Wednesday, April 28, 2004 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Arroyo Toad (Bufo californicus); Proposed Rule VerDate mar<24>2004 17:51 Apr 27, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28APP2.SGM 28APP2 23254 Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Proposed Rules DEPARTMENT OF THE INTERIOR comments by the alternate methods resources. Sidle (1987) stated, ‘‘Because mentioned above. the ESA can protect species with and Fish and Wildlife Service Comments and materials received, as without critical habitat designation, well as supporting documentation used critical habitat designation may be 50 CFR Part 17 in the preparation of this proposed rule, redundant to the other consultation will be available for public inspection, requirements of section 7.’’ RIN 1018–AT42 by appointment, during normal business Currently, only 445 species or 36 Endangered and Threatened Wildlife hours at the Ventura Fish and Wildlife percent of the 1,244 listed species in the and Plants; Proposed Designation of Office at the address given above, or at U.S. under our jurisdiction have Critical Habitat for the Arroyo Toad the Carlsbad Fish and Wildlife Office, designated critical habitat. We address (Bufo californicus) 6010 Hidden Valley Road, Carlsbad, CA the habitat needs of all 1,244 listed (telephone 760/431–9440). species through conservation AGENCY: Fish and Wildlife Service, FOR FURTHER INFORMATION CONTACT: For mechanisms such as listing, section 7 Interior. information about Monterey, San Luis consultations, the section 4 recovery ACTION: Proposed rule. Obispo, Santa Barbara, and Ventura planning process, the section 9 Counties, northern Los Angeles County, protective prohibitions of unauthorized SUMMARY: We, the U.S. Fish and and the desert portion of San take, section 6 funding to the States, and Wildlife Service (Service), propose to Bernardino County, contact Diane Noda, the section 10 incidental take permit designate critical habitat for the Field Supervisor, Ventura Fish and process. We believe that it is these federally endangered arroyo toad (Bufo Wildlife Office, at the address given measures that may make the difference californicus) pursuant to the above (telephone 805/644–1766; between extinction and survival for Endangered Species Act of 1973, as facsimile 805/644–3958). For many species. amended (Act). We propose to designate information about Los Angeles, San a total of approximately 138,713 acres Procedural and Resource Difficulties in Bernardino, Riverside, Orange, and San Designating Critical Habitat (ac) (56,133 hectares (ha)) of critical Diego Counties, contact Jim Bartel, Field habitat in Monterey, Santa Barbara, Supervisor, Carlsbad Fish and Wildlife We have been inundated with Ventura, Los Angeles, San Bernardino, Office, at the address given above lawsuits for our failure to designate Riverside, Orange, and San Diego (telephone 760/431–9440; facsimile critical habitat, and we face a growing Counties, California. 760/431–9624). number of lawsuits challenging critical We hereby solicit data and comments SUPPLEMENTARY INFORMATION: habitat determinations once they are from the public on all aspects of this made. These lawsuits have subjected us proposal, including data on economic Designation of Critical Habitat Provides to an ever-increasing series of court and other impacts of designation. We Little Additional Protection to Species orders and court-approved settlement may revise this proposal prior to final In 30 years of implementing the agreements, compliance with which designation to incorporate or address Endangered Species Act of 1973, as now consumes nearly the entire listing new information received during the amended (Act) (16 U.S.C. 1531 et seq.), program budget. This leaves us with two public comment periods. we have found that the designation of little ability to prioritize our activities to DATES: We will accept comments from statutory critical habitat provides little direct scarce listing resources to the all interested parties until May 28, 2004. additional protection to most listed listing program actions with the most We must receive requests for public species, while consuming significant biologically urgent species conservation hearings, in writing, at the address amounts of available conservation needs. shown in the ADDRESSES section by May resources. Our present system for The consequence of the critical 13, 2004. designating critical habitat has evolved habitat litigation activity is that limited ADDRESSES: If you wish to comment, since its original statutory prescription listing funds are used to defend active you may submit your comments and into a process that provides little real lawsuits, and to comply with the materials concerning this proposal by conservation benefit, is driven by growing number of adverse court orders. any one of these methods: litigation and the courts rather than As a result, our own proposals to list 1. You may submit written comments biology, limits our ability to fully critically imperiled species, and make and information to Diane Noda, Field evaluate the science involved, consumes final listing determinations on existing Supervisor, U.S. Fish and Wildlife enormous agency resources, and proposals, are all significantly delayed. Service, Ventura Fish and Wildlife imposes huge social and economic The accelerated schedules of court- Office, 2493 Portola Road, Suite B, costs. We believe that additional agency ordered designations have left us with Ventura, CA 93003. discretion would allow our focus to almost no ability to provide for adequate 2. You may hand-deliver written return to those actions that provide the public participation or to ensure a comments to our Ventura Office, at the greatest benefit to the species most in defect-free rulemaking process before address given above. need of protection. making decisions on listing and critical 3. You may submit comments by fax habitat proposals due to the risks to our Ventura Office (facsimile 805/ Role of Critical Habitat in Actual associated with noncompliance with 644–3958) or our Carlsbad Office Practice of Administering and judicially-imposed deadlines. This, in (facsimile 760/431–9624). Implementing the Act turn, fosters a second round of litigation 4. You may send comments by While attention to, and protection of, in which those who fear adverse electronic mail (e-mail) to: habitat is paramount to successful impacts from critical habitat [email protected]. Please see the conservation actions, we have designations challenge those Public Comments Solicited section consistently found that, in most designations. The cycle of litigation below for file format and other circumstances, the designation of appears endless, is very expensive, and information about electronic filing. In critical habitat is of little additional in the final analysis, provides relatively the event that our internet connection is value for most listed species, yet it little additional protection to listed not functional, please submit your consumes large amounts of conservation species. VerDate mar<24>2004 17:51 Apr 27, 2004 Jkt 203001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28APP2.SGM 28APP2 Federal Register / Vol. 69, No. 82 / Wednesday, April 28, 2004 / Proposed Rules 23255 The costs resulting from the header and your name and return 650 to 3,280 feet (ft) (200 to 1,000 designation include legal costs, the cost address in the body of your message. If meters (m)) of those streams in coastal of preparation and publication of the you do not receive a confirmation from areas with broad floodplains (Griffin et designation, the analysis of the the system that we have received your al. 1999; Holland and Sisk 2000), and economic effects, and the cost of Internet message, contact us directly by 160 to 650 ft (50 to 200 m) in more requesting and responding to public calling our Ventura Fish and Wildlife mountainous areas away from the coast comment, and in some cases the costs Office at phone number 805/644–1766. (Ramirez 2002a, 2002b, 2002c, 2003). of compliance with the National Please note that the Internet address Arroyo toads typically burrow Environmental Policy Act of 1969—all [email protected] will be closed out underground during periods of are part of the cost of critical habitat at the termination of the public inactivity and thus tend to use upland designation. These costs result in comment period. habitats that have sandy, friable (readily minimal benefit to the species that is Our practice is to make comments, crumbled) soils, but upland sites with not already afforded by the protections including names and home addresses of extremely compact soils can also be of the Act enumerated earlier, and they respondents, available for public review used (D. Holland, in litt. 2000). directly reduce the funds available for during regular business hours. (2) Juvenile arroyo toads remain on or direct and tangible conservation actions. Individual respondents may request that near the saturated substrate at the edges we withhold their home address from Public Comments Solicited of breeding pools from a week to several the rulemaking record, which we will months after metamorphosis (D. We intend that any final action honor to the extent allowable by law. Holland, in litt. 2000). They are active resulting from this proposal will be as There also may be circumstances in during the day and can be exposed on accurate and as effective as possible. which we would withhold from the the barren sand, although they are rather Therefore, comments or suggestions rulemaking record a respondent’s cryptic (i.e., hidden or camouflaged) at from the public, other concerned identity, as allowable by law. If you this time. Crushing of toads by humans, governmental agencies, the scientific wish us to withhold your name and/or livestock, or vehicles can be a community, industry, or any other address, you must state this substantial source of mortality at this interested party concerning this prominently at the beginning of your stage (Service 1999; D.