, over- identified in Table 1 of the arroyo toad Our Response: As described below, collection, predation by introduced recovery plan. we have revised the methodology used predatory fish, and inadequacy of Our Response: The Act states, at to determine critical habitat, and existing regulatory mechanisms (59 FR section 3(5)(C), that except in particular therefore have removed areas that did 64859). circumstances determined by the not contain features essential to the (11) Comment: One commenter stated Secretary, critical habitat shall not conservation of the species (see that critical habitat will unnecessarily include the entire geographical area Summary of Changes and Criteria Used burden the regulated public and has which can be occupied by the to Identify Critical Habitat sections overloaded Service staff. threatened or endangered species. It is below). We made an effort to exclude all Our Response: Critical habitat not the intent of the Act to designate developed areas, such as towns, housing designations do not by themselves critical habitat for every population and developments, and other lands unlikely constitute a burden in terms of Federal every documented historic location of a to contain primary constituent elements laws and regulations on private species. We have designated habitat that essential for arroyo toad conservation. landowners carrying out private contain features essential for the However, as it is not possible to remove activities, but in California they may conservation of the species. each and every one of these features, trigger additional State regulatory (14) Comment: One commenter stated even at the refined mapping scale used, reviews and other requirements under that the proposed designation of critical the maps of the proposed designation the California Environmental Quality habitat was overly broad and that we may still include areas that do not Act and other State laws and included areas that are not essential to contain primary constituent elements regulations. When a Federal approval or the conservation of the species. Another (see Criteria Used to Identify Critical permit is required, or Federal funds are commenter expressed a similar concern Habitat below). These areas are not involved with a project proposed on and stated that we proposed more areas being designated as critical habitat. private property, the critical habitat than what is suitable for the toad in an As to the comment about units in San designation does impose a Federal attempt to make up for the limited Diego County, all units in San Diego regulatory burden for private precipitation in southern California. County have been excluded under landowners; absent this, the designation Our Response: As a result of revisions section 4(b)(2) of the Act for economic should not affect farming and ranching to the methodology used to delineate reasons (see Application of Section activities on private lands. Similarly, a critical habitat, areas that do not contain 3(5)(A) and 4(a)(3) and Exclusions Federal nexus could result in the the features essential to the conservation Under Section 4(b)(2) of the Act section designation affecting future land use of the species have been removed from for detailed discussion of exclusions). plans, and the designation may trigger the final designation (see Summary of (17) Comment: One commenter stated State requirements which could impact Changes and Criteria Used to Identify that the revised criteria used to identify such plans. Critical Habitat sections below). Only upland use by arroyo toads, which areas that contain features essential to resulted in the reduction of the Comments Related to Critical Habitat, the conservation of the species were maximum distance from the stream to Primary Constituent Elements, and designated critical habitat; precipitation which critical habitat extended from Methodology levels did not directly effect this 4,921 feet to 1,640 feet, is not supported (12) Comment: Two commenters designation. in the proposed rule. Other commenters questioned the scientific evidence used (15) Comment: One commenter stated expressed opposition to our reduction to determine critical habitat. that the Service failed to identify the in the amount of upland habitat Our Response: In designating critical physical or biological features essential included in our revised model and habitat for the arroyo toad, we have to the conservation and recovery of the expressed concern that some of the used the best available scientific and species or the methods that would be upland habitat used by arroyo toads has commercial information, including used in the identification of such been removed from consideration as results of numerous surveys, peer- features. critical habitat. In contrast, one reviewed literature, unpublished reports Our Response: In our ‘‘Primary commenter stated that the proposed by scientists and biological consultants, Constituent Elements’’ section we have designation of upland habitat was potential habitat maps developed by the outlined as specifically as possible all of overly broad in mountainous areas away Forest Service (Forest Service 2000), the physical and biological features from the coast and we should have used

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a shorter upland movement distance Our Response: As per section deadline, we were unable to produce than 4,921 ft (1,500 m). 3(5)(A)(i) of the Act and regulations at maps of the subsequent revisions and Our Response: We based our decision 50 CFR 424.12, we used the best make them available to the general to revise the model of what constitutes available scientific and commercial public. However, points of contact were essential upland habitat on the best information available in the designation given in the proposed rule for available science and data on arroyo of critical habitat for the arroyo toad, landowners needing assistance in toad upland habitat use. The study by which includes information from all determining whether their property was Holland and Sisk (2000) demonstrated valid survey efforts by all qualified within designated critical habitat were that 88% of the adult and subadult biologists. If we receive evidence that able to contact the Ventura or Carlsbad arroyo toad population was found survey results have been falsified or Fish and Wildlife Office, and specific within the riparian wash area. Of the survey methods were unacceptable, we maps were provided upon request. We remaining 12% of the arroyo toads in would not use those results. We have no attempted to carefully describe in the the upland areas, 68% of the arroyo evidence that any of the data we have Federal Register (70 FR 7459) all of the toads were found within 1,640 ft (500 referenced or used in formulating this ways in which revisions were made to m) of the riparian wash area. Although rule has been falsified or based on the proposed rule. some upland habitats shown to be used unacceptable survey methods. (20) Comment: One commenter stated Comments Related to Site-Specific by arroyo toads in coastal areas are no Areas longer within the critical habitat that our 30-day comment period boundary, we believe the amount of following the proposed rule was (22) Comment: One commenter stated upland habitat included in this final inadequate to allow the public to that local land use controls provide rule is enough to allow for the long-term understand and comment meaningfully sufficient protection for the arroyo toad persistence of the arroyo toad on the proposed rule and that this in Santa Barbara County. Our Response: Although there are population in a given area and captures should have been extended to no less other State, local, and Federal laws that all areas essential for the conservation of than 60 days. offer some protection to endangered the species. Our Response: The proposed critical habitat rule for the arroyo toad was species and their habitats (e.g., Clean (18) Comment: One commenter stated available to the public for review and Water Act and California Environmental that in light of a recent court decision comment for 60 days. The first 30-day Quality Act), none provide the same regarding the Alameda whipsnake final comment period opened on April 28, level of protection and review for critical habitat, Home Builders 2004 (60 FR 23254). On February 14, threatened and endangered species as Association of Northern California v. 2005, we reopened the public comment does the Endangered Species Act. These U.S. Fish & Wildlife Service, 268 F. period for the proposed rule for an laws are not redundant and work in Supp. 2d, we did not sufficiently additional 30-day period upon concert to provide protection for explain why the designation of publication of the Notice of Availability environmental resources. unoccupied linkage areas are essential of the Draft Economic Analysis (70 FR (23) Comment: One commenter stated for the conservation of the arroyo toad 7459). We believe these two public that Rancho Sisquoc (unit 2) has not pursuant to 16 U.S.C. 1532(5)(A)(ii). The comment periods provided adequate been surveyed for arroyo toads and the commenter stated that this approach opportunity for public comment. Service does not know that arroyo toads threatens to eliminate the distinction (21) Comment: One commenter stated occupy this portion of the Sisquoc between ‘‘areas within the geographic that the Service did not adequately River. area occupied by the species at the time notify landowners where proposed Our Response: We agree that much of it is listed,’’ and ‘‘specific areas outside critical habitat was located. Another the Sisquoc River as it flows through the the geographic area occupied by the commenter expressed concern that the privately-owned Sisquoc Ranch has not species at the time it is listed that are revisions we made to critical habitat been surveyed for arroyo toads. essential to the conservation of the proposed for the arroyo toad (70 FR However, there are two reports of arroyo species.’’ 7459) were not accompanied by revised toads occupying the Sisquoc River Our Response: We have not maps, nor were revised maps available within the Sisquoc Ranch; arroyo toads designated any critical habitat units on any website. Without maps showing were observed there by M. Hanson in outside the geographical area currently where revisions were made, the 1992 (CNDDB 1992) and also by LSA or historically occupied by the species. description of the changes made to the associates in 1993 (LSA Associates, Inc. Arroyo toad breeding habitat is patchily proposed rule was difficult to 2000). Arroyo toads have also been distributed along stream courses. understand. This made it difficult for reported along the Sisquoc River both Linkage areas between breeding habitat the public to adequately comment on upstream and downstream from the are essential for the conservation of the the proposed revisions. Sisquoc Ranch (CNDDB 1992, 1994). species because they provide habitat for Our Response: We issued a widely (24) Comment: One commenter stated toads moving to and from breeding areas disseminated news release regarding our that the Service failed to explain its and habitat for foraging, breeding, and proposal and published legal notices in rationale regarding the need for special burrowing. Since these linkage areas are all major newspapers within the range management considerations and occupied by the species during some of the species in California, including protection on lands proposed for period of their life cycle, they were the Monterey Herald on May 1, Ventura designation as critical habitat in unit 2. designated as critical habitat (see County Star on May 4, the Orange Specifically, it did not consider those Summary of Changes from the Proposed County Register on May 7, the San already in place in the Mining and Rule section for the definition of Diego Union Tribune on May 8, and the Reclamation Plan for mining activities ‘‘occupied’’). Santa Barbara News Press on May 12, on the Sisquoc River. (19) Comment: Several commenters 2004. General maps delineating the Our Response: The Mining and generally stated that we should not rely boundaries of critical habitat were Reclamation Plan for mining activities on survey efforts when they are funded included in the April 28, 2004, on the Sisquoc River outlines measures by landowners with an interest in proposed rule. Due to operational time to reduce harm to the arroyo toad and obtaining negative results. constraints and a looming court-ordered its habitat, but it was written prior to the

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designation of critical habitat for this provided by the conservation easements available science and survey results species. Thus, neither designated, nor conveyed or proposed on lands within indicate arroyo toad presence and proposed, critical habitat for the arroyo this subunit will benefit the arroyo toad, evidence of successful reproduction in toad is addressed in the Mining and unit 6 is excluded under section 4(b)(2) the upper Santa Clara River (subunit 6b Reclamation Plan. Additionally, the of the Act for economic reasons (see in this rule). As stated in a letter to the Mining and Reclamation Plan pertains Application of Section 3(5)(A) and City of Santa Clarita by Frank Hovore & only to those areas contemplated for 4(a)(3) and Exclusions Under Section Associates (F. Hovore, in litt. 2001, p. sand and gravel mining, but does not 4(b)(2) of the Act section for a detailed 1), ‘‘There can be no doubt whatsoever cover a large portion of the Sisquoc discussion). that the arroyo toad maintains a River upstream from the mining area, (28) Comment: One commenter stated breeding metapopulation unit on the which we have designated as critical that we should have included the TMC site, and that the upland areas habitat. portion of the Santa Clara River around the river are essential to its out- (25) Comment: Several commenters downstream of proposed subunit 6b of-channel biology, and ultimately, stated that the Santa Clara River is between Castaic Creek and Piru Creek. survival.’’ At least 70 arroyo toad occupied by arroyo toads and should be Our Response: Although much of the tadpoles have been documented from protected as critical habitat. habitat may be suitable for arroyo toads, the upper Santa Clara River in three Our Response: Critical habitat was they have never been reported from this different locations (N. Sandburg, in litt. proposed along portions of the Santa portion of the Santa Clara River despite 2001). We are also aware of at least three Clara River known to be occupied by the surveys (San Marino Environmental metamorphosed arroyo toads observed arroyo toad (subunits 6b and 6c). Associates 1995; RECON 1999; Impact in two separate locations. These arroyo However, unit 6 is excluded from Sciences 2002; Compliance Biology toad tadpoles and juveniles were critical habitat designation under 2004). Habitat within the river corridor observed and identified by at least five section 4(b)(2) of the Act for economic along this reach appears to be suitable qualified biologists on a number of reasons (see Application of Section for arroyo toads, but much of the upland different occasions, although all 3(5)(A) and 4(a)(3) and Exclusions habitats adjacent to the river corridor sightings were made in the spring of Under Section 4(b)(2) of the Act section are unsuitable for arroyo toads because 2001. The presence of arroyo toad for detailed discussion of exclusions). they consist of intensive agriculture. tadpoles is, by itself, evidence of (26) Comment: One commenter stated Also, most of the river corridor in the breeding. Arroyo toads in this area may that the Army Corps of Engineers 404 Los Angeles County portion of this have been missed prior to 2001 due to permit granted to Valencia Company reach will be or is proposed to be the lack of night surveys, surveys being and associated Natural River protected by a conservation easement conducted during a drought year when Management Plan does not adequately associated with the Newhall Ranch reproduction may not have taken place protect arroyo toad habitat along the Specific Plan. (1990), and because surveys were Santa Clara River in and around (29) Comment: One commenter conducted late in the season (July of Valencia (subunit 6b), and therefore supported our inclusion of Castaic 1994) when this portion of the Santa should not be excluded from the critical Creek and the Santa Clara River in the Clara River may have already dried. habitat designation. vicinity of the Castaic Creek confluence (31) Comment: A commenter further Our Response: Although we believe with the Santa Clara River. However, stated that the tadpoles and recently the Natural River Management Plan they felt that we should have also metamorphosed arroyo toads does protect arroyo toad habitat (see 70 included the portion of Castaic Creek (‘‘metamorphs’’) found within the upper FR 7459 for a detailed discussion), unit that is just downstream of the Castaic Santa Clara River [subunit 6c] are 6 is excluded from critical habitat under Dam and lagoon. equivalent to ‘‘lone wolves’’ dispersing section 4(b)(2) of the Act for economic Our Response: We have determined through an area, and do not constitute reasons. that this area should not be designated a population. The commenter cited the (27) Comment: One commenter stated as critical habitat for the following 2000 10th Circuit Court case, Wyoming that land within subunit 6b is already, reasons: (1) Surveys have indicated that Farm Bureau Federation v. Babbitt (199 or will be, protected through arroyo toads do not occupy this portion F.3d 1224, 1234), which ruled that lone conservation easements and other of Castaic Creek; (2) suitable habitat wolves do not constitute a population. management measures. This commenter extends along Castaic Creek for only a Our Response: Movements of arroyo also stated that this area is not truly short distance (perhaps less than a mile) toad tadpoles, and even adults, are essential to the conservation of the in this area; (3) it is isolated from upper limited as they cannot disperse across species due to limited arroyo toad Castaic Creek by Castaic Dam, which the landscape like wolves. The nearest observations, and would generate serves as a geographic barrier; and (4) it observations of the upper Santa Clara considerable costs for private is isolated from suitable habitat along River arroyo toads would be those found landowners, and therefore should be lower Castaic Creek by several miles of at least 12 miles (mi) (19.3 kilometers excluded. During the second comment rather dry, marginal habitat lacking (km)) downstream. According to the period this commenter offered support sufficient cover for upland migrating best available information, this is for our proposed exclusion of subunit arroyo toads. beyond the upstream dispersal 6b. (30) Comment: Two commenters capability of an adult arroyo toad. Given Our Response: Although this area asserted that there is insufficient that most of the intervening habitat currently contains a small arroyo toad evidence to support our conclusion that along the Santa Clara River between population, arroyo toad numbers likely the upper portion of the Santa Clara these two populations is typically dry, were much larger in the past, and the River (Soledad Canyon) supports a like adults, small, recently transformed number of arroyo toads has the potential breeding population of arroyo toads. individuals are certainly not capable of to greatly increase once again Another commenter stated just the dispersing 12 miles upstream. Tadpoles throughout suitable habitat in this opposite, that there is a breeding do not disperse far from the pool where subunit. Therefore, we believe it is population of arroyo toads in this area. they were deposited as eggs, except for essential habitat for the arroyo toad. Our Response: Although it does not the possibility of being washed Although we agree that the protection appear to be a large population, the best downstream during a flood event. We

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are unaware of any arroyo toads existing (34) Comment: Two commenters toad. They also stated that two in the Santa Clara River watershed referenced a letter from the Service biological opinions have been issued for upstream of this subunit (6c). Even if stating that a project area on Rasmussen projects in this area and a Habitat there was a population further Company land in Soledad Canyon along Conservation Plan (HCP) is being upstream, it would be unlikely for the the upper Santa Clara River has little developed to cover lands not addressed 70 arroyo toad tadpoles to have been habitat value for the arroyo toad. These in the biological opinions. Additionally, washed downstream as a group to this commenters are concerned that this one of the commenters expressed point in Soledad Canyon and be found area, which lacks suitable habitat for the concern that new housing, jobs, and in good condition. arroyo toad, has been proposed as other social benefits provided by the (32) Comment: Two commenters critical habitat. planned community may be jeopardized generally asserted that the upper Santa Our Response: Unit 6, where the land or constrained by a critical habitat Clara River does not contain the primary referenced by the commenters is designation. constituent elements for arroyo toad and located, is excluded from critical habitat Our Response: We agree that greater constitutes poor habitat for this species. designation under section 4(b)(2) of the conservation benefits to arroyo toad In direct contrast to these comments, Act for economic reasons (see habitat on private property can result two other commenters stated that this Application of Section 3(5)(A) and from carefully designed plans area does contain suitable habitat and is 4(a)(3) and Exclusions Under Section formulated cooperatively between the important for the preservation of the 4(b)(2) of the Act section for a detailed Service and private conservation arroyo toad. discussion). partners. However, unit 22, which is the Our Response: Direct observations by (35) Comment: One commenter stated only proposed unit that includes Service biologists and that of other that our revisions to proposed critical Rancho Las Flores lands, is excluded biologists conducting arroyo toad habitat in subunit 6c (70 FR 7459) are under section 4(b)(2) of the Act for surveys show that the upper Santa Clara unwarranted. The commenter argued economic reasons under (see River within proposed subunit 6c does that we should have included the entire Application of Section 3(5)(A) and contain all of the primary constituent original Santa Clara River channel 4(a)(3) and Exclusions Under Section elements of arroyo toad critical habitat. (below Agua Dulce Canyon) as critical 4(b)(2) of the Act section). Sandburg (in litt. 2001, p.3) states, habitat, as originally proposed, rather (37) Comment: One commenter stated ‘‘* * * the stream channel [of the Santa than removing the portion north of the that we should have included the Clara River] widens with flat terraces, railroad tracks, which traverse portions following additional areas in the critical cottonwood overstory, extensive alluvial of the original river channel in some habitat designation, which are listed in deposits and stream velocities suitable locations. The commenter stated that Table 1 of the recovery plan for the for arroyo toad clutches * * * A side water extraction wells installed for arroyo toad (Service 1999) and are tributary, referred to as Bear Creek, mining purposes might now be installed found in the Northern Recovery Unit. delineates another large area of optimal in these areas resulting in adverse These areas are the following: Upper arroyo toad habitat with slower water impacts to surface flows in the Santa Salinas River; Agua Caliente Creek in velocities and wide alluvial terraces Clara River. the upper Santa Ynez River Basin; and devoid of dense vegetation.’’ Thus, Our Response: We removed the areas Agua Blanca, Bouquet, and Castaic observations by the Service and in question north of the railroad tracks Creeks in the Santa Clara River Basin. independent biologists confirm the from critical habitat designation because Our Response: We are unaware of any presence of arroyo toad habitat and the some of these areas have been degraded recent observations of arroyo toads in species’ primary constituent elements. by past mining activities. Also, the the upper Salinas River watershed or (33) Comment: One commenter railroad tracks, which are often raised anywhere within San Luis Obispo asserted that the upper Santa Clara on rather steep banks, pose a likely County. Many of the other areas not River does not meet any of our criteria barrier to arroyo toad movements in considered for designation as critical to be designated as critical habitat. these areas. Thus, although arroyo toads habitat, which are identified in Table 1 Our Response: In the proposed rule may be able to cross the railroad tracks of the recovery plan, are tributaries to we stated that the criteria we used to in some locations, both access and larger streams where arroyo toads occur. identify critical habitat are identical to quality of these areas is limited. We do not currently have information the criteria outlined in the final Therefore, we determined their suggesting that these tributaries are designation previously published in the inclusion into critical habitat was not occupied by arroyo toad or that these Federal Register on February 7, 2001 warranted at this time. Additionally, tributaries contribute a significant (66 FR 9414). In that rule, we outlined any effects to the surface hydrology of amount of habitat that would be used by five criteria, which if any is found on a the Santa Clara River from water the toads. Although arroyo toads are not site, would warrant it to be designated withdrawal projects involving a federal known to occupy Agua Caliente Creek as critical habitat. The second of those nexus that adversely affect the arroyo and we have not included Agua Caliente five criteria states that, if a site toad or its critical habitat, whether they Creek as part of the critical habitat ‘‘supports at least a small toad originate outside of critical habitat or designation for the toad, we have population and possesses favorable not, would be subject to the section 7 included the confluence of Agua habitat conditions for population consultation process under the Act. Caliente Creek and the Santa Ynez River expansion and persistence,’’ then this (36) Comment: Two commenters because arroyo toads occupy the Santa area would be considered critical opposed the designation of critical Ynez River. Agua Blanca Creek is a habitat. Subunit 6c along the upper habitat on Rancho Las Flores Planned tributary to Piru Creek; the portion of Santa Clara River meets this criterion. Community (Rancho Las Flores) land in Agua Blanca Creek occupied by arroyo However, unit 6 is excluded under Summit Valley, San Bernardino County, toads is included in critical habitat. section 4(b)(2) of the Act for economic which surrounds the West Fork of the When the recovery plan was published, reasons (see Application of Section Mojave River. They pointed out that it was thought that habitat suitable for 3(5)(A) and 4(a)(3) and Exclusions many acres in this area will be the arroyo toad may be found along Under Section 4(b)(2) of the Act section designated as open space or protected Bouquet Creek. However, more recent for a detailed discussion). by conservation easement to protect the surveys have found Bouquet Creek to be

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largely unsuitable for arroyo toads, and north of Highway 76 was removed. The critical habitat rule published on April they have never been observed in this remaining areas were reevaluated using 28, 2004 (69 FR 23254). We cited threats tributary. the best available information, including from development, exotic predators, (38) Comment: One commenter an upland habitat pitfall study in 2003. timing and amount of water transfer as requested that their First and Second The results of this study indicate that some of the threats that require special San Diego Aqueducts and proposed the primary constituent elements, management considerations. Moreno Lakes pipeline right-of-ways including soil type, are marginal on the (44) Comment: One commenter stated (ROWs) in the San Luis Rey River (Unit property north of the highway. Based on that we should reconsider revising 14) and San Diego River (Unit 17c), these results and the spatial relation of essential upland habitat in San Juan respectively, be excluded from critical this area to nearby areas of critical Creek for the arroyo toad to only capture habitat so that their mission of habitat, we are removing Pardee’s the floodplain because adjacent alluvial providing water to their member Meadowbrook project site north of flats and uplands are of questionable agencies is not hindered. They state that Highway 76 from critical habitat. The suitability for toad use, some upland their permits for facility operations remainder of unit 14 is excluded from areas included industrial land uses and would need to be modified to address a critical habitat designation under are beyond busy paved roads that are critical habitat designation. section 4(b)(2) of the Act for economic not accessible to toads. Our Response: After closer review of reasons (see Application of Section Our Response: Even though all available information and comments, 3(5)(A) and 4(a)(3) and Exclusions essential areas in San Juan Creek have we have determined that areas on the Under Section 4(b)(2) of the Act section been excluded from designated critical San Diego River downstream from El for a detailed discussion). habitat due to economic reasons (see the Capitan Reservoir (Subunit 17c) are not (41) Comment: A couple of Relationship of Critical Habitat to essential to the conservation of the toad commenters stated that the portion of Economic Impacts—Exclusions Under and are therefore removed from critical Whitewater River downstream of the Section 4(b)(2) of the Act section for a habitat. Accordingly, the Moreno Lakes Colorado River Aqueduct lacks the detailed discussion), we still believe ROW in Subunit 17c is no longer in primary constituent elements, and that upland areas containing primary critical habitat. Unit 14, the location of therefore should be removed as essential constituent elements adjacent to the First and Second aqueduct of habitat for the arroyo toad. riparian habitat are essential for the concern to the commenter, is excluded Our Response: We have reevaluated conservation of the toad. It has been from critical habitat designation under all the available information and have well documented that the use upland section 4(b)(2) of the Act for economic concurred with the commenters that areas by arroyo toads for burrowing, reasons (see Application of Section this area does not contain essential foraging, and aestivating is a normal 3(5)(A) and 4(a)(3) and Exclusions habitat. part of their life history (Sweet 1993; Under Section 4(b)(2) of the Act section (42) Comment: One commenter stated Griffin and Case 2001; Holland and Sisk for a detailed discussion). that lands owned by the Sweetwater 2001). Therefore, protecting these (39) Comment: The same commenter Authority, Helix Water District, and upland areas is necessary for adequate asked whether their existing Section 7 Padre Dam Municipal District in San conservation of the arroyo toad. In some permit that covers the coastal California Diego County (portions of Units 17 and cases, we agreed with the commenter gnatcatcher could be amended to cover 18) should be excluded from designated and removed upland areas where there the arroyo toad critical habitat for Units critical habitat for the arroyo toad was heavy industrial land uses. We also 14 and 17c. because the benefits of exclusion based examined whether all areas beyond Our Response: Assuming the Federal on economic considerations far paved roads were essential and removed agency that was subject to consultation outweigh the benefits of inclusion. areas where toads did not have stream under section 7 of the Act for another Our Response: We have excluded undercrossings. listed species still retains discretionary these essential areas from critical habitat (45) Comment: A couple of jurisdiction over the action, the Federal based on economic considerations (see commenters stated that we should agency must reinitiate section 7 the Relationship of Critical Habitat to reconsider revising the essential reach consultation if its action ‘‘may affect’’ Economic Impacts—Exclusions Under of San Juan Creek for the arroyo toad designated critical habitat for the arroyo Section 4(b)(2) of the Act section for a because we did not provide evidence toad. See Section 7 Consultation below. detailed discussion). Lands downstream that certain portions of the Creek are (40) Comment: One commenter stated of El Capitan Reservoir in subunit 17b occupied, it lacks primary constituent several reasons why they believe that and 17c were removed from critical elements, such as breeding pools, and arroyo toad critical habitat rule habitat because they were not known to contains exotic predators. One of these improperly includes portions of be occupied, and therefore were not commenters also stated that some Pardee’s Meadowbrook project site considered to be essential for the portions of San Mateo Watershed north of Highway 76 along the San Luis conservation of the species (see the should be removed because they lack Rey River in Unit 14. They state that Summary of Changes and Criteria Used primary constituent elements, such as this area does not contain suitable to Identify Critical Habitat sections for suitable sandy friable soils and contain habitat, is not, and will never be detailed discussions). exotic predators. occupied by toads because of the barrier (43) Comment: One commenter stated Our Response: Even though all created by Highway 76, that we did not that the Service failed to identify special essential areas in San Juan Creek have provide special management management considerations related to been excluded from designated critical considerations for Unit 14, and Unit 14 lands owned by the Sweetwater habitat due to economic reasons (see the is outside the geographic area occupied Authority, Helix Water District, and Relationship of Critical Habitat to by the species. Padre Dam Municipal District in San Economic Impacts—Exclusions Under Our Response: As a result of revisions Diego County in Units 17 and 18. Section 4(b)(2) of the Act section for a to our methodology to delineate critical Our Response: We disagree with detailed discussion), we still believe habitat (see the Criteria Used to Identify commenters and did identify special that all essential reaches of San Juan Critical Habitat section below), more management considerations for these Creek are occupied because of several than half of the critical habitat located Units in the proposed arroyo toad reports of toad occurrences in these

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areas in the past 15 years as well the complications in conservation efforts meetings with various Tribes. We intend possibility for tadpoles to be washed with other listed species, and adverse to keep improving our relationships downstream into less densely occupied impacts on national security. with the Tribes and the Bureau of areas (P. Bloom in litt. 1998). We agree Our Response: We have reviewed Indian Affairs following the tenets of that the density of occupancy along the Detachment Fallbrook’s Fire Secretarial Order 3206 and Executive Creek varies, but low density areas are Management Plan and INRMP. The Order 13175. still essential for arroyo toad Secretary determined, in writing, that (51) Comment: One commenter stated conservation because they contain the Detachment Fallbrook’s INRMP that no portion of the Soboba Indian primary constituent elements, are provides a benefit to the arroyo toad and Reservation should be designated as occupied, and contain special therefore, consistent with Public Law critical habitat for the arroyo toad. management considerations, such as 108–136 (Nov. 2003): Nat. Defense Our Response: We did not propose or exotic predator and plant control. If Authorization Act for FY04 and Section designate any portions of the Soboba these special management 4(a)(3) of the Act, the Department of Indian Reservation as critical habitat for considerations were applied, it would Defense’s Detachment Fallbrook lands the arroyo toad. be likely that population densities are exempt from critical habitat based (52) Comment: One commenter stated would increase. All essential reaches of on the adequacy of their legally that the Service failed to provide a San Juan Creek and San Mateo operative INRMP (see the Application of meaningful analysis required by Watershed in Units 10 and 11 have the Section 3(5)(A) and 4(a)(3) and Secretarial Order #3206 prior to primary constituent elements, which Exclusions Under Section 4(b)(2) of the designating Indian Lands because of the may include stream channels and Act section for a detailed discussion of first paragraph in the benefits of upland areas adjacent to riparian areas this exemption below). inclusion analysis in the proposed that allow for migration between (48) Comment: A couple of critical habitat rule that was implied as foraging, burrowing, or aestivating sites. commenters stated that the Service meaning that there was a threat of loss should exclude all essential lands on of arroyo toad habitat on Tribal lands in Comments Related to Military Lands Camp Pendleton, including State lease the absence of critical habitat. (46) Comment: The Army submitted lands and cantonment areas because of Our Response: All essential areas several comments relating to the their Integrated Natural Resource proposed on Tribal lands are excluded exclusion of Fort Hunter Liggett from Management Plan (INRMP). from critical habitat for economic critical habitat. They state that: (1) We Our Response: We agree with the considerations (see the Relationship of have essentially approved an Integrated commenter and have excluded all Critical Habitat to Economic Impacts— Natural Resource Management Plan essential areas, including State lease Exclusions Under Section 4(b)(2) of the (INRMP) for the installation; (2) the lands and cantonment areas, from Act section for a detailed discussion). arroyo toad and its habitat are already designated critical habitat on Camp However, we did not intend for our being protected at Fort Hunter Liggett by Pendleton based on their INRMP (see statement to imply that there was a the Army’s Endangered Species the Exemptions Under Section 4(a)(3) threat of loss of arroyo toad habitat on Management Plan (ESMP) for the arroyo section for a detailed discussion). Tribal lands in the absence of critical toad; (3) the INRMP and ESMP together (49) Comment: One commenter habitat. We were simply stating the provide a greater level of protection for strongly supported the designation of significance of these areas as essential the arroyo toad and its habitat than a critical habitat for the arroyo toad for the conservation of the species. designation of critical habitat would within those portions of Camp (53) Comment: One commenter stated provide; and (4) that the designation of Pendleton that are leased to the State that there are no special management critical habitat at Fort Hunter Liggett (San Onofre State Beach) because this considerations and protections on the would interfere with its mission of area supports large numbers of arroyo Rincon Indian Reservation because of training soldiers. In contrast, a toads and primary constituent elements. their Tribal Resource Conservation and commenter unaffiliated with the Our Response: We agree with the Management Plan. military stated that the benefit of commenter that this area is very Our Response: All lands on Rincon including Fort Hunter Liggett lands in important for the conservation of the Indian Reservation are being excluded the critical habitat designation arroyo toad. However, we have from designated critical habitat for the outweighed the benefits of exclusion. excluded these lands that are leased to arroyo toad because of economic Our Response: All lands essential to the State because they are within the considerations. We agree with the the conservation of the arroyo toad at area covered by Camp Pendleton’s commenter that their Tribal Resource Fort Hunter Liggett have been excluded INRMP (see the Exemptions Under Conservation and Management Plan will under section 3(5)(A) and/or 4(b)(2) of Section 4(a)(3) section for a detailed address special management the Act from the final designation of discussion). considerations for the arroyo toad. critical habitat because of alternative protective measures provided by the Comments Related to Tribal Lands Comments Related to HCPs, NCCP Army (see the Application of Section (50) Comment: A few commenters Program, Section 7, and Section 404 3(5)(A) and 4(a)(3) and Exclusions stated that the Service needs to work (54) Comment: Several commenters Under Section 4(b)(2) of the Act section more closely to meaningfully contact were supportive of the policy that lands for detailed discussion of our exclusions the Bureau of Indian Affairs and/or covered by approved and nearly below). Tribes to fully meet the tenet of completed HCPs that provide take (47) Comment: One commenter stated Executive Order 13175 and Secretarial authorization for the arroyo toad should that they oppose the designation of Order 3206. be excluded from critical habitat. critical habitat for the arroyo toad on Our Response: We agree that we need Several of these commenters also Naval Weapons Station, Seal Beach, to work more closely with Tribes requested that HCP exclusions should Detachment Fallbrook (Detachment potentially impacted by the designation also apply to draft HCPs, lands enrolled Fallbrook) because of the existence of an of critical habitat. We increased our in the NCCP program, and lands Integrated Natural Resources efforts to work with the Tribes following covered by the Joint Water Agency Management Plan (INRMP), potential the proposed rule by holding several (JWA) draft plan.

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Our Response: While we trust that (57) Comment: One commenter asked final designation based on public jurisdictions will attempt to fulfill their whether the designation of critical comments. commitment to complete conservation habitat would be considered a changed (59) Comment: One commenter asked plans, this voluntary enrollment does and unforeseen circumstance with whether areas covered under existing not assure that such plans will be respect to the various subarea plans Section 7 permits can be excluded from finalized. Protections for arroyo toad presently approved or pending. critical habitat in manner similar to habitat provided through participating Our Response: All approved or areas under existing Section 10 permits. jurisdiction’s enrollment in the NCCP pending HCPs that were determined to Our Response: Consultation under processes are temporary and are not provide a benefit to the conservation of Section 7 of the Act does not result in assured; such protections may be lost if the arroyo toad were excluded from the the issuance of a Section 7 ‘‘permit’’ per the jurisdiction elects to withdraw from critical habitat designation (see se. Federal actions that we conclude are the NCCP program. Guidelines for the Application of Sections 3(5)(A), 4(a)(3), not likely to jeopardize the continued NCCP program direct habitat loss to and Exclusions Under Section 4(b)(2)of existence of a listed species are areas with low long-term conservation the Act). Therefore, there would be no exempted from the prohibition against potential that will not preclude the changed or unforeseen circumstance take of listed animal species under development of adequate NCCP plans resulting from this designation. Section 9 of the Act so long as the and ensure that connectivity between (58) Comment: One commenter stated Federal agency and any permittee areas of high habitat value will be multiple reasons for why essential comply with the terms and conditions maintained. We will consider excluding arroyo toad habitat within several HCPs of the incidental take statement lands within pending HCP areas where (including a draft HCP) and military accompanying the Service’s biological we have received a permit application installations should not be excluded opinion. Typically HCPs provide greater conservation benefits to a covered from the participants and an from critical habitat. They stated that species by assuring the long-term environmental analysis has been the benefit of designating these areas as protection and management of a covered completed and released for public critical habitat outweighs excluding species and its habitat, and funding for review and comment under the them because exclusions are based such management through the standards authority of NEPA. By completing these partly on speculative and unproven found in the 5-Point Policy for HCPs (64 criteria, jurisdictions demonstrate their future activities and critical habitat FR 35242), the HCP No Surprises intent to finalize their HCP/NCCPs. provides a greater benefit than measures regulation (63 FR 8859), and relevant (55) Comment: Several commenters contained in draft and approved stated that the designation of critical regulations governing the issuance and conservation plans. They also stated habitat removes incentives to participate implementation of HCPs, such as those that the Service unlawfully in NCCP and HCP processes, in part requiring the permittee to minimize and predetermined the benefits of excluding because of added regulatory uncertainty, mitigate the taking to the maximum essential habitat because our increased costs to plan development extent practicable. However, such determination was made prior to and implementation, weakened assurances are typically not provided in soliciting public review. stakeholder support, delayed approval connection with Federal projects subject and development of the plan, and Our Response: We agree that critical to section 7 consultations which, in greater vulnerability to legal challenge. habitat designation is only one part— contrast to activities on non-Federal Our Response: HCPs are one of the often the least important element—in lands covered by HCPs, often do not most important tools for reconciling the conservation of a species. In many commit to long-term special land use with the conservation of listed cases, partnerships with individual management or protections. Thus, a species on non-Federal lands. We look landowners and conservation consultation unrelated to an HCP forward to working with HCP applicants agreements with a variety of typically does not accord the lands it to ensure that their plans meet the stakeholders can provide a much greater covers the extensive benefits an HCP issuance criteria and that the conservation benefit for arroyo toad and provides. However, some landowners designation of critical habitat on lands other species, as they offer positive have agreed to provide extensive, where an HCP is in development does management actions that cannot be permanent protection of arroyo toad not delay the approval and achieved through a critical habitat habitat in conjunction with a section 7 implementation of their HCP. designation. We have determined that consultation. In cases where we have (56) Comment: Some commenters the exclusion of lands covered by HCPs determined that a conservation strategy stated that our policy to exclude the or INRMPs from critical habitat agreed to by a private landowner pending Western Riverside Multiple designation will not result in the provides a substantial, long-term benefit Species Habitat Conservation Plan extinction of the arroyo toad and that to the species, we have excluded these (MSHCP), but not other pending HCPs the HCPs and INRMPs we evaluated for private lands from the critical habitat or NCCPs, may amount to arbitrary and exclusion will provide a greater benefit designation (see the Application of capricious administrative conduct. to the toad than critical habitat (see the Section 3(5)(A) and 4(a)(3) and Our Response: As stated above, we Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of the will consider excluding lands within 4(a)(3) and Exclusions Under Section Act section below). pending HCPs where we have received 4(b)(2) of the Act section for a detailed (60) Comment: One commenter stated a permit application from the discussion). that all Coachella Valley Water District participants and an environmental However, we did not reach this (CVWD) lands be excluded from critical analysis has been completed and conclusion prior to receipt of public habitat designation within the draft released for public review and comment comment as contended in this comment; Coachella Valley MSHCP boundaries. under the authority of NEPA. The areas excluded from the draft proposal Our Response: The draft Coachella Western Riverside MSHCP, for which a because of their inclusion in HCPs or Valley MSHCP has been in development section 10(a)(1)(B) permit was issued on coverage by INRMPs were identified as for several years. In contrast to other June 22, 2004, was proposed for such, proposed justifications offered for HCPs under development, which exclusion in the proposed rule because public review, and notice was provided contain essential arroyo toad habitat, the it met these criteria. that these areas might be included in the Coachella Valley MSHCP is near its

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completion. As a result, the Service is result in the destruction or adverse County because of the importance of the very close to taking final action on the modification of critical habitat. If a Corridor as a regional transportation Coachella Valley Association of Federal action may affect a listed solution and as a component of the Air Government’s incidental take permit species or its critical habitat, the Quality Management Plan. application. On November 5th, 2004, responsible Federal agency (action Our Response: We have excluded the Service published a Notice of agency) must enter into consultation these essential areas from critical habitat Availability of a Final Environmental with us. Through this consultation, the based on economic considerations (see Impact Statement/Environmental action agency ensures that their actions the Relationship of Critical Habitat to Impact Report (EIS/EIR) for the draft do not destroy or adversely modify Economic Impacts—Exclusions Under MSHCP. Although not yet completed, critical habitat. Section 7 of the Act does Section 4(b)(2) of the Act section for a the draft Coachella Valley MSHCP plans not apply to activities on private or detailed discussion). on conserving 96% of the modeled other non-Federal lands that do not (67) Comment: Several commenters arroyo toad habitat in the Whitewater involve a Federal nexus, and critical questioned the accuracy of the 1.25-to- River, acquiring private lands from habitat designation would not provide 1 offsetting compensation ratio used by willing sellers, minimize activities on any additional protections under the the draft economic analysis to estimate public lands that threaten toads, and Act for private or non-Federal activities. the amount of land that would conserve other areas of potential habitat Critical habitat does not prohibit private potentially be set-aside due to arroyo outside of Whitewater River. This plan or commercial activities from occurring. toad conservation activities. will provide some level of conservation (63) Comment: Some commenters Our Response: The Service has benefit to the arroyo toad and the stated that critical habitat should not conducted four formal consultations habitat that it is known to occupy. have been proposed before an analysis concerning real estate development CVWD is one of the permittees to the of economic and other relevant impacts effects on the arroyo toad and arroyo draft Plan. As result, we have excluded was completed. toad habitat. The draft economic all CVWD lands within the draft Our Response: Pursuant to 50 CFR analysis relies on the average offsetting Coachella Valley MSHCP from 424.19, we are not required to conduct compensation ratio requested by the designated critical habitat for the arroyo an economic analysis at the time critical Service as part of these four historical toad. (see the Relationship of Critical habitat is initially proposed. We consultations. The draft economic Habitat to the Draft Coachella Valley evaluated and used comments received analysis notes that actual offsetting Multiple Species Habitat Conservation on the April 28, 2004, proposed critical compensation ratio used in any Plan (MSHCP)—Exclusions Under habitat designation to develop the draft particular case will depend on a variety Section 4(b)(2) of the Act section for a economic analysis, as appropriate. On of factors unique to the circumstance at detailed discussion). February 14, 2005 (70 FR 7459), we hand. The 1.25-to-1 factor is used in the (61) Comment: One commenter asked published a notice in the Federal draft economic analysis as an average whether on-going activities, such as Register announcing the availability of for the purpose of forecasting future set- routine inspections, road grading, and the draft economic analysis and aside acres across all proposed critical construction adjacent to designated reopening the public comment period habitat. Given that this estimate is based critical habitat are considered to for 30 days. In making this final critical on the full population of formal appreciably decrease habitat values or habitat designation, we used the consultations concerning residential quality through indirect effects. economic analysis and considered all development and the arroyo toad, it Our Response: The effects of any such comments and information submitted represents the best information available activities on critical habitat must be during the public comment periods. during the preparation of the draft considered by the Federal agency (64) Comment: Several private economic analysis. planning to conduct such activities. The property owners commented that their (68) Comment: A number of action agency determines whether their property should be removed from comments state that the draft economic action(s) ‘‘may affect’’ the arroyo toad or critical habitat because the economic analysis does not rely on appropriate its primary constituent elements within burden to them would be too great. real estate values to estimate land value the adjacent critical habitat based on Our Response: Extensive exclusions losses from critical habitat designations. their analyses. If so, the action agency have been made for economic reasons Our Response: The draft economic would enter into consultation with us (See Relationship of Critical Habitat to analysis estimates the per-acre value of under Section 7. Economic Impacts—Exclusions Under raw, unimproved, and residentially Section 4(b)(2) of the Act). zoned land at 11 percent of the built Comments Related to Economic Impacts (65) Comment: A couple of value. The Service recognizes that the and Analysis; Other Relevant Impacts commenters stated that the Service value of raw land as a percent of home (62) Comment: Several commenters should exclude all essential lands price will depend on a variety of factors expressed concern that commercial subject to the Rancho Mission Viejo and can differ significantly by region. In activities, such as mining, mineral Ranch Plan because the plan provides a general, raw land values for single- prospecting, agriculture, and new home conservation benefit to the arroyo toad. family homes of equal density are construction would be prohibited or Our Response: We have excluded higher in areas with high land supply severely restricted by a designation of these essential areas from critical habitat constraints. However, raw land values critical habitat. Similarly, other based on economic considerations (see as a percent of home price also declines commenters felt that critical habitat is a the Relationship of Critical Habitat to as density and development costs good way to stop activities that they do Economic Impacts—Exclusions Under increase. not agree with, such as some of the Section 4(b)(2) of the Act section for a The draft economic analysis activities mentioned above. detailed discussion). calculates residual land value based on Our Response: Section 7(a)(2) of the (66) Comment: One commenter stated an analysis that subtracts hard and soft Act requires Federal agencies to ensure that the Service should exclude all real estate development costs from that activities they authorize, fund, or essential lands where the proposed home prices in Southern California carry out are not likely to jeopardize the Foothill-South Transportation Corridor counties. The average home prices per continued existence of such a species or may be developed in southern Orange county is based on data from Rand in

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2002, the most recent year available, supply is scarce relative to projected may not reflect very recent amendments and inflated to 2004 dollars. growth in several counties within the and changes. In reality, specific projects Development cost estimates are based critical habitat designation. However, not anticipated in the SCAG and on data from Square Foot Costs by since the reduction in land supply SANDAG forecasts may be developed, RSMeans. Rand reports the median resulting from critical habitat just as other projects included in these price per square foot for single-family designation represents such a small forecasts may never materialize. An homes by county calculated from fraction of the total market, the draft evaluation of every local land use plan California Association of Realtors economic analysis assumes that it will or proposal that could potentially affect transaction records. Residential values not alter these regional market arroyo toad critical habitat designation, are assumed to appreciate at a rate of 3.4 dynamics, or increase market prices and its probability of success, is beyond percent per year in real terms (i.e., resulting in consumer surplus losses. the scope of the draft economic analysis adjusted for inflation) over the next 21 (71) Comment: One commenter stated and would not likely lead to more years, or through 2025. To the extent that the draft economic analysis focuses accurate results. SCAG and SANDAG that actual residual land values are solely on the losses experienced by represent the best publicly available higher or lower than those projected, the landowners as a result of critical habitat data sources reporting future land economic impacts will change designation for the arroyo toad. In development within the proposed accordingly. reality, housing projects generate a arroyo toad critical habitat designation. (69) Comment: One commenter stated considerable amount of consumer In addition, it is important to note that the draft economic analysis fails to surplus, and the temporary loss of this that the draft economic analysis account for the limited supply of surplus is a major adverse effect of estimates future offsetting compensation developable land and the corresponding delay. (i.e., land set-aside) for arroyo toad impact on the Southern California Our Response: The draft economic impacts based on development housing market. analysis does not calculate consumer projections and an offsetting Our Response: The draft economic surplus losses associated with delay for compensation ratio. The estimated analysis evaluates the potential for a variety of reasons. First, it is possible compensation for impacts to the arroyo critical habitat designation to reduce that consumers will not experience any toad is not in addition to specific consumer surplus by increasing real delay in the consumption of housing measures already negotiated by estate market prices. The analysis given the negligible effect arroyo toad regulators and project proponents. That concludes that critical habitat critical habitat designation is expected is, in some cases, the draft economic designation will not affect regional real to have on overall housing markets (i.e., analysis may estimate offsetting estate markets or prices, and thus a variety of housing options exist and compensation when compensation has consumer surplus, because the total consumers may substitute between already been agreed upon by regulators reduction in land supply is expected to locations). Second, even if the real and project proponents. The impacts represent a very small component of estate purchases of consumers are estimated in the draft economic analysis total future market demand in the delayed, only a very small proportion of should not be added to these existing region. Specifically, the estimated consumer surplus is likely to be lost as agreements. amount of developable acres of habitat the delay period (estimated at six (73) Comment: One commenter stated set-aside within critical habitat months in the first year after that the draft economic analysis does designation is estimated at about 0.7 designation) is likely to be a small not consider cumulative effects of the percent of future market growth through proportion of the ownership time proposed rule. 2025 in the eight counties where arroyo horizon. Finally, consumer surplus Our Response: The draft economic toad critical habitat designation is losses due to delay, if any, are difficult analysis only evaluated potential effects proposed. Supply adjustments by to quantify. of the rulemaking, however, we did take developers, including increased density (72) Comment: Several comments into consideration the potential efffects and/or project reconfigurations, are question the draft economic analysis of overlaping designations while likely to further cancel the market estimates regarding the amount of land evaluating potential exclusions from the impact of the relatively small land within arroyo toad critical habitat designation under section 4(b)(2) of the supply reduction created by critical designation that would be developed Act. habitat designation. absent arroyo toad conservation (74) Comment: One commenter stated (70) Comment: One commenter stated activities. that the draft economic analysis ignores that the draft economic analysis should Our Response: The draft economic arroyo toad-related delay impacts consider costs at the census tract level. analysis relies primarily on associated with transportation projects. Our Response: The draft economic development projections generated by Our Response: Major road projects analysis relies on the official real estate SCAG and SANDAG to determine the generally occur over a very long time growth projections provided by SCAG, number of acres slated for real estate horizon and require interaction with SANDAG and other regional agencies development. The draft economic and support from variety of local, State, supported by the governmental analysis only evaluates the impact of the and Federal agencies, including jurisdictions located within arroyo toad proposed designation on land that is environmental review (i.e., CEQA/ critical habitat designation. These within the critical habitat designation NEPA). Arroyo toad critical habitat projections reflect economic and and forecasted (by SCAG or SANDAG) designation is one of many issues that demographic trends at the county and to be developed by the year 2025. These will need to be addressed and resolved regional level and incorporate local projections suggest that absent critical during the long time frame associated zoning and land use data at the census habitat designation a significant portion with the project approval, entitlement, tract level. The draft economic analysis of the proposed critical habitat and funding process. Although arroyo assumes that county-wide economic and designation will not be developed by toad critical habitat designation may demographic trends are the primary 2025. increase the costs associated with the determinant of real estate prices. The Though SCAG and SANDAG construction or completion of a major draft economic analysis also projections do rely on general plan and road project, it is not expected to extend acknowledges that the regional land zoning information, these projections the normal time frame for a project of

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this nature. Consequently, the draft outcome of consultations pursuant to draft economic analysis uses the 100- economic analysis does not estimate section 7 of the Act. year flood plain as a proxy for the ‘‘low project delay costs associated with road (77) Comment: One commenter stated quality’’ land that would not have been construction projects. that the draft economic analysis fails to developed in the absence of arroyo toad (75) Comment: One commenter stated estimate economic impacts of critical habitat. In reality, some 100-year flood that the draft economic analysis ignores habitat designation on tribal reservation plain land will be developed while impacts on the Foothill Eastern lands. other areas outside the flood plain will Transportation Corridor Agency (TCA). Our Response: The draft economic not, due to other natural or geological Our Response: While the draft analysis estimates economic impacts factors. Nonetheless, GIS-based 100-year economic analysis does not refer to TCA attributable to arroyo toad critical flood plain data represents the best projects explicitly, the draft economic habitat designation on tribal land. For available data upon which to estimate analysis does estimate future costs example, development projections the proportion of ‘‘high-quality’’ to associated with road projects in critical covering tribal lands are relied upon to ‘‘low-quality’’ land within critical habitat designation Units 10 and 11. estimate real estate development costs, habitat. These costs reflect estimated economic infrastructure costs and road (80) Comment: One commenter stated impacts borne by major road projects construction costs. However, due to data that the draft economic analysis fails to occurring within those areas. The costs limitations, the impacts to tribal entities consider whether floodplain land might of arroyo toad conservation activities on are not presented separately. carry a development premium due to its (78) Comment: The Service fails to local (non-arterial) roads construction proximity to rivers and streams. use the proper baseline for the analysis. Our Response: The draft economic projects are not estimated separately in Our Response: The draft economic the draft economic analysis. Rather, analysis relies on land values calculated analysis estimates the total cost of at the county level. While there may be these costs are assumed to be captured species conservation activities without in the reduced land-value estimates. a land value premium associated with subtracting the impact of pre-existing proximity to a variety of different The estimate of future road projects is baseline regulations (i.e., the cost based on an extrapolation of SANDAG amenities, estimation of such a estimates are fully co-extensive). That premium is beyond the scope of the transportation planning data to the is, the draft economic analysis complies entire study area. This approach was draft economic analysis. with direction from the U.S. 10th (81) Comment: One commenter points developed based on the best readily Circuit Court of Appeals. out that floodplain boundaries change available data at the time of the draft (79) Comment: One commenter over time. economic analysis, given the resources refuted the draft economic analysis Our Response: While floodplain allotted to the study. While it is possible assumption that land contained within boundaries are likely to change over that detailed information on specific the 100-year floodplain is the most time, it is impossible to accurately planned or proposed road projects may likely to be undevelopable even in the predict specific changes a-priori. The be missed given this methodology, it is absence of arroyo toad conservation draft economic analysis relies on the also possible that the draft economic activities. most recent FEMA floodplain boundary analysis includes costs for projects that Our Response: FEMA defines data available. may in fact never materialize as floodplains as Special Flood Hazard (82) Comment: One commenter stated projected. Overall, the Service believes Areas and places special requirements that the draft economic analysis does that the approach utilized in the draft on development. The lowest floor of all not consider land use conversion from economic analysis represents a new residential buildings in the grazing to vineyard. reasonable estimate of future road floodplain must be at or above the level Our Response: No publicly available project costs. of the 100-year flood, in order to qualify data projects future vineyard The draft economic analysis also for FEMA-backed insurance. Non- development (or other agricultural assumes that arroyo toad conservation residential buildings must be at or above production) in specific geographic areas. activities are unlikely to have an the level of the 100-year flood, or be In addition, no historical formal appreciable affect on regional mobility. flood-proofed to that level. FEMA biological opinions address the effect on Consequently, the draft economic defines minimum requirements; local the arroyo toad of land conversion to analysis does not attempt to measure the jurisdictions may place additional agriculture. Thus, the draft economic economic cost associated with reduced restrictions on construction. Given these analysis does not address potential transportation accessibility. requirements, floodplain development economic effects from agricultural (76) Comment: One commenter stated is more expensive than development development. If arroyo toad critical that the draft economic analysis should outside the floodplain making it more habitat designation does affect the consider the implications of the Gifford likely to be set aside to compensate for feasibility of proposed agriculture Pinchot Task Force v. US Fish and impacts to arroyo toad habitat. conversion activities, the economic Wildlife Service litigation. As noted in the draft economic impacts would be in addition to those Our Response: The draft economic analysis, development rarely occurs on estimated by the draft economic analysis acknowledges that a recent 100 percent of the project area analysis. Ninth Circuit judicial opinion, Gifford assembled by a developer regardless of (83) Comment: One commenter stated Pinchot Task Force v. United States Fish what degree of arroyo toad protection is that the draft economic analysis should and Wildlife Service, has invalidated in place. A development site will consider the potential economic loss the Service’s regulation defining naturally include a relatively large from closure of the Rancho Sisquoc destruction or adverse modification of portion of undeveloped acres set aside cattle operation. critical habitat. The Service is currently for a variety of factors, including slope, Our Response: The draft economic reviewing the decision to determine avoidance of hydrologic features (e.g., analysis estimates that project what effect it (and to a limited extent flood areas, wetlands, drainage modifications requested for the arroyo Center for Biological Diveristy v. Bureau channels), parcel configuration, and toad conservation on the Sisquoc of Land Management (Case No. C–03– creation of ‘‘amenity features’’ such as grazing allotment would have cost about 2509–SI, N.D. Cal.)) may have on the landscaping, parks, and open space. The $422,000. Because the allotment was

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abandoned, the draft economic analysis opportunity that are not included in the Our Response: In some cases, water assumes that project proponents found draft economic analysis. releases may be conducted during the project modifications cost (86) Comment: Several commenters winter months rather than during the prohibitive. This suggests that the value stated that the designation does not breeding season. This operational of the ranching activity on the Sisquoc adequately estimate costs associated flexibility may allow water managers to allotment is less than the $422,000 with delays in permitting of mining avoid cost impacts associated with impact reported by the draft economic projects. arroyo toad conservation. The analysis. Our Response: The draft economic adjustment of water losses is intended (84) Comment: Several commenters analysis assumes that given sufficient to reflect the potential for operational stated that the draft economic analysis knowledge of the regulatory flexibility in water system management. incorrectly reports that the Soledad environment, the various administrative Due to uncertainty concerning the Canyon sand and gravel mining project activities associated with the Act can degree of operational flexibility, the has been denied local permits by Los generally be coordinated with other draft economic analysis presents a Angeles County, when in fact the regulatory processes and do not sensitivity analysis addressing this project has been approved. necessarily increase the time to obtain assumption. Our Response: Local permits for the approvals. (90) Comment: One commenter stated (87) Comment: One commenter stated mining project was denied in 2002 due that the draft economic analysis fails to that critical habitat designation may to a variety of factors, including recognize that if more imported water is create an additional administrative environmental review procedures, water used, then less water will be available burden on mining projects due to quality, and proximity to urban for water purveyors and water increased litigation. dependent species. development. At the time research was Our Response: The draft economic conducted for the draft economic analysis only considers costs that are Our Response: Water used (or lost) as analysis, the project remained reasonably foreseeable. While critical a result of arroyo toad conservation unapproved. However, during the habitat designation may stimulate activities will be a small proportion of public comment period, project additional legal actions, there is no data total water demands, as discussed on proponents informed the Service that to support this theory or estimate page 58 of the draft economic analysis. the project was approved in June of impacts. The number, scope and timing While there may be localized supply 2004. The project is likely to result in of potential legal challenges associated impacts, the location and economic additional costs associated with arroyo with the rulemaking would be difficult implication of such constraints are toad conservation that are not included to quantify. difficult to determine. Overall, these in the draft economic analysis. (88) Comment: One commenter stated impacts are not expected to be (85) Comment: Several commenters that the draft economic analysis is significant. stated that the draft economic analysis unclear regarding the basis of impacts to (91) Comment: One commenter stated does not consider the potential for water management at Loveland and that the draft economic analysis fails to critical habitat designation to reduce the Cuyamaca Reservoir and how impacts recognize that water supplies are size of the Soledad Canyon sand and are calculated. limited, especially during drought gravel mining project. Our Response: In the future, the conditions. The commenter suggests Our Response: The draft economic Service may request specific water that supply constraints will increase the analysis relies on historical biological management changes within arroyo toad economic burden on water agencies. opinions addressing mining projects in critical habitat designation. The draft Our Response: The draft economic order to forecast conservation activities economic analysis assumes that the analysis estimates costs to water associated with similar projects in the Service will request that the managers of managers based on average conditions. future. In the case of the Soledad the Loveland and Cuyamaca Reservoirs In reality, some years are wetter or dryer Canyon sand and gravel mining project, forego water releases during the arroyo than others. Special operational the Service issued a biological opinion toad breeding season to avoid impacts. constraints affecting water managers in in 2001 that requested various arroyo The draft economic analysis calculates dry years or drought years are not toad conservation activities. However, economic impacts based on the analyzed by the draft economic analysis. the biological opinion did not explicitly assumption that the Service will request Development of an economic analysis request a reduction in the size of the that these water managers not conduct evaluating all water-year types for each mining project. While the designation of major water releases water during the water agency and district affected by critical habitat may trigger the arroyo toad breeding season (i.e., March critical habitat designation is beyond reinitiation of the project consultation 15 through June 15). The draft economic the scope of the draft economic analysis. and result in additional measures to analysis conservatively estimates that 50 Dry-year constraints may create an protect the arroyo toad, it is difficult to percent of the foregone release volume additional economic burden for water predict whether the additional measures will require replacement due to losses managers. will include a reduction in the size of from percolation and evaporation. To (92) Comment: One commenter stated the project. Furthermore, because no calculate the expected water release that the draft economic analysis relies historical biological opinions addressing volume during the breeding season, the upon incorrect water replacement mining projects have resulted in a analysis relies on historical water prices. significant reduction in project size release data provided by the Sweetwater Our Response: EPS contacted water exclusively for the protection of the Authority and the Helix Water District. managers to determine water arroyo toad, there is no data or basis for Expected water releases in the future are replacement costs in areas expected to forecasting such impacts. To the extent calculated based on historical averages. be affected by arroyo toad conservation that reinitiation of the Soledad Canyon (89) Comment: Several commenters efforts. The draft economic analysis consultation results in a reduction in stated that the draft economic analysis relies on these reported costs. If the the size of the project due to the arroyo adjusts water losses resulting from actual cost of water is higher (or lower) toad, there will be economic costs foregone releases using an arbitrary than the reported cost, the economic associated with the foregone mining percentage. impacts will also be higher (or lower).

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(93) Comment: One commenter stated Summary of Changes From the downstream critical habitat boundary that the draft economic analysis fails to Proposed Rule beyond the starting and ending points of consider operational constraints related In developing the final designation of the essential stream segment (i.e., into to dam safety and other protected critical habitat for the arroyo toad, we areas containing habitat of lower species at Cuyamaca Reservoir. reviewed public comments received on quality). These areas were not intended Our Response: The draft economic the proposed designation of critical to be included as critical habitat and analysis assumes that the Service will habitat published on April 28, 2004, and were removed from the designation, request that water managers forego revisions to proposed critical habitat leading to a minor reduction in the total major water releases from Cuyamaca and the draft economic analysis acreage published in the proposed rule. (4) We revised the criteria used to Reservoir during the arroyo toad published on February 14, 2005 (70 FR identify essential upland habitat. We breeding season. However, in reality the 7459); conducted further evaluation of modified the model to capture upland Service may need to alter this request to lands proposed as critical habitat; habitat up to a 1,640 ft (500 m) distance account for site-specific factors. This refined our mapping methodologies; from the essential stream, rather than a level of detail is beyond the scope of the and excluded additional essential 4,921 ft (1,500 m) distance, if the 82-ft draft economic analysis. The economic habitat from the final designation. Table (25-m) elevation limit had not yet been implications of site specific constraints 1, included at the end of this section, reached. In a majority of the stream on arroyo toad conservation are outlines changes in acreages for each reaches, the model reached the 82-ft (25- unknown. subunit. Specifically, we are making the m) elevation limit before it reached the (94) Comment: One commenter stated following changes to the final rule from 1,640 ft (500 m) distance from the that the draft economic analysis fails to the proposed rule published on April essential stream, and therefore the consider economic impacts borne by 28, 2004: distance limit was often not a factor. Helix Water District due to potential (1) We mapped critical habitat more We based this 1,640 ft (500 m) management changes at El Capitan precisely by eliminating habitat areas of distance limit on the results of an arroyo Reservoir. marginal quality that we do not expect toad study on Marine Corps Base, Camp to be used by arroyo toads. In certain Our Response: The draft economic Pendleton (Camp Pendleton) in San upland locations, we determined that Diego County (Holland and Sisk 2000), analysis estimates costs associated with busy, paved roads and railroads potential management changes at El which is the most indepth, complete constituted barriers to toad movement study of the distribution and use of Capitan Reservoir. It is possible that into the uplands. These roads and some of these estimated costs will be upland habitat by arroyo toads. Holland railroads were found in areas of and Sisk (2000) used extensive pitfall passed on to the Helix Water District, relatively steep slopes and were affecting the distribution of economic trap arrays at various distances from a supported by steeply-constructed riparian wash area to document toad use impacts rather than the total economic embankments. Where marginal upland impact. of adjacent upland areas. They captured habitat was found behind these barriers, approximately 12 percent of their toads (95) Comment: One commenter stated it was removed from critical habitat in the upland areas, while the rest were that the draft economic analysis fails to because we did not consider it essential caught in the riparian wash. Of the include significant additional costs to to the arroyo toad population. This more toads caught in uplands areas, 68 water managers attributable to precise examination of essential areas percent of the toads were captured additional consultations and increased led to a modest reduction in total within 1,640 ft (500 m) of the riparian scrutiny from the California Department designated critical habitat acreage from wash. Although the absolute maximum of Fish and Game and the Army Corps the proposed rule. distance toads may travel cannot be of Engineers. (2) Although we attempted to remove determined by the pitfall trapping Our Response: While it is possible as many developed areas (areas that method, a few toads were caught at that critical habitat designation will have no value as arroyo toad habitat) as distances greater than 3,281 ft (1,000 m) increase scrutiny of water operations, possible before publishing the proposed from the riparian wash area. Since it is any associated economic impacts are rule, we were not able to eliminate all not our intent to capture the maximum primarily administrative and not developed areas. Since publication of distance that toads have been recorded reasonably foreseeable. The draft the proposed rule, we were able to to travel from riparian areas as critical economic analysis does not estimate further eliminate a small amount of habitat, we have determined that upland these impacts due to their speculative developed area, which has resulted in a habitat up to 1,640 ft (500 m) from nature. more precise delineation of essential riparian areas is habitat that is essential habitat containing one or more of the for the arroyo toad. (96) Comment: One commenter stated primary constituent elements. This (5) We revised the criteria used to that pipeline construction costs do not resulted in a minor reduction in the identify essential stream reaches. consider economic effects from total acreage published in the proposed Upstream areas from known occupied potential mitigation measures, delay or rule. However, it is not possible to sites were removed from the uncertainty. remove each and every one of these designation. Under the Act, the Our Response: Because pipeline developed areas even at the refined Secretary of the Interior may only construction is intended to benefit the mapping scale used: therefore, the maps include lands if she finds that those arroyo toad, the Service is unlikely to of the designation still include areas lands are essential to the conservation of request additional mitigation. The that do not contain primary constituent the species. In the case of the arroyo historical record for arroyo toad elements. These areas are not being toad, and based on the best scientific protection by the Service supports this designated as critical habitat. data available, it was not possible for assumption. Consequently, the draft (3) In some cases, the 82-foot (ft) (25- the Secretary at this time to make such economic analysis does not estimate meter (m)) elevation criteria in the a determination for upstream areas that additional impacts associated with model used to determine the extent of were not known to be occupied by the pipelines intended to improve habitat the essential upland habitat for arroyo arroyo toad. We defined essential for the arroyo toad. toads extended the upstream or occupied areas as those areas within

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approximately 0.7 miles (1.1 km) up and time of most years to allow for arroyo plan (Service 1999) states that arroyo down stream from where the species is toad tadpole development. Thus, this toads are presumed extinct in this reach. known to have occurred at the time of portion of San Francisquito Creek, (8) We excluded several areas under listing or subsequently. The arroyo toad which was included in the proposed Section 4(b)(2) of the Act and exempted was listed as an endangered species in rule, does not provide breeding habitat several areas under section 4(a)(3) of the 1994, and we define ‘‘at the time of for arroyo toads and we no longer Act from the final critical habitat listing’’ for the arroyo toad as the period consider it to be essential for the designation (see the Application of from 1974 to 1994. The 0.7 mile (1.1 conservation of the species. This km) movement distance was selected resulted in a reduction of 1,463 acres in Sections 3(5)(A) and 4(a)(3) and from a variety of studies demonstrating subunit 6b. Below the Newhall Ranch Exclusions Under Section 4(b)(2) of the that arroyo toads will move this Road bridge, arroyo toads inhabiting the Act section for a detailed discussion). distance over the course of a year or so Santa Clara River may disperse into This is the primary source of reduction (Sweet 1993; Griffin 1999; Holland and lower San Francisquito Creek to forage in total designated critical habitat Sisk 2001; Ramirez 2002a; Hitchcock et and aestivate; we still consider this acreage that was identified in the al. 2004). The upper-bounds of essential reach of San Francisquito Creek to be proposed rule. Exemptions under streams were defined by the uppermost essential habitat. section 4(a)(3) included portions of toad occurrence in a stream with its (7) We no longer consider the arroyo Units 11 and 12 on Marine Corps Base, corresponding 0.7 mile (1.1 km) toad habitat within subunit 22b, a Camp Pendleton and portions of Unit 12 movement distance. Any proposed stretch of the Mojave River running on Naval Weapons Station, Seal Beach, critical habitat areas not known to be through Victorville in San Bernardino Detachment Fallbrook based on their occupied that were upstream from this County, to be essential to the approved INRMPs. Exclusions pursuant were removed from designated critical conservation of the species and have to section 4(b)(2) based on economic habitat. This resulted in the removal of therefore removed this subunit from the considerations included all of Units 3, several upstream areas previously final designation. Although we do not 5, 6, 7, 10, 13, 14, 15, 16, 17, 18, 19, and proposed as critical habitat in a number have new data concerning arroyo toads 22 and portions of Units 11 and 12. of units, but was greatest in (sub) units in this area, we further analyzed and Other exclusions pursuant to section 2, 5a, 6c, 8, 10a, 11a, 12b, 13a and b, 16c reevaluated the existing data (and lack 4(b)(2) based on approved HCPs and d, 17a, 17d, 18a, 19a and d, 20, 21, thereof) to arrive at this decision. This included Unit 8 (Orange County 22a, and 23. (Sub)units 7a, 17b, 17c, and subunit runs through the relatively Central-Coastal Subregional HCP/NCCP) urbanized area of Victorville and 18d were completely removed from and portions of Unit 9 (Western critical habitat because these (sub)units involves numerous private landowners. Riverside MSHCP) and based on a were not known to be occupied. We did Much of the upland habitats along the nearly completed HCP included not truncate or remove any critical Mojave River in this area have been portions of Unit 23 (pending Coachella habitat downstream from known developed, and even areas within the observations because toads, particularly floodplain have been developed, which Valley MSHCP). Several portions of tadpoles, have been known to be are protected by levees. Exotic predators units that were formerly excluded in the washed downstream, particularly of the arroyo toad have also invaded this proposed rule for being under approved during rain events, into suitable habitat. portion of the river. Additionally, the HCPs or in the revised proposed rule for (6) In subunit 6b, we have determined occupancy of subunit 22b by arroyo private lands covered under special that San Francisquito Creek above the toads is questionable at best. Arroyo management plans that were beneficial Newhall Ranch Road bridge does not toads were rumored to occur in the to the arroyo toad were changed in the contain the primary constituent Victorville area sometime during the final rule to be solely excluded for elements of arroyo toad critical habitat. 1990s, probably associated with the last economic considerations pursuant to It is drier than we had originally significant El Nin˜ o event; however, section 4(b)(2). This change included thought and lacks surface water for a there have been no confirmed reports portions of Units 6, 13, 16, 17, 18, 19, sufficient duration during the spring from this area since 1982. The recovery and 22.

TABLE 1.—CRITICAL HABITAT UNITS FOR THE ARROYO TOAD

Proposed rule Critical habitat units/subunits County (April 28, 2004) Final rule ac; ha ac; ha

1. San Antonio River ...... Monterey ...... 6,546; 2,649 0 2. Sisquoc River ...... Santa Barbara ...... 6,574; 2,660 4,800; 1,942 3. Upper Santa Ynez River Basin ...... Santa Barbara ...... 4,414; 1,786 0 4. Sespe Creek ...... Ventura ...... 4,138; 1,675 4,008; 1,622 5. Piru Creek ...... Ventura, L.A ...... 3,966; 1,6050 0 6. Upper Santa Clara River Basin ...... Los Angeles ...... 7,398; 2,994 0 7. Upper Los Angeles River Basin ...... Los Angeles ...... 4,213; 1,705 0 8. Black Star and Baker Creeks ...... Orange ...... 172; 69 0 9. San Jacinto River Basin/Bautista Creek ...... Riverside ...... 683; 277 700; 283 10. San Juan Creek Basin ...... Orange, Riverside ...... 6,285; 2,543 0 11. San Mateo Basin ...... Orange, San Diego ..... 4,580; 1,853 0 12. Lower Santa Margarita Basin ...... San Diego ...... 1,840; 744 0 13. Upper Santa Margarita Basin ...... Riverside, San Diego .. 3,628; 1,468 0 14. Lower and Middle San Luis Rey Basin ...... San Diego ...... 15,376; 6,222 0 15. Upper San Luis Rey Basin ...... San Diego ...... 11,725; 4,745 0 16. Santa Ysabel Creek ...... San Diego ...... 11,080; 4,484 0 17. San Diego River Basin ...... San Diego ...... 2,309; 934 0 18. Sweetwater River Basin ...... San Diego ...... 9,235; 3,737 0

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TABLE 1.—CRITICAL HABITAT UNITS FOR THE ARROYO TOAD—Continued

Proposed rule Critical habitat units/subunits County (April 28, 2004) Final rule ac; ha ac; ha

19. Cottonwood Creek Basin ...... San Diego ...... 15,800; 6,394 0 20. Upper Santa Ana River Basin/Cajon Wash ...... San Bernardino ...... 1,263; 511 1,119; 453 21. Little Rock Creek ...... Los Angeles ...... 941; 381 734; 297 22. Upper Mojave River Basin ...... San Bernardino ...... 14,550; 5,848 0 23. Whitewater River ...... Riverside ...... 1,997; 808 333; 135 Totals ...... 138,713; 56,133 11,695; 4,733

Critical Habitat thereon may require special associated Information Quality Critical habitat is defined in section management or protection. Thus, we do Guidelines issued by the Service. 3(5)(A) of the Act as—(i) the specific not include areas where existing Section 4 of the Act requires that we areas within the geographic area management is sufficient to conserve designate critical habitat on the basis of occupied by a species, at the time it is the species. (As discussed below, such the best scientific data available. Habitat listed in accordance with the Act, on areas may also be excluded from critical is often dynamic, and species may move which are found those physical or habitat pursuant to section 4(b)(2).) from one area to another over time. biological features (I) essential to the Accordingly, when the best available Furthermore, we recognize that conservation of the species and (II) that scientific and commercial data do not designation of critical habitat may not may require special management demonstrate that the conservation needs include all of the habitat areas that may considerations or protection; and (ii) of the species so require, we will not eventually be determined to be specific areas outside the geographic designate critical habitat in areas necessary for the recovery of the area occupied by a species at the time outside the geographic area occupied by species. For these reasons, critical it is listed, upon a determination that the species at the time of listing. An area habitat designations do not signal that such areas are essential for the currently occupied by the species but habitat outside the designation is conservation of the species. was not known to be occupied at the unimportant or may not be required for ‘‘Conservation’’ means the use of all time of listing will likely be essential to recovery. methods and procedures that are the conservation of the species and, Areas that support populations, but necessary to bring an endangered or a therefore, included in the critical habitat are outside the critical habitat threatened species to the point at which designation. designation, will continue to be subject listing under the Act is no longer to conservation actions implemented Our Policy on Information Standards under section 7(a)(1) of the Act and to necessary. Under the Endangered Species Act, Critical habitat receives protection the regulatory protections afforded by published in the Federal Register on under section 7 of the Act through the the section 7(a)(2) jeopardy standard, as July 1, 1994 (59 FR 34271), and our prohibition against destruction or determined on the basis of the best associated Information Quality adverse modification of critical habitat available information at the time of the with regard to actions carried out, Guidelines, provides criteria and action. Federally funded or permitted funded, or authorized by a Federal guidance, and establishes procedures to projects affecting listed species outside agency. Section 7 requires consultation ensure that our decisions represent the their designated critical habitat areas on Federal actions that are likely to best scientific and commercial data may still result in jeopardy findings in result in the destruction or adverse available. Our biologists are required, to some cases. Similarly, critical habitat modification of critical habitat. The the extent consistent with the Act and designations made on the basis of the designation of critical habitat does not with the use of the best scientific and best available information at the time of affect land ownership or establish a commercial data available, to use designation will not control the refuge, wilderness, reserve, preserve, or primary and original sources of direction and substance of future other conservation area. Such information as the basis for recovery plans, habitat conservation designation does not allow government recommendations to designate critical plans, or other species conservation or public access to private lands. habitat. When determining which areas planning efforts if new information To be included in a critical habitat are designated as critical habitat, a available to these planning efforts calls designation, the habitat within the area primary source of information is for a different outcome. occupied by the species at the time of generally the listing package for the Methods listing must first have features that are species. Additional information sources ‘‘essential to the conservation of the include a recovery plan for the species, As required by section 4(b)(1)(A) of species.’’ Critical habitat designations articles in peer-reviewed journals, the Act, we use the best scientific and identify, to the extent known using the conservation plans developed by States commercial data available in best scientific and commercial data and counties or other entities that determining areas that are essential to available, habitat areas that provide develop HCPs, scientific status surveys the conservation of the arroyo toad. Our essential life cycle needs of the species and studies, biological assessments, or methods for identifying the arroyo toad (i.e., areas on which are found the other unpublished materials and expert critical habitat included in this final primary constituent elements, as opinion or personal knowledge. All designation are those methods we used defined at 50 CFR 424.12(b)). information is used in accordance with to make our final designation for this Specific areas within the geographic the provisions of Section 515 of the species on February 7, 2001 (66 FR area occupied by the species at the time Treasury and General Government 9414) and in our subsequent proposal of of listing may be included in critical Appropriations Act for Fiscal Year 2001 critical habitat for the arroyo toad, habitat only if the essential features (Pub. L. 106–554; H.R. 5658) and the published on April 28, 2004 (69 FR

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23253) as modified in accordance with biological needs of the arroyo toad as due to tilling, pesticide and fertilizer our discussion in the Summary of described in the Background section of applications, and heavy equipment use Changes section above. In addition, we the proposed rule (69 FR 23253). These (Griffin and Case 2001). used information and data (such as specific biological and physical features, The substrate in habitats preferred by newly obtained survey results; San or PCEs, which are essential to the arroyo toads consists primarily of sand, Marino Environmental Associates 1995, conservation of the arroyo toad are fine gravel, or pliable soil, with varying RECON 1999, Compliance Biology 2004) described below. Identified lands amounts of large gravel, cobble, and received during the public comment provide aquatic and terrestrial habitat boulders. Areas that are damp and have periods following both the April 28, containing the essential PCEs less than 10 percent vegetation cover 2004, proposed rule and the February supporting the maintenance of self- provide the best conditions for juvenile 14, 2005, revisions to proposed critical sustaining populations and survival and rapid growth (Sweet 1992). habitat and notice of availability of the metapopulations (a set of local Arroyo toads must be able to move draft economic analysis, and populations or breeding sites within an between the stream and upland foraging communications with individuals area, where typically migration from sites, as well as up and down the stream inside and outside the Service who are one local population or breeding site to corridor. Holland and Sisk’s (2001) knowledgeable about the species and its other areas containing suitable habitat is study on arroyo toad habitat use in habitat needs. possible, but not routine) of arroyo toads coastal San Diego County revealed toads We have also reviewed available throughout its range. traveling considerable distances (up to information that pertains to the habitat at least 0.71 mi (1.14 km)) from the edge requirements of this species, including Space for Individual and Population of the upland/riparian ecotone (i.e., material received since completion of Growth, and for Normal Behavior boundary or interface). In all study the recovery plan. The material The arroyo toad is found along areas, they found that toads were included data in reports submitted medium-to-large-sized streams in captured as far out as the pitfall trap during section 7 consultations and by coastal and desert drainages in central arrays were set for them: 0.71 mi (1.14 biologists holding section 10(a)(1)(A) and southern California and Baja, km) at Cristianitos Creek (east side), recovery permits; research published in Mexico. It occupies aquatic, riparian 0.56 mi (0.9 km) at Cristianitos Creek peer-reviewed articles and presented in (areas near a source of water), and (west side), and 0.37 mi (0.6 km) at academic theses and agency reports; upland habitats within its range. Santa Margarita River. Given the regional Geographic Information System Suitable habitat for the arroyo toad is contiguous nature of the habitat beyond (GIS) coverages; occupied and potential created and maintained by the where the traps were set, toads may habitat maps developed by the Forest fluctuating hydrological, geological, and have traveled farther from the riparian Service (Forest Service 2000); habitat ecological processes operating in area had the pitfall arrays been set evaluation models for the San Diego riparian ecosystems and the adjacent further back and not limited in County Multiple Species Conservation uplands. Periodic flooding that modifies distribution. Arroyo toads use a wide Program (MSCP), the North San Diego stream channels, redistributes channel range of upland vegetation types, County Multiple Habitat Conservation sediments, and alters pool location and including chaparral, coastal sage scrub, Program (MHCP), and the North County form, coupled with upper terrace oak woodland, grasslands, agricultural Subarea of the MSCP for stabilization by vegetation, is required lands, and ruderal/disturbed areas for Unincorporated San Diego County; and to keep a stream segment suitable for all foraging, burrowing, and aestivating a predictive habitat suitability map for life stages of the arroyo toad. Periodic (Griffin and Case 2001; Holland and San Diego County (Barto 1999). flooding helps maintain areas of open, Sisk 2001). Friable or readily crumbled sparsely vegetated, sandy stream soils that allow toads to burrow are Primary Constituent Elements channels and terraces (Sweet 1992; oftentimes patchily distributed in the In accordance with section 3(5)(A)(i) Griffin and Case 2001). upland areas. Upland areas not of the Act and regulations at 50 CFR Eggs and tadpoles require aquatic containing friable soils are still 424.12, in determining which areas to habitat, as described below under ‘‘Sites important for toads because they may designate as critical habitat, we are for Breeding, Reproduction and Rearing still contribute as foraging grounds required to base critical habitat of Offspring.’’ Juvenile and adult arroyo where toads can hunt for their prey or determinations on the best scientific toads require and spend much of their migration areas between foraging, and commercial data available and to lives in riparian and upland habitats burrowing, or aestivating areas; toads consider those physical and biological adjacent to breeding locations. Riparian may also occupy the burrows of other features (primary constituent elements habitats used by subadults and adults animals in areas where the soils are too (PCEs)) that are essential to the for foraging and burrowing year round hard for them to burrow into (Griffin conservation of the species, and that include sand bars, alluvial terraces, and 1999). may require special management streamside benches that lack vegetation, Within stream and river movements considerations and protection. These or are sparsely to moderately vegetated by arroyo toads is another important include, but are not limited to: Space for (Sweet 1992; Holland and Sisk 2001). aspect of their life history. Arroyo toads individual and population growth and Upland habitats used by arroyo toads move within streams and rivers to find for normal behavior; food, water, air, during both the breeding and suitable breeding and foraging habitats light, minerals, or other nutritional or nonbreeding seasons include alluvial as well as potential mating partners. In physiological requirements; cover or scrub, coastal sage scrub, chaparral some situations, arroyo toad larvae shelter; sites for breeding, reproduction, (shrubby plants adapted to dry summers swim or are flushed down stream due to and rearing (or development) of and moist winters), grassland, and oak heavy currents (Griffin 1999). Several offspring; and habitats that are protected woodland (Griffin and Case 2001). radio telemetry studies by Ramirez from disturbance or are representative of Arroyo toads also have been found in (2002a, 2002b, 2002c) documented the historic geographical and ecological agricultural fields (Griffin 1999), but toads moving on several occasions distributions of a species. these lands may constitute sinks (areas around 0.7 miles. In one instance, a toad The specific PCEs required for the where mortality rates are higher than was recorded moving 0.6 mile within arroyo toad are derived from the reproduction rates) over the long-term, one week. These studies were never

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more than approximately 5 months in species also breeds in smaller streams a. Breeding pools with areas less than 12 duration and therefore it is possible that and canyons where low-gradient in (30 cm) deep; lifetime toad movements could be even breeding sites are more sporadically b. Areas of flowing water with current longer. Sweet (1993) also documented distributed. Breeding pools must persist velocities less than 1.3 ft per second (40 cm toad movements of at least 0.7 mile long enough for the completion of larval per second); and c. Surface water that lasts for a minimum before toads left his study area. Griffin development (at least in most years), length of 2 months in most years (i.e., a (1999) documented a toad moving which is generally March through June, sufficient wet period in the spring months to downstream 0.64 mi (1025 m) over 42 depending on location and weather. allow arroyo toad larvae to hatch, mature, days before escaping its transmitter. Sweet (1992) measured the average age- and metamorphose). Although it is well documented that to-metamorphosis of arroyo toad larvae 2. Low-gradient stream segments toads can travel 0.7–0.8 mile within a on the Los Padres National Forest at 71 (typically less than 6 percent slope) stream or river over the course of a days, with a predicted minimum age-to- with sandy or fine gravel substrates that season, it is possible that these represent metamorphosis of 62 days. Most arroyo support the formation of shallow pools minimum distances since anecdotal toads metamorphose during June and and sparsely vegetated sand and gravel evidence exists of toads recolonizing July in the northern part of the toad’s bars for breeding and rearing of tadpoles suitable breeding pools that are of range, and from late April through June and juveniles. greater distances from other breeding in the southern portion of its range, 3. A natural flooding regime, or one pools. although it may be later, particularly at sufficiently corresponding to a natural higher elevations (D. Holland, in litt. Food and Water 2000). regime, that will periodically scour Arroyo toad tadpoles eat microscopic Breeding arroyo toads lay their eggs in riparian vegetation, rework stream algae, bacteria, and protozoans from the water over substrates of sand, gravel, or channels and terraces, and redistribute spaces among pebbles, gravel, and sand cobble in open sites such as overflow sands and sediments, such that breeding or abraded from stones (Sweet 1992). pools, old flood channels, and shallow pools and terrace habitats with scattered Juveniles and adults feed on insects, but pools along streams (Sweet 1992). Such vegetation are maintained. specialize on ants. When foraging, habitats rarely have closed canopies 4. Riparian and adjacent upland arroyo toads are often found around the over the lower banks of the stream habitats (e.g., alluvial scrub, coastal sage driplines of oak trees (Sweet 1992). channel due to periodic flooding events. scrub, chaparral, and oak woodlands, These areas often lack vegetation, yet Heavily shaded pools are generally but particularly alluvial streamside have sufficient levels of prey. When unsuitable for larval and juvenile arroyo terraces and adjacent valley active at night, toads often can be toads because of lower water and soil bottomlands that include areas of loose observed near ant trails feeding on ants, temperatures, and poor algal mat soil where toads can burrow beetles, and other prey. development. Pools less than 12 inches underground) to provide foraging, Water in the form of shallow pools (30 centimeters (cm)) deep with clear aestivation, and living areas for subadult along streams is essential for arroyo toad water that have flow rates less than 0.2 and adult arroyo toads. breeding (see Sites for Breeding, ft per second (5 cm per second), and 5. Stream channels and adjacent Reproduction and Rearing of Offspring bottoms composed of sand or well- upland habitats allowing for migration below). sorted fine gravel, are favored by adults between foraging, burrowing, or for breeding and egg deposition (Sweet aestivating sites, dispersal between Cover or Shelter 1992). Larvae usually hatch in 4 to 6 populations, and recolonization of areas During the day and other periods of days at water temperatures of 54 to 59 that contain suitable habitat. inactivity, arroyo toads seek shelter by degrees Fahrenheit (12 to 16 degrees These aquatic, riparian, and upland burrowing into the sand (Sweet 1992). Celsius). Although egg strings are laid in habitat PCEs form the bases of our Thus, areas of sandy or friable (readily slow moving water, larvae (tadpoles) critical habitat units. These features are crumbled) soils are necessary for the can be found in streams with water essential to the conservation of the animals to burrow, but these soils can velocities of up to 1.0 to 1.3 ft per arroyo toad. All lands identified as be interspersed with gravel or cobble second (30 to 40 cm per second) (Sweet essential and designated as critical deposits. Arroyo toads may also seek 1992). habitat contain one or more of the PCEs temporary shelter under rocks or debris Pursuant to our regulations, we are for the arroyo toad. and have been found in mammal required to identify the known physical Criteria Used To Identify Critical and biological features or PCEs, burrows on occasion (Griffin 1999). Habitat Upland sites with extremely compact essential to the conservation of the soils can also be used for foraging and arroyo toad, together with a description We are designating critical habitat on dispersal (D. Holland, in litt. 2000). of any critical habitat that is designated. lands that we have determined are Based on our current knowledge of the occupied at the time of listing and Sites for Breeding, Reproduction and life history, biology, and ecology of the contain the primary constituent Rearing of Offspring species and the requirements of the elements of the arroyo toad. In a few The arroyo toad has specialized habitat to sustain the essential life instances, designated areas were not breeding habitat requirements. They history functions of the species, we have known to be occupied at the time of favor shallow pools located in open determined that the arroyo toad’s listing, but have been determined to be sand and gravel channels, along low- primary constituent elements are: essential to the conservation of the gradient (typically less than 6 percent) 1. Rivers or streams with hydrologic species and have some or all of the reaches of medium-to-large-sized regimes that supply water to provide toad’s primary constituent elements (see streams (Sweet 1992). These streams can space, food, and cover needed to sustain unit descriptions for specific have either intermittent or perennial eggs, tadpoles, metamorphosing discussions). Drainage basins containing streamflow, and typically experience juveniles, and adult breeding toads. features essential to the conservation of periodic flooding that scours vegetation Specifically, the conditions necessary to the arroyo toad are generally reflected in and replenishes fine sediments. In at allow for successful reproduction of this final critical habitat designation. least some portions of its range, the arroyo toads are: This critical habitat designation focuses

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on providing sufficient breeding, biologists that have not yet been entered been reached at that point. The 82 ft (25 riparian, and upland habitats for the into the data base; only locations from m) elevation limit was reached at arroyo toad, thus promoting the the time of listing (1974 to 1994) up distances less than 1,640 ft (500 m) from conditions for maintaining self- through the present were used. Spatial the mapped stream channel along the sustaining arroyo toad populations and data on stream gradients with grades majority of the stream reaches, so the metapopulations across their historic less than 6 percent, aerial photography, distance limit was often not a factor. We range in California. Since arroyo toads surveys of habitat suitability, and site based the 82 ft (25 m) or 1,640 ft (500 are found in a variety of ecologically visits were all used to determine the m) limit on the results of an arroyo toad and geographically distinct areas, it is extent of suitable breeding habitat in study on Camp Pendleton in San Diego important to preserve the species’ these areas. We identified occupied County (Holland and Sisk 2000), which genetic diversity as well as the variety areas on stream reaches containing is by far the most indepth, complete of ecological environments in which it suitable breeding habitat, along with study of the distribution and use of is endemic. interspersed, interconnecting higher upland habitat by arroyo toads. Holland We determined an area was essential gradient segments, as essential. and Sisk (2000) established extensive if it had one or more of the following Occupied areas were defined as stream pitfall trap arrays at different distances characteristics: (1) Supports a reaches in which the species was and locations and operated the traps at substantial core population of arroyo observed that contain contiguous different times of the year over several toads; (2) supports at least a small toad stretches of suitable habitat. Occupancy years. Eighty-eight percent of the adult population and possesses favorable extended up to approximately 0.7 mile and sub-adult toads were captured in habitat conditions for population (1.1 km) upstream from the upper-most the riparian wash area. Although a few expansion and persistence; (3) suitable arroyo toad observation to accommodate toads were caught at distances of 1,000 habitat situated in a location that within-stream movements by toads. The m or more from the riparian wash area, appears to be crucial for maintaining the 0.7 mile (1.1 km) instream movement approximately 68 percent of the arroyo viability of a larger metapopulation; (4) distance was selected from a variety of toads found in upland habitats were occupied habitat on the periphery of the studies demonstrating that arroyo toads within 1,640 ft (500 m). The change in arroyo toad’s geographic range; and (5) travel this distance over the course of upland distance from the proposed occupied habitat in atypical or about a year (Sweet 1993; Griffin 1999; critical habitat rule is discussed above underrepresented ecological Holland and Sisk 2001; Ramirez 2002a; in the Summary of Changes from the environments (e.g., high elevation or Hitchcock et al. 2004). Interspersed Proposed Rule section. desert-edge populations). These areas higher gradient stream segments are This GIS-based modeling technique were known to be occupied at the time often patchily distributed within stream was effective at capturing alluvial areas of listing or subsequently and have one reaches and were included as essential associated with river valleys, and thus, or more of the primary constituent stream reaches because of their the width of the upland component of elements described above. proximity to suitable breeding habitat critical habitat varies based on Areas supporting core populations or and their importance in facilitating topography. The critical habitat that have the potential to support large movement between breeding sites. The designation widens in broad alluvial populations were determined to be upper most bound of an essential stream valleys and narrows in places where essential because they represent the reach was determined by the upper streams run through constricted foundation for continued persistence of canyons or between surrounding hills. most occupied area. The change in the species. Furthermore, some habitat To provide legal boundaries for the upstream critical habitat areas from the areas that would not be considered critical habitat areas, critical habitat proposed critical habitat rule is essential if geographically isolated, are boundaries for all drainages were in fact essential when situated in discussed above in the Summary of mapped as contiguous blocks of 100 m- locations where they facilitate Changes from the Proposed Rule by-100 m cells that conform to a continued connectivity and dispersal of section. Universal Transverse Mercator (UTM) individuals between surrounding To delineate essential upland habitat grid. adjacent populations or play a areas, we used a GIS-based modeling To identify critical habitat units, we significant role in maintaining procedure to identify alluvial terraces, first examined those lands under metapopulation viability (e.g., by valley bottomlands, and upland habitats Federal jurisdiction. Those lands providing additional areas of occupancy adjacent to stream reaches known to be include areas managed by the that provide resilience to periodic occupied by the arroyo toad. Lacking Department of Defense (DOD), the U.S. extirpations of adjacent habitat patches) spatially explicit data on Forest Service, the Bureau of Land (Hunter 2002). Populations on the geomorphology, we used elevation Management (BLM), the U.S. Army periphery of the species range or in above the stream channel as an Corps of Engineers (Army Corps), and atypical ecological environments are indicator of the extent of alluvial and the Service. We also considered the important for maintaining the genetic upland foraging habitat. After some existing status of non-Federal and diversity of the species, which is experimentation, we determined that private lands in designating areas as important for evolutionary adaptations areas up to 82 ft (25 m) in elevation critical habitat. We also determined the to changing climatic and environmental above the stream channel were most extent of Tribal land areas as part of the conditions (Hunter 2002). likely to contain the riparian and critical habitat designation process. We To identify and map areas that are upland habitat elements essential to have coordinated with the respective essential, we determined areas that arroyo toads. Most arroyo toad activity Tribes on this designation under the contained the essential features as and movement occurred within these guidance of the President’s described above, used data on known areas and steeper slopes away from the memorandum of April 29, 1994, arroyo toad locations, and data on stream were eliminated. However, in ‘‘Government-to-Government Relations movement distances by arroyo toads. flat areas, we truncated the upland with Native American Tribal Arroyo toad locations were from the habitat delineation at a distance of 1,640 Governments’’ (59 FR 22951), E.O. California Natural Diversity Data Base ft (500 m) from the stream channel if the 13175, and 512 DM 2, which requires us (CNDDB 2005) and information from 82 ft (25 m) elevation limit had not yet to coordinate with federally-recognized

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Tribes on a Government-to-Government extirpated from 76 percent of their and/or protection to address the current basis. previously occupied habitat in and future threats to the arroyo toad to In determining critical habitat California. Through focused survey ensure the overall recovery of the boundaries, we made every effort to efforts over recent years, a few new species. Such management exclude all developed areas, such as arroyo toad populations have been considerations and protections would buildings, paved areas, and other lands discovered. Because of these recent benefit the arroyo toad and its habitat unlikely to contain primary constituent efforts, however, it is unlikely that many because of the following: Exotic elements essential for arroyo toad more populations remain undiscovered, predators and pets may eat or injure conservation. Our 100-meter UTM grid at least on public land. arroyo toads; unnatural water releases minimum mapping unit was used to When designating critical habitat, we from dams can wash away arroyo toad minimize the amount of development assess whether the areas determined to eggs and tadpoles, promote the growth along the urban edge included in our be occupied at the time of listing and of exotic species, or reduce the mapping areas. Any such structures, contain the primary constituent availability of open sand bar habitat; paved areas, or otherwise developed elements may require special water diversions can dry a streambed areas inadvertently left inside critical management considerations or prior to the completion of habitat boundaries are not considered protection. As discussed throughout this metamorphosis from tadpole to toad; part of the designated units. This also final rule, our proposed rule published toads can be crushed by channel applies to the land on which such on April 28, 2004 (69 FR 23253), and maintenance, road construction, or the structures sit directly. Therefore, our previous final designation of critical plowing of agricultural fields with Federal actions limited to these areas habitat for the arroyo toad (66 FR 9414, heavy machinery; toads can be trampled February 7, 2001), the arroyo toad and would not trigger section 7 during recreational activities; and its habitat are threatened by a multitude consultations, unless they affect the arroyo toad habitat can be adversely of human-related activities, including species and/or primary constituent affected by agricultural practices, the but not limited to: alteration of the elements in adjacent critical habitat. invasion of exotic species, and A brief discussion of each area natural hydrological regime (e.g., inundation of habitat behind dams, inundation from water impoundments. designated as critical habitat is provided However, designation of critical habitat in the unit descriptions below. sediment trapping behind dams, water does not carry with it any requirement Additional detailed documentation flow manipulations from dams and that landowners or land managers concerning the essential nature of these waste water treatment plants, ground implement any special management or areas is contained in our supporting water pumping, water diversions, protection programs. Threats specific to record for this rulemaking. channelization, bank stabilization, water contamination); degradation and loss of each unit that may require special Special Management Considerations or habitat through urbanization; the management considerations or Protection inadvertent or intentional introduction protection are further discussed in the As a result of agriculture and of nonnative species (e.g., exotic Unit Descriptions section. urbanization, and the construction, predators, plants, and diseases); mining Critical Habitat Designation operation, and maintenance of water (e.g., sand and gravel and suction storage reservoirs, flood control dredge); agriculture (e.g., loss of upland We are designating 6 units as critical structures, roads, and recreational habitat and use of pesticides and habitat for the arroyo toad. The critical facilities such as campgrounds and off- herbicides); road placement within, habitat areas described below constitute highway vehicle parks, many arroyo across, or adjacent to river corridors; off- our best assessment at this time of areas toad populations have been reduced in highway vehicle use in stream channels; we determined to be occupied at the size or extirpated (eliminated) due to livestock grazing (e.g., trampling of time of listing, contain the primary extensive habitat loss from the 1920s arroyo toads and compaction of soils); constituent elements, and that may into the 1990s (Campbell et al. 1996). and recreation (e.g., campground require special management. Units that Although these factors have not placement on stream terraces, anglers, are currently occupied, but were not dramatically reduced the range of the equestrians, hikers, and mountain known to be occupied at the time of arroyo toad, within its range many of bikers). While many of these threats listing, have been determined to be the habitats that were historically operate concurrently and cumulatively essential to the conservation of the capable of supporting large numbers of with each other and with natural species and have one or more of the arroyo toads have been lost in the last disturbances (e.g., droughts and species’ primary constituent elements 100 years. Jennings and Hayes (1994) wildfires), the loss of existing habitat, (see Unit Descriptions below). The 6 believe that the loss of habitat, coupled alteration of stream flows, and the areas designated as critical habitat, plus with the manipulation of water levels in continued colonization of habitat by the 17 units that have been excluded many central and southern California nonnative species, likely represent the from critical habitat designation, are streams and rivers, predation from most significant current threats to shown in Table 1 above. Table 2 below introduced aquatic species, and habitat arroyo toads. As such, we believe that shows the approximate area designated degradation from introduced plant each area designated as critical habitat as critical habitat for the arroyo toad by species, caused arroyo toads to be may require some level of management land ownership and county.

TABLE 2.—APPROXIMATE CRITICAL HABITAT IN ACRES (AC) (HECTARES (HA)) BY COUNTY AND LAND OWNERSHIP

Forest Serv- State/ County ice BLM FWS Military local Tribal Private Total

Monterey ...... 0 0 0 0 0 0 ...... 0 ...... 0 Santa Barbara ...... 1,853 ac 0 0 0 0 0 ...... 2,947 ac ...... 4,800 ac (750 ha) (1,193 ha) .... (1,942 ha)

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TABLE 2.—APPROXIMATE CRITICAL HABITAT IN ACRES (AC) (HECTARES (HA)) BY COUNTY AND LAND OWNERSHIP— Continued

Forest Serv- State/ County ice BLM FWS Military local Tribal Private Total

Ventura ...... 3,668 ac 0 0 0 0 0 ...... 340 ac ...... 4,008 ac (1,494 ha) (138 ha) ...... 1,622 ha) Los Angeles ...... 734 ac 0 0 0 0 0 ...... 0 ...... 734 ac (197 ha) (297 ha) San Bernardino ...... 492 ac 0 0 0 0 0 ...... 628 ac ...... 1,120 ac (199 ha) (254 ha) ...... (453 ha) Riverside ...... 700 ac 333 ac 0 0 0 0 ...... 0 ...... 1,033 ac (283 ha) (135 ha) (418 ha) Orange ...... 0 0 0 0 0 0 ...... 0 ...... 0 San Diego ...... 0 0 0 0 0 0 ...... 0 ...... 0 Total ...... 7,447 ac 333 ac 0 0 0 0 ...... 3,915 ac ...... 11,695 ac (3,013 ha) (135 ha) (1,585 ha) .... (4,733 ha)

Unit Descriptions Hunter Liggett from the final critical Unit 2: Sisquoc River, Santa Barbara Critical habitat and essential habitat habitat designation under section 4(b)(2) County that has been excluded includes arroyo of the Act (see Application of Section Unit 2 consists of approximately 22 toad habitat throughout the species’ 3(5)(A) and 4(a)(3) and Exclusions mi (36 km) of the Sisquoc River and range in Monterey, Santa Barbara, Under Section 4(b)(2) of the Act section adjacent uplands, from the vicinity of Ventura, Los Angeles, Riverside, San for a detailed discussion). Unit 1 Abel Canyon Campground downstream Bernardino, Orange, and San Diego consists of 6,775 ac (2,742 ha) of the San to the confluence with La Brea Creek. Counties, California. Lands we Antonio River and adjacent uplands, The unit encompasses approximately considered for critical habitat are under from about 2 mi (3 km) upstream of the 4,800 ac (1,942 ha) of which 61 percent private, local agency, county, State, confluence with Mission Creek is private land and 39 percent is within Tribal, and Federal ownership. We downstream to San Antonio Reservoir, a the Los Padres National Forest. Upper divided the lands we determined to be distance of about 17 mi (27 km), and stretches of the river are within the essential to the conservation of the includes small portions of Mission National Forest and mostly within the species into 23 units. We are Creek and other tributaries. The vast San Rafael Wilderness Area. Below the designating critical habitat in 6 units, majority of the lands within this unit are National Forest boundary, the river and and excluding the remaining 17 units owned by the Army. The northernmost adjacent uplands are on rural, private for various reasons, as described in the known population of arroyo toads is lands. This long, undammed stream is exclusions section below. For those located here, and is approximately 100 occupied arroyo toad habitat and is one areas that have been excluded, the unit mi (160 km) north of the nearest of the few remaining major rivers in description is provided to define the documented extant population. Arroyo southern California with a natural flow unit and identify why we consider it toads were not known to occur within regime. Arroyo toads were known to essential to the conservation of the this area at the time the species was occur within this area at the time the species. Although all of the units are listed, but have since been observed species was listed and have been found within the geographic range of the along the entire length of this segment during recent surveys. This area species, we are not designating all of the of the San Antonio River (Service 1999), contains all of the primary constituent areas known to be occupied by the which is still in a relatively natural state elements, including breeding pools in arroyo toad. A brief description of each and consists of high-quality arroyo toad low-gradient stream segments, sandy or unit, reasons why it contains the habitat. This area contains all the fine gravel substrates, seasonal flood features essential for the conservation of primary constituent elements, including flows, and relatively undisturbed the arroyo toad, and the special breeding pools in low-gradient stream riparian/upland habitat for foraging and management considerations particular dispersal. Lands within this unit are segments, sandy substrates, seasonal to each unit, are presented below. threatened by grazing, sand and gravel flood flows, and relatively undisturbed Additionally, if a unit was not known to mining, and limited recreational riparian habitat and upland benches for be occupied at the time of listing, we activities and require special foraging and dispersal. The protection of have also described why we have management to reduce the impacts determined these units to be essential to this area is essential to maintaining the resulting from these threats. the conservation of the species. The unit complete genetic variability of the Unit 3: Upper Santa Ynez River Basin, boundaries are generally based on species and the full range of ecological Santa Barbara County geographically distinct river basins. In settings within which it is found, which several instances, a river basin has been is essential to the ability of the arroyo All essential lands in unit 3 are broken into two or more units based on toad to adapt to changing environmental excluded from critical habitat human or natural landscape features conditions. For these reasons we have designation under section 4(b)(2) of the that effectively separate portions of the determined this unit to be essential to Act for economic reasons (see basin (e.g., a large reservoir or gorge). the conservation of the species. Military Application of Section 3(5)(A) and operations (including occasional troop 4(a)(3) and Exclusions Under Section Unit 1: San Antonio River, Monterey movements and weed control) in and 4(b)(2) of the Act section). Unit 3 is County near the riparian zone may create the located upstream of Gibraltar Reservoir We have excluded all essential lands need for special management and incorporates portions of the upper in unit 1 including all lands on Fort considerations in this unit. Santa Ynez River, Indian Creek, Mono

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Creek, and adjacent uplands. The unit recreation, water withdrawls, and 4(a)(3) and Exclusions Under Section encompasses approximately 3,106 ac problems associated with an upstream 4(b)(2) of the Act section). Unit 5 (1,257 ha) within the boundaries of Los dam (e.g., sediment trapping, altered encompasses approximately 2,921 acres Padres National Forest, with 74 percent hydrological regime, temperature (1,182 ha) of which 83 percent is within on National Forest lands and 26 percent changes). the Los Padres and Angeles National on private non-residential inholdings. Unit 4: Sespe Creek, Ventura County Forests, with the remaining area on a The segment of the upper Santa Ynez few private inholdings. This unit is River designated as critical habitat Unit 4 includes 20 mi (32 km) of divided into two subunits. Subunit 5a extends approximately 7 mi (11 km) Sespe Creek and adjacent uplands, from encompasses approximately 8 mi (13 from the vicinity of Juncal Campground the confluence with Tule Creek km) of Piru Creek and adjacent uplands downstream to Gibraltar Reservoir. downstream to the confluence with from the vicinity of Frazier Creek Indian Creek is designated from its Alder Creek. The unit encompasses downstream to Pyramid Reservoir. confluence with Mono Creek upstream approximately 4,008 ac (1,622 ha), of Subunit 5b encompasses approximately approximately 3 mi (5 km). Mono Creek which 92 percent is on the Los Padres 9 mi (15 km) of Piru Creek from the and associated uplands are designated National Forest, primarily within the confluence with Fish Creek downstream for approximately 6 mi (10 km) from Sespe Wilderness. The remainder is in to Lake Piru. It also includes Olgilvy Ranch downstream to its remote, private inholdings. Arroyo toads approximately 1 mi (1.6 km) of Agua confluence with the Santa Ynez River. were known to occur within this area at Blanca Creek upstream from its Arroyo toads were known to occur the time the species was listed and have confluence with Piru Creek. Subunit 5a within this area at the time the species been found during recent surveys. One is in a remote setting within the Los was listed and have been found during of the largest arroyo toad populations on Padres National Forest, and most of recent surveys. This area contains all of the Los Padres National Forest occurs in subunit 5b is within the Sespe the primary constituent elements, this unit along Sespe Creek (Forest Wilderness. Arroyo toads were known including breeding pools in low- Service, in litt. 1999), which is to occur within this area at the time the gradient stream segments, sandy or fine undammed and retains its natural species was listed and have been found gravel substrates, seasonal flood flows, flooding regime. This core population is during recent surveys. and relatively undisturbed riparian/ spread over large areas of high quality Although much of the historical upland habitat for foraging and habitat, including numerous high- arroyo toad habitat along Piru Creek is dispersal. quality breeding pools, an abundance of A large and well-studied arroyo toad sandy substrates, unimpeded seasonal now inundated by the two reservoirs, a population occurs in this area (Sweet flood flows, and relatively undisturbed substantial arroyo toad population 1992, 1993). It is likely a remnant of a riparian habitat and upland benches for occurs in this unit (Sweet 1993). The much larger population that historically foraging and dispersal (Sweet 1992). Up upper portion of subunit 5a is free of extended downstream below what is to several hundred adult arroyo toads exotic vertebrate predators, and the now Lake Cachuma and upstream into inhabit this reach of the Sespe River arroyo toad population in this area has the area occupied by Jameson Reservoir. (Sweet 1992, 1993), and during years of been increasing and expanding over the The population along Mono Creek is successful reproduction, such as 2003, past several years (J. Uyehara, pers. one of the more robust populations of thousands of juveniles can be found as comm. 2003). The expansion of the arroyo toads on the Los Padres National well (Tom Murphy, Forest Service, pers. population is likely due, in part, to Forest and is free of exotic vertebrate comm. 2003). seasonal campground closures and the predators for much of its length (Jamie Arroyo toads have been found up to elimination of suction-dredge mining. Uyehara, Forest Service, pers. comm. 3,300 ft (1,000 m) in elevation in this Because lower Piru Creek (subunit 5b) is 2003). Unit 3 is also the wettest area area, which is one of the highest known below a large dam, the habitat there has occupied by arroyo toads in the occurrences in the Northern Region. The experienced some degradation over the Northern Region (Teale Data Center arroyo toads in this unit likely years from perennial water releases, 1998; California Irrigation Management experience temperature extremes or rapid changes in flow volume, excessive Information System 2000). other environmental conditions not flows during the breeding season, and It is likely that arroyo toads in this faced by toads at lower elevations. an increased presence of exotic unit experience precipitation and soil Potential adaptations to these predators. However, future releases from moisture conditions that are not faced conditions make the protection of this Pyramid Dam are scheduled to more by toads at drier sites. Potential area essential for the maintenance of the closely mimic natural flows and benefit adaptations to these conditions make genetic diversity of the species. Impacts the arroyo toad (Eva Begley, California the protection of this area essential to to the Sespe Creek habitat that require State Division of Water Resources, pers. maintaining the genetic diversity of the special management are from comm. 2003). This should result in an species. Because it is within, or is recreational activities (e.g., horseback expanded, stable population distributed surrounded by, National Forest land, riding, hiking, and other trail use) and over areas of good-to-excellent habitat this area has favorable habitat exotic predators (e.g., bullfrogs) (Sweet that is generally undisturbed by human conditions for population persistence. 2003). Special management is needed in activities. Both upper and lower Piru The arroyo toad population currently this unit to reduce or eliminate the Creek contain all of the primary inhabiting Mono and Indian Creeks is impacts from recreation and reduce or constituent elements, including particularly healthy and could be used eliminate exotic predators. breeding pools in low-gradient stream as a source for the reestablishment of segments, sandy substrate, seasonal arroyo toads in downstream reaches of Unit 5: Piru Creek, Ventura and Los flood flows (modified to some extent the Santa Ynez River, if warranted. The Angeles Counties below Pyramid Dam), and riparian leading threats to arroyo toads in this All essential lands in unit 5 are habitat and upland benches for foraging area that require special management excluded from critical habitat and dispersal. Special management are primarily along the lower Santa designation under section 4(b)(2) of the considerations are required to address Ynez River and lower Mono Creek and Act for economic reasons (see threats posed by horse and cattle include exotic species (e.g., bullfrogs), Application of Section 3(5)(A) and grazing, recreation, and unnatural flows

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that could potentially be released from to arroyo toads, refutes this (Ruben 4(a)(3) and Exclusions Under Section Pyramid Dam. Ramirez, Cadre Environmental, pers. 4(b)(2) of the Act section). Essential comm. 2003). Because this area areas in Unit 7 include portions of Big Unit 6: Upper Santa Clara River Basin, apparently supports a breeding Tujunga, Mill, and Alder Creeks, and Los Angeles County population of arroyo toads with the adjacent uplands in the upper Los All essential lands in unit 6 are potential to greatly expand, we believe Angeles River Basin. The unit excluded from critical habitat it is essential habitat for the arroyo toad. encompass approximately 1,772 ac (717 designation under section 4(b)(2) of the The upper portion of the Santa Clara ha), of which 95 percent is within the Act for economic reasons (see River running through Soledad Canyon Angeles National Forest and 5 percent is Application of Section 3(5)(A) and (subunit 6c) supports a small breeding on private lands. This unit was divided 4(a)(3) and Exclusions Under Section population of arroyo toads (N. into two subunits in the proposed rule 4(b)(2) of the Act section). Unit 6 Sandburg, in litt. 2001; Rick Farris, (7a and 7b). However, all lands in includes portions of the Santa Clara Service, pers. comm. 2001; Frank subunit 7a were removed because these River, Castaic Creek, and adjacent Hovore, Hovore and Associates, in litt. areas were not known to be occupied by uplands. The unit encompasses 2001) and has the potential to greatly arroyo toads and were therefore not approximately 2,538 ac (1,027 ha), of increase in size with appropriate essential. Subunit 7b encompasses: (1) which 87 percent is private land and 13 protection. Approximately 8 mi (13 km) of upper percent is within the Angeles National Subunits 6a, 6b, and 6c contain all the Big Tujunga Creek from immediately Forest. This unit is divided into three primary constituent elements, including above Big Tujunga Reservoir upstream subunits. Subunit 6a, predominantly breeding pools in low-gradient stream to approximately 1.0 mi (1.6 km) above within the administrative boundary of segments, sandy substrates, seasonal the confluence with Alder Creek, (2) the Angeles National Forest, includes flood flows, and riparian and upland almost 3.7 mi (6 km) of Mill Creek from approximately 4 mi (6 km) of Castaic habitats for foraging and dispersal. The the Monte Cristo Creek confluence Creek upstream from the Elderberry majority of the lands within unit 6 are downstream to Big Tujunga Creek, and Forebay of Castaic Lake, and privately-owned and special (3) 1.7 mi (2.7 km) of Alder Creek from approximately 0.7 mi (1.1 km) of Fish management considerations are required 0.2 mi (0.3 km) downstream of the Mule Creek upstream from its confluence in this unit to address urban Fork confluence downstream to Big with Castaic Creek. Subunit 6b includes development, agriculture, recreation, Tujunga Creek. approximately 6 mi (10 km) of the Santa and mining threats. Exotic species, such Subunit 7b contains an important Clara River from its confluence with the as African clawed frogs (Xenopus high elevation arroyo toad population in South Fork of the Santa Clara River laevis), are a concern here as well. the Big Tujunga Canyon watershed in down to its confluence with Castaic Castaic Creek from its confluence the Upper Los Angeles River basin Creek, and San Francisquito Creek from with the Santa Clara River upstream to within the Angeles National Forest. All the Newhall Ranch Road bridge Castaic Lagoon was included within drainages in subunit 7b have been downstream to its confluence with the subunit 6b in the February 7, 2001, reported to be occupied by arroyo toads Santa Clara River. Subunit 6c includes designation of critical habitat. A portion within the last 15 years (Forest Service, approximately 3 mi (5 km) of the upper of lower Castaic Creek containing in litt. 1996; Forest Service 2000; Santa Clara River from approximately suitable arroyo toad habitat was also California Natural Diversity Data Base 0.5 mi (0.8 km) above its confluence included in our April 28, 2004, (CNDDB) 2003). This population occurs with Agua Dulce Creek downstream proposed rule. However, flows in this in a high-elevation environment that is through Soledad Canyon to its reach are affected by the operations of atypical for arroyo toads and functions confluence with Bee Canyon Creek. Castaic Dam (e.g., water removed from as the only significant known Arroyo toads were known to occupy the system for a municipal drinking population remaining in the coastal upper Castaic Creek at the time of listing water supply) and arroyo toads have foothills of the San Gabriel Mountains. (subunit 6a), but were not known to never been observed within lower Subunit 7b is essential for arroyo toad occur along the Santa Clara River Castaic Creek; thus, we no longer conservation because it contains several (subunits 6b, 6c) at the time the species consider it essential to the conservation primary constituent elements, including was listed. They have been observed of the species in its current state. breeding pools in low-gradient stream within all three subunits during recent Similarly, we have concluded that San segments, sandy substrates for surveys. Francisquito Creek above the Newhall burrowing and aestivating, seasonal A healthy population of arroyo toads Ranch Road bridge lacks surface water flood flows, and riparian and upland can be found on Castaic Creek above the for a sufficient duration during spring of habitats for foraging and dispersal. reservoir (subunit 6a). It may be the most years to allow for arroyo toad Threats that require special management largest arroyo toad population in the tadpole development. Thus, this portion considerations for this unit include Angeles National Forest (Bill Brown, of San Francisquito Creek, which was exotic predators, such as crayfish and Forest Service, pers. comm. 2003). A included in subunit 6b in the proposed bullfrogs, and exotic plants, such as small population of arroyo toads can rule, does not provide breeding habitat Arundo donax. also be found in the Santa Clara River for arroyo toads, and we no longer Unit 8: Lower Santa Ana River Basin/ near the confluence with San consider this portion of San Santiago Creek, Orange County Francisquito Creek downstream to the Francisquito Creek to be essential for confluence with Castaic Creek (subunit the conservation of the species. All essential lands in Unit 8 are 6b). This portion of the Santa Clara excluded from critical habitat River was originally excluded from Unit 7: Upper Los Angeles River Basin, designation under section 4(b)(2) of the designation as critical habitat for the Los Angeles County Act because they are within the arroyo toad in 2000, in part because we All essential lands in Unit 7 are approved Orange County Central believed that a breeding population of excluded from critical habitat Coastal Subregion Natural Community arroyo toads could not be sustained in designation under section 4(b)(2) of the Conservation Plan (NCCP)/Habitat this area. Recent observations of arroyo Act for economic reasons (see Conservation Plan (HCP) area (see toads, including eggs thought to belong Application of Section 3(5)(A) and Application of Section 3(5)(A) and

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4(a)(3) and Exclusions Under Section Creek from the San Bernardino National Creek Basin. The unit encompasses 4(b)(2) of the Act section for a detailed Forest boundary downstream to near the approximately 5,256 ac (2,127 ha), of discussion). Essential areas in Unit 8 middle of section 27 (T5S, R1E), where which 52 percent is private land, 41 include portions of Santiago and Baker the stream enters a debris basin, is percent is Orange County Park Land Creeks and adjacent uplands in the excluded because it is within the (Caspers Wilderness Park and O’Neill lower Santa Ana River Basin. The unit Western Riverside MSHCP planning Regional Park), and 8 percent is within encompasses approximately 840 ac (340 area (see Application of Section 3(5)(A) the Cleveland National Forest. This unit ha) just above Irvine Lake, of which 100 and 4(a)(3) and Exclusions Under is divided into two subunits. Subunit percent is on private land. Unit 8 Section 4(b)(2) of the Act section for a 10a encompass approximately 18.5 mi encompasses approximately 1.3 mi (2.1 detailed discussion). (30 km) of San Juan Creek from the Unit 9 contains an important arroyo km) stretch of lower Baker Canyon from Lower San Juan picnic ground toad population in the San Jacinto River the Cleveland National Forest boundary downstream to Interstate 5 and about downstream to the confluence with and Bautista Creek within the San 2.5 mi (4 km) of Bell Canyon from just Santiago Creek as well as approximately Bernardino National Forest. Arroyo below Crow Canyon downstream to the 2.0 mi (3.2 km) of Santiago Creek from toads were first discovered in lower the Baker Canyon confluence Bautista Creek in 1975 (G. Stewart, confluence with San Juan Creek. downstream to Irvine Lake. unpubl. data) in an area that has since Subunit 10b covers approximately 5 mi Unit 8 contains an important arroyo suffered severe habitat loss due to (8 km) of Trabuco Creek from the toad population in Santiago and Baker substantial urban development. Arroyo Cleveland National Forest boundary to Creeks in central Orange County. Toads toads have also recently been reported approximately 0.9 mi (1.4 km) were observed in lower Baker Canyon in the San Jacinto River (B. Ortega in downstream of the State Route 241 and at the confluence of Silverado Creek litt. 2000) and in Bautista Creek within (Foothill Transportation Corridor) and Santiago Creek during the 1970s the San Bernardino National Forest bridge. and 1980s (Robert Fisher, USGS, in litt. (USGS 2000, 2001). This unit contains Unit 10 contains a vital arroyo toad 1985; CNDDB 2003). This population the most northeastern arroyo toad population in the San Juan Creek Basin may represent one of the last remnants population within the coastal region for that was known to be occupied at the of a greater historic population that the species and is effectively isolated time the species was listed. Arroyo existed in the Santa Ana River basin from other known toad populations to toads were originally discovered in San that was mostly extirpated due to the south in the Santa Margarita Juan Creek in 1974 (F. Roberts, Jr., in urbanization of the greater Los Angeles Watershed, to the west in the San Juan litt.), but the extent of their occupancy metropolitan area. It is also possible that Watershed, and from residual in this Basin was not known at the time this population belongs to a larger populations to the north in the Santa metapopulation that extends across the Ana Watershed due to geographic the species was listed under the Act. lower coastal mountain slopes of the features. It is likely that this isolation Recent surveys have collectively Santa Ana Mountains from Santiago has occurred over long geologic time, demonstrated that subunit 10a supports Creek to San Mateo Creek (including and therefore, toads in the San Jacinto a significant toad population (P. Bloom, Units 10 and 11). This unit is essential Watershed may have evolved unique environmental consultant, in litt. 1998; because it contains primary constituent genetic, phenotypic, and/or behavioral USGS, in litt. 1999a; CNDDB 2005). elements, such as low-gradient sandy characteristics that are essential for the Subunit 10a is essential for arroyo toad streams and adjacent upland terraces for conservation of the species. conservation because it contains several foraging, burrowing, and aestivation. Furthermore, unit 9 is essential for primary constituent elements in San Threats that require special management arroyo toad conservation because it Juan Creek and Bell Canyon, including considerations include impacts from contains several primary constituent low-gradient stream segments with nearby residential activities, and elements, including low gradient sandy sandy or fine gravel substrates that degrading habitat conditions due to past streambeds with slow moving water support shallow pools and alluvial commercial sand and gravel removal suitable for arroyo toad breeding and scrub habitat that provides suitable operations. adjacent upland terrace for foraging and foraging, burrowing, and aestivating burrowing that promote the ability of Unit 9: San Jacinto River Basin, habitat. Subunit 10b is also essential for this area to support a viable population. Riverside County arroyo toad conservation because it is Threats that require special management occupied and contains several primary Unit 9 includes portions of the San considerations for this unit include constituent elements in Trabuco Creek Jacinto River and Bautista Creek and destruction of habitat and mortality of (D. Holland, in litt. 2000), such as low- adjacent uplands in the San Jacinto individual toads due to recreation, gradient streams with shallow pools and River Basin. The unit encompasses vehicular traffic, and road approximately 700 ac (283 ha), of which adjacent upland habitat for foraging and improvements to the nearby Bautista burrowing that are favorable for 100 percent is within the San Road (USGS 2001). Bernardino National Forest. We are population persistence. Arroyo toad designating a 3.1 mi (5.1 km) Unit 10: San Juan Creek Basin, Orange populations in this unit may function as discontinuous stretch of Bautista Creek County an important linkage between toads in and an approximately 0.5 mi (0.8 km) All essential lands in Unit 10 are Santiago Creek (formerly proposed as discontinuous reach of the San Jacinto excluded from critical habitat Unit 8) to the north and the San Mateo River east of the Forest Service designation under section 4(b)(2) of the Creek Basin to the south (Unit 11). This boundary as critical habitat. Act for economic reasons (see population is threatened by exotic Approximately 2,418 ac (978 ha) of Application of Section 3(5)(A) and predators (bullfrogs), increased water essential habitat on private and State 4(a)(3) and Exclusions Under Section diversions, and residual effects of recent lands along the San Jacinto River from 4(b)(2) of the Act section). Essential gravel mining operations (Bloom 1998) the Sand Canyon confluence areas in Unit 10 include portions of San and requires special management to downstream to the Soboba Indian Juan Creek, Bell Canyon, Trabuco Creek, reduce the impacts associated with Reservation border and along Bautista and adjacent uplands in the San Juan these threats.

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Unit 11: San Mateo Creek and San Canyon upstream from the confluence mission-essential training areas (69 FR Onofre Creek Basins, San Diego and with San Onofre Creek. 23253). These areas are now exempted Orange Counties Unit 11 contains an indispensable from critical habitat based on Camp All essential lands in Unit 11 are arroyo toad population in the San Mateo Pendleton’s approved INRMP that was either excluded from critical habitat Creek and San Onofre Creek Basins. signed in 2001. Portions of essential designation under section 4(b)(2) of the Unit 11 contains several primary habitat in subunit 12b along the Santa Act for economic reasons (see constituent elements of low-gradient Margarita River within the Fallbrook Application of Section 3(5)(A) and stream segments with sandy or fine Naval Weapons Station are also 4(a)(3) and Exclusions Under Section gravel substrates, shallow pools for exempted from the final critical habitat 4(b)(2) of the Act section) or exempted breeding and rearing of tadpoles and designation due to their INRMP and Fire from critical habitat designation due to juveniles, and riparian and adjacent Management Plan. Subunit 12a includes Marine Corps Base, Camp Pendleton’s uplands habitats for foraging and approximately 5 mi (8.0 km) of De Luz (Camp Pendleton) Integrated Natural dispersal to other populations. With so Creek from the town of De Luz to the Resource Management Plan (INRMP) many favorable habitat conditions, this confluence with the Santa Margarita (see the Exemptions Under Section area is able to support a considerable River as well as approximately 2 mi (3.2 4(a)(3) section for a detailed discussion). arroyo toad population (Holland and km) of Roblar Creek. Subunit 12b Essential areas in Unit 11 include Goodman 1998; CNDDB 2005) and is includes portions of the Santa Margarita portions of San Mateo, Cristianitos, essential for the species. An unusual River from approximately 1 mi (1.6 km) and important aspect of this unit is its Talega, Gabino, La Paz, San Onofre, and northeast of the Camp Pendleton close proximity to the coast because Jardine Creeks, and adjacent uplands in boundary downstream Interstate 5 nearly all of the historic near-coastal the San Mateo and San Onofre Creek highway. populations have been extirpated due to Unit 12 contains a significant arroyo Basins. This unit encompasses extensive urbanization and river toad population in the lower Santa approximately 8,178 ac (3,310 ha), of channelization along the coastal regions Margarita River Basin. Recent surveys of which 83 percent is within portions of of southern California. Distinctive the Santa Margarita River and De Luz Marine Corps Base, Camp Pendleton climatic conditions near the coast may Creek immediately downstream of this (Camp Pendleton), including State lease provide different selective pressures on unit on Camp Pendleton have lands, and 17 percent is on private land. toads in this area, and favor specific documented what is probably the largest This unit was divided into three genetic characteristics that help known population of arroyo toads subunits in the proposed rule (11a, 11b, maintain the genetic diversity of the (Holland 1995; Holland and Goodman and 11c). Subunit 11a includes species. Lands within this unit are 1998; Varanus Biological Services, Inc. approximately 3.1 mi (5 km) of San threatened by cumulative impacts from 1999; Holland and Sisk 2001; CNDDB Mateo Creek from the Cristianitos Creek human activities, including direct 2005). This unit contains several confluence downstream to just below mortality from vehicle collisions and primary constituent elements including Interstate 5 highway and includes vehicular crossings of stream beds, rivers with suitable hydrologic regimes, portions of Cristianitos Creek from just recreational activities, camping, fire, low-gradient stream segments with above Gabino Creek downstream to the exotic predators, and invasive plants sandy substrates supporting shallow confluence with San Mateo Creek. This (Holland and Goodman 1998) and pools and gravel bars for breeding and subunit also includes approximately 3.1 require special management to reduce rearing tadpoles and juveniles, and mi (5 km) of Gabino Creek upstream impacts associated with these threats. riparian and adjacent upland habitat to from its confluence with Cristianitos provide foraging and living areas for Unit 12: Lower Santa Margarita River Creek, including about 0.6 mi (1 km) of subadult and adult toads. This unit is Basin, San Diego County La Paz Creek, as well as approximately important for the conservation of the 2.7 mi (4.3 km) of Talega Creek All essential lands in Unit 12 are species because of its size and potential upstream from its confluence with either excluded from critical habitat connectivity to populations in the upper Cristianitos Creek and beyond the designation under section 4(b)(2) of the Santa Margarita River Basin (Unit 13). boundaries of Camp Pendleton. Portions Act for economic reasons (see Threats to this habitat that require of essential habitat in both subunit 11a Application of Section 3(5)(A) and special management considerations along San Mateo, San Onofre, and 4(a)(3) and Exclusions Under Section include cumulative impacts to the Talega Creeks and San Onofre Creek and 4(b)(2) of the Act section) or exempted species’ habitat from human activities, subunit 11c within Camp Pendleton from critical habitat designation due to including direct mortality from vehicle were originally excluded from the Camp Pendleton’s and Naval Weapons collisions and vehicular crossings of proposed rule because they were within Station Seal Beach Detachment stream beds, fire, exotic predators, and mission-essential training areas (69 FR Fallbrook’s (Fallbrook Naval Weapons invasive plants (Holland and Goodman 23253). These areas, as well proposed Station) INRMP (see the Exemptions 1998). State leased lands (subunit 11a) and Under Section 4(a)(3) section for a cantonment areas (subunit 11c), are now detailed discussion). Essential areas in Unit 13: Upper Santa Margarita River exempted from critical habitat based on Unit 12 encompass approximately 6,388 Basin, Riverside County Camp Pendleton’s approved INRMP that ac (2,585 ha), of which 86 percent is on All essential lands in Unit 13 are was signed in 2001. Subunit 11b Camp Pendleton, 5 percent is on excluded from critical habitat encompasses approximately 6 mi (9.7 Fallbrook Naval Weapons Station, and 8 designation under section 4(b)(2) of the km) of San Mateo Creek from the percent is on private land. This unit is Act for economic reasons (see Cleveland National Forest boundary divided into two subunits (12a and 12b). Application of Section 3(5)(A) and downstream to the confluence with In the proposed critical habitat rule, 4(a)(3) and Exclusions Under Section Cristianitos Creek. Subunit 11c portions of subunits 12a and12b along 4(b)(2) of the Act section). Essential encompasses approximately 8 mi (12.9 the Santa Margarita River, De Luz Creek, areas in Unit 13 are located upstream km) of San Onofre Creek upstream from and Roblar Creek in subunits 12a and from Vail Lake and include portions of Interstate 5 highway as well as 12b within Camp Pendleton were Arroyo Seco and Temecula Creeks, and approximately 2 mi (3.2 km) of Jardine excluded because they were within adjacent uplands in the upper Santa

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Margarita Basin. The unit encompasses Luis Rey River from the western edge of section 13 (T10S, R3E) to the confluence approximately 2,115 ac (856 ha), of the La Jolla Indian Reservation with the San Luis Rey. Subunit 15b which 81 percent is private land and 19 downstream to the confluence with includes approximately 1.6 mi (2.5 km) percent is within the Cleveland National Guajome Creek near the City of of the West Fork of the San Luis Rey Forest. This unit is divided into two Oceanside are designated as critical River, where it runs through Barker subunits (13a and 13b). The upper half habitat. It also includes approximately Valley. of subunit 13b in Temecula Creek, 3.4 mi (5.5 km) of Pala Creek and 1.7 mi Unit 15 contains an important high- upper portion of subunit 13a, and all of (2.7 km) of Keys Creek upstream from elevation arroyo toad population with Wilson Creek was removed because it their confluence with the San Luis Rey large areas of suitable habitat. Arroyo was not known to be occupied, and River. toads were known to occupy this unit at therefore no longer considered to be Unit 14 contains an indispensable the time of listing in 1994. More recent essential. Subunit 13a includes 3.7 mi arroyo toad population in the San Luis surveys have also documented arroyo (5.9 km) of Arroyo Seco Creek from just Rey River Basin. This unit was known toads in both subunits 15a and 15b north of the San Diego/ Riverside to be occupied at the time of listing in (USGS 2000; CNDDB 2005). Unit 15 is Counties boundary downstream to Vail 1994. Several more recent surveys have important for the conservation of the Lake. Subunit 13b includes documented the presence of arroyo species because it contains a unique approximately 3 mi (4.8 km) of toads throughout this unit (Dudek & assemblage of several small, disjunct, Temecula Creek from just east of the Associates 1995; California Department high-elevation arroyo toad populations town of Radec downstream to Vail Lake. of Transportation 1999; PCR Services and one significant population on Agua Unit 13 contains an important arroyo Corporation 1999; Tierra Environmental Caliente Creek (E. Gergus, San Diego toad population in the Upper Santa Services 1999; Varanus Biological State University, in litt. 1992; CNDDB Margarita Basin upstream from Vail Services, Inc. 1999; Cadre 2005) in an area where in-stream and/ Lake. Unit 13 is important for the Environmental 2004). This long, low- or overland dispersal between conservation of the species because it elevation (all below 1,000 ft (305 m) in populations is likely still possible. provides a potential link to populations elevation) unit is situated in a broad, flat Maintaining adequate genetic in the lower Santa Margarita River Basin valley with a low-gradient river that connectivity within this population and other nearby drainages containing supports all the primary constituent increases the probability of these suitable habitat, such as upper portions elements, such as shallow pools for populations’ long term persistence. This of Temecula Creek and Wilson Creek breeding and sandy substrates in unit is essential because it contains the that are not known to be occupied. adjacent upland terraces for foraging, primary constituent elements of low- Toads were known to occupy the Upper burrowing, and aestivating. This unit is gradient stream segments with sandy Santa Margarita Basin at the time of necessary for the conservation of the substrates supporting shallow pools, listing in 1994 and have also been arroyo toad because it supports one of and riparian and adjacent upland documented in this area more recently the largest contiguous river reaches that habitats that provide areas for foraging (AMEC Earth and Environmental, Inc. is occupied by the species and has the and burrowing. The primary threats 2001; CNDDB 2005). Unit 13 is essential ability to support a viable population. against the arroyo toad in this unit that for the conservation of the arroyo toad Special management considerations that would be alleviated through special because it contains several primary are required in this unit include management include groundwater constituent elements, such as low addressing issues regarding dams and pumping on private lands, exotic gradient sandy stream channels with water diversions in the upper end of the predators, and grazing. slow moving water suitable for breeding unit and minimizing impacts from Unit 16: Santa Ysabel Creek Basin, San and adjacent upland terraces for intensive urbanization, agriculture, Diego County foraging, burrowing, and aestivating. exotic predators, and plants. Exotic predators, campground activities, All essential lands in Unit 16 are Unit 15: Upper San Luis Rey River streambed alterations, and agricultural excluded from critical habitat Basin, San Diego County run-off threaten arroyo toads in this unit designation under section 4(b)(2) of the and require special management. All essential lands in Unit 15 are Act for economic reasons (see excluded from critical habitat Application of Section 3(5)(A) and Unit 14: Lower and Middle San Luis Rey designation under section 4(b)(2) of the 4(a)(3) and Exclusions Under Section River Basin, San Diego County Act for economic reasons (see 4(b)(2) of the Act section). Essential All essential lands in Unit 14 are Application of Section 3(5)(A) and areas in Unit 16 include portions of excluded from critical habitat 4(a)(3) and Exclusions Under Section Santa Ysabel, Santa Maria, Guejito, and designation under section 4(b)(2) of the 4(b)(2) of the Act section). Essential Temescal Creeks (Pamo Valley) and Act for economic reasons (see areas in Unit 15 include the upper San adjacent uplands in the San Dieguito Application of Section 3(5)(A) and Luis Rey River above Lake Henshaw, River/Santa Ysabel Creek Basin. The 4(a)(3) and Exclusions Under Section two of its headwater tributaries, and unit encompasses approximately 10,259 4(b)(2) of the Act section). Essential adjacent uplands in the upper San Luis ac (4,152 ha), of which 93 percent is lands in Unit 14 include portions of the Rey River Basin. The unit encompasses private land, 3 percent is within the San Luis Rey River and adjacent upland approximately 6,183 ac (2,502 ha), of Cleveland National Forest, 1 percent is areas below the La Jolla Indian which 73 percent is private land and 27 on County Park land, 1 percent on Reservation, as well as sections of Pala percent is within the Cleveland National California Department of Fish and Game and Keys Creeks in the lower and Forest. This unit consists of two (CDFG) land, and the remaining 1 middle San Luis Rey River Basin. The subunits (subunits 15a and 15b). percent is on the Mesa Grande Indian unit encompasses approximately 8,669 Subunit 15a covers almost 8.7 mi (14 Reservation. This unit consists of four ac (3,508 ha), of which 84 percent is km) of the upper San Luis Rey River subunits (16a, 16b, 16c, and 16d). private land, 10 percent is on the Pala from the Indian Flats area downstream Subunit 16a includes approximately 9 Indian Reservation, and 5 percent is on to the upper end of Lake Henshaw and mi (14.5 km) of Santa Ysabel Creek from the Rincon Indian Reservation. includes about 7.8 mi (12.5 km) of Agua the confluence with Temescal Creek Approximately 30 mi (48 km) of the San Caliente Creek from the western edge of downstream to the confluence with

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Santa Maria Creek, approximately 4.3 approximately 1,955 ac (791 ha), of occupied. Subunit 18a covers mi (7 km) of Temescal Creek from the which 83 percent is private land, 10 approximately 20 mi (32 km) of the northern edge of Pamo Valley to the percent is within the Cleveland National Sweetwater River from approximately confluence with Santa Ysabel Creek and Forest, and 7 percent is on the Capitan one mile upstream of the Stonewall approximately 2.5 mi (4.0 km) of Boden Grande Indian Reservation. The unit Creek confluence in the Green Valley in Canyon upstream from the Santa Ysabel was divided into four subunits in the Cuyamaca Rancho State Park Creek confluence. Subunit 16b includes proposed rule (subunits 17a, 17b, 17c, downstream to the confluence with approximately 10 mi (16.1 km) of 17d), of which two (subunits 17b and Viejas Creek. Subunit 18b includes Guejito Creek from the 2,000 ft (610 m) 17c) are no longer essential because they approximately 0.5 mi (0.8 km) of the elevation contour downstream to the are not known to be occupied. Subunit Sweetwater River between Viejas Creek confluence with Santa Ysabel Creek. 17a includes approximately 5 mi (8 km) and Loveland Reservoir and 1.5 mi (2.4 Subunit 16c covers approximately 7.0 of the San Diego River from Ritchie km) of Peterson Canyon from just east mi (11.2 km) of Santa Maria Creek from Creek downstream through 0.5 mi (0.9 of the Taylor Creek confluence the west side of Ramona south of the km) of the Capitan Grande Indian downstream to the top of Loveland Ramona Airport to the confluence with Reservation to the upper edge of El Reservoir. Subunit 18c encompasses Santa Ysabel Creek. Subunit 16d Capitan Reservoir and approximately approximately 16 mi (26 km) of the includes approximately 3 mi (4.8 km) of 0.6 mi (1 km) of lower Cedar Creek. Sweetwater River from immediately Santa Ysabel Creek upstream from the Subunit 17d includes 4 mi (6.4 km) of below Loveland Dam downstream to the confluence with Witch Creek. San Vicente Creek upstream from San upper edge of Sweetwater Reservoir. Unit 16 contains a vital arroyo toad Vicente Reservoir. Unit 18 contains a significant arroyo population for the conservation of the Unit 17 contains a necessary arroyo toad population in the Sweetwater River species in the Santa Ysabel River Basin. toad population in the upper San Diego Basin that was known to be occupied at This unit was known to be occupied at River Basin. Arroyo toads were known the time the species was listed in 1994. the time of listing in 1994, and more to occupy this unit at the time of listing This unit is necessary for conservation recent surveys have documented toads in 1994 (CNDDB 2005). Unit 17 is of the arroyo toad because it supports to occupying all of the drainages in this important for the arroyo toad several significant populations over unit, including a significant population conservation because it contains large stretches of rivers and streams (E. in Temescal and Santa Ysabel Creeks suitable habitat for population Gergus, in litt. 1992; Ervin and Griffin, within Pamo Valley (Varanus Biological expansion, thus increasing the in litt. 1997; Varanus Biological Services, Inc. in litt. 1999; Tierra probability of the long-term persistence Services, Inc. 1999; CNDDB 2005). Unit Environmental Services, in litt. 2001; of these populations. This unit is 18 is essential because it contains the USGS, in litt. 2002; CNDDB 2005). This essential because it contains the primary primary constituent elements of open unit has a high conservation value constituent elements of low-gradient sandy river bottoms with shallow pools because it is interconnected with other stream segments with sandy substrates that support breeding populations and occupied essential areas in the San supporting shallow pools for breeding, adjacent upland foraging and burrowing Diego MSCP that are excluded. riparian and adjacent upland habitats areas. Maintaining suitable habitat Collectively, these areas contain large that provide foraging, living, and conditions and connectivity are amounts of suitable habitat that promote migration areas for subadult and adult essential to provide for the long-term the ability of a large population to toads. Special management persistence of these populations. Lands persist and contribute to the species considerations or protections are within these subunits require special recovery. Unit 16 is essential because it required to minimize threats from exotic management considerations to address contains several primary constituent predators. threats from adverse (i.e., timing, elements, including low-gradient sandy amount) water releases from reservoirs, Unit 18: Sweetwater River Basin, San stream segments with shallow pools for cattle grazing, gravel mining operations, Diego County breeding and rearing of tadpoles, upland off highway vehicular traffic, and exotic sandy terraces that provide foraging and All essential lands in Unit 18 are predators. burrowing habitat, and stream channels excluded from critical habitat Unit 19: Cottonwood Creek Basin, San and upland habitats that allow for designation under section 4(b)(2) of the Diego County migration to foraging areas. Grazing, Act for economic reasons (see exotic predators, and urbanization Application of Section 3(5)(A) and All essential lands in Unit 19 are (Tierra Environmental Services, in litt. 4(a)(3) and Exclusions Under Section excluded from critical habitat 2001; CNDDB 2005) are the primary 4(b)(2) of the Act section). Essential designation under section 4(b)(2) of the threats to this arroyo toad essential areas in Unit 18 include portions of the Act for economic reasons (see habitat that require special management Sweetwater River and Peterson Canyon Application of Section 3(5)(A) and considerations in this unit. and adjacent uplands in the Sweetwater 4(a)(3) and Exclusions Under Section River Basin. The unit encompasses 4(b)(2) of the Act section). Essential Unit 17: San Diego River Basin/San approximately 5,347 ac (2,164 ha), of areas in Unit 19 include portions of Vicente Creek, San Diego County which 46 percent is private land, 32 Cottonwood, Potrero, Pine Valley, All essential lands in Unit 17 are percent is on California State Park Morena, La Posta, and Kitchen Creeks excluded from critical habitat lands, 17 percent is within the and adjacent uplands in the Cottonwood designation under section 4(b)(2) of the Cleveland National Forest, 3 percent is Creek Basin. This large unit Act for economic reasons (see on the San Diego National Wildlife encompasses approximately 11,135 ac Application of Section 3(5)(A) and Refuge, 2 percent is on CDFG land, and (4,579 ha), of which 55 percent is 4(a)(3) and Exclusions Under Section less than 1 percent on the Sycuan private land, 36 percent is within the 4(b)(2) of the Act section). Essential Indian Reservation. The unit was Cleveland National Forest, 8 percent is lands in Unit 17 include portions of the divided into four subunits in the on land owned by San Diego County, San Diego River and San Vicente Creek proposed rule (18a, 18b, 18c, and 18d). and less than 1 percent is on BLM land. and adjacent uplands in the San Diego Subunit 18d was no longer essential This unit is divided into four subunits River Basin. The unit encompasses because this area was not known to be (19a, 19b, 19c, 19d). Subunit 19a covers

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7 mi (11.2 km) of Cottonwood Creek approximately 1,119 ac (4453 ha), of which is geographically isolated from from its confluence with Kitchen Creek which 56 percent is private land and 44 other known toad populations. downstream to Morena Reservoir and percent is within the San Bernardino Therefore, it is possible that arroyo includes approximately 3.7 mi (6 km) of National Forest. toads in this desert area possess unique La Posta Creek, 2.8 mi (4.5 km) of This population may represent some genetic and phenotypic variation. Morena Creek, and 5 mi (8 km) of of the last vestiges of a much greater Protecting peripheral populations such Kitchen Creek upstream from the population that historically existed as this is necessary for the species Cottonwood Creek confluence. Subunit along the upper Santa Ana River Basin, conservation because it maintains a 19b includes 9.3 mi (15 km) of Potrero but was almost entirely extirpated due broad range of genetic diversity for the Creek from approximately the 2,466-ft to urbanization of the greater Los species. Losses of diversity can result in (752-m) elevation benchmark Angeles area. Arroyo toads were not reduced evolutionary flexibility and downstream to the confluence with known to occur within this area at the declines in fitness. This unit is essential Cottonwood Creek, approximately 10 mi time the species was listed but were because it contains the primary (16.1 km) of Cottonwood Creek from located near the junction between Lone constituent elements of low-gradient Barrett Lake downstream to the United Pine Canyon and Cajon Wash in 2000 sandy stream segments that support States International Border. Portions of (USGS 2000). The nearest known arroyo shallow breeding pools, adjacent upland 19b between Morena Reservoir and toad population occurs approximately areas for foraging, and a hydrologic Barrett Lake and 19c (Scove Canyon) 3.7 mi (6 km) (straight line distance) to regime that sufficiently corresponds to were no longer considered essential the east in the West Fork Mojave River natural conditions and scours the because these areas were not known to (Unit 22). However, the steep terrain riparian vegetation, thus providing open be occupied. Subunit 19c covers about between these populations makes it areas for movement. Threats from 7.5 mi (12 km) of Pine Valley Creek likely that these populations are recreational activities require special from the north edge of section 12 (T15S, geographically isolated from one management considerations to preserve R4E) downstream to approximately 0.6 another. Protecting this population is the area’s favorable habitat conditions mi (1 km) south of Interstate 8 and essential for the conservation of the for the persistence of this population. includes approximately 0.6 mi (1 km) of species because it helps preserve an Unit 22: Upper Mojave River Basin, San Noble Creek. Subunit 19d encompasses important remnant population that may Bernardino County 8 mi (13 km) of Pine Valley Creek from possess unique genetic, phenotypic, the Nelson Canyon confluence and/or behavioral variation of the All essential lands in Unit 22 are downstream to Barrett Reservoir. species. This unit is essential because it excluded from critical habitat Unit 19 contains a fundamentally contains the primary constituent designation under section 4(b)(2) of the important arroyo toad population in the elements of low-gradient sandy stream Act for economic reasons (see Cottonwood Creek Basin. This unit was segments supporting shallow breeding Application of Section 3(5)(A) and known to be occupied at the time the pools, adjacent upland terraces for 4(a)(3) and Exclusions Under Section species was listed and also contains foraging and burrowing, and a flooding 4(b)(2) of the Act section). Essential several recent documentations of large regime that sufficiently corresponds to areas in Unit 22 include portions of the distinct arroyo toad occurrences (E. natural conditions and periodically Mojave River, the West Fork of the Gergus, in litt. 1992; Varanus Biological scours riparian vegetation and reworks Mojave River, Horsethief and Little Services, Inc. 1999; USGS, in litt. 1999b; stream channels. Recreational usage is Horsethief Creeks, Grass Valley Creek, CNDDB 2005). This unit is important for the primary threat to this habitat and Deep Creek, and adjacent uplands in the the conservation of the species because requires special management upper Mojave River Basin. The unit it contains several areas where in-stream considerations. encompasses approximately 6,328 ac and/or overland dispersal between (2,561 ha), of which 35 percent is Unit 21: Little Rock Creek Basin, Los populations is likely possible and where private land, 34 percent is managed by Angeles County there is room for population expansion. the U.S. Army Corps of Engineers in Lands within this unit also provide an Essential areas in Unit 21 include association with a flood control important linkage to populations approximately 4.5 mi (7.2 km) of Little reservoir, 28 percent is within the San occurring on excluded essential habitat Rock Creek and adjacent uplands, from Bernardino National Forest, 2 percent is within the San Diego MSCP area. This just north of the Little Sycamore California State Parks land, and 1 unit is essential because it contains the campground downstream to the upper percent is BLM land. The unit was primary constituent elements of wide, end of Little Rock Reservoir (in the divided into three subunits (22a, 22b, open sandy low-gradient stream vicinity of Rocky Point Picnic Ground), 22c) in the proposed rule. Subunit 22b segments supporting shallow pools for and approximately 1.1 mi (1.8 km) of was removed as essential because it is breeding and sparsely vegetated upland Santiago Creek and adjacent uplands not known whether this area is habitat for foraging and burrowing. upstream from the confluence with occupied. Subunit 22a includes: (1) Urbanization, grazing, Border Patrol Little Rock Creek in the Little Rock Approximately 9.3 mi (18 km) of Deep activities, introduced plants, and exotic Creek Basin. The unit encompasses Creek from near Holcomb Creek predators are the primary threats to this approximately 734 ac (297 ha), all of downstream to the confluence with the arroyo toad essential habitat that require which is within the Angeles National West Fork; (2) approximately 4 mi (6 special management considerations. Forest. km) of Little Horsethief Creek upstream Unit 21 contains an important desert from its confluence with Horsethief Unit 20: Upper Santa Ana River Basin/ arroyo toad population in the Little Creek; (3) approximately 4 mi (6 km) of Cajon Wash, San Bernardino County Rock Creek Basin. Arroyo toads were Horsethief Creek from approximately 1 Essential areas in Unit 20 include not known to occur within this area at mi (1.6 km) above the Little Horsethief approximately 4 mi (6.4 km) of Cajon the time the species was listed. This Creek confluence downstream to the Wash and adjacent uplands, from just unit is important for the conservation of West Fork confluence; (4) south of Cajon campground downstream the species because recent surveys have approximately 6 mi (10 km) of the West to the San Bernardino National Forest documented toads in this basin (Forest Fork of the Mojave River from Highway boundary. The unit encompasses Service, in litt. 1998; Ramirez 2002a), 173 downstream to Mojave River Forks

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Dam; (5) approximately 1 mi (1.6 km) of designation (see Application of Section reviewing the regulatory definition of the Mojave River below Mojave River 3(5)(A) and 4(a)(3) and Exclusions adverse modification in relation to the Forks Dam; (6) approximately 1.4 mi Under Section 4(b)(2) of the Act section conservation of the species and are (2.2 km) of Grass Valley Creek upstream for a detailed discussion). relying on the statutory provisions of from the confluence with the West Fork; Unit 23 contains another important the Act in evaluating the effects of and (7) approximately 2.8 mi (4.5 km) desert arroyo toad population. This unit Federal actions on designated critical of Kinley Creek upstream from the Deep was known to be occupied at the time habitat, pending further regulatory Creek confluence. Subunit 22c includes of listing. Arroyo toads were observed guidance. approximately 1 mi (1.6 km) of the and photographed in the drainage in Section 7(a) of the Act requires upper West Fork of the Mojave River, 1992 (Patten and Myers 1992) but were Federal agencies, including the Service, above Silverwood Lake, from near the not detected in surveys conducted to evaluate their actions with respect to 3,613 ft (1,462 m) elevation benchmark during the 2000 breeding season (Jones any species that is proposed or listed as downstream to the upper end of the and Stokes, in litt. 2000). However, 2000 endangered or threatened and with lake. was generally a bad year for arroyo toad respect to its critical habitat, if any is These subunits contain the primary breeding activity, particularly in the proposed or designated. Regulations constituent elements of low-gradient southern half of the species’ range, implementing this interagency sandy stream segments that support because of below average precipitation cooperation provision of the Act are shallow breeding pools, adjacent upland and subsequent low streamflows. In codified at 50 CFR part 402. areas for foraging, and a hydrologic 2003, a tadpole was identified with Section 7(a)(4) of the Act requires regime that sufficiently corresponds to almost complete certainty to be an Federal agencies to confer with us on natural conditions and scours the arroyo toad near where the Colorado any action that is likely to jeopardize riparian vegetation, thus providing open River Aqueduct crosses the river (P. the continued existence of a proposed areas for movements by toads. Subunit Bloom, in litt. 2003). Given the species or result in destruction or 22c was not known to be occupied at relatively recent documentation of adverse modification of proposed the time the species was listed, but arroyo toads in this drainage, and the critical habitat. Conference reports toads have been found during recent continued presence of suitable habitat provide conservation recommendations surveys (Tierra Madre Consultants, Inc. in the area, we believe it is likely that to assist the agency in eliminating in litt. 1995; Ramirez 2002b; CNDDB this unit is still occupied. Unit 23 is conflicts that may be caused by the 2005; Forest Service, in litt. 2003; essential because it supports several proposed action. We may issue a formal Ramirez 2003). Summit Valley, which primary constituent elements such as conference report if requested by a encompasses the lower portions of open sandy areas near small areas of Federal agency. Formal conference Horsethief Creek and the West Fork of slow moving water and adjacent sparse reports on proposed critical habitat the Mojave River, is a broad, flat, riparian habitat for foraging and contain an opinion that is prepared alluvial valley that supports a burrowing. These essential PCEs according to 50 CFR 402.14, as if critical substantial arroyo toad population support an isolated desert population on habitat were designated. We may adopt (Ramirez 2003). Providing adequate and the easternmost periphery of the the formal conference report as the proper streamflows and protections for species’ range in the Colorado Desert biological opinion when the critical the upland alluvial habitats would that may possess unique phenotypic habitat is designated, if no substantial increase the probability for the long- and genetic variation that are unique to new information or changes in the action alter the content of the opinion term persistence of this large toad desert populations and possibly distinct (see 50 CFR 402.10(d)). The population. If adequate streamflows and from desert populations in Units 21 and conservation recommendations in a upland alluvial habitats can be 22 in the Mojave Desert. Maintaining conference report are advisory. maintained, this desert unit would have greater genetic diversity creates greater the most favorable conditions of any of If a species is listed or critical habitat potential for adaptation to changing is designated, section 7(a)(2) requires the desert units for long-term environmental conditions. Threats to persistence of the large toad population. Federal agencies to ensure that activities this population that require special they authorize, fund, or carry out are not Protection of this area is essential to management considerations include maintain the range of genetic and likely to jeopardize the continued unsuitable water flow for breeding and phenotypic diversity of the species. The existence of such a species or to destroy off highway vehicular traffic. presence of exotic species, grazing, or adversely modify its critical habitat. residential development, flood control Effects of Critical Habitat Designation If a Federal action may affect a listed activities, and recreational activity species or its critical habitat, the Section 7 Consultation (particularly off-road vehicle use) may responsible Federal agency (action create the need for special management Section 7 of the Act requires Federal agency) must enter into consultation in this unit. agencies, including the Service, to with us. Through this consultation, the ensure that actions they fund, authorize, action agency ensures that their actions Unit 23: Whitewater River Basin, or carry out are not likely to destroy or do not destroy or adversely modify Riverside County adversely modify critical habitat. In our critical habitat. Essential areas in Unit 23 include regulations at 50 CFR 402.2, we define When we issue a biological opinion approximately 7.2 mi (11.7 km) of the destruction or adverse modification as concluding that a project is likely to Whitewater River and adjacent uplands, ‘‘a direct or indirect alteration that result in the destruction or adverse from near Red Dome downstream to the appreciably diminishes the value of modification of critical habitat, we also Colorado River Aqueduct. The unit critical habitat for both the survival and provide reasonable and prudent encompasses approximately 333 ac (135 recovery of a listed species. Such alternatives to the project, if any are ha), of which 100 percent is BLM land. alterations include, but are not limited identifiable. ‘‘Reasonable and prudent Approximately 625 ac (252 ha) of to, alterations adversely modifying any alternatives’’ are defined at 50 CFR essential habitat within the draft of those physical or biological features 402.02 as alternative actions identified Coachella Valley MSHCP planning area that were the basis for determining the during consultation that can be has been excluded from the final habitat to be critical.’’ We are currently implemented in a manner consistent

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with the intended purpose of the action, but are not limited to, flood control or These activities could eliminate or that are consistent with the scope of the changes in water banking activities. reduce the habitat necessary for the Federal agency’s legal authority and These activities could eliminate or reproduction, feeding, or growth of jurisdiction, that are economically and reduce the habitat necessary for the arroyo toads. technologically feasible, and that the reproduction, sheltering, or growth of Of the six units we are designating as Director believes would avoid arroyo toads. critical habitat, we consider four of destruction or adverse modification of (2) Actions that would affect the them (units 2, 4, 9, 23) to be occupied critical habitat. Reasonable and prudent regulation of water flows by any Federal by the species at the time of listing, as alternatives can vary from slight project agency. Such activities could include, identified in the listing rule (59 FR modifications to extensive redesign or but are not limited to, damming, 64859). Critical habitat units 20 and 21 relocation of the project. Costs diversion, and channelization. These were not known to be occupied at the associated with implementing a activities could eliminate or reduce the time of listing but are currently reasonable and prudent alternative are habitat necessary for the reproduction, occupied; the arroyo toad populations similarly variable. sheltering or growth of arroyo toads. in these units have, in all likelihood, Regulations at 50 CFR 402.16 require (3) Actions that would involve been inhabiting areas within these two Federal agencies to reinitiate regulations funded or permitted by the units for many years, but were not consultation on previously reviewed Federal Highway Administration. (We detected until after the species became actions in instances where critical note that the Federal Highway listed in 1994. We consider all of the habitat is subsequently designated and Administration does not fund the units designated as critical habitat, as the Federal agency has retained routine operations and maintenance of well as those that have been excluded, discretionary involvement or control the State highway system.). Such to be essential to the conservation of the over the action or such discretionary activities could include, but are not arroyo toad. All units are within the involvement or control is authorized by limited to, new road construction and geographic range of the species, all are law. Consequently, some Federal right-of-way designation. These occupied by the species (based on agencies may request reinitiation of activities could eliminate or reduce observations made within the last 20 consultation or conference with us on aquatic or riparian habitat along river years), and are likely to be used by the actions for which formal consultation crossings necessary for reproduction, arroyo toad, whether for foraging, has been completed, if those actions sheltering or growth of arroyo toads. breeding, growth of larvae and may affect designated critical habitat or (4) Actions that would involve juveniles, intra-specific communication, adversely modify or destroy proposed regulation of airport improvement dispersal, migration, genetic exchange, critical habitat. activities by the Federal Aviation or sheltering. Federal agencies already Activities on Federal lands that may Administration. Such activities could consult with us on activities in areas affect the arroyo toad or its critical include, but are not limited to, the currently occupied by the species or if habitat will require section 7 creation or expansion of airport the species may be affected by the consultation. Activities on private or facilities. These activities could action to ensure that their actions do not State lands requiring a permit from a eliminate or reduce aquatic, riparian, or jeopardize the continued existence of Federal agency, such as a permit from upland habitat necessary for the the species. the U.S. Army Corps of Engineers under reproduction, sheltering, foraging, or We recognize that the designation of section 404 of the Clean Water Act, a growth of arroyo toads. critical habitat may not include all of section 10(a)(1)(B) permit from the (5) Actions that would involve the habitat areas that may eventually be Service, or some other Federal action, licensing of construction of determined to be necessary for the including funding (e.g., Federal communication sites by the Federal recovery of the species. For these Highway Administration or Federal Communications Commission. Such reasons, we want to ensure that the Emergency Management Agency activities could include, but are not public is aware that critical habitat funding), will also continue to be limited to, the installation of new radio designations do not signal that habitat subject to the section 7 consultation equipment and facilities. These outside the designation is unimportant process. Federal actions not affecting activities could eliminate or reduce the or may not be required for recovery. listed species or critical habitat and habitat necessary for the reproduction, Areas outside the critical habitat actions on non Federal and private sheltering, foraging, or growth of arroyo designation will continue to be subject lands that are not federally funded, toads. to conservation actions that may be authorized, or permitted do not require (6) Actions that would involve implemented under section 7(a)(1) of section 7 consultation. funding of activities by the U.S. the Act and to the regulatory protections Section 4(b)(8) of the Act requires us Environmental Protection Agency, afforded by the section 7(a)(2) jeopardy to briefly evaluate and describe in any Department of Energy, Federal standard and the prohibitions of section proposed or final regulation that Emergency Management Agency, 9 of the Act. Critical habitat designates critical habitat those Federal Highway Administration, or any designations made on the basis of the activities involving a Federal action that other Federal agency. Such activities best available information at the time of may destroy or adversely modify such could include, but are not limited to, designation will not control the habitat, or that may be affected by such activities associated with the cleaning direction and substance of future designation. Activities that may destroy up of Superfund sites, erosion control recovery plans, HCPs, or other species or adversely modify critical habitat may activities, and flood control activities. conservation planning efforts, if new also jeopardize the continued existence These activities could eliminate or information available to these planning of the arroyo toad. Federal activities reduce upland and/or aquatic habitat for efforts calls for a different outcome. that, when carried out, may adversely arroyo toads. If you have questions regarding affect critical habitat for the arroyo toad (7) Actions that would affect waters of whether specific activities will include, but are not limited to: the United States by the Army Corps constitute destruction or adverse (1) Actions that would affect aquatic, under section 404 of the Clean Water modification of critical habitat, contact riparian, or upland areas by any Federal Act. Such activities could include, but Diane Noda, Field Supervisor, Ventura agency. Such activities could include, are not limited to, placement of fill. Fish and Wildlife Office or Carlsbad

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Fish and Wildlife Office (see ADDRESSES enhancement or restoration of its habitat (4) areas with significant economic section). Requests for copies of the within the area covered by the plan); (2) impacts to landowners. regulations on listed wildlife and the plan provides assurances that the We have considered, but are inquiries about prohibitions and permits conservation management strategies and excluding from critical habitat for the may be addressed to the U.S. Fish and actions will be implemented (i.e., those arroyo toad, essential habitat in the Wildlife Service, Branch of Endangered responsible for implementing the plan following areas under section 4(b)(2): Species, 911 N.E. 11th Ave., Portland, are capable of accomplishing the Lands covered by the Orange County OR 97232 (telephone 503/231–2063; objectives, and have an implementation Central-Coastal NCCP/HCP, Western facsimile 503/231–6243). schedule or adequate funding for Riverside Multiple Species Habitat Application of Sections 3(5)(A) and implementing the management plan); Conservation Plan (MSHCP), and 4(a)(3) and Exclusion Under Section and (3) the plan provides assurances pending Coachella Valley MSHCP; areas 4(b)(2)of the Act that the conservation strategies and on Fort Hunter Liggett; and lands with measures will be effective (i.e., it significant economic impacts to Section 3(5)(A) of the Act defines identifies biological goals, has landowners. See below for a detailed critical habitat as the specific areas provisions for reporting progress, and is discussion of our exclusion of these within the geographic area occupied by of a duration sufficient to implement the lands under section 4(b)(2) of the Act. the species on which are found those plan and achieve the plan’s goals and Section 318 of fiscal year 2004 the physical and biological features (I) objectives). essential to the conservation of the National Defense Authorization Act Further, section 4(b)(2) of the Act species and (II) which may require (Public Law No. 108–136) amended the states that critical habitat shall be special management considerations or Endangered Species Act to address the designated, and revised, on the basis of protection. Therefore, areas within the relationship of Integrated Natural the best available scientific data after geographic area occupied by the species Resources Management Plans (INRMPs) taking into consideration the economic that do not contain the features essential to critical habitat by adding a new for the conservation of the species are impact, national security impact, and section 4(a)(3). This provision prohibits not, by definition, critical habitat. any other relevant impact of specifying the Service from designating as critical Similarly, within the geographic area any particular area as critical habitat. habitat any lands or other geographical occupied by the species, if the features An area may be excluded from critical areas owned or controlled by the essential for the conservation of the habitat if it is determined that the Department of Defense, or designated species will not require special benefits of exclusion outweigh the for its use, that are subject to an INRMP management considerations or benefits of specifying a particular area prepared under section 101 of the Sikes protection, the area is not, by definition, as critical habitat, unless the failure to Act (16 U.S.C. 670a), if the Secretary of critical habitat. To determine whether designate such area as critical habitat the Interior determines in writing that the essential features within an area will result in the extinction of the such plan provides a benefit to the may require special management, we species. species for which critical habitat is first determine if the essential features In our critical habitat designations, we proposed for designation. The following located there generally require special use the provisions outlined in section installations have INRMPs in place that management to address applicable 4(b)(2) of the Act to evaluate those provide a benefit for the arroyo toad, threats. If those features do not require specific areas that we are proposing as and essential habitat on these special management, or if they do in critical habitat. Lands we have excluded installations is exempted from the general but not for the particular area in pursuant to section 4(b)(2) include those critical habitat designation under question because of the existence of an covered by the following types of plans section 4(a)(3): Marine Corps Base, adequate management plan or for some if they provide assurances that the Camp Pendleton and Naval Weapons other reason, then the essential features conservation measures they outline will Station, Seal Beach Detachment within the area do not require special be implemented and effective: (1) Fallbrook (Fallbrook Naval Weapons management. Legally operative HCPs that cover the Station). See below for a detailed We consider a current plan to provide species; (2) draft HCPs that cover the discussion of our exemption of these adequate management or protection if it species and have undergone public lands under section 4(a)(3) of the Act. meets three criteria: (1) The plan is review and comment (i.e., pending Table 3 lists the total size of areas complete and provides a conservation HCPs); (3) Endangered Species designated as critical habitat or as benefit to the species (i.e., the plan must Management Plans prepared by the DOD essential to the conservation of the maintain or provide for an increase in (where a 4(a)(3) exemption is not arroyo toad, and areas excluded from the species’ population, or the possible due to a unsigned INRMP); and the final designation.

TABLE 3.—TOTAL SIZE OF FINAL CRITICAL HABITAT FOR THE ARROYO TOAD, INCLUDING AREAS EXCLUDED AND EXEMPTED FROM THE FINAL DESIGNATION

Total essential habitat ...... 104,699 ac (42,370 ha) Essential habitat exempted under section 4(a)(3) of the Act: Camp Pendleton (except lands leased to the CDPR) and 12,630 ac Fallbrook Naval Weapons Station. (5,111 ha) Exclusion of essential habitat under section 4(b)(2) of the Act: Fort Hunter Liggett; HCP plan areas including Central-Coastal 80,374 ac Orange County NCCP/HCP, Western Riverside MSHCP, pending Coachella Valley MSHCP; areas with a significant eco- (32,526 ha) nomic impact to landowners. Total Final Critical Habitat ...... 11,695 ac (4,732 ha)

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Relationship of Critical Habitat to habitat designation pursuant to section riparian areas, such as Santa Margarita Military Lands—Application of Section 4(a)(3) of the Act based on legally River, within the framework of 4(a)(3) and Exclusions Under Section operative INRMPs that provide a benefit programmatic management plans, 4(b)(2) of the Act to the arroyo toad. This includes approved in a biological opinion (BO) The Sikes Act Improvement Act of portions of Unit 11 and Unit 12 on issued by the Service on October 30, 1997 (Sikes Act) (16 U.S.C. 670a) Camp Pendleton and a portion of Unit 1995 (Service 1995). The biological required each military installation that 12 on Fallbrook Naval Weapons Station. opinion discussed ongoing and planned includes land and water suitable for the Although Fort Hunter Liggett has not training activities, infrastructure conservation and management of completed an INRMP, we are excluding maintenance activities, several natural resources to complete, by essential habitat on this base under construction projects, and a Riparian November 17, 2001, an Integrated 4(b)(2) of the Act based on their and Estuarine Ecosystem Conservation Natural Resource Management Plan completed Endangered Species Plan and assessed potential impacts to Management Plan for the arroyo toad. six federally-listed species, including (INRMP). An INRMP integrates Detailed discussions of the exemptions the arroyo toad. Management measures implementation of the military mission and exclusion of military lands are include, but are not limited to, of the installation with stewardship of discussed by installation below. programmatic instructions to avoid and the natural resources found on military minimize impacts to listed species (e.g. lands. Each INRMP includes an Marine Corps Base, Camp Pendleton vehicle traffic must use existing roads, assessment of the ecological needs on The arroyo toad occurs primarily in trails and crossings in riparian areas) the installation, including the need to three watersheds on Camp Pendleton: and riparian habitat enhancement provide for the conservation of listed Santa Margarita, San Onofre, and San (exotic vegetation and animal control). species; a statement of goals and Mateo Rivers. Arroyo toad populations Camp Pendleton’s management of priorities; a detailed description of within these watersheds on Camp riparian areas provides a benefit to the management actions to be implemented Pendleton contain features essential to arroyo toad. to provide for the ecological needs of the conservation of the species because Additionally, Camp Pendleton states listed species; and a monitoring and these watersheds retain relatively in their March 16, 2005, comment letter adaptive management plan. We consult natural hydrological processes and that they are also conducting a study with the military on the development functions. The Santa Margarita examining arroyo toad use of habitat and implementation of INRMPs for watershed is one of the least altered dominated by giant reed (Arundo installations with listed species. major watersheds occupied by the donax) and have partnered with the We are prohibited from designating as species throughout its range. Also, the U.S. Geological Survey’s Biological critical habitat any lands or other lower portions of all three watersheds Resources Division to develop and geographical areas owned or controlled represent the last remaining coastal implement a rigorous, science-based by the DOD, or designated for its use, plain areas where high numbers of monitoring protocol for the arroyo toad that are subject to an INRMP prepared arroyo toads occur within 6 mi (10 km) populations on the Base. under section 101 of the Sikes Act, if the of the coast and in coastal marsh zones. Camp Pendleton has demonstrated Secretary of the Interior determines, in Elsewhere throughout the species’ ongoing funding of their INRMP and writing, that such plan provides a range, urban and agricultural management of endangered and benefit to the species for which critical development has been largely threatened species. According to their habitat is proposed for designation. In responsible for extirpating arroyo toad March 16, 2005, comment letter, in FY order to provide a benefit to the species, populations in low coastal plain areas. 2003, Camp Pendleton spent the INRMP must meet the following Camp Pendleton’s INRMP was approximately $5 million to fund three criteria: (1) A current INRMP must completed and signed by the INRMP-driven projects and to assure its be complete and provide a benefit to the Commanding General on November 9, implementation. During FY 2004, they species; (2) the plan must provide 2001. The INRMP provides conservation applied over $3.5 million toward assurances that the conservation measures that will directly and projects, programs, and activities that management strategies will be indirectly benefit the arroyo toad and provide direct and indirect benefit to implemented; and (3) the plan must other listed species found on the Base. the management and conservation of provide assurances that the According to Camp Pendleton’s March Base natural resources. Moreover, in conservation management strategies will 16, 2005 comment letter, the Base partnership with the Service, Camp be effective, by providing for periodic annually reviews and updates its Pendleton is funding two Service monitoring and revisions (adaptive INRMP with cooperation of the Service biologists to assist in implementing management) as necessary. An INRMP and California Department of Fish and their Sikes Act program and buffer lands integrates implementation of the Game to verify that: (1) The Base has acquisition initiative. military mission of the installation with sufficient professionally trained natural Based on Camp Pendleton’s past stewardship of the natural resources resources management staff available to funding history for listed species and found there. Each INRMP includes an implement the INRMP; (2) there have their Sikes Act program, we believe assessment of the ecological needs on not been significant changes to the there is a high degree of certainty that the military installation, including installation’s mission requirements or Camp Pendleton: (1) Will continue to conservation provisions for listed its natural resources; (3) planned actions have the necessary staffing, funding species; a statement of goals and are implemented in an adaptive manner, levels, funding sources, and other priorities; a detailed description of adjusting management priorities and resources to implement their INRMP, (2) management actions to be implemented methodologies to accommodate has the legal authority, legal procedural to provide for these ecological needs; changing natural resource and mission requirements, authorizations, and and a monitoring and adaptive requirements; and (4) the required regulatory mechanisms to implement management plan. Federal, State, and installation their INRMP and other conservation We have exempted lands owned by coordination has occurred. efforts, and (3) will implement the Camp Pendleton and Fallbrook Naval Camp Pendleton manages listed INRMP in coordination with the Weapons Station from the final critical species, including the arroyo toad, in its California Department of Fish and Game

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and with the Service. We also believe incorporates fuels management and fire which it is found. This stretch of the that there is a high degree of certainty suppression activities with habitat San Antonio River is undammed, that the conservation efforts of their management needs of the arroyo toad provides excellent habitat for the arroyo INRMP will be effective. Service and other listed species to promote toad, and supports probably one of the biologists work closely with Camp conservation and recovery of these largest populations within the Northern Pendleton on a variety of endangered species on Fallbrook NWS. Region. and threatened species issues, including Based on Fallbrook Naval Weapons In the proposed rule, we considered the arroyo toad. The management Station’s Sikes Act program, we believe but did not propose to include mission- programs and Base directives to avoid there is a high degree of certainty that essential training areas on Fort Hunter and minimize impacts to the species are they: (1) Will continue to have the Liggett as critical habitat for the arroyo consistent with current and ongoing necessary staffing, funding levels, toad under section 4(b)(2) of the Act, section 7 consultations with Camp funding sources, and other resources to because designation of critical habitat Pendleton. Through our cooperative implement their INRMP, (2) has the could adversely impact national relationship with Camp Pendleton and legal authority, legal procedural security. The Army conducts training the section 7 consultation process, we requirements, authorizations, and operations using landing fields, tanks, can ensure that conservation efforts regulatory mechanisms to implement machine guns, grenade launchers, and identified in the INRMP for the arroyo their INRMP and other conservation other weapons at Fort Hunter Liggett. toad will: (1) Address the nature and efforts, and (3) will implement the The Army has stated that it considers extent of threats, (2) provide for INRMP in coordination with the critical habitat to conflict with mission- monitoring and reporting progress on California Department of Fish and Game essential training tasks, and that critical implementation, and (3) incorporate the and with the Service. We also believe habitat designation would adversely principles of adaptive management. that there is a high degree of certainty affect Fort Hunter Liggett’s training Therefore, we find that the INRMP for that the conservation efforts of their mission. The Army submitted a map to Camp Pendleton provides a benefit for INRMP will be effective. Service us of the mission-essential training areas the arroyo toad and are exempting from biologists work closely with Fallbrook that are found within lands we critical habitat all lands on Camp Naval Weapons Station on a variety of determined to contain features essential Pendleton, including lands leased to the endangered and threatened species to the conservation of the arroyo toad State, pursuant to section 4(a)(3) of the issues, including the arroyo toad. The (Army, in litt. 2003). During the public Act. management programs and Station’s comment period for the proposal, the directives to avoid and minimize Army stated that we had incorrectly Fallbrook Naval Weapons Station impacts to the species are consistent concluded that the only mission- Fallbrook Naval Weapons Station, with current and ongoing section 7 essential areas are the individual located in northern San Diego County, consultations with Fallbrook Naval training sites. Rather, all Fort Hunter is approximately 8,850 ac (3,581 ha). Weapons Station. Through our Liggett lands are essential for realistic Fallbrook Naval Weapons Station cooperative relationship with Fallbrook and effective training. Thus, the contains high quality habitat that Naval Weapons Station and the section designation of the areas we proposed as supports a large population of the 7 consultation process, we can ensure critical habitat would seriously limit arroyo toad within the Santa Margarita that conservation efforts identified in their ability to conduct critical training watershed. Arroyo toads at Fallbrook the INRMP for the arroyo toad will: (1) NWS have the potential to disperse into Address the nature and extent of threats, activities. adjacent populations downstream on (2) provide for monitoring and reporting The Army recognizes the need for Camp Pendleton and upstream to progress on implementation, and (3) protection and conservation of sensitive suitable habitat on private lands. incorporate the principles of adaptive species, including the arroyo toad, on In 1996, Fallbrook NWS completed an management. Therefore, we find that the military lands and has identified INRMP to address conservation and INRMP for Fallbrook Naval Weapons conservation measures to protect and management recommendations within Station provides a benefit for the arroyo conserve arroyo toads and their habitat. the scope of the installation’s military toad and are exempting from critical The Army has coordinated with us to mission. The INRMP provides habitat all lands on Fallbrook Naval finalize the development of their conservation measures that will directly Weapons Station pursuant to section Endangered Species Management Plan and indirectly benefit the arroyo toad 4(a)(3) of the Act. (ESMP) for the arroyo toad at Fort and other listed species found on the Hunter Liggett, which currently guides Naval Station. The 1996 INRMP was Fort Hunter Liggett management of all lands occupied by prepared with input from the Service The arroyo toad occupies an arroyo toads along the San Antonio and incorporates conservation measures approximately 17-mi (27.4-km) segment River. The ESMP includes measures to outlined in several previously of the San Antonio River at Fort Hunter minimize harm to the arroyo toad from completed consultations between the Liggett. This segment contains features training activities and outlines actions Service and Fallbrook NWS. Fallbrook essential to the conservation of the to ensure the persistence of arroyo toads NWS is currently working with the species and is of important biological on the installation. The ESMP is an Service to revise and update their value because it supports the appendix to, and part of, the INRMP for INRMP. northernmost known population and is Fort Hunter Liggett. We expect the Additionally, Fallbrook NWS recently approximately 100 mi (160 km) north of INRMP, which is in a final draft form, completed a formal section 7 the nearest documented extant to be finalized and signed in 2005. We consultation with the Service to revise population. Arroyo toads in this unit have reviewed Fort Hunter Liggett’s their fire management plan to provide may experience climatic conditions not ESMP in relation to the three criteria more effective fuels management and faced by toads at sites farther south. The listed above for evaluating management wildfire control, while minimizing protection of this area is important to plans, and we find that the ESMP meets impacts to listed species on the maintaining the complete genetic the criteria and will provide a benefit to installation, including the arroyo toad. variability of the species and the full the arroyo toad population at Fort The revised fire management plan range of ecological settings within Hunter Liggett.

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(1) Benefits of Inclusion continue effective management of the will result in the extinction of the The primary benefit of any critical arroyo toad at Fort Hunter Liggett. species concerned. This is a discretionary authority Congress has habitat with regard to activities that (3) Benefits of Exclusion Outweigh the provided to the Secretary with respect require consultation pursuant to section Benefits of Inclusion 7 of the Act is to ensure that the activity to critical habitat. Although economic We met with the Army on December and other impacts may not be will not destroy or adversely modify 12, 2003, at Fort Hunter Liggett to designated critical habitat. The considered when listing a species, discuss essential arroyo toad habitat, Congress has expressly required their educational benefits of critical habitat and possible impacts to the base. We include informing the Army of areas consideration when designating critical also received extensive comments from habitat. Exclusions under this section that are important to the conservation of the Army during the public comment for non-economic reasons are addressed listed species. However, because the period. In light of national security above. Army has worked cooperatively with interests and the Army’s need to In general, we have considered in the Service to develop an ESMP that maintain a high level of readiness and making the following exclusions that all protects the toad and its essential fighting capabilities, and in light of the of the costs and other impacts predicted habitat on Fort Hunter Liggett, and the Army’s completed ESMP for the arroyo in the economic analysis may not be nearly finalized INRMP is expected to toad, we excluded critical habitat on all avoided by excluding the area, due to be completed in 2005 (for which we will lands within unit 1, including all Fort the fact that the areas in question are complete a Section 7 consultation), we Hunter Liggett lands, under section currently occupied by the arroyo toad do not believe that designation of 4(b)(2) of the Act. We find that the and there will be requirements for critical habitat on the fort will benefits of excluding these lands from consultation under Section 7 of the Act, significantly benefit the arroyo toad critical habitat outweigh the benefits of or for permits under section 10 beyond the protection already afforded including them. We further find that the (henceforth ‘‘consultation’’), for any take the species under the Act. In addition, exclusion of these areas will not lead to of the species, and other protections for through the INRMP development the extinction of the arroyo toad because the species exist elsewhere in the Act process and development of the ESMP Army training activities are conducted and under State and local laws and for the arroyo toad, the Army is already primarily outside of the riparian regulations. In addition, some areas are aware of essential arroyo toad habitat corridor where toads are concentrated, also occupied by other listed species areas on the installation. and the ESMP is expected to effectively and in some cases are designated as (2) Benefits of Exclusion manage for the persistence of the San critical habitat for those species. In Antonio River population. conducting economic analyses, we are Substantial benefits are expected to guided by the 10th Circuit Court of (4) Exclusion Will Not Result in result from the exclusion of Fort Hunter Appeal’s ruling in the New Mexico Extinction of the Species Liggett from critical habitat. The Army Cattle Growers Association case (248 has stated that all training and non- We believe that exclusion of these F.3d at 1285), which directed us to training areas together are integral to lands will not result in extinction of the consider all impacts, ‘‘regardless of their mission of ensuring troop species, as they are considered occupied whether those impacts are attributable readiness. If we designate critical habitat. Any actions which might co-extensively to other causes.’’ As habitat on the base the Army would be adversely affect the toad, regardless of explained in the analysis, due to required to engage in consultation with whether a Federal nexus is present, possible overlapping regulatory schemes us on activities that may affect must undergo a consultation with the and other reasons, there are also some designated critical habitat. The Service under the requirements of elements of the analysis which may requirement to consult on activities section 7 of the Act or receive a permit overstate some costs. occurring on the base could delay and from us under section 10. The toad is Conversely, the 9th Circuit has impair the ability of the Army to protected from take under section 9. The recently ruled (‘‘Gifford Pinchot’’, 378 conduct effective training activities and exclusions leave these protections F.3d at 1071) that the Service’s limit Fort Hunter Liggett’s utility as a unchanged from those which would regulations defining ‘‘adverse military training installation, thereby exist if the excluded areas were modification’’ of critical habitat are adversely affecting national security. designated as critical habitat. In invalid because they define adverse In addition, exclusion of Fort Hunter addition, as discussed above, there are modification as affecting both survival Liggett lands from the final designation a substantial number of Habitat and recovery of a species. The court will allow us to continue working with Conservation Plans and other active directed us to consider that adverse the Army in a spirit of cooperation and conservation measures underway for the modification should be focused on partnership. In the past the Army has species, which provide greater impacts to recovery. While we have not generally viewed the designation of conservation benefits than would result yet proposed a new definition for public critical habitat as having a negative from a designation. There is accordingly review and comment, changing the regulatory effect that discourages no reason to believe that these adverse modification definition to cooperative and proactive efforts by the exclusions would result in extinction of respond to the Court’s direction may Army to conserve listed species and the species. result in additional costs associated their habitats. The DoD generally views with critical habitat definitions designation of critical habitat on Relationship of Critical Habitat to (depending upon the outcome of the military lands as an indication that their Economic Impacts—Exclusions Under rulemaking). This issue was not actions to protect the species and its Section 4(b)(2) of the Act addressed in the economic analysis for habitat are inadequate. Excluding these This section allows the Secretary to the arroyo toad, as this was well areas from the perceived negative exclude areas from critical habitat for underway at the time the decision was consequences of critical habitat will economic reasons if she determines that issued and we have a court-ordered facilitate cooperative efforts between the the benefits of such exclusion exceed deadline for reaching a final decision, so Service and the Army to formulate the the benefits of designating the area as we cannot quantify the impacts at this best possible INRMP and ESMP, and critical habitat, unless the exclusion time. However, it is a factor to be

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considered in evaluating projections of this is based on projections of future While this is one possible outcome, it is future economic impacts from critical actions, it is not possible to assign also quite possible that the Service, habitat. specific actions, and benefits to the either of its own volition or as the result In addition, we have received several species, for particular units. of litigation, might in fact address every credible comments on the economic In general, the modifications would case where modification to existing dam analysis contending that it be designed to have water flows in operations are needed to avoid adverse underestimates, perhaps significantly, stream reaches downstream from dams modification of critical habitat, if it were the costs associated with this critical more closely resemble the stream’s designated. Therefore, in both this and habitat designation. Both of these factors natural state. Benefits would include other units addressed below where there are a balancing consideration against the avoidance of excess artificial water are significant projected costs relating to possibility that some of the costs shown flows washing eggs or tadpoles water supplies, there is a reasonable in the economic analysis might be downstream, possibly avoiding growth possibility that these costs may be twice attributable to other factors, or be overly of exotic species, increasing the the projected amounts. high, and so not necessarily avoided by availability of open sand bar habitat, The analysis also presents an excluding the area for which the costs and maintaining breeding pools long alternative under which costs would be are predicted from this critical habitat enough for larvae to develop. approximately half of the amount designation. However, inasmuch as this area is provided, but does not have, and thus We recognize that we have excluded currently occupied by the species, does not provide, information to a significant portion of the proposed consultation for activities which might indicate the probability of this critical habitat. Congress expressly adversely impact the species, including occurring. As a result, it is quite contemplated that exclusions under this possibly significant habitat modification apparent how the higher costs could be section might result in such situations (see definition of ‘‘harm’’ at 50 CFR reached, but not clear as to whether the when it enacted the exclusion authority. 17.3) would be required even without lower-cost scenario could occur. House Report 95–1625, stated on page the critical habitat designation and The economic analysis looked at two 17: ‘‘Factors of recognized or potential without regard to the existence of a different generally accepted ways of importance to human activities in an Federal nexus. measuring economic impacts from the area will be considered by the Secretary In summary, we believe that this designation—economic efficiency and in deciding whether or not all or part of proposed unit as critical habitat would regional economic impact. The figures that area should be included in the provide little additional Federal resulting from these analyses are not the critical habitat * * * In some situations, regulatory benefits for the species. same, and should not be added in an no critical habitat would be specified. In Because the proposed critical habitat is effort to obtain cumulative totals. Please such situations, the Act would still be occupied by the species, there must be consult the economic analysis for in force prevent any taking or other consultation with the Service over any explanations of the two methods and of prohibited act * * * .’’ (emphasis Federal action which might impact the their differences. supplied) toad. The additional educational The economic analysis found that in We accordingly believe that these benefits which might arise from critical addition to the efficiency effects noted exclusions, and the basis upon which habitat designation are largely above, the total impacts to water supply they are made, are fully within the accomplished through the multiple from this unit and other proposed units parameters for the use of section 4(b)(2) notice and comments which would cause a regional reduction in set out by Congress. accompanied the development of this output of $10.6 million between the regulation, and publicity over the prior years 2004 through 2025 (again reduced Unit 3 litigation. by 50% on the assumption that only We have excluded all of proposed (2) Benefits of Exclusion half the affected dams would be Unit 3, consisting of approximately required to undertake changes, as 3,675 ac (1,487 ha) under section 4(b)(2) The economic analysis conducted for explained above—see Table 18 of the of the Act. The analysis which led us to this proposal estimates that the costs Economic Analysis) and a loss of 85 the conclusion that the benefits of associated with designating this unit of jobs. excluding this area exceed the benefits the proposed critical habitat would By excluding this unit, some or all of of designating it as critical habitat, and exceed $20 million between the years those costs will be avoided. will not result in the extinction of the 2004 through 2025, almost all of which species, follows. would be related to impacts to local (3) Benefits of Exclusion Outweigh the water supplies. These figures include Benefits of Inclusion (1) Benefits of Inclusion costs associated with conducting We believe that the benefits from The areas excluded are currently consultations with us pursuant to excluding these lands from the occupied by the species. If these areas section 7 of the Act, modification of designation of critical habitat—avoiding were designated as critical habitat, any current operations of dams and other the potential economic and human actions with a Federal nexus which elements of water projects, time delays, costs, both in dollars and jobs, predicted might adversely modify the critical and uncertainty. Excluding this unit in the economic analysis—exceed the habitat would require a consultation would avoid some or all of those costs. educational and regulatory benefits, with us, as explained above, in the We note that the analysis made the including possible changes to dam section of this notice entitled ‘‘Effects of assumption that the Service would operations, which may be already Critical Habitat Designation.’’ Yet require revisions in dam operations to provided for as discussed above—which another benefit might be modification of benefit the species in only half of the could result from including those lands current operations of dams and other cases where such modifications could in this designation of critical habitat. elements of water projects to provide reasonably be required, as only the We also believe that excluding these water at times more beneficial to the higher priority situations were likely to lands, and thus helping landowners and species than the current operation of be addressed. As a result, the analysis water users avoid the additional costs some dams within proposed critical reduced the estimated cost impacts to that would result from the designation, habitat. Since the economic analysis of water supplies by 50% across-the-board. will contribute to a more positive

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climate for Habitat Conservation Plans habitat. Since the economic analysis of in the economic analysis—exceed the and other active conservation measures this is based on projections of future educational and regulatory benefits, which provide greater conservation actions, it is not possible to assign including possible changes to dam benefits than would result from specific actions, and benefits to the operations, which may be already designation of critical habitat—even in species, for particular units. provided for as discussed above the post-Gifford Pinchot environment— In general, the modifications would —which could result from including which requires only that there be no be designed to have water flows in those lands in this designation of adverse modification resulting from stream reaches downstream from dams critical habitat. Federally-related actions. We therefore more closely resemble the stream’s find that the benefits of excluding these natural state. Benefits would include We also believe that excluding these areas from this designation of critical avoidance of excess artificial water lands, and thus helping landowners and habitat outweigh the benefits of flows washing eggs or tadpoles water users avoid the additional costs including them in the designation. downstream, possibly avoiding growth that would result from the designation, of exotic species, increasing the will contribute to a more positive (4) Exclusion Will Not Result in availability of open sand bar habitat, climate for Habitat Conservation Plans Extinction of the Species and maintaining breeding pools long and other active conservation measures We believe that exclusion of these enough for larvae to develop. which provide greater conservation lands will not result in extinction of the However, inasmuch as this area is benefits than would result from species, as they are considered occupied currently occupied by the species, designation of critical habitat, which habitat. Any actions which might consultation for activities which might requires—even in the post-Gifford adversely affect the toad, regardless of adversely impact the species, including Pinchot environment—only that the whether a Federal nexus is present, possibly significant habitat modification there be no adverse modification must undergo a consultation with the (see definition of at 50 CFR 17.3) would resulting from Federally-related actions. Service under the requirements of be required even without the critical We therefore find that the benefits of section 7 of the Act or receive a permit habitat designation and without regard excluding these areas from this under section 10. The toad is protected to the existence of a Federal nexus. designation of critical habitat outweigh from take under section 9. The In summary, we believe that this the benefits of including them in the exclusions leave these protections proposed unit as critical habitat would designation. unchanged from those which would provide little additional Federal exist if the excluded areas were regulatory benefits for the species. (4) Exclusion Will Not Result in designated as critical habitat. In Because the proposed critical habitat is Extinction of the Species addition, as discussed above, there are occupied by the species, there must be a substantial number of Habitat consultation with the Service over any We believe that exclusion of these Conservation Plans and other active Federal action which might impact the lands will not result in extinction of the conservation measures underway for the toad. The additional educational species, as they are considered occupied species, which provide greater benefits which might arise from critical habitat. Any actions which might conservation benefits than would result habitat designation are largely adversely affect the toad, regardless of from a designation. There is accordingly accomplished through the multiple whether a Federal nexus is present, no reason to believe that these notice and comments which must undergo a consultation with the exclusions would result in extinction of accompanied the development of this Service under the requirements of the species. regulation, and publicity over the prior section 7 of the Act or receive a permit litigation. under section 10. The toad is protected Unit 5 from take under section 9. The We have excluded all of proposed (2) Benefits of Exclusion exclusions leave these protections Unit 5, consisting of approximately The economic analysis conducted for unchanged from those which would 2,921 ac (1,182 ha), under section this proposal estimates that the costs exist if the excluded areas were 4(b)(2) of the Act. The analysis which associated with designating this unit of designated as critical habitat. In led us to the conclusion that the benefits the proposed critical habitat would addition, as discussed above, there are of excluding this area exceed the exceed $15 million between the years a substantial number of Habitat benefits of designating it as critical 2004 through 2025. Over $14 million of Conservation Plans and other active habitat, and will not result in the this would be related to impacts to local conservation measures underway for the extinction of the species, follows. water supplies (see also discussion species, which provide greater above on water costs). These figures (1) Benefits of Inclusion conservation benefits than would result include costs associated with from a designation. There is accordingly The areas excluded are currently conducting consultations with us no reason to believe that these occupied by the species. If these areas pursuant to section 7 of the Act, exclusions would result in extinction of were designated as critical habitat, any modification of current operations of the species. actions with a Federal nexus which dams and other elements of water might adversely modify the critical projects, time delays, and uncertainty. Unit 6 habitat would require a consultation Excluding this unit would avoid some with us, as explained above, in the or all of those costs. We have excluded all of proposed section of this notice entitled ‘‘Effects of Unit 6, consisting of approximately Critical Habitat Designation.’’ Yet (3) Benefits of Exclusion Outweigh the 2,538 ac (1,027 ha), under section another benefit might be modification of Benefits of Inclusion 4(b)(2) of the Act. The analysis which current operations of dams and other We believe that the benefits from led us to the conclusion that the benefits elements of water projects to provide excluding these lands from the of excluding this area exceed the water at times more beneficial to the designation of critical habitat—avoiding benefits of designating it as critical species than the current operation of the potential economic and human habitat, and will not result in the some dams within proposed critical costs, both in dollars and jobs, predicted extinction of the species, follows.

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(1) Benefits of Inclusion related to impacts to local water conservation benefits than would result The areas excluded are currently supplies (see also discussion above on from a designation. In regards to subunit occupied by the species. If these areas water costs). These figures include costs 6b specifically, the Natural River were designated as critical habitat, any associated with conducting Management Plan (NRMP) (Valencia actions with a Federal nexus which consultations with us pursuant to Company 1998) ensures the protection might adversely modify the critical section 7 of the Act, loss of land values of most of the river corridor areas habitat would require a consultation associated with the avoidance of arroyo considered essential for the arroyo toad toads and their habitat, modification of with us, as explained above, in the along the Santa Clara River and lower current operations of dams and other section of this notice entitled ‘‘Effects of San Francisquito Creek with elements of water projects, time delays, Critical Habitat Designation.’’ Yet conservation easements, which total and uncertainty. Excluding this unit another benefit might be modification of approximately 1,200 ac (486 ha). The would avoid some or all of those costs. current operations of dams and other Newhall Ranch Specific Plan (separate elements of water projects to provide (3) Benefits of Exclusion Outweigh the from the NRMP), includes protection via water at times more beneficial to the Benefits of Inclusion conservation easement for the Santa Clara River corridor from just above the species than the current operation of We believe that the benefits from some dams within proposed critical confluence of Castaic Creek down to the excluding these lands from the Los Angeles County border. The Castaic habitat. Since the economic analysis of designation of critical habitat—avoiding this is based on projections of future Creek river corridor below the I–5 the potential economic and human bridge would be protected via actions, it is not possible to assign costs, both in dollars and jobs, predicted specific actions, and benefits to the conservation easement as well. Newhall in the economic analysis—exceed the Land has also agreed to protect species, for particular units. educational and regulatory benefits, In general, the modifications would approximately 48 additional ac (19 ha) including possible changes to dam of prime arroyo toad habitat within the be designed to have water flows in operations, which may be already stream reaches downstream from dams Santa Clara River corridor near the I–5 provided for as discussed above—which bridge via conservation easement more closely resemble the stream’s could result from including those lands natural state. Benefits would include (riparian areas not included in the in this designation of critical habitat. NRMP). Thus, most all of the breeding avoidance of excess artificial water We also believe that excluding these habitat and riparian river corridor in flows washing eggs or tadpoles lands, and thus helping landowners and subunit 6b is protected or designated for downstream, possibly avoiding growth water users avoid the additional costs protection via conservation easement. of exotic species, increasing the that would result from the designation, Ultimately, these easements will extend availability of open sand bar habitat, will contribute to a more positive along every river mile of Castaic Creek, and maintaining breeding pools long climate for Habitat Conservation Plans San Francisquito Creek, and the Santa enough for larvae to develop. and other active conservation measures Clara River within subunit 6b. There is However, inasmuch as this area is which provide greater conservation accordingly no reason to believe that the currently occupied by the species, benefits than would result from exclusion of unit 6 would result in consultation for activities which might designation of critical habitat, which extinction of the species. adversely impact the species, including requires—even in the post-Gifford possibly significant habitat modification Pinchot environment—only that the Unit 7 (see definition of at 50 CFR 17.3) would there be no adverse modification be required even without the critical resulting from Federally-related actions. We have excluded all of Unit 7, habitat designation and without regard We therefore find that the benefits of consisting of approximately 1,772 ac to the existence of a Federal nexus. excluding these areas from this (717 ha) , under section 4(b)(2) of the In summary, we believe that this designation of critical habitat outweigh Act. The analysis which led us to the proposed unit as critical habitat would the benefits of including them in the conclusion that the benefits of provide little additional Federal designation. excluding this area exceed the benefits regulatory benefits for the species. of designating it as critical habitat, and Because the proposed critical habitat is (4) Exclusion Will Not Result in will not result in the extinction of the occupied by the species, there must be Extinction of the Species species, follows. consultation with the Service over any We believe that exclusion of these (1) Benefits of Inclusion Federal action which might impact the lands will not result in extinction of the toad. The additional educational species, as they are considered occupied The areas excluded are currently benefits which might arise from critical habitat. Any actions which might occupied by the species. If these areas habitat designation are largely adversely affect the toad, regardless of were designated as critical habitat, any accomplished through the multiple whether a Federal nexus is present, actions with a Federal nexus which notice and comments which must undergo a consultation with the might adversely modify the critical accompanied the development of this Service under the requirements of habitat would require a consultation regulation, and publicity over the prior section 7 of the Act or receive a permit with us, as explained above, in the litigation. from us under section 10. The toad is section of this notice entitled ‘‘Effects of protected from take under section 9. The Critical Habitat Designation.’’ Yet (2) Benefits of Exclusion exclusions leave these protections another benefit might be modification of The economic analysis conducted for unchanged from those which would current operations of dams and other this proposal estimates that the costs exist if the excluded areas were elements of water projects to provide associated with designating this unit of designated as critical habitat. water at times more beneficial to the the proposed critical habitat would In addition, as discussed above, there species than the current operation of exceed $21 million between the years are a substantial number of Habitat some dams within proposed critical 2004 through 2025. Over $16 million of Conservation Plans and other active habitat. Since the economic analysis of this would fall on private property conservation measures underway for the this is based on projections of future owners, and over $3 million would be species, which provide greater actions, it is not possible to assign

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specific actions, and benefits to the costs, both in dollars and jobs, predicted (1) Benefits of Inclusion species, for particular units. in the economic analysis—exceed the The areas excluded are currently In general, the modifications would educational and regulatory benefits, occupied by the species. If these areas be designed to have water flows in including possible changes to dam were designated as critical habitat, any stream reaches downstream from dams operations, which may be already actions with a Federal nexus which more closely resemble the stream’s provided for as discussed above might adversely modify the critical natural state. Benefits would include —which could result from including habitat would require a consultation avoidance of excess artificial water those lands in this designation of with us, as explained above, in the flows washing eggs or tadpoles critical habitat. section of this notice entitled ‘‘Effects of downstream, possibly avoiding growth Critical Habitat Designation.’’ Yet of exotic species, increasing the We also believe that excluding these availability of open sand bar habitat, lands, and thus helping landowners and another benefit might be modification of and maintaining breeding pools long water users avoid the additional costs current operations of dams and other enough for larvae to develop. that would result from the designation, elements of water projects to provide However, inasmuch as this area is will contribute to a more positive water at times more beneficial to the currently occupied by the species, climate for Habitat Conservation Plans species than the current operation of consultation for activities which might and other active conservation measures some dams within proposed critical adversely impact the species, including which provide greater conservation habitat. Since the economic analysis of possibly significant habitat modification benefits than would result from this is based on projections of future (see definition of at 50 CFR 17.3) would designation of critical habitat, which actions, it is not possible to assign be required even without the critical requires—even in the post-Gifford specific actions, and benefits to the habitat designation and without regard Pinchot environment—only that the species, for particular units. to the existence of a Federal nexus. there be no adverse modification In general, the modifications would In summary, we believe that this resulting from Federally-related actions. be designed to have water flows in proposed unit as critical habitat would We therefore find that the benefits of stream reaches downstream from dams provide little additional Federal excluding these areas from this more closely resemble the stream’s regulatory benefits for the species. designation of critical habitat outweigh natural state. Benefits would include Because the proposed critical habitat is the benefits of including them in the avoidance of excess artificial water occupied by the species, there must be designation. flows washing eggs or tadpoles consulting with the Service over any downstream, possibly avoiding growth Federal action which might impact the (4) Exclusion Will Not Result in of exotic species, increasing the toad. The additional educational Extinction of the Species availability of open sand bar habitat, and maintaining breeding pools long benefits which might arise from critical We believe that exclusion of these enough for larvae to develop. habitat designation are largely lands will not result in extinction of the accomplished through the multiple However, inasmuch as this area is species, as they are considered occupied currently occupied by the species, notice and comments which habitat. Any actions which might accompanied the development of this consultation for activities which might adversely affect the toad, regardless of adversely impact the species, including regulation, and publicity over the prior whether a Federal nexus is present, litigation. possibly significant habitat modification must undergo a consultation with the (see definition of ‘‘harm’’ at 50 CFR (2) Benefits of Exclusion Service under the requirements of 17.3) would be required even without section 7 of the Act or receive a permit The economic analysis conducted for the critical habitat designation and from us under section 10. The toad is this proposal estimates that the costs without regard to the existence of a protected from take under section 9. The associated with designating this unit of Federal nexus. exclusions leave these protections the proposed critical habitat would be In summary, we believe that this unchanged from those which would nearly $36 million between the years proposed unit as critical habitat would exist if the excluded areas were 2004 through 2025. Over $26 million of provide little additional Federal designated as critical habitat. In this would fall on private property regulatory benefits for the species. addition, as discussed above, there are owners, and over $7 million would be Because the proposed critical habitat is a substantial number of Habitat related to impacts to local water occupied by the species, there must be Conservation Plans and other active supplies (see also discussion above on consultation with the Service over any conservation measures underway for the water costs). These figures include costs Federal action which might impact the species, which provide greater associated with conducting toad. The additional educational conservation benefits than would result consultations with us pursuant to benefits which might arise from critical from a designation. There is accordingly section 7 of the Act, loss of land values habitat designation are largely no reason to believe that these associated with the avoidance of arroyo accomplished through the multiple exclusions would result in extinction of toads and their habitat, modification of notice and comments which the species. current operations of dams and other accompanied the development of this elements of water projects, time delays, Unit 10 regulation, and publicity over the prior and uncertainty. By excluding this unit, litigation. We have excluded all of Unit 10, some or all of those costs will be (2) Benefits of Exclusion avoided. consisting of approximately 5,256 ac (2127 ha), under section 4(b)(2) of the The economic analysis conducted for (3) Benefits of Exclusion Outweigh the Act. The analysis which led us to the this proposal estimates that the costs Benefits of Inclusion conclusion that the benefits of associated with designating this unit of We believe that the benefits from excluding this area exceed the benefits the proposed critical habitat would be excluding these lands from the of designating it as critical habitat, and nearly $56 million between the years designation of critical habitat—avoiding will not result in the extinction of the 2004 through 2025. Over $53 million of the potential economic and human species, follows. this would fall on private property

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owners. These figures include costs exclusions would result in extinction of notice and comments which associated with conducting the species. accompanied the development of this consultations with us pursuant to regulation, and publicity over the prior Unit 11 section 7 of the Act, loss of land values litigation. We have excluded all private lands in associated with the avoidance of arroyo (2) Benefits of Exclusion toads and their habitat, time delays, and proposed Unit 11, consisting of uncertainty. Excluding this unit would approximately 1,399 ac (566 ha), under The economic analysis conducted for avoid some or all of those costs. section 4(b)(2) of the Act. The analysis this proposal estimates that the costs which led us to the conclusion that the associated with designating this unit of (3) Benefits of Exclusion Outweigh the benefits of excluding this area exceed the proposed critical habitat would be Benefits of Inclusion the benefits of designating it as critical nearly $18 million between the years We believe that the benefits from habitat, and will not result in the 2004 through 2025. Over $15 million of excluding these lands from the extinction of the species, follows. this would fall on private property owners. These figures include costs designation of critical habitat—avoiding (1) Benefits of Inclusion the potential economic and human associated with conducting The areas excluded are currently costs, both in dollars and jobs, predicted consultations with us pursuant to occupied by the species. If these areas section 7 of the Act, loss of land values in the economic analysis—exceed the were designated as critical habitat, any educational and regulatory benefits, associated with the avoidance of arroyo actions with a Federal nexus which toads and their habitat, time delays, and including possible changes to dam might adversely modify the critical operations, which may be already uncertainty. Excluding this unit would habitat would require a consultation avoid some or all of those costs. provided for as discussed above—which with us, as explained above, in the could result from including those lands section of this notice entitled ‘‘Effects of (3) Benefits of Exclusion Outweigh the in this designation of critical habitat. Critical Habitat Designation.’’ Yet Benefits of Inclusion We also believe that excluding these another benefit might be modification of We believe that the benefits from lands, and thus helping landowners and current operations of dams and other excluding these lands from the water users avoid the additional costs elements of water projects to provide designation of critical habitat—avoiding that would result from the designation, water at times more beneficial to the the potential economic and human will contribute to a more positive species than the current operation of costs, both in dollars and jobs, predicted climate for Habitat Conservation Plans some dams within proposed critical in the economic analysis—exceed the and other active conservation measures habitat. Since the economic analysis of educational and regulatory benefits, which provide greater conservation this is based on projections of future including possible changes to dam benefits than would result from actions, it is not possible to assign operations, which may be already designation of critical habitat, which specific actions, and benefits to the provided for as discussed above—which requires—even in the post-Gifford species, for particular units. could result from including those lands Pinchot environment—only that the In general, the modifications would in this designation of critical habitat. there be no adverse modification be designed to have water flows in We also believe that excluding these resulting from Federally-related actions. stream reaches downstream from dams lands, and thus helping landowners and We therefore find that the benefits of more closely resemble the stream’s water users avoid the additional costs excluding these areas from this natural state. Benefits would include that would result from the designation, designation of critical habitat outweigh avoidance of excess artificial water will contribute to a more positive the benefits of including them in the flows washing eggs or tadpoles climate for Habitat Conservation Plans designation. downstream, possibly avoiding growth and other active conservation measures (4) Exclusion Will Not Result in of exotic species, increasing the which provide greater conservation Extinction of the Species availability of open sand bar habitat, benefits than would result from and maintaining breeding pools long designation of critical habitat, which We believe that exclusion of these enough for larvae to develop. requires—even in the post-Gifford lands will not result in extinction of the However, inasmuch as this area is Pinchot environment—only that the species, as they are considered occupied currently occupied by the species, there be no adverse modification habitat. Any actions which might consultation for activities which might resulting from Federally-related actions. adversely affect the toad, regardless of adversely impact the species, including We therefore find that the benefits of whether a Federal nexus is present, possibly significant habitat modification excluding these areas from this must undergo a consultation with the (see definition of ‘‘harm’’ at 50 CFR designation of critical habitat outweigh Service under the requirements of 17.3) would be required even without the benefits of including them in the section 7 of the Act or receive a permit the critical habitat designation and designation. from us under section 10. The toad is without regard to the existence of a protected from take under section 9. The Federal nexus. (4) Exclusion Will Not Result in exclusions leave these protections In summary, we believe that this Extinction of the Species unchanged from those which would proposed unit as critical habitat would We believe that exclusion of these exist if the excluded areas were provide little additional Federal lands will not result in extinction of the designated as critical habitat. In regulatory benefits for the species. species, as they are considered occupied addition, as discussed above, there are Because the proposed critical habitat is habitat. Any actions which might a substantial number of Habitat occupied by the species, there must be adversely affect the toad, regardless of Conservation Plans and other active consultation with the Service over any whether a Federal nexus is present, conservation measures underway for the Federal action which might impact the must undergo a consultation with the species, which provide greater toad. The additional educational Service under the requirements of conservation benefits than would result benefits which might arise from critical section 7 of the Act or receive a permit from a designation. There is accordingly habitat designation are largely from us under section 10. The toad is no reason to believe that these accomplished through the multiple protected from take under section 9. The

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exclusions leave these protections In summary, we believe that this (4) Exclusion Will Not Result in unchanged from those which would proposed unit as critical habitat would Extinction of the Species exist if the excluded areas were provide little additional Federal We believe that exclusion of these designated as critical habitat. In regulatory benefits for the species. lands will not result in extinction of the addition, as discussed above, there are Because the proposed critical habitat is species, as they are considered occupied a substantial number of Habitat occupied by the species, there must be habitat. Any actions which might Conservation Plans and other active consultation with the Service over any adversely affect the toad, regardless of conservation measures underway for the Federal action which might impact the whether a Federal nexus is present, species, which provide greater toad. The additional educational must undergo a consultation with the conservation benefits than would result benefits which might arise from critical Service under the requirements of from a designation. There is accordingly habitat designation are largely section 7 of the Act or receive a permit no reason to believe that these accomplished through the multiple from us under section 10. The toad is exclusions would result in extinction of notice and comments which protected from take under section 9. The the species. accompanied the development of this exclusions leave these protections Unit 12 regulation, and publicity over the prior unchanged from those which would litigation. We have excluded all private lands in exist if the excluded areas were Unit 12, consisting of approximately (2) Benefits of Exclusion designated as critical habitat. In 537 ac (217 ha), under section 4(b)(2) of addition, as discussed above, there are the Act. The analysis which led us to The economic analysis conducted for a substantial number of Habitat the conclusion that the benefits of this proposal estimates that the costs Conservation Plans and other active excluding this area exceed the benefits associated with designating this unit of conservation measures underway for the of designating it as critical habitat, and the proposed critical habitat would be species, which provide greater will not result in the extinction of the over $40 million between the years 2004 conservation benefits than would result species, follows. through 2025, nearly all of which would from a designation. There is accordingly fall on private property owners. These no reason to believe that these (1) Benefits of Inclusion figures include costs associated with exclusions would result in extinction of The areas excluded are currently conducting consultations with us the species. occupied by the species. If these areas pursuant to section 7 of the Act, loss of Unit 13 were designated as critical habitat, any land values associated with the actions with a Federal nexus which avoidance of arroyo toads and their We have excluded all of Unit 13, might adversely modify the critical habitat, time delays, and uncertainty. consisting of approximately 2,115 ac habitat would require a consultation Excluding this unit would avoid some (856 ha), under section 4(b)(2) of the with us, as explained above, in the or all of those costs. Act. The analysis which led us to the section of this notice entitled ‘‘Effects of conclusion that the benefits of Critical Habitat Designation.’’ Yet (3) Benefits of Exclusion Outweigh the excluding this area exceed the benefits another benefit might be modification of Benefits of Inclusion of designating it as critical habitat, and current operations of dams and other will not result in the extinction of the We believe that the benefits from elements of water projects to provide species, follows. excluding these lands from the water at times more beneficial to the designation of critical habitat—avoiding (1) Benefits of Inclusion species than the current operation of the potential economic and human some dams within proposed critical The areas excluded are currently costs, both in dollars and jobs, predicted habitat. Since the economic analysis of occupied by the species. If these areas in the economic analysis—exceed the this is based on projections of future were designated as critical habitat, any educational and regulatory benefits, actions, it is not possible to assign actions with a Federal nexus which including possible changes to dam specific actions, and benefits to the might adversely modify the critical operations, which may be already species, for particular units. habitat would require a consultation In general, the modifications would provided for as discussed above—which with us, as explained above, in the be designed to have water flows in could result from including those lands section of this notice entitled ‘‘Effects of stream reaches downstream from dams in this designation of critical habitat. Critical Habitat Designation.’’ Yet more closely resemble the stream’s We also believe that excluding these another benefit might be modification of natural state. Benefits would include lands, and thus helping landowners and current operations of dams and other avoidance of excess artificial water water users avoid the additional costs elements of water projects to provide flows washing eggs or tadpoles that would result from the designation, water at times more beneficial to the downstream, possibly avoiding growth will contribute to a more positive species than the current operation of of exotic species, increasing the climate for Habitat Conservation Plans some dams within proposed critical availability of open sand bar habitat, and other active conservation measures habitat. Since the economic analysis of and maintaining breeding pools long which provide greater conservation this is based on projections of future enough for larvae to develop. benefits than would result from actions, it is not possible to assign However, inasmuch as this area is designation of critical habitat, which specific actions, and benefits to the currently occupied by the species, requires—even in the post-Gifford species, for particular units. consultation for activities which might Pinchot environment—only that the In general, the modifications would adversely impact the species, including there be no adverse modification be designed to have water flows in possibly significant habitat modification resulting from Federally-related actions. stream reaches downstream from dams (see definition of ‘‘harm’’ at 50 CFR We therefore find that the benefits of more closely resemble the stream’s 17.3) would be required even without excluding these areas from this natural state. Benefits would include the critical habitat designation and designation of critical habitat outweigh avoidance of excess artificial water without regard to the existence of a the benefits of including them in the flows washing eggs or tadpoles Federal nexus. designation. downstream, possibly avoiding growth

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of exotic species, increasing the which provide greater conservation section of this notice entitled ‘‘Effects of availability of open sand bar habitat, benefits than would result from Critical Habitat Designation.’’ Yet and maintaining breeding pools long designation of critical habitat, which another benefit might be modification of enough for larvae to develop. requires—even in the post-Gifford current operations of dams and other However, inasmuch as this area is Pinchot environment—only that the elements of water projects to provide currently occupied by the species, there be no adverse modification water at times more beneficial to the consultation for activities which might resulting from Federally-related actions. species than the current operation of adversely impact the species, including We therefore find that the benefits of some dams within proposed critical possibly significant habitat modification excluding these areas from this habitat. Since the economic analysis of (see definition of ‘‘harm’’ at 50 CFR designation of critical habitat outweigh this is based on projections of future 17.3) would be required even without the benefits of including them in the actions, it is not possible to assign the critical habitat designation and designation. specific actions, and benefits to the without regard to the existence of a species, for particular units. Federal nexus. (4) Exclusion Will Not Result in In general, the modifications would In summary, we believe that this Extinction of the Species be designed to have water flows in proposed unit as critical habitat would We believe that exclusion of these stream reaches downstream from dams provide little additional Federal lands will not result in extinction of the more closely resemble the stream’s regulatory benefits for the species. species, as they are considered occupied natural state. Benefits would include Because the proposed critical habitat is habitat. Any actions which might avoidance of excess artificial water occupied by the species, there must be adversely affect the toad, regardless of flows washing eggs or tadpoles consultation with the Service over any whether a Federal nexus is present, downstream, possibly avoiding growth Federal action which might impact the must undergo a consultation with the of exotic species, increasing the toad. The additional educational Service under the requirements of availability of open sand bar habitat, benefits which might arise from critical section 7 of the Act or receive a permit and maintaining breeding pools long habitat designation are largely from us under section 10. The toad is enough for larvae to develop. accomplished through the multiple protected from take under section 9. The However, inasmuch as this area is notice and comments which exclusions leave these protections currently occupied by the species, accompanied the development of this unchanged from those which would consultation for activities which might regulation, and publicity over the prior exist if the excluded areas were adversely impact the species, including litigation. designated as critical habitat. In possibly significant habitat modification addition, as discussed above, there are (see definition of ‘‘harm’’ at 50 CFR (2) Benefits of Exclusion a substantial number of Habitat 17.3) would be required even without The economic analysis conducted for Conservation Plans and other active the critical habitat designation and this proposal estimates that the costs conservation measures underway for the without regard to the existence of a associated with designating this unit of species, which provide greater Federal nexus. the proposed critical habitat would be conservation benefits than would result In summary, we believe that this over $34 million between the years 2004 from a designation. proposed unit as critical habitat would through 2025, nearly all of which would In regards to subunits 13a and 13b provide little additional Federal fall on private property owners. These specifically, the Western Riverside regulatory benefits for the species. figures include costs associated with MSHCP offers additional conservation Because the proposed critical habitat is conducting consultations with us measures to protect the arroyo toad occupied by the species, there must be pursuant to section 7 of the Act, loss of within their planning area, including consultation with the Service over any land values associated with the surveying for additional populations Federal action which might impact the avoidance of arroyo toads and their and protecting habitat, which will help toad. The additional educational habitat, time delays, and uncertainty. ensure the long-term conservation of the benefits which might arise from critical Excluding this unit would avoid some arroyo toad. There is accordingly no habitat designation are largely or all of those costs. reason to believe that these exclusions accomplished through the multiple notice and comments which (3) Benefits of Exclusion Outweigh the would result in extinction of the species. accompanied the development of this Benefits of Inclusion regulation, and publicity over the prior We believe that the benefits from Unit 14 litigation. excluding these lands from the We have excluded all of Unit 14, (2) Benefits of Exclusion designation of critical habitat—avoiding consisting of approximately 8,669 ac the potential economic and human (3508 ha), under section 4(b)(2) of the The economic analysis conducted for costs, both in dollars and jobs, predicted Act. The analysis which led us to the this proposal estimates that the costs in the economic analysis—exceed the conclusion that the benefits of associated with designating this unit of educational and regulatory benefits, excluding this area exceed the benefits the proposed critical habitat would be including possible changes to dam of designating it as critical habitat, and nearly $144 million between the years operations, which may be already will not result in the extinction of the 2004 through 2025. Over $133 million provided for as discussed above—which species, follows. of this would fall on private property could result from including those lands owners, and over $8 million would be in this designation of critical habitat. (1) Benefits of Inclusion related to impacts to local water We also believe that excluding these The areas excluded are currently supplies (see also discussion above on lands, and thus helping landowners and occupied by the species. If these areas water costs). These figures include costs water users avoid the additional costs were designated as critical habitat, any associated with conducting that would result from the designation, actions with a Federal nexus which consultations with us pursuant to will contribute to a more positive might adversely modify the critical section 7 of the Act, loss of land values climate for Habitat Conservation Plans habitat would require a consultation associated with the avoidance of arroyo and other active conservation measures with us, as explained above, in the toads and their habitat, modification of

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current operations of dams and other The Pala Band of Mission Indians’ actions, it is not possible to assign elements of water projects, time delays, arroyo toad management plan states that specific actions, and benefits to the and uncertainty. Excluding this unit the Tribe will work to achieve the species, for particular units. would avoid some or all of those costs. following as conservation practices to In general, the modifications would benefit the arroyo toad: (1) Maintenance be designed to have water flows in (3) Benefits of Exclusion Outweigh the of open space along Pala Creek and the stream reaches downstream from dams Benefits of Inclusion San Luis Rey River to allow for within more closely resemble the stream’s We believe that the benefits from stream movements by arroyo toads and natural state. Benefits would include excluding these lands from the water flow; (2) encouragement of avoidance of excess artificial water designation of critical habitat—avoiding allottees to cluster dwellings near flows washing eggs or tadpoles the potential economic and human roadways to create corridors for toad downstream, possibly avoiding growth costs, both in dollars and jobs, predicted movements into upland areas; (3) of exotic species, increasing the in the economic analysis—exceed the placement of a vehicle bridge across the availability of open sand bar habitat, educational and regulatory benefits, San Luis Rey River to remove impacts and maintaining -breeding pools long including possible changes to dam to toads by vehicles crossing the river; enough for larvae to develop. operations, which may be already and (4) removal of non-native plants However, inasmuch as this area is provided for as discussed above—which and animal species throughout toad currently occupied by the species, could result from including those lands corridors. consultation for activities which might in this designation of critical habitat. The Rincon Band of Mission Indians’ adversely impact the species, including possibly significant habitat modification We also believe that excluding these arroyo toad management plan provides (see definition of ‘‘harm’’ at 50 CFR lands, and thus helping landowners and a comprehensive management framework to address threats to the toad 17.3) would be required even without water users avoid the additional costs within the HMA, including: (1) the critical habitat designation and that would result from the designation, Monitoring and eradication of without regard to the existence of a will contribute to a more positive introduced plants and animals; (2) Federal nexus. climate for Habitat Conservation Plans exclusion of mining; (3) exclusion of In summary, we believe that this and other active conservation measures livestock grazing; (4) exclusion of proposed unit as critical habitat would which provide greater conservation unauthorized recreational uses and off- provide little additional Federal benefits than would result from road vehicle use; and (5) provide a regulatory benefits for the species. designation of critical habitat, which community educational outreach Because the proposed critical habitat is requires—even in the post-Gifford component. This plan is intended to occupied by the species, there must be Pinchot environment—only that the serve as an interim plan that will be consulting with the Service over any there be no adverse modification incorporated into the Rincon Tribe’s Federal action which might impact the resulting from Federally-related actions. Multiple Species Habitat Conservation toad. The additional educational We therefore find that the benefits of Plan currently under development and benefits which might arise from critical excluding these areas from this scheduled for completion by or before habitat designation are largely designation of critical habitat outweigh 2006. There is accordingly no reason to accomplished through the multiple the benefits of including them in the believe that these exclusions would notice and comments which designation. result in extinction of the species. accompanied the development of this regulation, and publicity over the prior (4) Exclusion Will Not Result in Unit 15 Extinction of the Species litigation. We have excluded all of Unit 15, We believe that exclusion of these consisting of approximately 6,183 ac (2) Benefits of Exclusion lands will not result in extinction of the (2,502 ha), under section 4(b)(2) of the The economic analysis conducted for species, as they are considered occupied Act. The analysis which led us to the this proposal estimates that the costs habitat. Any actions which might conclusion that the benefits of associated with designating this unit of adversely affect the toad, regardless of excluding this area exceed the benefits the proposed critical habitat would be whether a Federal nexus is present, of designating it as critical habitat, and over $81 million between the years 2004 must undergo a consultation with the will not result in the extinction of the through 2025, nearly all of which would Service under the requirements of species, follows. fall on private property owners. These section 7 of the Act or receive a permit figures include costs associated with (1) Benefits of Inclusion from us under section 10. The toad is conducting consultations with us protected from take under section 9. The The areas excluded are currently pursuant to section 7 of the Act, loss of exclusions leave these protections occupied by the species. If these areas land values associated with the unchanged from those which would were designated as critical habitat, any avoidance of arroyo toads and their exist if the excluded areas were actions with a Federal nexus which habitat, time delays, and uncertainty. designated as critical habitat. In might adversely modify the critical Excluding this unit would avoid some addition, as discussed above, there are habitat would require a consultation or all of those costs. a substantial number of Habitat with us, as explained above, in the Conservation Plans and other active section of this notice entitled ‘‘Effects of (3) Benefits of Exclusion Outweigh the conservation measures underway for the Critical Habitat Designation.’’ Yet Benefits of Inclusion species, which provide greater another benefit might be modification of We believe that the benefits from conservation benefits than would result current operations of dams and other excluding these lands from the from a designation. In regards to elements of water projects to provide designation of critical habitat—avoiding portions of Unit 14 specifically, the water at times more beneficial to the the potential economic and human Rincon and Pala Indian Tribes have species than the current operation of costs, both in dollars and jobs, predicted each offered additional conservation some dams within proposed critical in the economic analysis—exceed the measures to protect arroyo toad habitat habitat. Since the economic analysis of educational and regulatory benefits, on their lands. this is based on projections of future including possible changes to dam

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operations, which may be already habitat would require a consultation associated with the avoidance of arroyo provided for as discussed above—which with us, as explained above, in the toads and their habitat, modification of could result from including those lands section of this notice entitled ‘‘Effects of current operations of dams and other in this designation of critical habitat. Critical Habitat Designation.’’ Yet elements of water projects, time delays, We also believe that excluding these another benefit might be modification of and uncertainty. Excluding this unit lands, and thus helping landowners and current operations of dams and other would avoid some or all of those costs. water users avoid the additional costs elements of water projects to provide (3) Benefits of Exclusion Outweigh the that would result from the designation, water at times more beneficial to the Benefits of Inclusion will contribute to a more positive species than the current operation of climate for Habitat Conservation Plans some dams within proposed critical We believe that the benefits from and other active conservation measures habitat. Since the economic analysis of excluding these lands from the which provide greater conservation this is based on projections of future designation of critical habitat—avoiding benefits than would result from actions, it is not possible to assign the potential economic and human designation of critical habitat, which specific actions, and benefits to the costs, both in dollars and jobs, predicted requires—even in the post-Gifford species, for particular units. in the economic analysis—exceed the Pinchot environment—only that the In general, the modifications would educational and regulatory benefits, there be no adverse modification be designed to have water flows in including possible changes to dam resulting from Federally-related actions. stream reaches downstream from dams operations, which may be already We therefore find that the benefits of more closely resemble the stream’s provided for as discussed above—which excluding these areas from this natural state. Benefits would include could result from including those lands designation of critical habitat outweigh avoidance of excess artificial water in this designation of critical habitat. the benefits of including them in the flows washing eggs or tadpoles We also believe that excluding these designation. downstream, possibly avoiding growth lands, and thus helping landowners and of exotic species, increasing the water users avoid the additional costs (4) Exclusion Will Not Result in availability of open sand bar habitat, that would result from the designation, Extinction of the Species and maintaining breeding pools long will contribute to a more positive We believe that exclusion of these enough for larvae to develop. climate for Habitat Conservation Plans lands will not result in extinction of the However, inasmuch as this area is and other active conservation measures species, as they are considered occupied currently occupied by the species, which provide greater conservation habitat. Any actions which might consultation for activities which might benefits than would result from adversely affect the toad, regardless of adversely impact the species, including designation of critical habitat, which whether a Federal nexus is present, possibly significant habitat modification requires—even in the post-Gifford must undergo a consultation with the (see definition of ‘‘harm’’ at 50 CFR Pinchot environment—only that there Service under the requirements of 17.3) would be required even without be no adverse modification resulting section 7 of the Act or receive a permit the critical habitat designation and from Federally-related actions. We from us under section 10. The toad is without regard to the existence of a therefore find that the benefits of protected from take under section 9. The Federal nexus. excluding these areas from this exclusions leave these protections In summary, we believe that this designation of critical habitat outweigh unchanged from those which would proposed unit as critical habitat would the benefits of including them in the exist if the excluded areas were provide little additional Federal designation. designated as critical habitat. In regulatory benefits for the species. Because the proposed critical habitat is (4) Exclusion Will Not Result in addition, as discussed above, there are Extinction of the Species a substantial number of Habitat occupied by the species, there must be Conservation Plans and other active consultation with the Service over any We believe that exclusion of these conservation measures underway for the Federal action which might impact the lands will not result in extinction of the species, which provide greater toad. The additional educational species, as they are considered occupied conservation benefits than would result benefits which might arise from critical habitat. Any actions which might from a designation. There is accordingly habitat designation are largely adversely affect the toad, regardless of no reason to believe that these accomplished through the multiple whether a Federal nexus is present, exclusions would result in extinction of notice and comments which must undergo a consultation with the the species. accompanied the development of this Service under the requirements of regulation, and publicity over the prior section 7 of the Act or receive a permit Unit 16 litigation. from us under section 10. The toad is We have excluded all of Unit 16, protected from take under section 9. The (2) Benefits of Exclusion consisting of approximately 10,259 ac exclusions leave these protections (4,152 ha), under section 4(b)(2) of the The economic analysis conducted for unchanged from those which would Act. The analysis which led us to the this proposal estimates that the costs exist if the excluded areas were conclusion that the benefits of associated with designating this unit of designated as critical habitat. In excluding this area exceed the benefits the proposed critical habitat would be addition, as discussed above, there are of designating it as critical habitat, and over $180 million between the years a substantial number of Habitat will not result in the extinction of the 2004 through 2025. Nearly $168 million Conservation Plans and other active species, follows. of this would fall on private property conservation measures underway for the owners, and nearly $10 million would species, which provide greater (1) Benefits of Inclusion be related to impacts to local water conservation benefits than would result The areas excluded are currently supplies (see also discussion above on from a designation. occupied by the species. If these areas water costs). These figures include costs In regards to portions of subunits 16a, were designated as critical habitat, any associated with conducting 16b, and 16c specifically, the San Diego actions with a Federal nexus which consultations with us pursuant to Multiple Species Conservation Program might adversely modify the critical section 7 of the Act, loss of land values offers additional conservation measures

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to protect the arroyo toad within their 17.3) would be required even without be no adverse modification resulting planning area, including protecting and the critical habitat designation and from Federally-related actions. We maintaining sufficient, suitable, low- without regard to the existence of a therefore find that the benefits of gradient sandy stream habitat to meet Federal nexus. excluding these areas from this the arroyo toad’s breeding requirements; In summary, we believe that this designation of critical habitat outweigh preserve sheltering and foraging habitats proposed unit as critical habitat would the benefits of including them in the within 0.6 mi (1km) of occupied provide little additional Federal designation. breeding habitat within designated regulatory benefits for the species. (4) Exclusion Will Not Result in preserve lands; and control nonnative Because the proposed critical habitat is Extinction of the Species predators and human impacts within occupied by the species, there must be designated preserve land. Preserve lands consultation with the Service over any We believe that exclusion of these are currently under development and Federal action which might impact the lands will not result in extinction of the are intended to be permanently toad. The additional educational species, as they are considered occupied maintained and managed for the benefit benefits which might arise from critical habitat. Any actions which might of the arroyo toad and other covered habitat designation are largely adversely affect the toad, regardless of species. There is accordingly no reason accomplished through the multiple whether a Federal nexus is present, to believe that these exclusions would notice and comments which must undergo a consultation with the result in extinction of the species. accompanied the development of this Service under the requirements of regulation, and publicity over the prior section 7 of the Act or receive a permit Unit 17 litigation. from us under section 10. The toad is We have excluded all of Unit 17, protected from take under section 9. The consisting of approximately 1,955 ac (2) Benefits of Exclusion exclusions leave these protections (791 ha), under section 4(b)(2) of the The economic analysis conducted for unchanged from those which would Act. The analysis which led us to the this proposal estimates that the costs exist if the excluded areas were conclusion that the benefits of associated with designating this unit of designated as critical habitat. In excluding this area exceed the benefits the proposed critical habitat would be addition, as discussed above, there are of designating it as critical habitat, and over $71 million between the years 2004 a substantial number of Habitat will not result in the extinction of the through 2025. Over $40 million of this Conservation Plans and other active species, follows. would fall on private property owners, conservation measures underway for the and nearly $30 million would be related species, which provide greater (1) Benefits of Inclusion to impacts to local water supplies (see conservation benefits than would result The areas excluded are currently also discussion above on water costs). from a designation. occupied by the species. If these areas These figures include costs associated In regards to portions of subunit 17d were designated as critical habitat, any with conducting consultations with us specifically, the San Diego Multiple actions with a Federal nexus which pursuant to section 7 of the Act, loss of Species Conservation Program offers might adversely modify the critical land values associated with the additional conservation measures to habitat would require a consultation avoidance of arroyo toads and their protect the arroyo toad within their with us, as explained above, in the habitat, modification of current planning area, including protecting and section of this notice entitled ‘‘Effects of operations of dams and other elements maintaining sufficient, suitable, low- Critical Habitat Designation.’’ Yet of water projects, time delays, and gradient sandy stream habitat to meet another benefit might be modification of uncertainty. Excluding this unit would the arroyo toad’s breeding requirements; current operations of dams and other avoid some or all of those costs. preserve sheltering and foraging habitats elements of water projects to provide within 0.6 mi (1km) of occupied water at times more beneficial to the (3) Benefits of Exclusion Outweigh the breeding habitat within designated species than the current operation of Benefits of Inclusion preserve lands; and control nonnative some dams within proposed critical We believe that the benefits from predators and human impacts within habitat. Since the economic analysis of excluding these lands from the designated preserve land. Preserve lands this is based on projections of future designation of critical habitat—avoiding are currently under development and actions, it is not possible to assign the potential economic and human are intended to be permanently specific actions, and benefits to the costs, both in dollars and jobs, predicted maintained and managed for the benefit species, for particular units. in the economic analysis—exceed the of the arroyo toad and other covered In general, the modifications would educational and regulatory benefits, species. Additionally, in regards to be designed to have water flows in including possible changes to dam portions of 17a, the Barona Band of stream reaches downstream from dams operations, which may be already Mission Indians and Viejas Band of more closely resemble the stream’s provided for as discussed above—which Kumeyaay Indians have both agreed to natural state. Benefits would include could result from including those lands establish a cooperative approach with avoidance of excess artificial water in this designation of critical habitat. us concerning arroyo toad conservation flows washing eggs or tadpoles We also believe that excluding these on certain lands in Capitan Grande downstream, possibly avoiding growth lands, and thus helping landowners and Reservation, which is jointly of exotic species, increasing the water users avoid the additional costs administered by both Tribes. There is availability of open sand bar habitat, that would result from the designation, accordingly no reason to believe that and maintaining breeding pools long will contribute to a more positive these exclusions would result in enough for larvae to develop. climate for Habitat Conservation Plans extinction of the species. However, inasmuch as this area is and other active conservation measures currently occupied by the species, which provide greater conservation Unit 18 consultation for activities which might benefits than would result from We have excluded all of Unit 18, adversely impact the species, including designation of critical habitat, which consisting of approximately 5,347 ac possibly significant habitat modification requires—even in the post-Gifford (2164 ha), under section 4(b)(2) of the (see definition of ‘‘harm’’ at 50 CFR Pinchot environment—only that there Act. The analysis which led us to the

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conclusion that the benefits of associated with designating this unit of designated as critical habitat. In excluding this area exceed the benefits the proposed critical habitat would be addition, as discussed above, there are of designating it as critical habitat, and over $98 million between the years 2004 a substantial number of Habitat will not result in the extinction of the through 2025. Over $94 million of this Conservation Plans and other active species, follows. would fall on private property owners, conservation measures underway for the and nearly $2 million would be related (1) Benefits of Inclusion species, which provide greater to impacts to local water supplies (see conservation benefits than would result The areas excluded are currently also discussion above on water costs). from a designation. occupied by the species. If these areas These figures include costs associated In regards to portions of subunits 18a, were designated as critical habitat, any with conducting consultations with us 18b, and 18c specifically, the San Diego actions with a Federal nexus which pursuant to section 7 of the Act, loss of Multiple Species Conservation Program might adversely modify the critical land values associated with the offers additional conservation measures habitat would require a consultation avoidance of arroyo toads and their with us, as explained above, in the habitat, modification of current to protect the arroyo toad within their section of this notice entitled ‘‘Effects of operations of dams and other elements planning area, including protecting and Critical Habitat Designation.’’ Yet of water projects, time delays, and maintaining sufficient, suitable, low- another benefit might be modification of uncertainty. Excluding this unit would gradient sandy stream habitat to meet current operations of dams and other avoid some or all of those costs. the arroyo toad’s breeding requirements; elements of water projects to provide preserve sheltering and foraging habitats water at times more beneficial to the (3) Benefits of Exclusion Outweigh the within 0.6 mi (1km) of occupied species than the current operation of Benefits of Inclusion breeding habitat within designated some dams within proposed critical We believe that the benefits from preserve lands; and control nonnative habitat. Since the economic analysis of excluding these lands from the predators and human impacts within this is based on projections of future designation of critical habitat—avoiding designated preserve land. Preserve lands actions, it is not possible to assign the potential economic and human are currently under development and specific actions, and benefits to the costs, both in dollars and jobs, predicted are intended to be permanently species, for particular units. in the economic analysis—exceed the maintained and managed for the benefit In general, the modifications would educational and regulatory benefits, of the arroyo toad and other covered be designed to have water flows in including possible changes to dam species. stream reaches downstream from dams operations, which may be already In addition, the Sycuan Band of more closely resemble the stream’s provided for as discussed above—which Kumeyaay Nation Habitat Conservation natural state. Benefits would include could result from including those lands Strategy Measures Plan (HCSMP) avoidance of excess artificial water in this designation of critical habitat. includes the following conservation We also believe that excluding these flows washing eggs or tadpoles measures: (1) Protection of existing lands, and thus helping landowners and downstream, possibly avoiding growth habitat for compliance and species water users avoid the additional costs of exotic species, increasing the recovery; (2) enhancement of existing that would result from the designation, availability of open sand bar habitat, habitat; (3) restoration to create new will contribute to a more positive and maintaining breeding pools long habitat; (4) management of habitat to climate for Habitat Conservation Plans enough for larvae to develop. maintain and preserve ecological and other active conservation measures However, inasmuch as this area is functions; (5) avoidance and which provide greater conservation currently occupied by the species, minimization of direct impacts on benefits than would result from consultation for activities which might individuals and populations land designation of critical habitat, which adversely impact the species, including habitat of covered species; (6) requires—even in the post-Gifford possibly significant habitat modification population enhancement measures that Pinchot environment—only that the (see definition of ‘‘harm’’ at 50 CFR dierectly or indirectly incrase there be no adverse modification 17.3) would be required even without abundance of covered species, and (7) resulting from Federally-related actions. the critical habitat designation and research necessary to improve We therefore find that the benefits of without regard to the existence of a conservation measure effectiveness. excluding these areas from this Federal nexus. Conservation measures to protect, In summary, we believe that this designation of critical habitat outweigh enhance, restore habitat are primarily proposed unit as critical habitat would the benefits of including them in the directed toward conservation of focus provide little additional Federal designation. species’ habitat, such as that for the regulatory benefits for the species. (4) Exclusion Will Not Result in arroyo toad, on the Reservation and Because the proposed critical habitat is Extinction of the Species Singing Hills golf course. There is occupied by the species, there must be accordingly no reason to believe that consultation with the Service over any We believe that exclusion of these these exclusions would result in Federal action which might impact the lands will not result in extinction of the extinction of the species. toad. The additional educational species, as they are considered occupied benefits which might arise from critical habitat. Any actions which might Unit 19 habitat designation are largely adversely affect the toad, regardless of accomplished through the multiple whether a Federal nexus is present, We have excluded all of Unit 19, notice and comments which must undergo a consultation with the consisting of approximately 11,315 ac accompanied the development of this Service under the requirements of (4,579 ha), under section 4(b)(2) of the regulation, and publicity over the prior section 7 of the Act or receive a permit Act. The analysis which led us to the litigation. from us under section 10. The toad is conclusion that the benefits of protected from take under section 9. The excluding this area exceed the benefits (2) Benefits of Exclusion exclusions leave these protections of designating it as critical habitat, and The economic analysis conducted for unchanged from those which would will not result in the extinction of the this proposal estimates that the costs exist if the excluded areas were species, follows.

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(1) Benefits of Inclusion These figures include costs associated Species Conservation Program offers The areas excluded are currently with conducting consultations with us additional conservation measures to occupied by the species. If these areas pursuant to section 7 of the Act, loss of protect the arroyo toad within their were designated as critical habitat, any land values associated with the planning area, including protecting and actions with a Federal nexus which avoidance of arroyo toads and their maintaining sufficient, suitable, low- might adversely modify the critical habitat, time delays, and uncertainty. gradient sandy stream habitat to meet habitat would require a consultation Excluding this unit would avoid some the arroyo toad’s breeding requirements; or all of those costs. preserve sheltering and foraging habitats with us, as explained above, in the within 0.6 mi (1km) of occupied section of this notice entitled ‘‘Effects of (3) Benefits of Exclusion Outweigh the breeding habitat within designated Critical Habitat Designation.’’ Yet Benefits of Inclusion preserve lands; and control nonnative another benefit might be modification of We believe that the benefits from predators and human impacts within current operations of dams and other excluding these lands from the designated preserve land. Preserve lands elements of water projects to provide designation of critical habitat—avoiding are currently under development and water at times more beneficial to the the potential economic and human are intended to be permanently species than the current operation of costs, both in dollars and jobs, predicted maintained and managed for the benefit some dams within proposed critical in the economic analysis—exceed the of the arroyo toad and other covered habitat. Since the economic analysis of educational and regulatory benefits, species. There is accordingly no reason this is based on projections of future including possible changes to dam to believe that these exclusions would actions, it is not possible to assign operations, which may be already result in extinction of the species. specific actions, and benefits to the provided for as discussed above—which species, for particular units. could result from including those lands Unit 22 In general, the modifications would in this designation of critical habitat. We have excluded all of Unit 22, be designed to have water flows in We also believe that excluding these consisting of approximately 6,328 ac stream reaches downstream from dams lands, and thus helping landowners and (2,561 ha), under section 4(b)(2) of the more closely resemble the stream’s water users avoid the additional costs Act. The analysis which led us to the natural state. Benefits would include that would result from the designation, conclusion that the benefits of avoidance of excess artificial water will contribute to a more positive excluding this area exceed the benefits flows washing eggs or tadpoles climate for Habitat Conservation Plans of designating it as critical habitat, and downstream, possibly avoiding growth and other active conservation measures will not result in the extinction of the of exotic species, increasing the which provide greater conservation species, follows. availability of open sand bar habitat, benefits than would result from and maintaining breeding pools long designation of critical habitat, which (1) Benefits of Inclusion enough for larvae to develop. requires—even in the post-Gifford The areas excluded are currently However, inasmuch as this area is Pinchot environment—only that there occupied by the species. If these areas currently occupied by the species, be no adverse modification resulting were designated as critical habitat, any consultation for activities which might from Federally-related actions. We actions with a Federal nexus which adversely impact the species, including therefore find that the benefits of might adversely modify the critical possibly significant habitat modification excluding these areas from this habitat would require a consultation (see definition of ‘‘harm’’ at 50 CFR designation of critical habitat outweigh with us, as explained above, in the 17.3) would be required even without the benefits of including them in the section of this notice entitled ‘‘Effects of the critical habitat designation and designation. Critical Habitat Designation.’’ Yet without regard to the existence of a another benefit might be modification of Federal nexus. (4) Exclusion Will Not Result in current operations of dams and other In summary, we believe that this Extinction of the Species elements of water projects to provide proposed unit as critical habitat would We believe that exclusion of these water at times more beneficial to the provide little additional Federal lands will not result in extinction of the species than the current operation of regulatory benefits for the species. species, as they are considered occupied some dams within proposed critical Because the proposed critical habitat is habitat. Any actions which might habitat. Since the economic analysis of occupied by the species, there must be adversely affect the toad, regardless of this is based on projections of future consultation with the Service over any whether a Federal nexus is present, actions, it is not possible to assign Federal action which might impact the must undergo a consultation with the specific actions, and benefits to the toad. The additional educational Service under the requirements of species, for particular units. benefits which might arise from critical section 7 of the Act or receive a permit In general, the modifications would habitat designation are largely from us under section 10. The toad is be designed to have water flows in accomplished through the multiple protected from take under section 9. The stream reaches downstream from dams notice and comments which exclusions leave these protections more closely resemble the stream’s accompanied the development of this unchanged from those which would natural state. Benefits would include regulation, and publicity over the prior exist if the excluded areas were avoidance of excess artificial water litigation. designated as critical habitat. In flows washing eggs or tadpoles addition, as discussed above, there are downstream, possibly avoiding growth (2) Benefits of Exclusion a substantial number of Habitat of exotic species, increasing the The economic analysis conducted for Conservation Plans and other active availability of open sand bar habitat, this proposal estimates that the costs conservation measures underway for the and maintaining breeding pools long associated with designating this unit of species, which provide greater enough for larvae to develop. the proposed critical habitat would be conservation benefits than would result However, inasmuch as this area is over $202 million between the years from a designation. currently occupied by the species, 2004 through 2025, nearly all of which In regards to portions of subunit 19b consultation for activities which might would fall on private property owners. specifically, the San Diego Multiple adversely impact the species, including

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possibly significant habitat modification excluding these areas from this Relationship of Critical Habitat to (see definition of ‘‘harm’’ at 50 CFR designation of critical habitat outweigh Approved Habitat Conservation Plans— 17.3) would be required even without the benefits of including them in the Exclusions Under Section 4(b)(2) of the the critical habitat designation and designation. Act without regard to the existence of a (4) Exclusion Will Not Result in Section 4(b)(2) of the Act requires us Federal nexus. to consider other relevant impacts, in In summary, we believe that this Extinction of the Species addition to economic impacts, when proposed unit as critical habitat would designating critical habitat. Section provide little additional Federal We believe that exclusion of these 10(a)(1)(B) of the Act authorizes us to regulatory benefits for the species. lands will not result in extinction of the issue permits for the take of listed Because the proposed critical habitat is species, as they are considered occupied wildlife species incidental to otherwise occupied by the species, there must be habitat. Any actions which might lawful activities. Development of an consultation with the Service over any adversely affect the toad, regardless of HCP is a prerequisite for the issuance of Federal action which might impact the whether a Federal nexus is present, an incidental take permit pursuant to toad. The additional educational must undergo a consultation with the section 10(a)(1)(B) of the Act. An benefits which might arise from critical Service under the requirements of incidental take permit application must habitat designation are largely section 7 of the Act or receive a permit be supported by an HCP that identifies accomplished through the multiple from us under section 10. The toad is conservation measures that the notice and comments which protected from take under section 9. The accompanied the development of this permittee agrees to implement for the exclusions leave these protections species to minimize and mitigate the regulation, and publicity over the prior unchanged from those which would litigation. impacts of the permitted incidental take. exist if the excluded areas were HCPs vary in size and may provide for (2) Benefits of Exclusion designated as critical habitat. In incidental take coverage and addition, as discussed above, there are The economic analysis conducted for conservation management for one or this proposal estimates that the costs a substantial number of Habitat many federally-listed species. associated with designating this unit of Conservation Plans and other active Additionally, more than one applicant the proposed critical habitat would be conservation measures underway for the may participate in the development and over $27 million. Over $25 million of species, which provide greater implementation of an HCP. Some areas this would fall on private property conservation benefits than would result occupied by the arroyo toad involve owners. These figures include costs from a designation. In regards to subunit several complex HCPs that address associated with conducting 22a specifically, the Rancho Las Flores multiple species, cover large areas, and consultations with us pursuant to Planned Community (Rancho Las are important to many participating section 7 of the Act, loss of land values Flores) and neighboring Las Flores permittees. Large regional HCPs expand associated with the avoidance of arroyo Ranch (both in Summit Valley, San upon the basic requirements set forth in toads and their habitat, time delays, and Bernardino County), have each offered section 10(a)(1)(B) of the Act because uncertainty. Excluding this unit would additional conservation measures to they reflect a voluntary, cooperative avoid some or all of those costs. protect arroyo toad habitat on their approach to large-scale habitat and lands. species conservation planning. Many of (3) Benefits of Exclusion Outweigh the the large regional HCPs in southern Benefits of Inclusion Additional conservation measures California have been, or are being, We believe that the benefits from offered by Rancho Las Flores include developed to provide for the excluding these lands from the the protection of approximately 290 ac conservation of numerous federally- designation of critical habitat—avoiding (117 ha) of prime arroyo toad habitat listed species and unlisted sensitive the potential economic and human within the river corridors of Horsethief species and the habitat that provides for costs, both in dollars and jobs, predicted Creek and the West Fork of the Mojave their biological needs. These HCPs are in the economic analysis— exceed the River. Additional protection along Grass designed to proactively implement educational and regulatory benefits, Valley Creek is contemplated as well. conservation actions to address future including possible changes to dam As a part of the development plans for projects that are anticipated to occur operations, which may be already Rancho Las Flores, the land owners within the planning area of the HCP. provided for as discussed above — have agreed to minimize impacts to However, given the broad scope of these which could result from including those arroyo toad habitat from humans, cattle, regional HCPs, not all projects lands in this designation of critical and development, monitor the status of envisioned to potentially occur may habitat. the arroyo toad, and remove exotic actually take place. The State of We also believe that excluding these species. California also has a NCCP process that lands, and thus helping landowners and is very similar to the federal HCP water users avoid the additional costs Additional conservation measures process and is often completed in that would result from the designation, offered by Las Flores Ranch include the conjunction with the HCP process. We will contribute to a more positive protection of approximately 190 acres recognize that many of the projects with climate for Habitat Conservation Plans (77 ha) of prime arroyo toad habitat HCPs also have state issued NCCPs. and other active conservation measures within the river corridors of Horsethief In the case of approved regional HCPs which provide greater conservation Creek and the West Fork of the Mojave and accompanying Implementing benefits than would result from River as well as measures to minimize Agreements (IAs) (e.g., those sponsored designation of critical habitat, which impacts from humans, horses, and by cities, counties, or other local requires—even in the post-Gifford development. There is accordingly no jurisdictions) that provide for incidental Pinchot environment—only that the reason to believe that the exclusion of take coverage for the arroyo toad, a there be no adverse modification unit 22 would result in extinction of the primary goal of these regional plans is resulting from Federally-related actions. species. to provide for the protection and We therefore find that the benefits of management of habitat essential for the

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species’ conservation, while directing necessary. The Central-Coastal NCCP/ will complement other existing natural development to other areas. The HCP provides for monitoring of the and open space areas (e.g., State Parks, regional HCP development process arroyo toad and adaptive management Forest Service, and County Park Lands). provides an opportunity for more of its habitat within the reserve system. The Western Riverside MSHCP provides intensive data collection and analysis Adaptive management activities may for conservation actions within the regarding the use of particular habitat include a program to control exotic planning area, including surveying for areas by the arroyo toad. The process predators, such as bullfrogs, clawed additional populations and habitat also enables us to conduct detailed frogs, and nonnative fishes. It also protection, which will help ensure the evaluations of the importance of such includes a program to close dirt road long-term conservation of the arroyo lands to the long-term survival of the crossings without culverts or upgrading toad. We are designating portions of species in the context of constructing a such crossings with concrete fords and/ Unit 9 on U.S. Forest Service lands system of interlinked habitat blocks that or culverts on publicly owned lands within the planning area boundary of provide for its biological needs. outside the reserve system, if baseline the Western Riverside MSHCP as We considered, but did not designate monitoring indicates such measures critical habitat because Forest Service as critical habitat, lands within the would likely be effective. activities are not covered under a Central-Coastal NCCP/HCP in Orange The North Ranch Policy Plan area was section 10(a)(1)(B) permit. County and Western Riverside MSHCP excluded from take authorization under section 4(b)(2) of the Act. These provided under the Central Coastal (1) Benefits of Inclusion approved and legally operative HCPs NCCP/HCP’s biological opinion due to a Under section 7, critical habitat include portions of two critical habitat lack of detailed biological information designation will provide little units (units 8 and 9). We believe the and specific conservation commitments additional benefit to the arroyo toad benefits of excluding lands within these at the time of adoption of the NCCP/ within the boundaries of these approved legally operative HCPs from the final HCP. We have since determined that HCPs. The principal benefit of any critical habitat designation will available arroyo toad habitat within the designated critical habitat is that outweigh the benefits of including them. North Ranch Policy Plan area has federally-funded, permitted, or The following represents our rationale features essential to the conservation of authorized activities that may affect for excluding these areas. the arroyo toad because it helps support critical habitat will require consultation a viable Santa Ana Mountain arroyo under section 7 of the Act. Such Orange County Central Coastal toad population. In 2002, the owner, consultations ensure that adequate Subregional NCCP/HCP The Irvine Company, granted a protection is provided to avoid adverse All essential habitat for the arroyo conservation easement to The Nature modification or destruction of critical toad in Unit 8 in western Orange County Conservancy over a portion of the North habitat. Currently approved HCPs that is excluded under section 4(b)(2) of the Ranch Policy Plan Area that covered the cover the toad are designed to ensure Act from critical habitat because it is arroyo toad critical habitat areas. We the conservation of the species within within the Orange County Central recognize that the Irvine Company has the plan area, and incorporate special Coastal Subregional NCCP/HCP. The taken steps to conserve the North Ranch management and protection measures Central-Coastal NCCP/HCP in Orange Policy Area, including a $10 million for arroyo toad habitat within plan County was developed in cooperation management endowment. The boundaries. The adequacy of plan with numerous local and State conservation easement provides measures to protect the toad and its jurisdictions and agencies, and adequate protection for arroyo toad habitat has undergone thorough participating landowners, including the habitat within this unit. As a result, we evaluation in the section 7 consultations cities of Anaheim, Costa Mesa, Irvine, are excluding the North Ranch Policy completed prior to approval of the Orange, and San Juan Capistrano; Plan area from critical habitat. plans, and therefore, the benefit of Southern California Edison; including these areas to require section Transportation Corridor Agencies; The Western Riverside MSHCP 7 consultation is negated. Irvine Company; California Department Portions of essential habitat for the Development and implementation of of Parks and Recreation; Metropolitan arroyo toad in Unit 9 located on non- these HCPs have provided other Water District of Southern California; Federal lands are excluded under important conservation benefits for the and Orange County. Approved in 1996, section 4(b)(2) of the Act from critical toad, including the development of the Central-Coastal NCCP/HCP provides habitat because they are within the biological information to guide for the establishment of approximately Western Riverside MSHCP in western conservation efforts and assist in the 38,738 ac (15,677 ha) of reserve lands Riverside County. Participants in this species’ recovery. The educational for 39 covered species within the HCP include 14 cities and the County of benefits of designating critical habitat, 208,713 ac (84,463 ha) planning area. Riverside, including the Riverside including informing the public of areas All of Unit 8 is within the plan area. We County Flood Control and Water that are important to the conservation of issued an incidental take permit under Conservation Agency, Riverside County listed species, are essentially the same section 10(a)(1)(B) of the Act that Transportation Commission, Riverside as those that have occurred during the provides conditional incidental take County Parks and Open Space District, process of reviewing and approving authorization for the arroyo toad for all and Riverside County Waste these HCPs. Specifically, each of these areas within the Central-Coastal Department. California Department of HCPs involved public participation Subregion, except the North Ranch Parks and Recreation and Caltrans are through public notices and public Policy Plan area. This take authorization also participants. Approved on June 22, comment periods, prior to being only applies to smaller arroyo toad 2004, the Western Riverside MSHCP approved. For these reasons, we believe populations, reintroduced populations, provides for the establishment of that designation of critical habitat or populations that have expanded due approximately 153,000 ac (62,000 ha) of would provide little additional benefit to NCCP/HCP reserve management. It diverse habitats of reserve lands for 146 in areas covered by these approved also requires implementation of a covered species within the 1.26-million HCPs. Federal actions that may affect mitigation plan to relocate toads to acre (510,000-ha) planning area. The the toad will still require consultation protected areas within reserves, when conservation of 153,000 ac (62,000 ha) under section 7 of the Act.

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(2) Benefits of Exclusion substantial. After weighing the small Riverside County. The draft Coachella The benefits of excluding HCPs from benefits of including these lands against Valley MSHCP has been in development critical habitat designation include the much greater benefits derived from from the mid-1990s to present, pursuant relieving landowners, communities, and excluding them, including relieving to an application to the Service for a counties of any additional regulatory property owners of an additional layer Section 10(a)(1)(B) permit under the burden that might be imposed by of approvals and regulation, and Act. The following entities submitted critical habitat. Many HCPs, particularly encouraging the pursuit of additional signed a Memorandum of large regional HCPs, take many years to conservation partnerships, we are Understanding (Planning Agreement) to develop and, upon completion, become excluding lands within approved HCPs govern the preparation of the MSHCP: from the critical habitat designation regional conservation plans that are Coachella Valley Association of pursuant to section 4(b)(2) of the Act. consistent with the recovery objectives Governments (CVAG); the cities of The educational benefits of critical for listed species that are covered within Cathedral City, Coachella, Desert Hot habitat, including informing the public the plan area. Additionally, many of Springs, Indian Wells, Indio, La Quinta, about areas that are important for the these HCPs provide conservation Palm Desert, Palm Springs, and Rancho long-term survival and conservation of benefits to unlisted sensitive species. Mirage; County of Riverside; U.S. Fish the species, have been provided by the Imposing an additional regulatory and Wildlife Service; California public notice and comment procedures review after an HCPs is completed Department of Fish and Game; Bureau required to establish these HCPs. of Land Management; U.S. Forest solely as a result of the designation of We have reviewed and evaluated the critical habitat may undermine Service; and the National Park Service. approved Orange County Central Subsequently, California Department of conservation efforts and partnerships in Coastal Subregional NCCP/HCP and the many areas. In fact, it could result in the Transportation, Coachella Valley Water Western Riverside NCCP/HCP for Unit 8 District, Imperial Irrigation District, loss of species’ benefits if participants and Unit 9 and find that each of these abandon the voluntary HCP process. Riverside County Flood Control and HCPs includes the arroyo toad as a Water Conservation District, Riverside Designation of critical habitat within the covered species and provides protection boundaries of approved HCPs could also County Regional Parks and Open Space for the arroyo toad and its associated District, Riverside County Waste be viewed as a disincentive to those habitat in perpetuity. Excluding these entities currently developing HCPs or Management District, California lands also preserves the partnerships Department of Parks and Recreation, contemplating them in the future. The that we developed with the local benefits of excluding lands within and Coachella Valley Mountains jurisdictions and project proponent in Conservancy also decided to participate approved HCPs generally from critical the development of the HCPs and habitat apply fully to the approved in preparation of the Plan. The parties NCCP/HCPs. Therefore, essential habitat later amended the Planning Agreement HCPs discussed above that cover the covered under these HCPs and NCCP/ arroyo toad. to also address the requirements of the HCPs have been excluded pursuant to Natural Community Conservation A related benefit of excluding lands section 4(b)(2) of the Act since the within approved HCPs that cover the Planning (NCCP) Act and prepared a benefits of exclusion outweigh the NCCP pursuant to California Fish and arroyo toad from the critical habitat benefits of inclusion as critical habitat. designation is the continued ability to Game Code Section 2810. The draft seek new partnerships with future HCPs (4) Exclusion Will Not Result in Coachella Valley MSHCP area participants, including States, counties, Extinction of the Species encompasses approximately 1.2 million local jurisdictions, conservation We believe that exclusion of these ac (485,623 ha), of which 69,000 ac organizations, and private landowners, lands will not result in extinction of the (27,923 ha) is owned by an Indian which together can implement species, as they are considered occupied Reservation and are not included in the conservation actions that we would be habitat. Any actions which might draft MSHCP, leaving a total of 1.1 unable to accomplish otherwise. If lands adversely affect the toad, regardless of million ac (445,154 ha) addressed by the within approved HCPs plan areas are whether a Federal nexus is present, draft MSHCP in Riverside County. designated as critical habitat, it would must undergo a consultation with the It is estimated by CVAG that there are likely have a chilling effect on our Service under the requirements of 2,045 ac (828 ha) of habitat for arroyo ability to establish new partnerships to section 7 of the Act or receive a permit toad in the draft MSHCP plan area, all develop HCPs, particularly large from us under section 10. The toad is within the proposed Whitewater regional HCPs that involve numerous protected from take under section 9. The Canyon Conservation. Of this 2,045 ac participants and address landscape- exclusions leave these protections (828 ha), 1,296 ac (525 ha) are level conservation of the toad and its unchanged from those which would considered existing conservation lands. habitat. By excluding these lands, we exist if the excluded areas were Of the 749 ac (303 ha) of arroyo toad preserve our current partnerships and designated as critical habitat. There is habitat not currently conserved within encourage additional conservation accordingly no reason to believe that the Whitewater Canyon Conservation actions in the future. We have these exclusions would result in Area, the draft MSHCP proposes to determined that the benefits of extinction of the species. conserve 674 ac (273 ha) of modeled excluding lands within approved HCPs arroyo toad habitat as part of the Relationship of Critical Habitat to the from critical habitat designation preferred alternative reserve design. All Pending Coachella Valley Multiple outweigh the benefits of inclusion. essential areas in Unit 23 are within the Species Habitat Conservation Plan— preferred alternative reserve. Other (3) Benefits of Exclusion Outweigh the Exclusions Under Section 4(b)(2) of the goals of this draft MSHCP include: (1) Benefits of Inclusion Act Protecting other important conservation In general, we find that the benefits of Portions of Unit 23 are being excluded areas to allow for population fluctuation critical habitat designation on lands pursuant to section 4(b)(2) of the Act and promote genetic diversity; (2) within approved HCPs are small while from designated critical habitat because protecting essential ecological the benefits of excluding such lands they are located within the draft processes, such as sand transport from designation of critical habitat are Coachella Valley MSHCP or Plan in systems, necessary to maintain core

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habitat and other conserved areas; (3) agencies that may affect critical habitat unchanged from those which would maintaining biological corridors and require the action agency to consult exist if the excluded areas were linkages among all conserved with the Service to ensure such designated as critical habitat. There is populations to the maximum extent activities do not destroy or adversely accordingly no reason to believe that feasible; and (4) ensuring conservation modify designated critical habitat. In the these exclusions would result in of habitat quality through biological case of the CVAG, their draft MSHCP extinction of the species. monitoring and adaptive management will be analyzed by the Service to Economic Analysis actions. determine the effects of the MSHCP on The draft MSHCP states that, although the species for which the participants Section 4(b)(2) of the Act requires us Whitewater Canyon is open to the are seeking incidental take permits. The to designate critical habitat on the basis public and existing uses that may draft MSHCP currently under review by of the best scientific and commercial impact arroyo toad habitat will not be the Service reflects revisions made to information available, and to consider eliminated by the MSHCP, impacts to the Plan based on comments and input the economic and other relevant essential habitat for the arroyo toad in from the Service and California impacts of designating a particular area Unit 23 will be minimized as a result of Department of Fish and Game. as critical habitat. We may exclude areas the following: (1) 96% of the modeled from critical habitat upon a habitat will be conserved under the (2) Benefits of Exclusion determination that the benefits of such MSHCP; (2) the MSHCP includes Excluding lands within CVAG’s draft exclusions outweigh the benefits of acquisition of essential habitat on MSHCP preferred alternative reserve specifying such areas as critical habitat. private lands in Whitewater Canyon design area from critical habitat We cannot exclude such areas from from willing sellers; and (3) designation will enhance our ability to critical habitat when such exclusion development of management work with Plan participants in the spirit will result in the extinction of the prescriptions for land on essential of cooperation and partnership. A more species concerned. We conducted an habitat in public ownership in the detailed discussion concerning our economic analysis to estimate potential canyon to minimize activities rationale for excluding HCPs from economic effects of the proposed arroyo deleterious to the arroyo toad and its critical habitat designation is outlined toad critical habitat designation habitat. The Plan as states that other under the previous section. Further, the (Economic & Planning Systems 2004). areas of potential suitable habitat in Service believes the analysis conducted The draft analysis was made available Snow Creek and Mission Creek will be to evaluate the benefits of excluding for public review on February 14, 2005 conserved (CVMC 2004). approved HCPs from critical habitat (70 FR 7459). We accepted comments on CVAG has demonstrated a sustained designation is applicable and the draft analysis until March 16, 2005. commitment to develop the MSHCP to appropriate to apply to CVAG’s MSHCP. The primary purpose of the economic comply with section 10(a)(1)(B) of the analysis is to estimate the potential (3) The Benefits of Exclusion Outweigh Act, the California Endangered Species economic impacts associated with the Act, and the State’s NCCP program. On the Benefits of Inclusion designation of critical habitat for the November 5, 2004, the Service In general, we find that the benefits of arroyo toad. This information is published a Notice of Availability of a critical habitat designation on lands intended to assist the Secretary in Final Environmental Impact Statement/ within pending HCPs that cover those making decisions about whether the Environmental Impact Report (EIS/EIR) species are small while the benefits of benefits of excluding particular areas for the draft MSHCP. excluding such lands from designation from the designation outweigh the Although not yet completed and of critical habitat are substantial. After benefits of including those areas in the implemented, CVAG has made weighing the small benefits of including designation. This economic analysis significant progress in the development lands within the draft MSHCP area considers the economic efficiency of its MSHCP to meet the requirements against the much greater benefits effects that may result from the outlined in section 10(a)(1)(B) of the derived from exclusion, we are designation, including habitat Act. In light of the Service’s confidence excluding all essential areas within protections that may be co-extensive that CVAG will reach a successful CVAG’s draft MSHCP from the final with the listing of the species. It also conclusion to its MSHCP development critical habitat pursuant to section addresses distribution of impacts, process, we are excluding lands within 4(b)(2) of the Act, with the exception of including an assessment of the potential their preferred alternative reserve design essential areas on lands that are owned effects on small entities and the energy from final critical habitat designation for by public agencies who are not industry. This information can be used the arroyo toad. signatories to the MSHCP (i.e., U.S. by the Secretary to assess whether the Forest Service and Bureau of Land effects of the designation might unduly (1) Benefits of Inclusion Management). burden a particular group or economic As stated previously, the benefits of sector. designating critical habitat on lands (4) Exclusion Will Not Result in This analysis focuses on the direct within the boundaries of approved Extinction of the Species and indirect costs of the rule. However, HCPs are normally small. Where HCPs We believe that exclusion of these economic impacts to land use activities are in place that include coverage for lands will not result in extinction of the can exist in the absence of critical arroyo toad, our experience has shown species, as they are considered occupied habitat. These impacts may result from, that the HCPs and their Implementing habitat. Any actions which might for example, local zoning laws, State Agreements include management adversely affect the toad, regardless of and natural resource laws, and measures and protections designed to whether a Federal nexus is present, enforceable management plans and best protect, restore, enhance, manage, and must undergo a consultation with the management practices applied by other monitor habitat that benefit the long- Service under the requirements of State and Federal agencies. Economic term protection of the species. The section 7 of the Act or receive a permit impacts that result from these types of principal benefit of designating critical from us under section 10. The toad is protections are not included in the habitat is that projects carried out, protected from take under section 9. The analysis as they are considered to be authorized, or funded by Federal exclusions leave these protections part of the regulatory and policy

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baseline. The total conservation costs on a substantial number of small habitat would be incorporated into the from reported efficiency effects entities. In our proposed rule, we existing consultation process. In areas associated with the designation of withheld our determination of whether where occupancy by arroyo toad is critical habitat in this rule are this designation would result in a unknown, the designation of critical approximately $9 million from 2004 to significant effect as defined under habitat could trigger additional review 2025. This total includes losses in land SBREFA until we completed our draft of Federal agencies pursuant to section value (by far the primary cost source), economic analysis of the proposed 7 of the Act and may result in additional as well as project modification, designation so that we would have the requirements on Federal activities to administrative, CEQA, delay, and factual basis for our determination. avoid destruction or adverse uncertainty costs. According to the Small Business modification of critical habitat. A copy of the final economic analysis Administration (SBA), small entities and description of the exclusion process include small organizations, such as In our economic analysis of this with supporting documents are independent nonprofit organizations, designation we evaluated the potential included in our administrative record and small governmental jurisdictions, economic effects on small business and may be obtained by contacting the including school boards and city and entities and small governments resulting Ventura or Carlsbad offices (see town governments that serve fewer than from conservation actions related to the ADDRESSES section). 50,000 residents, as well as small listing of this species and proposed businesses (13 CFR 121.201). Small designation of its critical habitat. We Required Determinations businesses include manufacturing and evaluated small business entities in Regulatory Planning and Review mining concerns with fewer than 500 three categories: land development, fruit employees, wholesale trade entities and nut farms, and cattle ranching. On In accordance with Executive Order with fewer than 100 employees, retail 12866, this document is a significant the basis of our analysis we determined and service businesses with less than $5 that this proposed designation of critical rule in that it may raise novel legal and million in annual sales, general and policy issues, but will not have an habitat for the arroyo toad would result heavy construction businesses with less in: (1) An annual impact to less that one annual effect on the economy of $100 than $27.5 million in annual business, million or more or affect the economy percent (17 projects and therefore special trade contractors doing less than businesses—assuming one project per in a material way. Due to the tight $11.5 million in annual business, and timeline for publication in the Federal business) of land development small agricultural businesses with annual businesses and that those businesses Register, the Office of Management and sales less than $750,000. To determine could realize an impact of Budget (OMB) has not formally if potential economic impacts to these approximately 20 percent of total reviewed this rule. As explained above, small entities are significant, we we prepared an economic analysis of considered the types of activities that annual sales; (2) an annual impact to this action. We used this analysis to might trigger regulatory impacts under less that one percent (one farm) of small meet the requirement of section 4(b)(2) this designation as well as types of fruit and nut farms and that that farm of the Act to determine the economic project modifications that may result. In would realize an impact of less than consequences of designating the specific general, the term significant economic three percent of total annual sales; (3) an areas as critical habitat. We also used it impact is meant to apply to a typical annual impact to less that one percent to help determine whether to exclude small business firm’s business of cattle ranches (one ranch) and that any area from critical habitat, as operations. the ranch would realize an impact of provided for under section 4(b)(2), if we To determine if this designation of less than approximately $100,000 of determine that the benefits of such critical habitat for the arroyo toad would total annual sales; (4) an annual impact exclusion outweigh the benefits of affect a substantial number of small to less that one percent of small specifying such area as part of the entities, we considered the number of viticulture firms (one firm) and that the critical habitat, unless we determine, small entities affected within particular firm would realize an impact of less based on the best scientific and types of economic activities (e.g., land than approximately five percent of total commercial data available, that the development, fruit and nut farms, cattle annual sales; and (5) an annual impact failure to designate such area as critical ranching, and small governments). We to less that one percent of small habitat will result in the extinction of considered each industry or category governments as a percent of the county the species. individually to determine if certification total and small governments would is appropriate. In estimating the Regulatory Flexibility Act (5 U.S.C. 601 realize an impact of less than one numbers of small entities potentially et seq.) percent of annual government budget. affected, we also considered whether Based on this data from the proposed Under the Regulatory Flexibility Act their activities have any Federal rule, and the additional exclusions of (5 U.S.C. 601 et seq., as amended by the involvement; some kinds of activities units made in this final rulemaking, we Small Business Regulatory Enforcement are unlikely to have any Federal Fairness Act (SBREFA) of 1996), involvement and so will not be affected have determined that this designation whenever an agency is required to by the designation of critical habitat. would not affect a substantial number of publish a notice of rulemaking for any Designation of critical habitat only small land development companies, proposed or final rule, it must prepare affects activities conducted, funded, fruit and nut farms, or cattle ranches. and make available for public comment permitted or authorized by Federal Further, we have determined that this a regulatory flexibility analysis that agencies; non-Federal activities are not designation would also not result in a describes the effect of the rule on small affected by the designation. significant effect to the annual sales of entities (i.e., small businesses, small When this critical habitat designation those small impacted by this organizations, and small government is effective, Federal agencies must designation. As such, we are certifying jurisdictions). However, no regulatory consult with us if their activities may that this designation of critical habitat flexibility analysis is required if the affect designated critical habitat. would not result in a significant head of an agency certifies the rule will Consultations to avoid the destruction economic impact on a substantial not have a significant economic impact or adverse modification of critical number of small entities.

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Local Government Impacts (Public terms and conditions. We may also and prudent alternatives become Sector Impacts) identify discretionary conservation necessary include conservation set- Only two small local governments recommendations designed to minimize asides, management of competing would be affected by arroyo toad critical or avoid the adverse effects of a nonnative species, restoration of habitat designation: the cities of Rancho proposed action on listed species or degraded habitat, and regular Santa Margarita and San Juan critical habitat, help implement monitoring. These are based on our Capistrano. There is no record of recovery plans, or to develop understanding of the needs of the consultations between the Service and information that could contribute to the species and the threats it faces, as these cities. In general, city governments recovery of the species. described in the final listing rule and may get involved in land use projects, Based on our experience with proposed critical habitat designation. and therefore section 7 consultations, consultations pursuant to section 7 of These measures are not likely to result through various permits, or involvement the Act for all listed species, virtually in a significant economic impact to project proponents. in local utility and infrastructure all projects—including those that, in In summary, we have considered projects. This involvement is usually as their initial proposed form, would result whether this would result in a an interested party, not the primary in jeopardy or adverse modification determinations in section 7 significant economic effect on a applicant. The economic analysis substantial number of small entities. We estimates that these two cities will consultations—can be implemented successfully with, at most, the adoption have determined, for the above reasons consult as a prime applicant two times and based on currently available in the next 21 years. This would of reasonable and prudent alternatives. These measures, by definition, must be information, that it is not likely to affect represent less than one percent of the a substantial number of small entities. total annual budget of each city. economically feasible and within the scope of authority of the Federal agency Federal involvement, and thus section 7 In general, two different mechanisms consultations, would be limited to a in section 7 consultations could lead to involved in the consultation. We can only describe the general kinds of subset of the area designated. The most additional regulatory requirements for likely Federal involvement could the small businesses that may be actions that may be identified in future reasonable and prudent alternatives. include Corps permits, permits we may required to consult with us regarding issue under section 10(a)(1)(B) of the their project’s impact on arroyo toad These are based on our understanding of the needs of the species and the threats Act; funding for Federal Highway and its habitat. First, if we conclude, in Administration, Federal Emergency a biological opinion, that a proposed it faces, as described in the final listing rule and this critical habitat designation. Management Agency or FAA projects; action is likely to jeopardize the and regulation of grazing, mining, and continued existence of a species or Within the critical habitat units, the types of Federal actions or authorized recreation by the BLM, DOD, Corps, or adversely modify its critical habitat, we Forest Service. We certify that the rule can offer ‘‘reasonable and prudent activities that we have identified as potential concerns are: will not have a significant impact on a alternatives.’’ Reasonable and prudent substantial number of small business alternatives are alternative actions that (1) Regulation of activities affecting waters of the United States by the Corps entities. Therefore, a regulatory can be implemented in a manner flexibility analysis is not required. consistent with the scope of the Federal under section 404 of the Clean Water agency’s legal authority and Act; Small Business Regulatory Enforcement (2) Regulation of water flows, jurisdiction, that are economically and Fairness Act (5 U.S.C. 802(2)) damming, diversion, and channelization technologically feasible, and that would by any Federal agency; Under the Small Business Regulatory avoid jeopardizing the continued (3) Road construction and Enforcement Fairness Act (5 U.S.C 801 existence of listed species or result in maintenance, right-of-way designation, et seq.), this rule to designate critical adverse modification of critical habitat. and regulation of agricultural activities habitat for the arroyo toad is not A Federal agency and an applicant may on Federal lands (such as those considered to be a major rule. Our elect to implement a reasonable and managed by the Service, Forest Service, detailed assessment of the economic prudent alternative associated with a DOD, or BLM); effects of this designation is described biological opinion that has found (4) Regulation of grazing, mining, and in the economic analysis. Based on the jeopardy or adverse modification of recreation by the BLM, DOD, Corps, or effects identified in the economic critical habitat. An agency or applicant Forest Service; analysis, we believe that this rule will could alternatively choose to seek an (5) Regulation of airport improvement not have an effect on the economy of exemption from the requirements of the activities by the FAA; $100 million or more, will not cause a Act or proceed without implementing (6) Military training and maneuvers, major increase in costs or prices for the reasonable and prudent alternative. facilities operations, and maintenance consumers, and will not have significant However, unless an exemption were on DOD lands designated as critical adverse effects on competition, obtained, the Federal agency or habitat; employment, investment, productivity, applicant would be at risk of violating (7) Licensing of construction of innovation, or the ability of U.S.-based sections 7(a)(2) and 9 of the Act if it communication sites by the Federal enterprises to compete with foreign- chose to proceed without implementing Communications Commission; and, based enterprises, nor will the rule have the reasonable and prudent alternatives. (8) Funding of activities by the U.S. a significant economic impact on a Second, if we find that a proposed Environmental Protection Agency substantial number of small entities. action is not likely to jeopardize the (EPA), Department of Energy (DOE), Refer to the final economic analysis for continued existence of a listed animal or FEMA, Federal Highway Administration a discussion of the effects of this plant species, we may identify (FHA), or any other Federal agency. determination. reasonable and prudent measures It is likely that a developer or other designed to minimize the amount or project proponent could modify a Executive Order 13211 extent of take and require the Federal project or take measures to protect the On May 18, 2001, the President issued agency or applicant to implement such arroyo toad. The kinds of actions that Executive Order 13211 on regulations measures through non-discretionary may be included if future reasonable that significantly affect energy supply,

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distribution, and use. Executive Order destroy or adversely modify critical Office of the Solicitor has determined 13211 requires agencies to prepare habitat under section 7. While non- that this rule does not unduly burden Statements of Energy Effects when Federal entities that receive Federal the judicial system and meets the undertaking certain actions. This final funding, assistance, or permits, or that requirements of sections 3(a) and 3(b)(2) rule to designate critical habitat for the otherwise require approval or of the Order. We are designating critical arroyo toad is not expected to authorization from a Federal agency for habitat in accordance with the significantly affect energy supplies, an action, may be indirectly impacted provisions of the Endangered Species distribution, or use. Therefore, this by the designation of critical habitat, the Act. This rule uses standard property action is not a significant energy action, legally binding duty to avoid descriptions and identifies the primary and no Statement of Energy Effects is destruction or adverse modification of constituent elements within the required. critical habitat rests squarely on the designated areas to assist the public in Federal agency. Furthermore, to the Unfunded Mandates Reform Act (2 understanding the habitat needs of the extent that non-Federal entities are U.S.C. 1501 et seq.) arroyo toad. indirectly impacted because they In accordance with the Unfunded receive Federal assistance or participate Paperwork Reduction Act of 1995 (44 Mandates Reform Act (2 U.S.C. 1501 et in a voluntary Federal aid program, the U.S.C. 3501 et seq.) seq.), we make the following findings: Unfunded Mandates Reform Act would This rule does not contain new or (a) This rule will not produce a not apply; nor would critical habitat revised information collection for which Federal mandate. In general, a Federal shift the costs of the large entitlement OMB approval is required under the mandate is a provision in legislation, programs listed above on to State Paperwork Reduction Act. This rule will statute or regulation that would impose governments. not impose recordkeeping or reporting an enforceable duty upon State, local, (b) We do not believe that this rule requirements on State or local tribal governments, or the private sector will significantly or uniquely affect governments, individuals, businesses, or and includes both ‘‘Federal small governments because it will not organizations. An agency may not intergovernmental mandates’’ and produce a Federal mandate of $100 conduct or sponsor, and a person is not ‘‘Federal private sector mandates.’’ million or greater in any year, that is, it required to respond to, a collection of These terms are defined in 2 U.S.C. is not a ‘‘significant regulatory action’’ information unless it displays a 658(5)–(7). ‘‘Federal intergovernmental under the Unfunded Mandates Reform currently valid OMB control number. mandate’’ includes a regulation that Act. The designation of critical habitat ‘‘would impose an enforceable duty imposes no obligations on State or local National Environmental Policy Act upon State, local, or tribal governments’’ governments. As such, Small It is our position that, outside the with two exceptions. It excludes ‘‘a Government Agency Plan is not Tenth Circuit, we do not need to condition of Federal assistance.’’ It also required. prepare environmental analyses as excludes ‘‘a duty arising from defined by the NEPA in connection with Federalism participation in a voluntary Federal designating critical habitat under the program,’’ unless the regulation ‘‘relates In accordance with Executive Order Endangered Species Act of 1973, as to a then-existing Federal program 13132, the rule does not have significant amended. We published a notice under which $500,000,000 or more is Federalism effects. A Federalism outlining our reasons for this provided annually to State, local, and assessment is not required. In keeping determination in the Federal Register tribal governments under entitlement with the Department of the Interior on October 25, 1983 (48 FR 49244). This authority,’’ if the provision would policies, we requested information from, assertion was upheld in the courts of the ‘‘increase the stringency of conditions of and coordinated development of, this Ninth Circuit (Douglas County v. assistance’’ or ‘‘place caps upon, or final critical habitat designation with Babbitt, 48 F.3d 1495 (9th Cir. Ore. otherwise decrease, the Federal appropriate State resource agencies in 1995), cert. denied 116 S. Ct. 698 Government’s responsibility to provide California. The designation of critical (1996)). funding,’’ and the State, local, or tribal habitat in areas currently occupied by governments ‘‘lack authority’’ to adjust the arroyo toad imposes no additional Government-to-Government accordingly. At the time of enactment, restrictions to those currently in place Relationship With Tribes these entitlement programs were: and, therefore, has little incremental In accordance with the President’s Medicaid; AFDC work programs; Child impact on State and local governments memorandum of April 29, 1994, Nutrition; Food Stamps; Social Services and their activities. The designation ‘‘Government-to-Government Relations Block Grants; Vocational Rehabilitation may have some benefit to the States and with Native American Tribal State Grants; Foster Care, Adoption local resource agencies in that the areas Governments’’ (59 FR 22951), Executive Assistance, and Independent Living; essential to the conservation of the Order 13175, and the Department of the Family Support Welfare Services; and species are more clearly defined, and Interior’s manual at 512 DM 2, we have Child Support Enforcement. ‘‘Federal the primary constituent elements of the coordinated with federally-recognized private sector mandate’’ includes a habitat necessary to the survival of the Tribes on a Government-to-Government regulation that ‘‘would impose an species are specifically identified. While basis. We have excluded Tribal lands enforceable duty upon the private making this definition and from critical habitat pursuant to section sector, except (i) a condition of Federal identification does not alter where and 4(b)(2) of the Act based on economic assistance or (ii) a duty arising from what federally sponsored activities may considerations. participation in a voluntary Federal occur, it may assist local governments in Relationship to Mexico program.’’ long-range planning (rather than waiting The designation of critical habitat for case-by-case section 7 consultations We are not aware of any existing does not impose a legally binding duty to occur). national regulatory mechanism in on non-Federal government entities or Mexico that would protect the arroyo private parties. Under the Act, the only Civil Justice Reform toad or its habitat. Although new regulatory effect is that Federal agencies In accordance with Executive Order legislation for wildlife is pending in must ensure that their actions do not 12988, the Department of the Interior’s Mexico, and Mexico has laws that could

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provide protection for rare species, there I 2. Amend § 17.95(d) by revising support the formation of shallow pools are enforcement challenges. Even if critical habitat for the arroyo toad (Bufo and sparsely vegetated sand and gravel specific protections were available and californicus) to read as follows: bars for breeding and rearing of tadpoles enforceable in Mexico, the portion of and juveniles. § 17.95 Critical habitat—fish and wildlife. the arroyo toad’s range in Mexico alone, (iii) A natural flooding regime or one * * * * * in isolation, would not be adequate to sufficiently corresponding to a natural (d) Amphibians. ensure the long-term conservation of the regime that will periodically scour species. * * * * * riparian vegetation, rework stream References Cited ARROYO TOAD (Bufo californicus) channels and terraces, and redistribute sands and sediments, such that breeding A complete list of all references cited (1) Critical habitat units are depicted pools and terrace habitats with scattered in this rulemaking is available upon for Santa Barbara, Ventura, Los Angeles, vegetation are maintained. request from the Field Supervisor, San Bernardino, and Riverside Counties, Ventura Fish and Wildlife Office, or the California, on the maps below. (iv) Riparian and adjacent upland Field Supervisor, Carlsbad Fish and (2) The primary constituent elements habitats (particularly alluvial streamside Wildlife Office (see ADDRESSES section). of critical habitat for the arroyo toad are terraces and adjacent valley bottomlands that include areas of loose Author the habitat components that provide: (i) Rivers or streams with hydrologic soil where toads can burrow The primary author of this notice is regimes that supply water to provide underground) to provide foraging and the staff of the U.S. Fish and Wildlife space, food, and cover needed to sustain living areas for subadult and adult Service. eggs, tadpoles, metamorphosing arroyo toads. List of Subjects in 50 CFR Part 17 juveniles, and adult breeding toads. (v) Stream channels and adjacent Specifically, the conditions necessary to upland habitats that allow for migration Endangered and threatened species, allow for successful breeding of arroyo to foraging areas, overwintering sites, Exports, Imports, Reporting and toads are: dispersal between populations, and recordkeeping requirements, (A) Breeding pools with areas less recolonization of areas that contain Transportation. than 12 in (30 cm) deep; suitable habitat. Regulation Promulgation (B) Areas of flowing water with (3) Critical habitat does not include current velocities less than 1.3 ft per I Accordingly, we amend part 17, man-made structures existing on the second (40 cm per second); and effective date of this rule and not subchapter B of chapter I, title 50 of the (C) Surface water that lasts for a Code of Federal Regulations, as follows: containing one or more of the primary minimum length of 2 months in most constituent elements, such as buildings, PART 17—[AMENDED] years, i.e., a sufficient wet period in the aqueducts, airports, roads, and the land spring months to allow arroyo toad on which such structures are located. I 1. The authority citation for part 17 larvae to hatch, mature, and continues to read as follows: metamorphose. (4) Index maps of arroyo toad critical habitat. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (ii) Low-gradient stream segments 1531–1544; 16 U.S.C. 4201–4205; Pub. L. 99– (typically less than 6 percent) with (i) Note: Map 1 (index map) follows: 625, 100 Stat. 3500; unless otherwise noted. sandy or fine gravel substrates that BILLING CODE 4310–55–P

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(ii) Map 2 (index map) follows:

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BILLING CODE 4310–55–C (5) Unit 2; Sisquoc River, Santa (i) From USGS 1:24,000 scale Barbara County, California. quadrangles Foxen Canyon, Zaca Lake,

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Bald Mountain and Hurricane Deck. 767900, 3860300; 767900, 3860400; 3859800; 232300, 3859700; 232400, Land bounded by the following UTM 768000, 3860400; 768000, 3860500; 3859700; 232400, 3859600; 232500, Zone 10, NAD 27 coordinates (E, N): 768100, 3860500; 768100, 3860400; 3859600; 232500, 3859400; 232600, 754600, 3859000; 754600, 3859600; 768300, 3860400; 768300, 3860500; 3859400; 232600, 3859200; 232700, 754700, 3859600; 754700, 3859700; 768399, 3860500; 768400, 3860500; 3859200; 232700, 3858900; 232900, 754800, 3859700; 754800, 3859800; 768400, 3860600; 768800, 3860600; 3858900; 232900, 3858700; 233000, 754900, 3859800; 754900, 3859900; 768800, 3860500; 768900, 3860500; 3858700; 233000, 3858800; 233100, 755000, 3859900; 755000, 3860000; 768900, 3860400; 769000, 3860400; 3858800; 233100, 3858700; 233600, 755100, 3860000; 755100, 3860100; 769000, 3860200; 769200, 3860200; 3858700; 233600, 3858800; 234000, 755300, 3860100; 755300, 3860200; 769200, 3860300; 769300, 3860300; 3858800; 234000, 3858600; 234200, 756200, 3860200; 756200, 3860300; 769300, 3860200; 769400, 3860200; 3858600; 234200, 3858500; 234300, 756500, 3860300; 756500, 3860200; 769400, 3860000; 769500, 3860000; 3858500; 234300, 3858200; 234400, 756600, 3860200; 756600, 3859700; 769500, 3860100; 769800, 3860100; 3858200; 234400, 3858300; 234600, 756400, 3859700; 756400, 3859600; 769800, 3860200; 770000, 3860200; 3858300; 234600, 3858400; 235000, 756700, 3859600; 756700, 3859700; 770000, 3860100; 770200, 3860100; 3858400; 235000, 3858300; 235100, 757400, 3859700; 757400, 3859600; 770200, 3860000; 770300, 3860000; 3858300; 235100, 3858200; 235200, 757600, 3859600; 757600, 3859500; 770300, 3860100; 770500, 3860100; 3858200; 235200, 3858100; 235300, 757700, 3859500; 757700, 3859400; 770500, 3860000; 770700, 3860000; 3858100; 235300, 3858000; 235600, 757800, 3859400; 757800, 3859200; 770700, 3859900; 770900, 3859900; 3858000; 235600, 3857900; 235800, 757900, 3859200; 757900, 3859100; 770900, 3859800; 771400, 3859800; 3857900; 235800, 3858000; 236400, 758100, 3859100; 758100, 3858900; 771400, 3859700; 771700, 3859700; 3858000; 236400, 3857600; 236900, 758200, 3858900; 758200, 3858800; 771700, 3859600; 771800, 3859600; 3857600; 236900, 3857500; 237100, 758300, 3858800; 758300, 3858700; 771800, 3859500; 771900, 3859500; 3857500; 237100, 3857600; 237200, 758500, 3858700; 758500, 3858600; 771900, 3859400; 772100, 3859400; 3857600; 237200, 3857700; 237400, 758600, 3858600; 758600, 3858700; 772100, 3859300; 772200, 3859300; 3857700; 237400, 3857300; 237300, 758800, 3858700; 758800, 3859100; 772200, 3858900; 772400, 3858900; 3857300; 237300, 3857100; 236900, 758900, 3859100; 758900, 3859200; 772400, 3859000; 772500, 3859000; 3857100; 236900, 3857200; 236700, 759600, 3859200; 759600, 3859100; 772500, 3858900; 772800, 3858900; 3857200; 236700, 3857300; 236000, 759700, 3859100; 759700, 3859000; 772800, 3859000; 772900, 3859000; 3857300; 236000, 3857500; 235900, 759900, 3859000; 759900, 3858800; 772900, 3858700; 773200, 3858700; 3857500; 235900, 3857400; 235800, 760000, 3858800; 760000, 3858700; 773200, 3858600; 773500, 3858600; 3857400; 235800, 3857500; 235700, 759900, 3858700; 759900, 3858600; 773500, 3858500; 773900, 3858500; 3857500; 235700, 3857600; 235300, 760000, 3858600; 760000, 3858500; 773900, 3858400; 774100, 3858400; 3857600; 235300, 3857700; 235100, 760200, 3858500; 760200, 3858400; 774100, 3858100; 774200, 3858100; 3857700; 235100, 3857800; 235000, 760300, 3858400; 760300, 3858300; 774200, 3858000; thence east to the 3857800; 235000, 3857900; 234600, 760600, 3858300; 760600, 3858400; meridian of longitude at 120 degrees at 3857900; 234600, 3857700; 234200, 760900, 3858400; 760900, 3858200; y-coordinate 3858000; thence from the 3857700; 234200, 3857900; 234100, 761000, 3858200; 761000, 3858000; meridian of longitude at 120 degrees at 3857900; 234100, 3858000; 234000, 761400, 3858000; 761400, 3858100; UTM zone 11, NAD 27 y-coordinate 3858000; 234000, 3858100; 233900, 761600, 3858100; 761600, 3858200; 3858000, east and following UTM zone 3858100; 233900, 3858300; 233600, 761700, 3858200; 761700, 3858300; 11, NAD 27 coordinates 226200, 3858300; 233600, 3858200; 233500, 761800, 3858300; 761800, 3858600; 3858000; 226200, 3857900; 226400, 3858200; 233500, 3858100; 233200, 762000, 3858600; 762000, 3858700; 3857900; 226400, 3858000; 226600, 3858100; 233200, 3858200; 232700, 762300, 3858700; 762300, 3858800; 3858000; 226600, 3857900; 227100, 3858200; 232700, 3858300; 232600, 762400, 3858800; 762400, 3858700; 3857900; 227100, 3857800; 227700, 3858300; 232600, 3858400; 232500, 762500, 3858700; 762500, 3858800; 3857800; 227700, 3857900; 228000, 3858400; 232500, 3858700; 232400, 762900, 3858800; 762900, 3858700; 3857900; 228000, 3858000; 228200, 3858700; 232400, 3859200; 232300, 763600, 3858700; 763600, 3858600; 3858000; 228200, 3858100; 228500, 3859200; 232300, 3859300; 232200, 763800, 3858600; 763800, 3858500; 3858100; 228500, 3858000; 228700, 3859300; 232200, 3859400; 232000, 763900, 3858500; 763900, 3858300; 3858000; 228700, 3857800; 228800, 3859400; 232000, 3859600; 231700, 764700, 3858300; 764700, 3858400; 3857800; 228800, 3857900; 229200, 3859600; 231700, 3859500; 231600, 765100, 3858400; 765100, 3858500; 3857900; 229200, 3858000; 229500, 3859500; 231600, 3859400; 231100, 765200, 3858500; 765200, 3858600; 3858000; 229500, 3858100; 230000, 3859400; 231100, 3859200; 231000, 765300, 3858600; 765300, 3858700; 3858100; 230000, 3858200; 230100, 3859200; 231000, 3859100; 231100, 765400, 3858700; 765400, 3858800; 3858200; 230100, 3858300; 230300, 3859100; 231100, 3858800; 231000, 765600, 3858800; 765600, 3859000; 3858300; 230300, 3858600; 230400, 3858800; 231000, 3858700; 230900, 765700, 3859000; 765700, 3859100; 3858600; 230400, 3858700; 230500, 3858700; 230900, 3858500; 230800, 765800, 3859100; 765800, 3859200; 3858700; 230500, 3858800; 230600, 3858500; 230800, 3858400; 230900, 766000, 3859200; 766000, 3859300; 3858800; 230600, 3859400; 230800, 3858400; 230900, 3858100; 230800, 766100, 3859300; 766100, 3859400; 3859400; 230800, 3859700; 230900, 3858100; 230800, 3858000; 230700, 766200, 3859400; 766200, 3859500; 3859700; 230900, 3859800; 231200, 3858000; 230700, 3857900; 230300, 766600, 3859500; 766600, 3859600; 3859800; 231200, 3859700; 231300, 3857900; 230300, 3857700; 229800, 766700, 3859600; 766700, 3859700; 3859700; 231300, 3859800; 231600, 3857700; 229800, 3857800; 229700, 767000, 3859700; 767000, 3859800; 3859800; 231600, 3859900; 231700, 3857800; 229700, 3857700; 229500, 767300, 3859800; 767300, 3859900; 3859900; 231700, 3860000; 231800, 3857700; 229500, 3857600; 229400, 767700, 3859900; 767700, 3860000; 3860000; 231800, 3860100; 232100, 3857600; 229400, 3857500; 228500, 767900, 3860000; 767900, 3860200; 3860100; 232100, 3860000; 232200, 3857500; 228500, 3857600; 228200, 767800, 3860200; 767800, 3860300; 3860000; 232200, 3859800; 232300, 3857600; 228200, 3857500; 228100,

VerDate jul<14>2003 16:23 Apr 12, 2005 Jkt 205001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 19620 Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Rules and Regulations

3857500; 228100, 3857400; 228000, 769100, 3859500; 769100, 3859700; 760700, 3857600; 760700, 3857900; 3857400; 228000, 3857300; 227300, 769000, 3859700; 769000, 3859800; 760300, 3857900; 760300, 3858000; 3857300; 227300, 3857400; 226600, 768800, 3859800; 768800, 3860000; 760100, 3858000; 760100, 3858100; 3857400; 226600, 3857500; 226400, 768500, 3860000; 768500, 3860100; 759900, 3858100; 759900, 3858200; 3857500; 226400, 3857400; 226300, 768400, 3860100; 768400, 3860000; 759800, 3858200; 759800, 3858300; 3857400; 226300, 3857300; 226200, 768300, 3860000; 768300, 3859600; 759700, 3858300; 759700, 3858500; 3857300; 226200, 3857200; 225900, 768200, 3859600; 768200, 3859500; 759500, 3858500; 759500, 3858600; 3857200; 225900, 3857600; thence west 767400, 3859500; 767400, 3859400; 759300, 3858600; 759300, 3858700; to the meridian of longitude at 120 767300, 3859400; 767300, 3859500; 759200, 3858700; 759200, 3858600; degrees at y-coordinate 3857600; thence 767200, 3859500; 767200, 3859400; 759100, 3858600; 759100, 3858500; from the meridian of longitude at 120 767000, 3859400; 767000, 3859300; 759000, 3858500; 759000, 3858200; degrees at UTM zone 10, NAD 27 y- 766800, 3859300; 766800, 3859200; 758900, 3858200; 758900, 3858000; coordinate 3857600, west and following 766500, 3859200; 766500, 3859100; 758700, 3858000; 758700, 3857900; UTM zone 10, NAD 27 coordinates 766400, 3859100; 766400, 3859000; 758500, 3857900; 758500, 3858000; 773900, 3857600; 773900, 3857700; 766100, 3859000; 766100, 3858900; 758400, 3858000; 758400, 3857900; 773800, 3857700; 773800, 3857900; 766000, 3858900; 766000, 3858800; 758200, 3857900; 758200, 3858000; 773700, 3857900; 773700, 3858000; 765900, 3858800; 765900, 3858500; 757900, 3858000; 757900, 3858100; 773600, 3858000; 773600, 3858100; 765700, 3858500; 765700, 3858400; 757800, 3858100; 757800, 3858200; 773100, 3858100; 773100, 3858200; 765800, 3858400; 765800, 3858200; 757700, 3858200; 757700, 3858300; 772800, 3858200; 772800, 3858400; 765700, 3858200; 765700, 3858100; 757500, 3858300; 757500, 3858400; 772500, 3858400; 772500, 3858500; 764800, 3858100; 764800, 3858000; 757400, 3858400; 757400, 3858500; 772100, 3858500; 772100, 3858600; 763900, 3858000; 763900, 3857900; 757300, 3858500; 757300, 3858600; 771900, 3858600; 771900, 3858900; 763600, 3857900; 763600, 3858200; 757200, 3858600; 757200, 3858700; 771800, 3858900; 771800, 3859000; 763500, 3858200; 763500, 3858300; 757000, 3858700; 757000, 3858600; 771700, 3859000; 771700, 3859100; 763300, 3858300; 763300, 3858400; 756600, 3858600; 756600, 3858700; 771600, 3859100; 771600, 3859200; 762800, 3858400; 762800, 3858200; 771100, 3859200; 771100, 3859300; 762700, 3858200; 762700, 3858100; 756400, 3858700; 756400, 3858800; 770600, 3859300; 770600, 3859400; 762200, 3858100; 762200, 3858000; 756300, 3858800; 756300, 3858900; 770500, 3859400; 770500, 3859500; 762100, 3858000; 762100, 3857900; 756200, 3858900; 756200, 3859000; 770000, 3859500; 770000, 3859600; 762000, 3857900; 762000, 3857800; 756100, 3859000; 756100, 3859100; 769800, 3859600; 769800, 3859700; 761900, 3857800; 761900, 3857900; 755800, 3859100; 755800, 3859200; 769600, 3859700; 769600, 3859600; 761800, 3857900; 761800, 3857700; 755200, 3859200; 755200, 3859100; 769500, 3859600; 769500, 3859500; 761600, 3857700; 761600, 3857600; 755100, 3859100; 755100, 3859000; 769400, 3859500; 769400, 3859400; 761500, 3857600; 761500, 3857700; returning to754600, 3859000. 769200, 3859400; 769200, 3859500; 761400, 3857700; 761400, 3857600; (ii) Note: Map of Unit 2 follows.

VerDate jul<14>2003 16:23 Apr 12, 2005 Jkt 205001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Rules and Regulations 19621

(6) Unit 4; Sespe Creek, Ventura (i) From USGS 1:24,000 scale Canyon, Topatopa Mountains, and County, California. quadrangles Wheeler Springs, Lion Devils Heart Peak. Land bounded by the

VerDate jul<14>2003 16:23 Apr 12, 2005 Jkt 205001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 ER13AP05.002 19622 Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Rules and Regulations

following UTM zone 11, NAD 27 311100, 3826400; 311000, 3826400; 294700, 3825400; 294600, 3825400; coordinates (E, N): 318600, 3828000; 311000, 3826200; 310900, 3826200; 294600, 3825500; 294400, 3825500; 318600, 3827800; 318800, 3827800; 310900, 3826100; 310800, 3826100; 294400, 3825600; 294100, 3825600; 318800, 3827700; 318900, 3827700; 310800, 3825900; 310700, 3825900; 294100, 3825800; 294000, 3825800; 318900, 3827400; 319100, 3827400; 310700, 3825800; 310500, 3825800; 294000, 3825900; 293900, 3825900; 319100, 3827700; 319200, 3827700; 310500, 3825500; 310100, 3825500; 293900, 3826000; 293800, 3826000; 319200, 3827800; 319500, 3827800; 310100, 3825400; 310000, 3825400; 293800, 3825900; 293000, 3825900; 319500, 3827700; 319600, 3827700; 310000, 3825500; 309500, 3825500; 293000, 3825800; 292000, 3825800; 319600, 3827500; 319700, 3827500; 309500, 3825400; 309300, 3825400; 292000, 3826000; 291800, 3826000; 319700, 3827300; 319800, 3827300; 309300, 3825500; 309100, 3825500; 291800, 3826200; 291600, 3826200; 319800, 3827400; 319900, 3827400; 309100, 3825900; 309000, 3825900; 291600, 3826300; 291500, 3826300; 319900, 3827300; 320000, 3827300; 309000, 3826000; 308200, 3826000; 291500, 3826500; 291800, 3826500; 320000, 3826900; 320100, 3826900; 308200, 3825900; 307900, 3825900; 291800, 3826400; 291900, 3826400; 320100, 3826800; 320400, 3826800; 307900, 3826000; 307600, 3826000; 291900, 3826500; 292200, 3826500; 320400, 3826700; 320500, 3826700; 307600, 3826100; 307500, 3826100; 292200, 3826600; 292100, 3826600; 320500, 3826500; 320900, 3826500; 307500, 3826000; 307400, 3826000; 292100, 3826700; 292000, 3826700; 320900, 3826300; 321000, 3826300; 307400, 3825900; 307200, 3825900; 292000, 3827000; 292100, 3827000; 321000, 3826100; 320900, 3826100; 307200, 3825800; 307100, 3825800; 292100, 3827100; 292200, 3827100; 320900, 3826000; 320700, 3826000; 307100, 3825700; 306800, 3825700; 292200, 3827200; 292400, 3827200; 320700, 3826200; 320600, 3826200; 306800, 3825800; 306300, 3825800; 292800, 3827200; 292800, 3827100; 320600, 3826300; 320400, 3826300; 306300, 3825700; 305300, 3825700; 292700, 3827100; 292700, 3826900; 320400, 3826400; 320300, 3826400; 305300, 3825800; 305000, 3825800; 292600, 3826900; 292600, 3826700; 320300, 3826500; 320200, 3826500; 305000, 3825900; 304800, 3825900; 292700, 3826700; 292700, 3826600; 320200, 3826600; 319900, 3826600; 304800, 3826000; 304700, 3826000; 292600, 3826600; 292600, 3826400; 319900, 3826700; 319800, 3826700; 304700, 3826100; 304600, 3826100; 292500, 3826400; 292500, 3826300; 319800, 3826900; 319700, 3826900; 304600, 3826200; 304500, 3826200; 292400, 3826300; 292400, 3826200; 319700, 3827000; 319400, 3827000; 304500, 3825800; 304400, 3825800; 292700, 3826200; 292700, 3826300; 319400, 3827300; 319300, 3827300; 304400, 3825700; 304300, 3825700; 292900, 3826300; 292900, 3826400; 319300, 3827100; 319200, 3827100; 304300, 3825600; 304100, 3825600; 293000, 3826400; 293000, 3826500; 319200, 3827000; 318800, 3827000; 304100, 3825500; 304000, 3825500; 293400, 3826500; 293400, 3826600; 318800, 3827200; 318700, 3827200; 304000, 3825600; 303600, 3825600; 293600, 3826600; 293600, 3826700; 318700, 3827400; 318500, 3827400; 303600, 3825700; 303500, 3825700; 293900, 3826700; 293900, 3826500; 318500, 3827600; 318300, 3827600; 303500, 3825800; 303100, 3825800; 294100, 3826500; 294100, 3826400; 318300, 3827700; 318200, 3827700; 303100, 3825700; 302500, 3825700; 294300, 3826400; 294300, 3826500; 318200, 3827600; 318100, 3827600; 302500, 3825800; 302300, 3825800; 294800, 3826500; 294800, 3826400; 318100, 3827400; 318000, 3827400; 302300, 3825900; 301800, 3825900; 294700, 3826400; 294700, 3826300; 318000, 3827300; 317500, 3827300; 301800, 3826000; 301700, 3826000; 294600, 3826300; 294600, 3826200; 317500, 3827400; 317400, 3827400; 301700, 3825900; 301500, 3825900; 294500, 3826200; 294500, 3826100; 317400, 3827500; 317100, 3827500; 301500, 3826100; 301200, 3826100; 294600, 3826100; 294600, 3826000; 317100, 3827400; 317000, 3827400; 301200, 3826200; 301100, 3826200; 294700, 3826000; 294700, 3825900; 317000, 3826900; 316800, 3826900; 301100, 3826100; 300700, 3826100; 294800, 3825900; 294800, 3825800; 316800, 3826800; 316400, 3826800; 300700, 3826000; 300400, 3826000; 295000, 3825800; 295000, 3825900; 316400, 3826900; 316200, 3826900; 300400, 3825900; 300100, 3825900; 295300, 3825900; 295300, 3826100; 316200, 3827000; 316000, 3827000; 300100, 3825800; 300000, 3825800; 295200, 3826100; 295200, 3826300; 316000, 3827100; 315800, 3827100; 300000, 3825700; 299800, 3825700; 295300, 3826300; 295300, 3826400; 315800, 3827200; 315700, 3827200; 299800, 3825600; 299600, 3825600; 295400, 3826400; 295400, 3826300; 315700, 3827300; 315500, 3827300; 299600, 3825700; 299500, 3825700; 295700, 3826300; 295700, 3826400; 315500, 3827200; 315400, 3827200; 299500, 3825800; 298500, 3825800; 296000, 3826400; 296000, 3826200; 315400, 3827100; 315300, 3827100; 298500, 3825700; 298300, 3825700; 296300, 3826200; 296300, 3826100; 315300, 3827000; 314500, 3827000; 298300, 3825600; 297600, 3825600; 296400, 3826100; 296400, 3826000; 314500, 3826900; 314400, 3826900; 297600, 3825500; 297500, 3825500; 296500, 3826000; 296500, 3825900; 314400, 3826800; 314200, 3826800; 297500, 3825300; 297300, 3825300; 296600, 3825900; 296600, 3825800; 314200, 3826900; 314100, 3826900; 297300, 3825600; 297200, 3825600; 296700, 3825800; 296700, 3825600; 314100, 3826800; 313900, 3826800; 297200, 3825700; 297100, 3825700; 296800, 3825600; 296800, 3825900; 313900, 3826900; 313600, 3826900; 297100, 3825500; 297000, 3825500; 296900, 3825900; 296900, 3826000; 313600, 3826800; 313100, 3826800; 297000, 3825400; 296900, 3825400; 297000, 3826000; 297000, 3826100; 313100, 3827000; 313000, 3827000; 296900, 3825300; 296700, 3825300; 297300, 3826100; 297300, 3826000; 313000, 3827200; 312800, 3827200; 296700, 3825400; 296600, 3825400; 297600, 3826000; 297600, 3826100; 312800, 3827300; 312400, 3827300; 296600, 3825500; 296400, 3825500; 297800, 3826100; 297800, 3826000; 312400, 3827200; 312500, 3827200; 296400, 3825600; 296300, 3825600; 297900, 3826000; 297900, 3825900; 312500, 3826900; 312600, 3826900; 296300, 3825700; 296200, 3825700; 298000, 3825900; 298000, 3826100; 312600, 3826400; 312000, 3826400; 296200, 3825800; 295900, 3825800; 298100, 3826100; 298100, 3826200; 312000, 3826500; 311900, 3826500; 295900, 3825700; 295800, 3825700; 298400, 3826200; 298400, 3826300; 311900, 3826400; 311800, 3826400; 295800, 3825600; 295400, 3825600; 298500, 3826300; 298500, 3826400; 311800, 3826200; 311600, 3826200; 295400, 3825500; 295200, 3825500; 298700, 3826400; 298700, 3826500; 311600, 3826300; 311300, 3826300; 295200, 3825400; 295100, 3825400; 298900, 3826500; 298900, 3826400; 311300, 3826600; 311200, 3826600; 295100, 3825200; 294900, 3825200; 299000, 3826400; 299000, 3826300; 311200, 3826500; 311100, 3826500; 294900, 3825300; 294700, 3825300; 299600, 3826300; 299600, 3826200;

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299700, 3826200; 299700, 3826000; 306500, 3826200; 306500, 3826300; 312000, 3827500; 312100, 3827500; 299800, 3826000; 299800, 3826100; 306900, 3826300; 306900, 3826200; 312100, 3827600; 312500, 3827600; 299900, 3826100; 299900, 3826300; 307100, 3826200; 307100, 3826300; 312500, 3827700; 312600, 3827700; 300000, 3826300; 300000, 3826400; 307200, 3826300; 307200, 3826400; 312600, 3827600; 313000, 3827600; 300100, 3826400; 300100, 3826500; 307500, 3826400; 307500, 3826500; 313000, 3827500; 313200, 3827500; 300200, 3826500; 300200, 3826600; 307800, 3826500; 307800, 3826400; 313200, 3827400; 313300, 3827400; 300500, 3826600; 300500, 3826500; 307900, 3826400; 307900, 3826300; 313300, 3827300; 315100, 3827300; 300900, 3826500; 300900, 3826600; 308000, 3826300; 308000, 3826200; 315100, 3827400; 315200, 3827400; 301700, 3826600; 301700, 3826500; 308200, 3826200; 308200, 3826300; 315200, 3827700; 315400, 3827700; 301900, 3826500; 301900, 3826400; 308300, 3826300; 308300, 3826500; 315400, 3827800; 315500, 3827800; 302000, 3826400; 302000, 3826200; 308600, 3826500; 308600, 3826400; 315500, 3827700; 316000, 3827700; 302400, 3826200; 302400, 3826400; 309000, 3826400; 309000, 3826300; 316000, 3827600; 316100, 3827600; 302700, 3826400; 302700, 3826100; 309300, 3826300; 309300, 3826200; 316100, 3827400; 316300, 3827400; 303000, 3826100; 303000, 3826200; 309400, 3826200; 309400, 3825800; 316300, 3827300; 316400, 3827300; 303100, 3826200; 303100, 3826300; 309900, 3825800; 309900, 3825900; 316400, 3827100; 316700, 3827100; 303600, 3826300; 303600, 3826100; 309800, 3825900; 309800, 3826000; 316700, 3827600; 316800, 3827600; 303800, 3826100; 303800, 3826000; 310100, 3826000; 310100, 3825900; 316800, 3827700; 316900, 3827700; 304000, 3826000; 304000, 3826100; 310200, 3825900; 310200, 3826100; 316900, 3827900; 317000, 3827900; 304100, 3826100; 304100, 3826200; 310300, 3826100; 310300, 3826200; 317000, 3828000; 317500, 3828000; 304200, 3826200; 304200, 3826500; 310600, 3826200; 310600, 3826400; 317500, 3827900; 317600, 3827900; 304300, 3826500; 304300, 3826600; 310700, 3826400; 310700, 3826600; 317600, 3827800; 317800, 3827800; 304800, 3826600; 304800, 3826500; 310800, 3826600; 310800, 3826700; 317800, 3827900; 317900, 3827900; 304900, 3826500; 304900, 3826400; 310800, 3826800; 311100, 3826800; 317900, 3828000; returning to 318600, 305100, 3826400; 305100, 3826300; 311100, 3826900; 311600, 3826900; 3828000; excluding land bounded by 305300, 3826300; 305300, 3826200; 311600, 3827000; 311900, 3827000; 293600, 3826200; 293600, 3826300; 305500, 3826200; 305500, 3826300; 311900, 3826900; 312000, 3826900; 293400, 3826300; 293400, 3826200; 305700, 3826300; 305700, 3826200; 312000, 3826800; 312200, 3826800; 293600, 3826200. 306000, 3826200; 306000, 3826100; 312200, 3826900; 312100, 3826900; (ii) Note: Map of Unit 4 follows. 306200, 3826100; 306200, 3826200; 312100, 3827100; 312000, 3827100; BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(7) Unit 9; San Jacinto River Basin/ 514200, 3727200; thence north to the 3722100; 517500, 3722100; 517500, Bautista Creek, Riverside County, CNF boundary at x-coordinate 514200; 3722300; 517200, 3722300; 517200, California. thence east and south along the CNF 3722400; 517100, 3722400; 517100, (i) From USGS 1:24,000 scale boundary to y-coordinate 3726300; 3722800; 517000, 3722800; 517000, quadrangle Blackburn Canyon. Land thence west and following coordinates 3722900; 516900, 3722900; 516900, bounded by the following UTM zone 11, 514800, 3726300; 514800, 3726400; 3723000; 516800, 3723000; 516800, NAD27 coordinates (E, N): 515200, returning to 514700, 3726400. 3723500; 516500, 3723500; 516500, 3733300; thence east to the Cleveland (v) Land bounded by the following 3723700; 516600, 3723700; 516600, National Forest (CNF) boundary at y- UTM zone 11, NAD27 coordinates (E, 3723900; 516500, 3723900; 516500, coordinate 3733300; thence south, west, N): 515800, 3725000; 515900, 3725000; 3724100; 516300, 3724100; 516300, and north along the CNF boundary, 515900, 3724900; 516200, 3724900; 3724200; 515900, 3724200; 515900, passing y-coordinate 3733300, to x- 516200, 3724700; 516300, 3724700; 3724500; 515800, 3724500; 515800, coordinate 515200; returning to 515200, 516300, 3724500; 516600, 3724500; 3724600; 515600, 3724600; 515600, 3733300. 516600, 3724400; 516800, 3724400; 3724700; 515500, 3724700; 515500, (ii) Land bounded by the following 516800, 3724200; 516900, 3724200; 3725400; 515400, 3725400; thence north UTM zone 11, NAD27 coordinates (E, 516900, 3724100; 517000, 3724100; to the CNF boundary at x-coordinate N): 517000, 3732900; thence south to 517000, 3723800; 517200, 3723800; 515400; thence east along the CNF the CNF boundary at x-coordinate 517200, 3723400; 517300, 3723400; boundary to x-coordinate 515800; 517000; thence west and north along the thence south to the CNF boundary at x- returning to 515800, 3725000. Land CNF boundary to y-coordinate 3732900; coordinate 517300; thence west and bounded by the following UTM zone 11, returning to 517000, 3732900. southeast along the CNF boundary, NAD27 coordinates (E, N): 518000, (iii) Land bounded by the following passing x-coordinate 518500, to y- 3723100; 518000, 3723000; 518100, UTM zone 11, NAD27 coordinates (E, coordinate 518800; thence east 3723000; 518100, 3722900; 518300, N): 516700, 3732300; 516700, 3732400; following coordinates 3721900; 518800, 3722900; 518300, 3722700; 518200, thence west to the CNF boundary at y- 3722000; 518900, 3722000; 518900, 3722700; 518200, 3722600; 518300, coordinate 3732400; thence north and 3722100; 519000, 3722100; 519000, 3722600; 518300, 3722500; 518400, southeast along the CNF boundary to y- 3721900; 519100, 3721900; 519100, 3722500; 518400, 3722400; 518500, coordinate 3732300; returning to 3721700; 519000, 3721700; 519000, 3722400; 518500, 3722300; 518600, 516700, 3732300. 3721500; 518900, 3721500; 518900, 3722300; 518600, 3722100; 518700, (iv) Land bounded by the following 3721400; 518300, 3721400; 518300, 3722100; thence south to the CNF UTM zone 11, NAD27 coordinates (E, 3721500; 518200, 3721500; 518200, boundary at x-coordinate 518700; N): 514700, 3726400; 514700, 3726700; 3721600; 518100, 3721600; 518100, thence northwest along the CNF 514600, 3726700; 514600, 3726800; 3721700; 517900, 3721700; 517900, boundary to y-coordinate 3723100; 514500, 3726800; 514500, 3727100; 3721900; 517700, 3721900; 517700, returning to 518000, 3723100. 514400, 3727100; 514400, 3727200; 3722000; 517600, 3722000; 517600, (vi)Note: Map of Unit 9 follows.

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(8) Unit 20; Upper Santa Ana River 458800, 3789900; 458800, 3789800; 459400, 3788100; 459400, 3788200; Basin/Cajon Wash, San Bernardino 458900, 3789800; 458900, 3789700; 459300, 3788200; 459300, 3788300; County, California. 459000, 3789700; 459000, 3789600; 459200, 3788300; 459200, 3788500; (i) From USGS 1:24,000 scale 459100, 3789600; 459100, 3789400; 459100, 3788500; 459100, 3788700; quadrangle Cajon. Land bounded by the 459400, 3789400; 459400, 3789300; 458900, 3788700; 458900, 3788900; following UTM zone 11, NAD27 459500, 3789300; 459500, 3789200; 458700, 3788900; 458700, 3789000; coordinates (E, N): 457100, 3792000; 459600, 3789200; 459600, 3789000; 458500, 3789000; 458500, 3789100; 457300, 3792000; 457300, 3791900; 459700, 3789000; 459700, 3788900; 458300, 3789100; 458300, 3789300; 457400, 3791900; 457400, 3792000; 459800, 3788900; 459800, 3788800; 458100, 3789300; 458100, 3789400; 457500, 3792000; 457500, 3791900; 459900, 3788800; 459900, 3788700; 458000, 3789400; 458000, 3789500; 457600, 3791900; 457600, 3792000; 460000, 3788700; 460000, 3788600; 457900, 3789500; 457900, 3789600; 457700, 3792000; 457700, 3791900; 460100, 3788600; 460100, 3788500; 457800, 3789600; 457800, 3789700; 457800, 3791900; 457800, 3791800; 460400, 3788500; 460400, 3788400; 457700, 3789700; 457700, 3789800; 457900, 3791800; 457900, 3791700; 460600, 3788400; 460600, 3788300; 457600, 3789800; 457600, 3789700; 458000, 3791700; 458000, 3791500; 460700, 3788300; 460700, 3788200; 457500, 3789700; 457500, 3789800; 457900, 3791500; 457900, 3791400; 460800, 3788200; 460800, 3788100; 457300, 3789800; 457300, 3789900; 457400, 3791400; 457400, 3791300; 460900, 3788100; 460900, 3787400; 457000, 3789900; 457000, 3790100; 457200, 3791300; 457200, 3791000; 460800, 3787400; 460800, 3787200; 456900, 3790100; 456900, 3790200; 457100, 3791000; 457100, 3790800; 460500, 3787200; 460500, 3787300; 456800, 3790200; 456800, 3790500; 457200, 3790800; 457200, 3790600; 460400, 3787300; 460400, 3787400; 456700, 3790500; 456700, 3791000; 457300, 3790600; 457300, 3790500; 460300, 3787400; 460300, 3787500; 456600, 3791000; 456600, 3791200; 457400, 3790500; 457400, 3790400; 460200, 3787500; 460200, 3787600; 456700, 3791200; 456700, 3791300; 457500, 3790400; 457500, 3790300; 460100, 3787600; 460100, 3787700; 456800, 3791300; 456800, 3791400; 458000, 3790300; 458000, 3790200; 460000, 3787700; 460000, 3787800; 456900, 3791400; 456900, 3791500; 458300, 3790200; 458300, 3790100; 459800, 3787800; 459800, 3787900; 457100, 3791500; returning to 457100, 458600, 3790100; 458600, 3790000; 459700, 3787900; 459700, 3788000; 3792000. 458700, 3790000; 458700, 3789900; 459600, 3788000; 459600, 3788100; (ii) Note: Map of Unit 20 follows.

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(9) Unit 21; Little Rock Creek Basin, (i) From USGS 1:24,000 scale Mountain. Land bounded by the Los Angeles County, California. quadrangles Juniper Hills and Pacifico following UTM zone 11, NAD27

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coordinates (E, N): 406300, 3814500; 409300, 3809700; 409300, 3809800; 406100, 3813900; 406100, 3813800; 406500, 3814500; 406500, 3814100; 409200, 3809800; 409200, 3810000; 406000, 3813800; 406000, 3813700; 406600, 3814100; 406600, 3813600; 409100, 3810000; 409100, 3810100; 405900, 3813700; 405900, 3813600; 406800, 3813600; 406800, 3813400; 409000, 3810100; 409000, 3810300; 405700, 3813600; 405700, 3813500; 406700, 3813400; 406700, 3813300; 408900, 3810300; 408900, 3810400; 405600, 3813500; 405600, 3813400; 406800, 3813300; 406800, 3812700; 408800, 3810400; 408800, 3810500; 405500, 3813400; 405500, 3813300; 406900, 3812700; 406900, 3812300; 408600, 3810500; 408600, 3810600; 405400, 3813300; 405400, 3813100; 407000, 3812300; 407000, 3812200; 408200, 3810600; 408200, 3810800; 405200, 3813100; 405200, 3813000; 407200, 3812200; 407200, 3811900; 407900, 3810800; 407900, 3810900; 405000, 3813000; 405000, 3812900; 407300, 3811900; 407300, 3811800; 407700, 3810900; 407700, 3811000; 404800, 3812900; 404800, 3813100; 407400, 3811800; 407400, 3811700; 407600, 3811000; 407600, 3811100; 404900, 3813100; 404900, 3813300; 407500, 3811700; 407500, 3811600; 407500, 3811100; 407500, 3811200; 407600, 3811600; 407600, 3811400; 407400, 3811200; 407400, 3811300; 405000, 3813300; 405000, 3813400; 407800, 3811400; 407800, 3811200; 407300, 3811300; 407300, 3811400; 405100, 3813400; 405100, 3813500; 408200, 3811200; 408200, 3811100; 407100, 3811400; 407100, 3811500; 405200, 3813500; 405200, 3813600; 408500, 3811100; 408500, 3811000; 407000, 3811500; 407000, 3811600; 405400, 3813600; 405400, 3813700; 408700, 3811000; 408700, 3810900; 406900, 3811600; 406900, 3811700; 405500, 3813700; 405500, 3813800; 409000, 3810900; 409000, 3810800; 406800, 3811700; 406800, 3811800; 405600, 3813800; 405600, 3813900; 409100, 3810800; 409100, 3810600; 406700, 3811800; 406700, 3811900; 405800, 3813900; 405800, 3814000; 409200, 3810600; 409200, 3810400; 406600, 3811900; 406600, 3812600; 405900, 3814000; 405900, 3814200; 409300, 3810400; 409300, 3810300; 406500, 3812600; 406500, 3813100; 406000, 3814200; 406000, 3814300; 409400, 3810300; 409400, 3810100; 406400, 3813100; 406400, 3813200; 406100, 3814300; 406100, 3814400; 409500, 3810100; 409500, 3810000; 406300, 3813200; 406300, 3813500; 406300, 3814400; returning to 406300, 409800, 3810000; 409800, 3809900; 406400, 3813500; 406400, 3813800; 3814500. 409900, 3809900; 409900, 3809500; 406300, 3813800; 406300, 3814000; (ii) Note: Map of Unit 21 follows. 409600, 3809500; 409600, 3809700; 406200, 3814000; 406200, 3813900;

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(10) Unit 23; Whitewater River Basin, (i) From USGS 1:24,000 scale by the following UTM zone 11, NAD27 Riverside County, California. quadrangle White Water. Land bounded coordinates (E, N): 532500, 3759600;

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532600, 3759600; 532600, 3759200; 532200, 3757800; 532200, 3758000; 533600, 3755200; 533700, 3755200; 532700, 3759200; 532700, 3758900; 532100, 3758000; thence north to the thence south to the BLM boundary at x- 532800, 3758900; 532800, 3758700; BLM boundary at x-coordinate 532100; coordinate 533700; thence westward 532900, 3758700; 532900, 3758400; thence east and north along the BLM along the BLM boundary to x-coordinate 532800, 3758400; 532800, 3757800; boundary to y-coordinate 3759600; 533000; thence north and following 532900, 3757800; thence south to the returning to 532500, 3759600. coordinates 533000, 3755400; 532900, Bureau of Land Management (BLM) Land bounded by the following UTM 3755400; 532900, 3755600; returning to boundary at x-coordinate 532900; zone 11, NAD27 coordinates (E, N): 532800, 3755600. thence west and south along the BLM 532800, 3755600; thence north to the boundary to y-coordinate 3757400; BLM boundary at x-coordinate 532800; (ii) Note: Unit 23 included on map thence west and following coordinates thence eastward along the BLM with Unit 9. 532400, 3757400; 532400, 3757600; boundary to x-coordinate 533600; BILLING CODE 4310–55–P 532300, 3757600; 532300, 3757800; thence south and following coordinates

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* * * * * Dated: March 31, 2005. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–6824 Filed 4–12–05; 8:45 am] BILLING CODE 4310–55–C

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