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 VerDate jul<14>2003 16:23 Apr 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\13APR2.SGM 13APR2 19562 Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Rules and Regulations 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 VerDate jul<14>2003 16:23 Apr 12, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Rules and Regulations 19563 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,